Theme 10 - A practical and inclusive method of interpretation-comparative law

Question 1

Explain comparative interpretation.

The comparative dimension.

Answer 1

• This refers to the process (prescribed by section 39(1) of the Constitution) during which the court examines international law and the constitutional decisions of foreign courts.
• In S v Zuma it was held that the principles of international human rights and foreign law must be applied with due regard for the South African context.

Question 2

Foreign law.

Discuss foreign law.

The comparative dimension.

Answer 2

• In the past the courts could follow foreign law to help interpret, especially when there was some legislation that would be taken word for word from English law.
• It can only be used as a guideline if it does
  not contravene, obviously with the Constitution but also with South African common law.

Question 3

International law.

Discuss international law.

The comparative dimension.

Answer 3

• Section 231 states that an international treaty becomes South African law when it is enacted into law by national legislation.
• Section 232 provides that customary international law is law unless it is inconsistent with the Constitution or an Act.
• Section 233 states that constitutional confirmation of the common law presumptions that legislation does not violate international law. Courts should prefer a reasonable interpretation that doesn’t contravene international law.