The South African Constitutional Court's Use of Foreign Precedent in Matters of Religion: Without Fear or Favour?

Christa Rautenbach

doi:10.4314/pelj.v18i5.10

Abstract

Since its establishment in 1994, the South African Constitutional Court has been quite fearless in its citation of foreign precedents in its reasoning. Compared with that of similar adjudicative institutions elsewhere, the constitutional reasoning of the South African Constitutional Court is still in its infancy, but it has nevertheless earned itself high praise among observers worldwide. The Court has in particular been commended for some ground-breaking and courageous judgments which it handed down without casting either argumentative rigour or judicial self-restraint to the winds. Since its establishment in 1994 the Constitutional Court has cited foreign cases quite extensively. Although these cases deal with all matters of the law, especially human rights issues, the Constitutional Court's use of foreign cases in the area of religion is noteworthy. Against this background, this contribution remarks on the propensity of the Constitutional Court to look beyond its borders to deals with issues of religion within South Africa. The ultimate question is whether the notion of transjudicialism in the case of religion is detrimental to the reputation of the South African Constitutional Court or whether it is a characteristic of a court which is confident enough that its independence will remain intact in spite of its looking elsewhere for answers.

Highlights

The mixed nature of South Africa's legal system necessitates a comparative legal approach to find, develop and make the law, and the South African courts were discreetly doing this behind the scenes, since the unification of South Africa in the 1910s
The results reveal that the Court uses foreign case law as "sources for specific lines of argument and justification and ... for supporting the general role of the court and judicial review in particular"
"reasonable accommodation" of diversity, a responsibility which rested firmly on the shoulders of South African society: "Our society which values dignity, equality, and freedom must require people to act positively to accommodate diversity."99 His comparative approach to solving the problem of which steps needed to be taken to accommodate diversity is reflected in his words that the problem had been debated "both in this Court and abroad and different positions have been taken"

Summary

Introduction

For more than three hundred years the South African judiciary has, "with a minimum of fuss - and mostly without specific mention that they were doing so - adopted a comparative law approach" with regard to foreign precedent. The mixed nature (a mix of Roman-Dutch and English law) of South Africa's legal system necessitates a comparative legal approach to find, develop and make the law, and the South African courts were discreetly doing this behind the scenes, since the unification of South Africa in the 1910s. As the main catalyst for judicial comparativism in South Africa.17 Ackermann points to this misconception and says: "I have not the slightest doubt that, because of the comparative law ethos in South Africa, the Court would have placed the same reliance on foreign law even had there been no such provision in the Constitutions." To prove his point he refers to the comment of Justice Chaskalson in S v Makwanyane (the Makwanyane case):. Ackermann 2006 SALJ 500 points out: "I have not the slightest doubt that, because of the comparative law ethos in South Africa, the Court would have placed the same reliance on foreign law even had there been no such provision in the Constitutions." The Makwanyane case para 34. The overall statistics reveal that this is what the court

Constitutional provisions protecting freedom of religion

Judicial engagement with foreign religion cases: making sense of statistics

Conclusion

Literature