Courts must interpret all law — including customary law — in a manner that promotes the Bill of Rights. Customary law that cannot be reconciled with the Bi...
FreeChapter 2 — Bill of RightsConstitution of South Africa, 1996
The Constitutional Text
What Section 39 Says
(1) When interpreting the Bill of Rights, a court, tribunal or forum— (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law. (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. (3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.
What This Means for You
Plain-Language Explanation
Practical Significance
Courts must interpret all law — including customary law — in a manner that promotes the Bill of Rights. Customary law that cannot be reconciled with the Bill of Rights must give way.
Common Questions
Frequently Asked Questions
Can customary law violate constitutional rights?
No. Section 39(2) requires courts to develop customary law in a manner that promotes the spirit, purport, and objects of the Bill of Rights. Customary rules that are inconsistent with the Constitution must be developed or struck down by courts.
Does international law affect South African rights interpretation?
Yes. Section 39(1)(b) requires courts to consider international law when interpreting the Bill of Rights. This includes treaties South Africa has ratified (like CEDAW and the UN Convention on the Rights of the Child) and customary international law.
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