The UDHR at 75: Analysing the Prevalence of the Use of the UDHR and Other Human Rights Treaties in the Work of the Constitutional Court of South Africa

Abstract

South Africa’s democracy turned 30 years old in 2024. At the same time, its constitutional order and jurisprudence marked three decades since the Interim Constitution and its successor, the 1996 Constitution, came into operation. Coincidentally, the Universal Declaration of Human Rights (UDHR) turned 75 years old in the previous year, 2023. The confluence of these facts is quite poignant in the context of a constitutional text that is often lauded for its commitment to the protection of human rights and the eradication of the injustices of the past, which were firmly entrenched by the segregationist policies of the apartheid regime. At the centre of this hype about South African constitutional jurisprudence is the centrality of international law to the interpretation of the Bill of Rights as well as the development of the common law, customary law, and statutory law. With the UDHR being such a central pillar in the human rights sector, this study set out to determine the extent to which the Constitutional Court of South Africa relied on the UDHR and other international instruments in carrying out the mandate set out above. The study analysed cases delivered by the Court in two separate years, spaced ten years apart. The study did not necessarily attempt to determine a correlation, but simply to use descriptive statistics to determine how often, in those two years, the Court relied on international law in general, and on the UDHR in particular, in its interpretive and legal development mandate.

1. Introduction

The Universal Declaration of Human Rights of 1948 (UDHR 1948) turned 75 years old in 2023. Significantly, 2023 marked ten years since the Constitution of South Africa was amended to broaden the jurisdictional scope of the Court, to enable it to hear non-constitutional matters. The Declaration, although a non-binding instrument of the United Nations (UN), stands as a monumental milestone in the global quest for human dignity and equality. Adopted by the UN General Assembly on 10 December 1948, in the aftermath of the Second World War, the UDHR became a core pillar of the global response to the atrocities and human rights abuses over the decades (de Wolf and Moerland 2023). The ‘universal’ in the title of the UDHR was initially presented as ‘International’, but this was changed to reflect broadly the universal nature of the rights the document sought to protect (Robbins 2005).

The UDHR was a product of collaborative work by representatives from diverse cultural and legal backgrounds. It is composed of 30 articles that articulate the fundamental rights and freedoms inherent to all individuals, regardless of nationality, ethnicity, or religion. It draws inspiration from various philosophical and legal traditions, emphasising the universality of human rights. The UDHR proclaims, amongst others, the right to life, liberty, and security; freedom from torture and slavery; and the right to education and work. Over the years, the UDHR has influenced the development of international human rights law, serving as a cornerstone for subsequent treaties and conventions. Not only has the UDHR been instrumental at the international level, but it has found resonance at the domestic level too, through having some of its provisions incorporated into the national constitutions of most nations. Furthermore, some courts have in some cases relied on provisions of the UDHR to either develop the common law, the customary law, or even statutory enactments of a particular national legal system. This approach has been embraced by South African courts since the advent of the new constitutional order.

Although initially designed as a non-binding instrument that would give life to the general principles falling within the phrase ‘human rights and fundamental freedoms’ in the Charter of the United Nations, the UDHR would soon take on a life of its own. The adoption of the two international covenants, the Internatonal Covenent on Civil and Political Rights of 1966 (ICCPR 1966) and the International Covenant on Economic, Social, and Cultural Rights of 1966 (ICESCR 1966), was a result of the desire to extend the provisions of the UDHR into binding instruments that would clearly spell out the obligations of states (Richard Lillich 1995). For South Africa, the irony lies in the fact that whilst the UDHR was being negotiated at the international level, South Africa was represented by Jan Smuts, who played a key role in the development of the instrument. Whilst he assisted to develop an instrument aimed at protecting fundamental rights such as human dignity and equality, at the domestic level, Smuts pursued a government policy of segregation in the form of apartheid (Dube and Mhlongo 2021).

