Judicial Law-Making: Unlocking the Creative Powers of Judges in Terms of Section 39(2) of the Constitution


  • Annie Singh University of KwaZulu-Natal
  • Moreblessing Zaryl Bhero School of Law, University of KwaZulu-Natal




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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).



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Bennion Statutory Interpretation

Bennion F Statutory Interpretation 5th ed (Lexis Nexis London 2010)

Bickel Least Dangerous Branch

Bickel AM The Least Dangerous Branch 2nd ed (New Haven Yale University Press 1986)

Botha Statutory Interpretation

Botha C Statutory Interpretation (Juta Cape Town 2005)

Cross Statutory Interpretation

Cross R Statutory Interpretation 3rd ed (Butterworths London 1995)

Devenish Interpretation of Statutes

Devenish GE Interpretation of Statutes (Juta Cape Town 1992)

Dicey Introduction to the Study of Law

Dicey AV Introduction to the Study of Law and the Constitution (Macmillan London 1915)

Du Plessis Re-Interpretation of Statutes

Du Plessis LM Re-Interpretation of Statutes (Lexis Nexis Durban 2002)

Du Plessis and De Ville 1993 Stell LR

Du Plessis LM and De Ville JR "Bill of Rights in the South African Context (1): Diagnostic Observations" 1993 Stell LR 63-87

Dugard Human Rights

Dugard J Human Rights and the South African Legal Order (Princeton University Press Princeton, NJ 1978)

Friedman 1961 Colum L Rev

Friedman W "Legal Philosophy and Judicial Law-making" 1961

Colum L Rev 821-845

Graglia 1996 Harv J L & Pub Pol'y

Graglia LA "It's Not Constitutionalism, It's Judicial Activism" 1996

Harv J L & Pub Pol'y 293-300

Hart 1958 Harv L Rev

Hart HLA "Positivism and the Separation of Law and Morals" 1958 Harv L Rev 593-621

Johnson, Pete and Du Plessis Jurisprudence

Johnson D, Pete S and Du Plessis M Jurisprudence: A South African Perspective (Butterworths Durban 2001)

Kenny 1999 Monash U L Rev

Kenny S "Maintaining Public Confidence in the Judiciary: A Precarious Equilibrium" 1999 Monash U L Rev 209-224

Mahomed 1999 SALJ

Mahomed CJ "The Role of the Judiciary in a Constitutional State" 1999 SALJ 111-115

Rosenfield Law, Justice, Democracy

Rosenfield M Law, Justice, Democracy and the Clash of Cultures (Cambridge University Press Cambridge 2011)

Sowell Judicial Activism Reconsidered

Sowell T Judicial Activism Reconsidered (Stanford University Stanford, CA 1989)

Case law

Bertie Van Zyl (Pty) Ltd v Minister of Safety and Security 2009 10 BCLR 978 (CC)

Coetzee v Government of the Republic of South Africa, Matiso v Commanding Officer, Port Elizabeth Prison 1995 10 BCLR 1382 (CC)

Collins v Minister of the Interior 1957 1 SA 552 (A)

Corocraft Ltd v Pan American Airways 1973 3 (WLR) 714

Government of the Republic of South Africa v Grootboom 2000 11 BCLR 1169 (CC)

Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In Re: Hyundai Motor Distributors (Pty) Ltd v Smit and 2000 10 BCLR 1079 (CC)

Masiya v Director of Public Prosecutions (Pretoria) 2007 5 SA 30 (CC)

Minister of Health v Treatment Action Campaign 2006 10 BCLR 1033 (CC)

Minister of Home Affairs v Fourie; Lesbian and Gay Equality

Project v Minister of Home Affairs 2006 1 SA 524 (CC)

Minister of Posts and Telegraphs v Rasool 1934 AD 164

Prince v President of the Law Society of the Cape of Good Hope 2002 2 SA 194 (CC)

S v Hjul 1964 2 SA 635 (C)

S v Makwanyane 1995 3 SA 391 (CC)

S v Tobias 1967 2 SA 165 (C)

S v Wood 1976 1 SA 703 (AD)

Soobramoney v Minister of Health, KwaZulu Natal 1998 1 SA 765 (CC)

Stanton v Minister of Justice 1964 3 SA 354 (T)


Constitution of the Republic of South Africa Act 200 of 1993

Constitution of the Republic of South Africa, 1996

Criminal Procedure Act 51 of 1997

Marriage Act 25 of 1961

Internet sources

Cornell and Friedman 2002 http://bit.ly/24FjjPu

Cornell D and Friedman N 2002 In Defence of the Constitutional Court Human Rights and the South African Common Law http://bit.ly/24FjjPu accessed 22 November 2012

Diala 2007 http://bit.ly/1SZ17c6

Diala AC 2007 Judicial Activism in South Africa's Constitutional Court: Minority Protection or Judicial Illegitimacy http://bit.ly/1SZ17c6 accessed 22 November 2012

Quansah and Fombad 2009 http://bit.ly/24E8Ffj

Quansah EK and Fombad CM 2009 Judicial Activism in Africa: Possible Defence Against Authoritarian Resurgence? http://bit.ly/24E8Ffj accessed 5 December 2012

Wesson and Du Plessis 2005 http://bit.ly/21Lz2L5

Wesson M and Du Plessis M 2005 The Transformation of the Judiciary http://bit.ly/21Lz2L5 accessed 4 January 2013



How to Cite

Singh, A., & Bhero, M. Z. (2017). Judicial Law-Making: Unlocking the Creative Powers of Judges in Terms of Section 39(2) of the Constitution. Potchefstroom Electronic Law Journal, 19, 1–22. https://doi.org/10.17159/1727-3781/2016/v19i0a1504