Regtelike konkretisering van fundamentele regte : 'n vergelykende ondersoek van grondwetlike Hermeneutiek

Abstract

The birth of the new constitutional order on 27 April 1994 in the Republic of South Africa saw the coming into force of the 1993 Grundnorm Constitution and the Charter of Fundamental Rights. With the new Constitution the nature of the state changed from a repressive apartheid oligarchy to a liberal democratic composite constitutional state in which the protection of human dignity, life, individual freedom and equality are the most fundamental constitutional norms and values. The 1996 Constitution confirmed the normative value-orientated constitutional character of a new free and democratic South African order, by redefining it as a social democracy in which the values of human dignity, equality and individual freedom are paramount. The new Bill of Rights in particular is a comprehensive document emphasising the unique South African quest for social justice by the eradication of discrimination, the promotion of social and economic development and the concretisation of fundamental rights and freedoms in all spheres of society. The South African judiciary and particularly the new Constitutional Court, amongst others, are constitutionally tasked to protect, promote and, in the final analysis, concretise the Bill of Rights and fundamental constitutional values. The new Grundnorm Constitution, and more specifically the fundamental rights and freedoms in the Bill of Rjghts, are sui generis, open-ended, value-orientated norms laid down in principle only. This unique character necessitates a sui generis method of interpretation and construction that secures the proper understanding, protection,

promotion and concretisation of these fundamental rights and freedoms in the Bill of Rights. The literal-cum-intentional method of statutory interpretation followed by the South African courts in the past are not suitable to ensure the proper protection and concretisation of the fundamental rights and freedoms of the Bill of Rights in a material constitutional state. Also, the danger of the manifestation of subjective non-rational influences when judges give content to these sui generis norms is evident. A new constitutional hermeneutic approach is thus required. This new responsibility and powers of constitutional review of the South African courts are well established in other democracies and in international law. The present study undertakes a comprehensive comparative legal investigation of the sui generis method in which the judges of leading jurisdictions such as the German Bundesverfassungsgericht, the American and Canadian Supreme Courts, the European Court of Human Rights and finally the South African Constitutional Court interpret and concretise constitutionally protected fundamental rights and freedoms. Bearing in mjnd the unique constitutional and jurisprudential nature of each of the jurisdictions researched, it is argued that the canons of construction found in the German constitutional jurisprudence form the primary hermeneutic framework for the systematisation of the various arguments used by the courts to substantiate the interpretation and concretisation of fundamental rights and freedoms in the said jurisdictions. In this regard reference is made to grammatical construction, genetic and historical construction, contextual and systematic construction, teleological construction, and comparative construction.

In addition, specific principles of constitutional interpretation which may vary amongst the different jurisdictions, are also researched - for example the principle of the unity of the Constitution, constitutional interpretation of the ordinary legal norm (reading down or verfassungskonforme Interpretation) , judicial restraint, realisation of the normative legal force of the Constitution, the proportionality principle, protection of the essential content of a right, the weighing and balancing and the harmonising (praktische Konkordanz) of opposing values or interests, and preference for the lex specialis in the event of an overlap with a lex generalis. The interpretational role of fundamental constitutional principles such as democracy, constitutionalism (Rechtsstaatlichkeit), social well-being and the fundamental constitutional values of human dignity, individual freedom and equality are also illustrated along with rules applying to wide or extensive interpretation, gap-filling, presumptions, policy and reality considerations, the doctrines of stare decisis and state action and the third party effect of fundamental rights. The study also confirms, with the exception of the jurisprudence of the Supreme Court of the United States of America, the universal application of the two step approach for the concretising of fundamental rights and freedoms. With the first step the normative field of protection of the fundamental right is constructed, after which the meaning and effect of the ordinary legal norm is determined to establish whether the latter limits the former. If it is found to be the case, the second step follows in which the constitutionality of the limitation is evaluated in terms of the constitutional requirements. The two step approach can thus be regarded as the secondary framework for the systematisation of comparative constitutional hermeneutics.

The study concludes that, as a general basis for constitutional hermeneutics, fundamental rights and freedoms are primarily concretised through a coherent process of systematic-contextual and teleological value-orientated arguments conducted in the two step argumentative process. Finally, the study refers to proposals from scholars in various jurisdictions who have contributed to the growing volume of theory on constitutional hermeneutics and the methodology of judicial review. The writer then identifies a few methodological beacons in his own approach.