Developments at the international level indicate that the UDHR, or portions thereof, have attained the status of customary international law (Dugard 2009). Its contents thus place an obligation on members of the international community, including South Africa (Richard Lillich 1995). Some scholars, such as Lung-Chu Chen have referred to the UDHR as a core pillar of a global Bill of Rights, with attributes of jus cogens (Chen 1989). Chen asserts that the frequent invocation and application of the UDHR by state officials (including courts such as the South African Constitutional Court) have conferred upon this instrument ‘expectations characteristic of customary international law’. Esterling argues that Simma and Alston opine that the entire substance of the UDHR has morphed into customary international law (Esterling 2021). Lillich addresses the question of portions of the UDHR attaining the status of customary international law by reference to the case of Filartiga v Pena-Irala in which the US Court of Appeals had to deal with an extraterritorial lawsuit flowing from torture (Filartiga v Pena-Irala 1980). The Court opined that ‘the prohibition against torture has become part of customary international law, as evidenced and defined by the [UDHR]’.

2. A Brief Background and Mandate of the South African Constitutional Court

The Constitutional Court of South Africa was established in 1994 with the advent of democracy. When South Africa transitioned from the apartheid regime, a new constitution and judicial structure was needed to ensure that the injustices of the past were not repeated. Thus, the Constitutional Court was born. It is the apex court, and its jurisdiction extends to matters involving constitutional issues, human rights violations, and disputes over the constitutionality of legislation. Notably, the Court’s jurisdiction encompasses the power to declare laws unconstitutional, striking them down if they violate the constitutional framework. In conducting its work, the Court can develop the common law, customary law, or statutory law by reference to international law.

Prior to 2013, the Court’s jurisdiction was limited to constitutional issues. The 17th Amendment of the Constitution introduced section 167(3) which expanded the jurisdictional reach of the Court, by including matters which raise an arguable point of law of general public importance. Thus, effective from 2013, the Court could hear matters which were not necessarily of a constitutional nature, but somehow raised an arguable point of law of general public importance.

Given the UDHR’s influence in the creation of the Bills of Rights of most constitutions, including South Africa’s, it was imperative to have a cursory look at the 506 cases delivered by the South African Constitutional Court between the years 2013 and 2023, respectively, which revealed that 102 of these were concluded with reference to international law. However, the bulkiness of the population required the author to reduce both the population and the sample, in order to analyse the extent to which the Court relied on international law in general, and the UDHR in particular, in developing South African law. Thus, the study opted for two sets of cases, delivered ten years apart–that is, those delivered in 2013 and those delivered in 2023. The two periods are central to this study because the 2013 cases will reveal the trends in the usage of the UDHR and international law during a period when the ‘constitutional character’ of a matter sat at the core of determining the jurisdiction of the Court. The 2023 analysis seeks to determine the frequency of the usage of the UDHR in particular, and international law in general, ten years since the jurisdiction of the Court was expanded to include matters other than those deemed to be of a constitutional nature.

In terms of section 39 of the South African Constitution, the Court is bound to consider international law when interpreting a right in the Bill of Rights. Furthermore, section 232 of the Constitution stipulates that customary international law is law in the Republic unless it is inconsistent with an Act of Parliament or the Constitution itself. Thus, an examination of the frequency of the usage of the UDHR and other international law principles in the judgments of the Court could give a picture of the influence that international law in general, and the UDHR in particular, have exerted on the jurisprudence of the Constitutional Court. This examination of the frequency of the usage of the UDHR and other international law human rights treaties is imperative in the context of the UDHR turning 75 years old.

Similar studies have been carried out by scholars in other jurisdictions where the usage of international law by domestic courts was analysed. It is worth noting that even though such studies exist, they differ from the current enquiry on account of at least three factors: (1) South Africa’s stance as a dualist state, (2) South Africa’s express constitutional provision regarding the place of international law in the domestic legal framework, and (3) South Africa’s common law tradition. Furthermore, unlike the clear directive in section 39 of South Africa’s Constitution, some of the other comparable jurisdictions do not contain a clause that enjoins the courts to consider international law in the interpretation of their Bills of Rights.

For instance, Ndeunyema’s interrogation of Namibia’s international law–national law model was influenced by Namibia’s monist conception of international law (Ndeunyema 2020). However, it is worth noting that this analysis differs from this author’s approach since Namibia is a monist state, and section 144 of the Namibian Constitution provides that ‘the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia’. Unlike the case in South Africa, where legal dualism prevails (international agreements do not form part of the law of South Africa until they are approved by Parliament), in Namibia, there is no distinction between the two forms of law as the Constitution provides for the express application of international law by the courts (Kariseb 2021). In neighbouring Lesotho, a dualist state whose Constitution is silent on the status of international law in the domestic legal system, a different approach to the application of international law prevails. Notably, the Constitution does not contain any provisions requiring parliamentary incorporation of international agreements before they form part of domestic Lesotho law (Shale 2019).

