Faculty of Law
Use of foreign precedent by South African Constitutional Court judges

Background

In 2007 the International Association of Constitutional Law established an interest group on “The use of foreign precedents by constitutional judges” to conduct a survey of the use of foreign precedents by constitutional judges under the leadership of Professors Tania Groppi (University of Siena) and Marie-Claire Ponthoreau (University of Bordeaux). The overarching aim of the research project was to survey the use of foreign precedents (foreign cases) by judges presiding in constitutional cases in a number of countries. By making use of empirical data that employed both quantitative and qualitative indicators, the purpose of this project was two-fold. The first purpose was to determine to what extent foreign case law is cited by constitutional judges and the second purpose was to investigate the reliability of studies that describes and reports instances of so-called “transjudicial dialogue” between courts.

The project was concluded in 2010 and the results of the project were published in Groppi T and Ponthoreau M-C (eds) The use of foreign precedents by constitutional judges (Hart Publishing Portland 2013), ISBN 9781849462716. The country report for South Africa was compiled by Professor Christa Rautenbach and published under the title “South Africa: teaching an ‘old dog’ new tricks? An empirical study of the use of foreign precedents by the South African Constitutional Court (1995-2010)”.

This database was developed by Professor Christa Rautenbach and contains the empirical data for the South African Constitutional Court since its establishment in 1994. Although the main project has been concluded the collection of data for South Africa continues to be collected and published annually.

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Methodology

Analogous to the methodology proposed by the main project outline, this database captures the empirical data pertaining to the use of foreign case law by South African Constitutional Court judges since its establishment in 1994.

The empirical research follows both a quantitative and qualitative approach by counting and evaluating explicit citations of foreign case law. The qualitative approach entails the collection of empirical information such as the number of foreign cases cited per year, per case and per country. The quantitative approach makes use of formal and substantive factors to determine the actual or potential influence of the foreign case law on South African Constitutional Court judges. Formal indicators include the following: whether the judge referring to a foreign case, delivered a majority/dissenting/separate judgement; whether reference to the foreign case was merely a reference or a quote; whether the reference was made to the majority/minority decision of the foreign case; and whether the foreign case was referred to in the text or footnote of the South African case. The substantive indicators requires an analysis of the legal reasoning applied by the South African judges and are explained in the next paragraph.

Based on the above-mentioned methodology, the following data pertaining to the South African Constitutional Court cases since 1995 (when the first judgement was handed down), has been collected and documented:

Year the SA judgement was delivered.
Citation of the SA judgement, irrespective whether it refers to foreign case law or not. A link is provided to the original judgement of the Constitutional Court in pdf format.
Name of the judge who delivered the main SA judgement. Background information on each judge is supplied, including his or her qualifications and term of office.
Paragraph in the SA judgement where the foreign case was referred to.
Name of the SA judge that referred to the foreign case. Background information on each judge is supplied, including his or her qualifications and term of office.
An indication whether the judge in the previous paragraph delivered a majority/dissenting/separate judgement.
Citation of the foreign case that was referred to.
Country of the foreign case that was referred to.
An indication whether the judge in the foreign case delivered a majority/dissenting judgement.
An indication whether the foreign case dealt with a human rights issue. In order to narrow down the possibilities, the human rights issues were divided in accordance with the Bill of Rights contained in Chapter 2 of the Constitution of the Republic of South Africa, 1996, viz.:

Section 9: Equality
Section 10: Human dignity
Section 11: Life
Section 12: Freedom and security of the person
Section 13: Slavery, servitude and forced labour
Section 14: Privacy
Section 15: Freedom of religion, belief and opinion
Section 16: Freedom of expression
Section 17: Assembly, demonstration picket and petition
Section 18: Freedom of association
Section 19: Political rights
Section 20: Citizenship
Section 21: Freedom of movement and residence
Section 22: Freedom of trade, occupation and profession
Section 23: Labour relations
Section 24: Environment
Section 25: Property
Section 26: Housing
Section 27: Health care, food, water and social security
Section 28: Children
Section 29: Education
Section 30: Language and culture
Section 31: Cultural, religious and linguistic communities
Section 32: Access to information
Section 33: Just administrative action
Section 34: Access to courts
Section 35: Arrested, detained and accused persons

It is important to note that rights under these sections may be subdivided according to the content of a particular right. For example, the right to a fair trial falls under section 35 and freedom of speech falls under section 16. In some cases more information on the particular right are supplied under the heading ‘other issues’ as described in the paragraph that follows.

An indication whether the foreign case dealt with an institutional issue. The institutional issues were randomly classified according to the issue it dealt with and does not follow a specific pattern.
When the foreign case could not be classified as dealing with a human rights issue or an institutional issue, it was classified as ‘other issues’ with an indication what the other issue was. In some cases, the ‘other issue’ elaborates more on the type of human right as identified in paragraph 10 above.
Based on an approximate analysis of the SA judge’s legal reasoning, his or her use of the foreign case were divided into the following category 1, 2 or 3:

Category 1 – refers to foreign cases used at the very first stage of the interpretative process when reasoning must still be oriented. The foreign case did not necessarily influence the reasoning of the SA judge.
Category 2 – refers to foreign cases with the purpose that “even there” a certain measure is adopted that should be adopted “even here”.
Category 3 – refers to foreign cases which should not be followed (a contrario).

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Faculty of Law Use of foreign precedent by South African Constitutional Court judges

Faculty of Law
Use of foreign precedent by South African Constitutional Court judges