cyril mlotshwa - Academia.edu (original) (raw)

Papers by cyril mlotshwa

The Republic of South Africa has a constitution that is often lauded as among the best in the wor... more The Republic of South Africa has a constitution that is often lauded as among the best in the world. This can be attributed, at least partly, to the fact that at the heart of it lies transformative constitutionalism, which has the objective of addressing the injustices of the past with the entrenchment of fundamental human rights. Last but not least, the Constitutional Court has to give teeth, metaphorically, to all the human rights in the Bill of Rights. The question this project seeks to answer is whether or not the Constitutional Court does a good jobis consistent-in applying the Bill of Rights to the facts of particular cases. The cases examined in this research project demonstrate that there are inconsistencies in the approach that the Constitutional Court adopts in the adjudication of rights. This study, therefore, attempts to explain why these inconsistencies arise, why they are a problem, and to some degree, how they can be avoided. In an effort to satisfy the above research question and aim of this study, this dissertation is divided into five chapters followed by the requisite bibliography. Chapter 1 introduces the project and gives a historical background to the South African Constitutions with a view to putting the current constitutional position in context. As the inconsistencies seem to play themselves out in the adjudication of rights, the focus of Chapter 2 shifts to the concept of transformative constitutionalism in the hopes of shedding light on why there are inconsistencies in the adjudication of rights. Chapter 3 details the theoretical framework within which judicial decision-making takes place, referring specifically to the work of Ronald Dworkin. This chapter is inextricably linked to Chapter 4 which is an examination of actual applications of judicial decision-making. Finally, Chapter 5 concludes the study and offers some suggestions for the way forward. To briefly note, all the authorities that were consulted for the research are acknowledged in the bibliography. 1 CHAPTER 1 South Africa has had five constitutions since 1910. The first was adopted when the British government decided to withdraw, an action that culminated in a situation whereby the South African government had to be invariably in the hands of the minority who happened to be the white residents of South Africa. This move, which resulted in the unification of the four colonies in South Africa, namely, Natal, Cape, Transvaal, and the Orange Free State, kickstarted legal developments in the country. Of particular significance is the legal development that relates to the establishment of a single Supreme Court with powers to hear the appeals emanating from the Lower Courts and featuring in the legal system of South Africa as the Court with the final say in relation to the decisions that would have been taken by the Lower Courts, with the Lower Courts bound by the decision of the Court of Appeal (although until 1950 there was the right of appeal from the Appellate Division to the Judicial Committee of the Privy Council in London). This 1910 Constitution had legal existence until 1961, the year in which South Africa made the decision to leave the Commonwealth with the result that it became a fully-fledged Republic.

The Republic of South Africa has a constitution that is often lauded as among the best in the wor... more The Republic of South Africa has a constitution that is often lauded as among the best in the world. This can be attributed, at least partly, to the fact that at the heart of it lies transformative constitutionalism, which has the objective of addressing the injustices of the past with the entrenchment of fundamental human rights. Last but not least, the Constitutional Court has to give teeth, metaphorically, to all the human rights in the Bill of Rights. The question this project seeks to answer is whether or not the Constitutional Court does a good jobis consistent-in applying the Bill of Rights to the facts of particular cases. The cases examined in this research project demonstrate that there are inconsistencies in the approach that the Constitutional Court adopts in the adjudication of rights. This study, therefore, attempts to explain why these inconsistencies arise, why they are a problem, and to some degree, how they can be avoided. In an effort to satisfy the above research question and aim of this study, this dissertation is divided into five chapters followed by the requisite bibliography. Chapter 1 introduces the project and gives a historical background to the South African Constitutions with a view to putting the current constitutional position in context. As the inconsistencies seem to play themselves out in the adjudication of rights, the focus of Chapter 2 shifts to the concept of transformative constitutionalism in the hopes of shedding light on why there are inconsistencies in the adjudication of rights. Chapter 3 details the theoretical framework within which judicial decision-making takes place, referring specifically to the work of Ronald Dworkin. This chapter is inextricably linked to Chapter 4 which is an examination of actual applications of judicial decision-making. Finally, Chapter 5 concludes the study and offers some suggestions for the way forward. To briefly note, all the authorities that were consulted for the research are acknowledged in the bibliography. 1 CHAPTER 1 South Africa has had five constitutions since 1910. The first was adopted when the British government decided to withdraw, an action that culminated in a situation whereby the South African government had to be invariably in the hands of the minority who happened to be the white residents of South Africa. This move, which resulted in the unification of the four colonies in South Africa, namely, Natal, Cape, Transvaal, and the Orange Free State, kickstarted legal developments in the country. Of particular significance is the legal development that relates to the establishment of a single Supreme Court with powers to hear the appeals emanating from the Lower Courts and featuring in the legal system of South Africa as the Court with the final say in relation to the decisions that would have been taken by the Lower Courts, with the Lower Courts bound by the decision of the Court of Appeal (although until 1950 there was the right of appeal from the Appellate Division to the Judicial Committee of the Privy Council in London). This 1910 Constitution had legal existence until 1961, the year in which South Africa made the decision to leave the Commonwealth with the result that it became a fully-fledged Republic.