8, 33 and 35 of the Constitution, require such an amplitude of vision. The principle of inclusivity shines through the language provisions in section 3, and underlies the provisions which led to the adoption of the new flag and anthem, and the selection of public holidays.
[364]The secure and progressive development of our legal system demands that it draw the best from all the streams of justice in our country. This would include benefiting from the learning of those judges who in the previous era managed to articulate a sense of justice that transcended the limits of race, as well as acknowledging the challenging writings of academics such as the late Dr. Barend van Niekerk, who bravely broke the taboos on criticism of the legal system.[1]
[365]Above all, however, it means giving long overdue recognition to African law and legal thinking as a source of legal ideas, values and practice. We cannot, unfortunately, extend the equality principle backwards in time to remove the humiliations and indignities suffered by past generations, but we can restore dignity to ideas and values that have long been suppressed or marginalized.
[366]Redressing the balance in a conceptually sound, methodologically secure and functionally efficient way, will be far from easy. Extensive research and public debate will be required. Legislation will play a key role; indeed, the Constitution expressly acknowledges situations where legal pluralism based on religion can be recognised [14(3)], and where indigenous law can be applied (s.181). Constitutional Principle XIII declares that "…… Indigenous law, like common law, shall be recognised and applied by the courts, subject to the fundamental rights contained in the Constitution and to legislation dealing specifically therewith".
[367]Yet the issue raised by Ms Davids goes beyond the question of achieving recognition of different systems of personal law.
[368]In interpreting Chapter 3 of the Constitution, which deals with fundamental rights, all courts must promote the values of an open and democratic society based on freedom and equality [s.35(1)]. One of the values of an open and democratic society is precisely that the values of all sections of society must be taken into account and given due weight when matters of public import are being decided. Ms. David's concern is that when it comes to interpreting Chapter 3, and in particular, the concept of punishment, the values of only one section of the community are taken into account.
[369]Paul Sieghart points out that "the hallmarks of a democratic society are pluralism, tolerance and broad-mindedness. Although individual interests must on occasion be subordinated to those of a group, democracy does not mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position".[2] The principle
- ↑ Cf. 1969 SALJ 455 and 1970 SALJ 60; S v Van Niekerk 1970 (3) SA 655.
- ↑ The International Law of Human Rights, Oxford 1983, reprinted 1992, at p. 93 referring to James, Young and Webster v U.K. Judgment of the European Court of Human Rights on 13/08/81.
