CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT ... - saflii

ACKERMANN AND GOLDSTONE JJ“Judges can and should adapt the common law to reflect the changing social, moraland economic fabric of the country. Judges should not be quick to perpetuate ruleswhose social foundation has long since disappeared. Nonetheless there are significantconstraints on the power of the judiciary to change the law. . . . In a constitutionaldemocracy such as ours it is the Legislature and not the courts which has the majorresponsibility for law reform . . . . The judiciary should confine itself to thoseincremental changes which are necessary to keep the common law in step with thedynamic and evolving fabric of our society.”Under our Constitution the duty cast upon judges is different in degree to that whichthe Canadian Charter of Rights cast upon Canadian judges. In South Africa, the ICbrought into operation, in one fell swoop, a completely new and different set of legalnorms. 22In these circumstances the courts must remain vigilant and should nothesitate to ensure that the common law is developed to reflect the spirit, purport andobjects of the Bill of Rights. We would add, too, that this duty upon judges arises inrespect both of the civil and criminal law, whether or not the parties in any particularcase request the court to develop the common law under section 39(2).[37] The proceedings in the High Court and the SCA took place after 4 February1997 when the Constitution became operative. It follows that both the High Courtand the SCA were obliged to have regard to the provisions of section 39(2) of the21Above n 15 at para 61.22See S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at para 262 perMahomed J.20