Judicial law-making: unlocking the creative powers of judges in terms of section 39(2) of the Constitution

Abstract

The law-making role of judges has always been the subject of much controversy. For a good many a year and especially during the apartheid regime, the approach to statutory interpretation that dominated the South African courts was the orthodox textual position. According to the textualists, as they were referred to, the position that was adopted was that legislation was to be interpreted within the framework of the words used by the legislature. The courts were not empowered to make any modifications, alterations or additions to the legislative text, as this function was solely the responsibility of the legislature. The paradigmatic shift in emphasis since 1994 from a system of parliamentary sovereignty to constitutional supremacy changed this position significantly. The key consideration of statutory interpretation was that the aim and purpose of legislation was to be considered with the values of the Constitution forming the over-arching principle in the process of interpretation. The courts were enjoined to reconcile the purpose of the legislation with the provisions of the Constitution, and in particular, the Bill of Rights. The emerging view in support of the purposive or the teleological theory has been that judges do indeed have a law-making function in the process of interpretation. Since the early 1990's, it has been observed that the judiciary has been able to assert its influence on the development of the law and the emerging jurisprudence, as a result of the powers derived from the Constitution, and in particular section 39(2). The article examines the extent to which the judiciary can use this power in a post-democratic constitutional era, in South Africa, to achieve justice. From the repository of cases, which forms the basis of the discussion, the article proposes a set of factors that ought to be heeded by our courts in the application of section 39(2).