In a similar fashion, the state of Malawi regards itself as a dualist state, and only applies international law once an Act of Parliament has incorporated any international agreements into Malawi domestic law. It thus regards itself as a sovereign state which would regard the imposition of international law as an encroachment on that sovereignty. Thus, in section 1, the Malawi Constitution alludes to Malawi’s rights and obligations under the United Nations system while underscoring the sovereignty of the state (Kapindu 2015). In section 11(2)(c), the Malawi Constitution enjoins the courts, where applicable, to ‘have regard to the current norms of public international law’ when interpreting provisions of the Constitution. Consequently, Malawi courts, unlike South African courts, are granted discretion on whether or not to apply international law (Kapindu 2015).

Ndeunyema’s article highlights that even though Namibia is a monist state, this hardly finds expression in real life. Citing Tshosa, Ndeunyema teases out the idea that this monist perception is ‘relevant only in the specific context of customary, but not conventional, international [treaty] law’ (Tshosa 2010). The author continues to stress that only customary international law has a settled position within the Namibian jurisprudence, whilst general principles of international law are not as established. Given the constitutional limitations to the application of treaty law in Namibia, Ndeunyema concludes that the system can be understood as ‘weak monism’ or ‘qualified monism’–owing to the qualifier that international law must not be inconsistent with the Constitution or an Act of Parliament.

In her assessment of the application of international law in the Lesotho courts, Shale concludes that the courts hardly apply customary international law. Where the Lesotho have largely invoked international law is in the area of treaties, which were mostly used as interpretive aids.

3. Sample Size

A sample is defined as a representative subset drawn from a selected population which is the subject of a scientific study, in order to answer critical research questions and base one’s conclusions on the results from that subset (Kazerooni 2002). Setia proposes a very simplistic definition of a sample (Setia 2016). He states that it is a selection of a few individuals from a larger population for the purposes of conducting a study, whose results can be imputed to the larger population. It is not necessary for the researcher to collect data from all cases (Taherdoost 2016).

For a researcher to successfully examine any phenomenon, a population, from which a sample can be extracted, is required. Castel and Bridier assert that the target population is the specific, conceptually bounded group of potential participants accessible to the researcher and it represents the nature of the population of interest (Casteel and Bridier 2021). A population can also be understood as a set of all items, people, or events of interest to that particular study (Kwak and Kim 2017) or as Sykes, Gani, and Vally put it, ‘a population includes all of those entities from which the researcher wishes to draw conclusions’ (Sykes and Gani 2016). In this study, the population was a total of 97 cases delivered by the Constitutional Court (51 in 2013, and 46 in 2023).

Islam states that the key consideration in determining the size of a sample is to ensure that it is representative (Islam 2018). In other words, that it enables the researcher to make valid inferences about the population. The study adopted non-probability sampling, which is often associated with a case study research design (Taherdoost 2016). In such cases, the sample of participants does not need to be representative, but a rationale is needed for the inclusion or exclusion of some cases and not others.

With a sample size of 19 (6 in 2013 and 13 in 2023), out of a population of 97, the chances of a random sampling error have thus been mitigated or reduced.

4. Methods

Once the population was identified, certain parameters were used to draw out the sample of 19 cases. A keyword search was conducted on the SAFLII website www.saflii.org.za (accessed 30 July 2024) (Supplementary Materials), and the search was conducted for each of the two years under review. The following search terms were used: International, United Nations, covenant, convention, treaty, charter, civil, instrument, obligations, universal, African Union, European Convention, UDHR, customary law, ILO, and ICCPR. Cases that referenced international law, as identified through the foregoing search terms, were collected and saved in corresponding folders for each year. Once those cases were isolated to form part of the sample, the text of those cases was analysed to obtain an understanding of the extent to which the Court, in advancing human rights, relied on international law in general, and the UDHR in particular. In this process, cases that merely mentioned the above terms without necessarily applying them in the reasoning of the judges were eliminated.

