Abstract
This note explores the proposition that in the face of probably one of the most unequivocal forms of constitutional review in a modern day state, legislation in South Africa has since 27 April 1994 grown in status (and stature) nonetheless, and has assumed an unprecedented role in our constitutional democracy. First, it is shown how constitutional review with the necessary judicial self-restraint has instilled respect for legislation in the context of and with reference to the separation of powers. Second, it is shown that and how statutes have become (subsidiary) allies to the Constitution and have been standing the realisation of constitutional values in good stead. Finally, it is argued that the constitutional requirement of popular participation in legislative deliberation has also added to the esteem for legislation in our constitutional democracy.
Highlights
THE STATUS AND ROLE OF LEGISLATION IN SOUTH AFRICA AS A CONSTITUTIONAL DEMORACY: SOME EXPLORATORY OBSERVATIONS*
"When deciding a constitutional matter within its power, a court must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency." section 172(1)(a) of the Constitution decrees, subjecting "law or conduct", and thereby legislation as well, to a form of constitutional review rigorous and robust by any standard
In the face of probably one of the most unequivocal forms of constitutional review in a modern day state, all legislation in South Africa has since 27 April 1994 grown in status and has assumed an unprecedented role in our
Summary
Certain reading strategies and remedial measures have been designed to help ensure that the constitutional review of legislation proceeds with circumspection. A prima facie unconstitutional (and by that token potentially impugnable) provision is to survive constitutional scrutiny if it can - through the adaption of its language, if so required - be read to be constitutional without distorting it or straining its "plain meaning". Such a reading can be either narrower or more restrictive than other possible. Reading-in, on the other hand, refers to the insertion of words into an impugned legislative text in order to render it constitutional, and thereby avert a declaration of invalidity. Severance or reading-in can be ordered on the strength of this provision
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