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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Interpreting a Bill of Rights: the future task of a reformed judiciary?
Author:Forsyth, C.
Year:1991
Periodical:South African Journal on Human Rights
Volume:7
Issue:1
Pages:1-23
Language:English
Geographic term:South Africa
Subjects:judicial power
human rights
Abstract:Opinion in almost all South African political movements is accepting the concept of a judicially enforced Bill of Rights. However, the achievement of a Bill of Rights in South Africa will imply a change in the judicial role. This article investigates the judicial role in the protection of rights and suggests ways in which the present judiciary could be reformed so that it can serve a new nonracial and democratic South Africa well. First, the author considers the attitude of the existing judiciary, especially the Appellate Division, to the interpretation of Bills of Rights on the basis of four cases from Bophuthatswana and Namibia, where Bills of Rights were enacted at a stage at which appeal still lay from their courts to the Appellate Division. The cases concern previously enacted legislation inconsistent with the Bill of Rights and legislation enacted after the Bill of Rights came into force. The author concludes that, looking at the four cases as a whole, the record of the Appellate Division is not as poor as it is in the field of civil liberties generally, so there are some grounds for cautious optimism. Furthermore, the present judiciary has one significant achievement to its credit: it has preserved its formal independence in difficult circumstances. Thus the judiciary should be reformed, not abolished. Steps towards the reform of the judiciary include widening its composition, removing political influence from the appointment process, careful drafting of the Bill of Rights, and the swearing of a new judicial oath. Notes, ref.
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