5. Findings

The UDHR is highly praised as marking the turning point in humanity’s quest to protect humankind from gross human rights violations, and marking a sharp departure from the atrocities that fomented the Second World War. Many constitutions across the globe, including the South African Constitution, are said to have, in one way or another, been influenced by this human rights instrument. Given the status of the UDHR today, questions could be asked about the reliance by domestic courts on this instrument, in their quest to protect human rights. In other words, it remains untested just how often South African domestic courts will rely on this instrument to develop the common law, customary law, or statutory law in their adjudicatory processes.

The core focus of the article was to examine data collected from the reported cases finalised by the Constitutional Court in two selected periods that stand ten years apart (see

Table 1. This table only shows: (i) the total number of cases delivered by the Constitutional Court between 2013 and 2023, and (ii) the number of cases in which international law was cited.

Year	Total Cases	INT’L Law	%
2013	51	6	11.8
2014	39	7	18
2015	41	7	17
2016	55	4	7
2017	48	4	8.3
2018	52	15	29
2019	47	6	12.8
2020	32	10	31
2021	51	16	31
2022	44	14	32
2023	46	13	28
Total	506	102	20.2

). The period of ten years was chosen because it represents an era when the Court adjudicated on matters post the 17th Amendment of the Constitution, which as explained above, allowed for matters, other than constitutional matters, to fall within the jurisdiction of the court.

Four key trends were identified, which informed the research, viz.:

(i)

Citation of international law in general;

(ii)

Citation of the UDHR in general;

(iii)

Usage of international law in particular to resolve a legal issue,

(iv)

Usage of the UDHR in particular to resolve a legal issue.

6. Discussion of the Results of the 2013 Cases

Of the 51 cases handled by the Court in 2013, only six referenced international law, without mentioning the UDHR at all. This equates to 11.8 percent. In the case of Agri South Africa v Minister of Minerals and Energy 2013 ZACC 9, the Court relied on jurisprudence from the European Court of Human Rights, drawing from provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), including the provisions regarding the rights of an individual to own property undisturbed and not to be deprived of same without compensation. In Mail and Guardian Media Limited v MJ Chipu NO (Chairperson of the Refugee Appeal Board) [2013] ZACC 32, the Court successfully declared section 21(5) of the Refugees Act 130 of 1998 as inconsistent with section 16 of the South African Constitution. In arriving at this conclusion, the Court had reference to other international law treaties, such as the Rome Statute of the International Criminal Court, the Charter of the Organisation of African Unity, the United Nations Refugee Convention of 1951, the United Nations Convention against Illicit Traffic in Narcotic Drugs, and the European Convention on the Suppression of Terrorism. Similarly, no reference was made to the UDHR.

Mansingh v General Council of the Bar [2013] ZACC 40 contains a fleeting mention of customary international law in a case where the Constitutional Court had to deal with the constitutionality of the president’s common law derived prerogative powers, without referencing the UDHR or any other international law instrument. In Mbatha v University of Zululand [2013] ZACC 43, a matter involving a labour dispute alleged to be in violation of the applicant’s constitutional rights, was decided by the Court with reliance on conventions of the International Labour Organisation, without reference to the UDHR. In Government of the Republic of Zimbabwe v Fick [2013] ZACC 22, the Constitutional Court relied extensively on international law and invoked South Africa’s obligations to consider international law in interpreting a right in the Bill of Rights. This matter involved a claim for human rights violations, brought before a South African court by foreigners against a foreign government. Interestingly, the Court relied on the law of the Southern African Development Community (SADC) as the source of applicable international law in this case. It did not rely on the UDHR or any other legal instrument of the UN or the AU. In Head of Department, Department of Education, Free State Province v Welkom High School [2013] ZACC 25, the Court did not rely on the UDHR or any other international legal instrument, save for invoking customary international law without expanding any further. The Court was contending with an assertion by the applicant that the expulsion of a pregnant learner from school was discriminatory and in violation of international law. In finding in favour of the expelled learner, the Court relied solely on domestic legislation and the Constitution, without reference to international law or the UDHR.

