Seitenhistorie

In the scholarly and judicial culture of South Africa of the past three centuries, two distinct strains have been in evidence:   early Dutch and English colonial dominance gave way in the late 20^th Century to modern constitutionalism. Against the historical background some lawyers continued to be inclined to seek juridical enlightenment in the Dutch- and German-speaking civil law jurisdictions of Europe, whil while others were more disposed to study and rely on sources from the English, Commonwealth and North American systems.   In the technical development of the current constitutional dispensation both these strains of legal culture were influential. 

An analysis of the jurisprudence of the Constitution Court shows that the South African constitutional state may be defined as a state in which the Constitution prevails over all law and all actions of the state, where fundamental rights are acknowledged and protected through the independent authority of the judiciary to enforce the Bill of Rights and the Constitution, a separation of powers is maintained, all government action is required to be legally justified, the state has a duty to protect fundamental rights, legal certainty is promoted, democracy and the rule of law are maintained, where a specific set of legal principles apply and an objective normative system of values guides the executive, legislature and the judiciary.