Abstract
This contribution considers the protection of fundamental rights in the Netherlands and South Africa. Both countries strive to be constitutional democracies that respect basic rights. But both countries go about this aim in very different ways. These different paths to constitutionalism are compared, as well as the reasons for these differences and whether it can be said that these differences are justifiable. This is done by comparing the character of the rights guaranteed in the Dutch and South African legal orders, the sources of these rights and the locus or centre of protection in both systems. The conclusion is reached that no single or perfect route to attaining the desired protection of fundamental rights exists, but that one should always enquire as to the state of individual freedom and the right to make free political choices in measuring the worth of a system's protection of rights.
Highlights
The aim of this contribution is to briefly consider and compare the various avenues followed in the Netherlands and South Africa in achieving the desired protection of fundamental rights, and good governance
The Universal Declaration of Human Rights set the trend in 1948, a trend which has known an explosion in recent years when it comes to treaties guaranteeing rights
The Netherlands prefers a direct and superior role for international law, while the South African situation calls for international law to be considered, but never at the expense of the Constitution
Summary
The aim of this contribution is to briefly consider and compare the various avenues followed in the Netherlands and South Africa in achieving the desired protection of fundamental rights, and good governance. These legal systems are chosen as both follow quite different routes to securing such protection, thereby inviting the question whether their different approaches are justified? The comparison will be conducted by comparing both legal systems as to the source of the rights protected, the character of such rights and the loci of protection within each system.
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