摘要:
South Africa, and consequently its judges, was left out in the cold when the world turned its back on it as a result of its notorious segregation policies. Although the South African courts continually compared South African with foreign case law, they focused mainly on jurisdictions with which South Africa had historical links, most notably England. Now that South Africa has a new constitutional dispensation with a justiciable Bill of Rights that encourages comparative constitutional adjudication, it is only logical that judges would actively note what is going on in the rest of the world to see what they have previously missed. This process is, however, nothing more than looking at and—-sometimes—-finding helpful guidance from foreign jurisprudence. We could not find any Constitutional Court case that considered the court to be bound by the findings of a foreign court. To the contrary: what we were able to deduce from the small sample of Constitutional Court cases we discussed is that, in accordance with the explanation of Justice Ackermann in one of his scholarly writings,... foreign law is not in any sense binding on the court referring thereto.... One may be seeking information, guidance, stimulation, clarification, or even enlightenment, but never authority binding on one"s own decision. One is doing no more than keeping the judicial mind open to new ideas, problems, arguments, solutions, etc.... Of course, the right problem must, in the end, be discovered in one"s own constitution and jurisprudence, but to see how other jurisdictions have identified and formulated similar problems can be of great use.171 It is evident that the South African Constitutional Court is confident enough that its independence will not be tainted by its propensity to consider foreign jurisprudence. It is not looking at foreign cases because it is clueless about what to do, but because it is the right thing to do—-it is an example of transnational contextualization in action. Though f