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Of Black Sheep and Too Much Wool

discussed in A. S. Mathews and R. C. Albino, "The Permanence of the Temporary" (1966) 83 S.A.L.J. 16 and A. S. Mathews, "A Meer Debacle" (1982) 99 S.A.L.J. 1), the tone of the minority is rather different. This is seen most clearly in the approval in Marwane (at p. 749D) of the view, expressed by the Privy Council in Minister of Home Affairs and Another v. Collins MacDonald Fisher and Another [1980] A.C. 319, that a constitutional instrument was sui generis and should be interpreted to give "full recognition and effect" to fundamental rights and freedoms guaranteed in a constitution. This approach, said the Appellate Division, was "not inconsistent with the fundamental approach of our Courts to the interpretation of statutes." It may be, therefore, that the Appellate Division is willing to play a full and creative role on the constitutional stage. For the people of Bophuthatswana the impact of the decision is immediate and far-reaching. It means that each and every South Africa statute can now be tested against the basic rights chapter of the Constitution; and, it is submitted, many such statutes will be found wanting. One should not, however, take too rosy a view of liberty in Bophuthatswana. The way forward is still fraught with many perils. Poverty, isolation and perhaps a lack of sufficient commitment amongst politicians to safeguard fundamental rights all threaten the liberties guaranteed in the Constitution. But such liberties are no longer nothing but dreams.