Justice Sachs and the use of international law by the Constitutional Court: Equity or expediency?

Abstract

It is trite that before the negotiation of the Interim Constitution, and more particularly, the Constitution of the Republic of South Africa, international law had little practical impact in South African law in general, or in the courts. Such principles as were considered and occasionally applied by the courts, were those of English law, or were apologist attempts by a failing – and largely hostile – government. The courts’ application of international law was subject to so wide a range of municipal exceptions that it was largely unrecognisable as an expression of the views of the international community which it was intended to reflect and serve. In legal training too, international law occupied a place on the periphery which, in turn, meant that at the bar, the side bar, and indeed on the bench, knowledge of this branch of the law was limited and idiosyncratic in the main.