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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Pursuing principle: the Appellate Division and review under the state of emergency
Author:Mureinik, EtienneISNI
Periodical:South African Journal on Human Rights
Geographic term:South Africa
state of emergency
External link:https://doi.org/10.1080/02587203.1989.11827760
Abstract:When the nationwide state of emergency was declared in South Africa in June 1986, expectations ran high that the courts, in the exercise of their review jurisdiction, would instruct the executive in the limits of its powers and expound the content of individual rights. However, despite two judgments in which the Appellate Division vitiated a detention, a growing failure of sympathy on the part of the highest court with the fundamental principles which it is charged to protect could be perceived. The bar, on the contrary, was on the brink of a period of unsurpassed creativity. In the past few years the courts have entertained, in the sphere of emergency action and legislation, as rich and diverse a class of applications for judicial review as has ever been brought before them. This article examines these applications, grouped into three categories: direct assertions of fundamental rights; attempts to hold the executive to its claim that it is about the business of suppressing an emergency; and attacks on regulations for overbreadth, unreasonableness and uncertainty. Notes, ref.