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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:The demise of 'salus republicae suprema lex' in South Africa: emergency rule in terms of the 1996 Constitution
Author:Devenish, G.E.ISNI
Periodical:The Comparative and International Law Journal of Southern Africa
Geographic term:South Africa
state of emergency
Abstract:The advent of democracy and the constitutional State in South Africa has not made the provision for emergency rule less necessary. Section 37 of the 1996 Constitution provides exhaustively for the entire spectrum of emergency contingencies, from a localized natural disaster to full-scale war. The declaration of a state of emergency makes provision for the suspension of certain fundamental rights and not for the suspension of the Constitution, which continues to operate. The 1996 Constitution also indicates the extent to which certain rights are non-derogable. The Constitution does not make provision for a declaration of martial law, nor does it give the President archaic prerogative powers. The ancient, but highly questionable principle of 'salus republicae suprema lex' - the safety of the State is the highest law - which constituted the basis on which martial law was justified, is therefore no longer operative as far as South Africa's legal and constitutional system is concerned. Moreover, section 39 of the 1996 Constitution will require that suspension of rights be interpreted restrictively and that all laws conform as far as possible with the rules and norms of international law. Notes, ref.