Representative Standing in South African Law
1 REPRESENTATIVE STANDING IN SOUTH AFRICAN LAW Clive Plasket BA, LLB, LLM (Natal), PhD (Rhodes), Judge of the High Court (Eastern Cape Division), Republic of South Africa Honorary Visiting Professor, Rhodes University, Grahamstown [A] CONSTITUTIONAL DEVELOPMENTS IN SOUTH AFRICA: FROM COLONIAL OUTPOST TO NON-RACIAL DEMOCRACY From the second British occupation of the Cape of Good Hope in 18061 until recently, British constitutional institutions have dominated South African political life.2 At the heart of the various South African constitutions since Union in 1910 – the South Africa Act of 1909 (the union Constitution), the Republic of South Africa Constitution Act 32 of 1961 (the republican Constitution) and the Republic of South Africa Constitution Act 110 of 1983 (the tricameral Constitution) – lay the doctrine of the sovereignty of Parliament. It is now widely accepted that this doctrine, because it was separated from its principal political counter-balance, universal franchise, was particularly inappropriate. It allowed for gross abuses of human rights by those in power.3 One of the dominant features of the doctrine of parliamentary sovereignty was that it envisaged, in the words of the late Mr Justice Ismail Mahomed, a 'legally emasculated judiciary with no judicial teeth to bite into or destroy enactments emanating from Parliament which invade without justification, the deepest wisdom of the common law, or which transgress rights so fundamental for each individual in our 1 See generally, Davenport and Saunders South Africa: A Modern History (5 ed) London, MacMillan Press Ltd: 2000, 42. 2 See Dugard Human Rights and the South African Legal Order Princeton, Princeton University Press: 1978, 8-9 and 14-28.
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