The SA Constitution

South Africa prior to 1994

For many years South Africa was in conflict with both the international community and international law.  Apartheid, premised on race discrimination and the denial of human rights, was contrary both to the law of the UN Charter and to the norms of human rights non-discrimination and self-determination generated by the post-World War II order. Although South Africa’s foreign policy during this period was highly legalistic, it was the old law of state sovereignty and absolute respect for domestic jurisdiction that guided and shaped it.  South Africa became a pariah state within the international community a delinquent state in the context of the ‘new’ international law of human rights.  In 1994, during the first democratic elections, South Africa had an opportunity to join the international arena. 

The 1996 Constitution

The arrival of the new constitution brought with it a new beginning for South Africa.  The constitution has become the cornerstone of democracy in South Africa.  The use of foreign law by South African courts was authorised by the South African constitution.  Before the interim Constitution came into operation, the negotiation and signature of treaties was a prerogative act of the executive in which the legislature and the courts played no part.  Since the establishment of the new constitutional order courts have shown a great willingness to be guided by international human rights law.  Decisions of the European Commission and Court of Human Rights have provided the greatest assistance, but courts have on occasion also considered the views of the United Nations Human Rights Committee and United Nations reports on human rights matters.

Posted in: Law

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