Judicial activism as exponent of the unwritten values inherent in the South African Bill of Rights

Abstract

This study focuses on the role of the South African judiciary under an entrenched and justiciable Bill of Rights. The lack of an established human rights culture in South Africa results in uncertainty regarding the permissible extent to which judges are empowered, under the Bill of Rights, to employ judicial activism and creativity in order to protect the fundamental rights of citizens. Judicial activism is used in the sense that judges can and should, whenever expressly or impliedly sanctioned to do so by the Bill of Rights, ensure that the fundamental rights of the individual are protected to the extent of granting actual constitutional relief, where this is justified, instead of merely declaring the existence of a right. The essential aim of this study is to outline the parameters of, and the legal basis upon which judicial activism can be justified and accepted into a South African human rights culture.