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Hastings International and Comparative Law Review

Authors

Jeremy Sarkin

Abstract

The role of the common law in South Africa has been controversial. Some argue that South Africa's common law, inherited from Roman-Dutch and English law, has a problematic colonial tradition that has done little to protect justice and equality. Others argue that if not for parliamentary security legislation, South Africa's common law could have protected rights and freedoms.

This article examines several apartheid-era cases in which the common law protection of individual rights was at stake to determine whether the common law was human rights friendly, or if it was compatible with the constitutional dispensation of human rights abuses. It then examines what effect the new constitution and bill of rights have had on the common law, and considers which areas of the law outside of the constitution and bill of rights will be affected.

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