Planting Seeds for the Future: Dissenting Judgments and the Bridge from the Past to the Present
Author Clive Plasket
Affiliations: BA, LLB, LLM (Natal), PhD (Rhodes), Judge of the Supreme Court of Appeal, Honorary Visiting Professor, Rhodes University. This contribution is based on a lecture presented at the Faculty of Law, Rhodes University, Makhanda on 8 Oct 2019.
Source: Fundamina, Volume 26 Issue 1, p. 91-127
The principal focus of this contribution concerns five cases involving questions of public law, namely the meaning of discrimination; the meaning of public power and its control; whether administrative actions may be reviewed for unreasonableness; the rights of prisoners; and the control of emergency powers in the face of an ouster clause. All five cases were decided in the Appellate Division of the Supreme Court of South Africa, now known as the Supreme Court of Appeal, and all were decided prior to 1994: in 1934, 1958, 1976, 1979 and 1988. In each, a dissenting judgment was delivered that articulated values that we today associate with our present democratic Constitution. Before dealing with those cases in detail, it is necessary to say something about the connection between the pre- and post-1994 law, and then to consider the role of some dissenting judgments in the development of the law.