7. Discussion of the Results of the 2023 Cases

The number of total cases delivered by the Constitutional Court in 2023 showed a decrease of five cases, taking the total to 46. The number of cases referencing international law more than doubled, with 13 such cases being identified, which represents seven more cases than those recorded ten years prior. In total, the number of cases citing international law in 2023 represented 28 percent, compared to the 11.8 percent recorded in 2013.

In The Ad Hoc Central Authority for the Republic of South Africa v HK N.O. [2023] ZACC 37, the Court relied only on the Hague Convention on the Civil Aspects of International Child Abduction of 1980. It did not reference the UDHR or any other international law instrument. Perhaps this can be explained by the fact that section 275 of the Children’s Act 38 of 2005 establishes this Convention as part of the law of South Africa, unless it is inconsistent with the Act. Hence the Court did not have the need to invoke other international legal instruments to determine the legality of the movement of a child out of South Africa. The provisions of the Convention were sufficient.

In Arena Holdings (Pty) Ltd t/a Financial Mail v South African Revenue Service [2023] ZACC 13, the Court relied, amongst others, on the UDHR to opine that the right to freedom of expression is not only protected in South African law, but also in regional and international law. It continued to note that the provisions protecting this right in the ICCPR were drawn from the UDHR, and that at both the domestic and the international level, this right is not absolute but subject to limitation. The court also drew inspiration from the African Charter, the European Convention on Human Rights, and the Inter-American Convention on Human Rights.

In Ashebo v Minister of Home Affairs [2023] ZACC 16, the Court did not necessarily touch on the UDHR or any other international instruments, save for the UN Refugees Convention. Drawing from this treaty, the Court opined that in terms of section 2 of the Refugees Act 130 of 1998, an asylum seeker could not be deported until ‘he had had an opportunity to show good cause, and if such good cause has been shown, until his application for asylum has been fully determined under the Act’.

In Centre for Child Law v TS [2023] ZACC 22, the Court opined in paragraph 48 that the concept of the best interests of the child has never been given exhaustive content in both South African law and international law. The Court thus made reference to international law in passing, without necessarily mentioning the UDHR or any other international instrument. In EB v ER [2023] ZACC 32, however, the Court drew inspiration from the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). It also relied on the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women, as well as the African Charter itself. It thus relied on all these instruments, bar the UDHR, to confirm the inconsistency of section 7(3) of the Divorce Act 70 of 1979, to the extent that it failed to include the dissolution of a marriage by death.

In Independent Candidates [2023] ZACC 41, in paragraph 59, the Court refused to entertain the application, since the applicant had not established that the impugned legislation was irrational, nor that it infringed upon a provision in the Bill of Rights. Thus, the Court did not acquiesce to the applicant’s prayer to declare that legislation unconstitutional. The applicant had relied on, amongst others, the UDHR, the ICCPR, the African Charter, the International Covenant on the Elimination of All Forms of Racial Discrimination, and the American Convention on Human Rights. It would seem that the defect in the applicant’s case was not to draw a connecting thread between these international instruments and the Bill of Rights, and in the failure to demonstrate the irrationality of the impugned provisions.

Whilst the Court’s reasoning cannot be faulted, there is concern with the manner in which it couched its jurisprudence. In paragraph 159, the Court tabled its response to the applicant’s submission on the foreign jurisprudence he relied on. The Court agreed with the respondent that the applicant’s reliance on these legal frameworks did not necessarily assist the applicant’s case. This, the Court opined, flowed from the fact that the comparators cited by the applicant adopt different electoral systems, which are at variance with South Africa’s proportional representation system. These foreign systems were therefore not comparable to the South African design. Disappointingly, the Court did not address the issue of reliance on international law, including the UDHR–yet, the heading of paragraph 156 reads ‘foreign jurisprudence and international instruments’. The Court addressed itself to the foreign law only, without indicating why the use of international law was insufficient to assist the applicant. Perhaps, as indicated above, over and above the failure to demonstrate the conflict between the impugned provisions and the Bill of Rights, the client also failed to demonstrate a golden thread between the international law provisions cited and the domestic law.

In Liebenberg v the State [2023] ZACC 33, paragraph 45, the Court refused to entertain a claim of human rights violations because the applicant had failed to demonstrate a constitutional issue. Neither had they effectively shown that an arguable point of law of general public importance existed in their claim. However, in dismissing the matter for want of jurisdiction, the Court only made mention of the fair trial expectations that international human rights bodies have unceasingly preached to domestic courts and legislatures, without necessarily referencing any specific human rights treaty or treaty body. In the end, the matter was decided solely on the basis of South African constitutional law, and did not reference the UDHR.

