The South African Constitutional Court’s Death Penalty and Rendition Cases as Tools for Litigants Abroad

Abstract

Several cases of the South African Constitutional Court have become classics in comparative constitutional law scholarship and the Court’s participation in global judicial dialogue has been documented. Indeed, since the Court’s founding, Justices have referred to and discussed many foreign judicial decisions. But how has the Constitutional Court’s case law influenced debates before other courts? This contribution scrutinises some landmark cases of the US Supreme Court and the European Court of Human Rights on two issues similar as those decided by the South African Constitutional Court to see whether the South African precedents were considered. It is found that South African precedents, which themselves encapsulate external influences, now serve litigants worldwide to argue their point of views. The groundbreaking cases coming from a relatively young Court are used, mainly in amicus curiae briefs, as resources to advance the interpretation of human rights. However, these references do not (yet?) find an explicit and engaging echo in the judgments of the US Supreme Court and the European Court of Human Rights.