The Constitutional Rebuilding of the South African Private Law: A Choice Between Judicial and Legislative Law-Making

Apollo - University of Cambridge Repository (2018)

University of Cambridge Faculty of Law Research Paper No. 1/2019

314 Pages Posted: 15 Dec 2018 Last revised: 14 Jan 2019

See all articles by Michael Dafel

Michael Dafel

University of Cambridge, Faculty of Law; South African Institute for Advanced Constitutional, Public, Human Rights and International Law

Date Written: November 6, 2018

Abstract

A tension arises whenever the South African private law fails to meet constitutional right norms. To remedy a deficiency, two law-making options are available. The first is for the judiciary to develop or change private law principles and rules in order to provide protection for the implicated constitutional norm. The second is for the judiciary to enforce an obligation upon Parliament to enact legislation to amend or replace existing private law rights and obligations so as to safeguard the norm against interference from a private individual or entity. The former is the more conventional option, but, in recent years, the law reports record an increasing reliance on the legislative duty to protect constitutional right norms in private legal relationships.

The thesis investigates the extent to which the latter phenomenon — which will be described as a ‘pivot towards legislative remedies’ — exists, and the circumstances in which the courts pivot towards legislative remedies rather than developing private law of their own accord. The thesis finds that legislative schemes that give effect to constitutional rights are likely to contain an array of benefits that are absent from or reduced in the judicial law-making process. The judicial pivot towards legislative remedies is thus a strategy to enhance the process through which conflicting rights are resolved, as it allows for the constitutional rebuilding of private law in a way that the judiciary is unable to do on its own. Importantly, however, theories of judicial deference do not explain the pivot. On the contrary, the courts have exercised a strict level of control over the legislative law-making pathway. Through either statutory interpretation or the review of legislation, the courts require legislation to contain the essentials of the judicial law-making framework. From this perspective, the judicial law-making process produces the floor of the rebuilding project and the legislative law-making process enhances that framework.

Keywords: Horizontal Application, Constitutional Law, Law-Making, South African Human Rights, Judicial Balancing

Suggested Citation

Dafel, Michael, The Constitutional Rebuilding of the South African Private Law: A Choice Between Judicial and Legislative Law-Making (November 6, 2018). Apollo - University of Cambridge Repository (2018); University of Cambridge Faculty of Law Research Paper No. 1/2019. Available at SSRN: https://ssrn.com/abstract=3289103 or http://dx.doi.org/10.2139/ssrn.3289103

Michael Dafel (Contact Author)

University of Cambridge, Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

South African Institute for Advanced Constitutional, Public, Human Rights and International Law ( email )

The Old Fort Constitution Hill
Kotze Street Hillbrow
Johannesburg
South Africa

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