In Makana v Minister of Health [2023] ZACC 15, the Court had to deal with the constitutionality of certain provisions of the Mental Health Care Act 17 of 2002. In paragraph 83, the Court relied on both the UDHR and the African Charter to unpack the right to liberty and security of the person. It then turned to the ICCPR and the UN Human Rights Committee’s General Comment No. 35 to unpack the substantive constituent elements of this right, as well as the mechanisms by which this right could be limited. The Court further relied on the Convention on the Rights of Persons with Disabilities and its guidelines, the African Disability Rights Protocol, as well as the European Convention of Human Rights to examine the duties of states in this regard. Interestingly, the Court acknowledged in paragraph 109 that in the formulation of the Act, the ICCPR formed part of the international law background that influenced the development of the domestic legislation. Thus, by default, the UDHR was central to the Act’s formulation since the ICCPR is largely a binding extension of the UDHR provisions.

South Africa’s obligations under the ICCPR were central to the determination of the rights of the applicant to participate in public life in the case of Mogale v Speaker of the National Assembly [2023] ZACC 14. The dispute related to the manner in which the state had handled public hearings across South Africa, in the run up to the enactment of the Traditional and Khoi-San Leadership Act 3 of 2019. Using the parameters of the ICCPR, the Court concluded that legislation which is the product of a flawed public hearing system (in other words a public participation system which excluded some and prioritised others) did not meet constitutional muster. It thus concluded that the Act was adopted in a manner that was inconsistent with the Constitution and therefore invalid.

The Constitutional Court also had to deal with the constitutionality of certain sections of the Customs and Excise Act 91 of 1964 and the Value-Added Tax Act 89 of 1991 in the case of Nu Africa Duty Free Shops (Pty) Ltd v Minister of Finance and Others; Commissioner for the South African Revenue Service v Ambassador Duty Free (Pty) Ltd and Others; Minister of Finance v Ambassador Duty Free (Pty) Ltd and Others [2022] ZACC 31. The Court turned to the Vienna Convention on the Law of Treaties, as well as customary international law to determine the privileges of a diplomat. The Court noted that prior to the Vienna Convention, these privileges did not form part of customary international law, but were practiced out of courtesy, comity, and reciprocity. In paragraph 144, the Court then zoned in on the travaux preparatoires to conclude that each state retained the right to regulate these exemptions, and that no blanket exemption existed which absolved diplomats from duties and taxes.

In One Movement South Africa v President of the Republic of South Africa [2023] ZACC 42, the Court noted that the right to candidacy and to participate in democracy was not only drawn from international and foreign law, but was also firmly embedded in South Africa’s Freedom Charter (paragraph 271). In paragraph 280, the Court drew inspiration from the UDHR itself and stated that both international law and regional law recognise the interrelationship between the right to vote, suffrage, association, and candidacy, and that the UDHR, through article 21, specifically links direct participation to the right of individuals to take part in the government. In shaping its opinion further, the Court also relied on other instruments, including the ICCPR, the American Convention on Human Rights, the African Charter, and article 3 of Protocol 1 to the European Convention of Human Rights.

In Rayment v Minister of Home Affairs [2023] ZACC 40, paragraph 62, the Court reiterated that the text of the South African Constitution did not expressly protect the right to family life or the right to cohabit. However, through the influence of international law, the courts had already interpreted the family-related provisions in the Constitution to be substantively in sync with the protections offered by international human rights law instruments. In essence, the Court was of the view that the South African constitutional provisions met the requirements imposed by international human rights law in as far as the protection of the rights to marry and to found a family. In doing so, the Court relied on quite a number of pertinent human rights instruments, viz. the UDHR, ICCPR, ICESCR, the UN Convention on the Rights of the Child, and the African Charter on the Rights and Welfare of the Child.

The Court, in Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others [2023] ZACC 45, had to address the claim that the asylum application system applied by South Africa ran afoul of international law, and the principle of non-refoulement. The Court accepted that this principle forms part of international customary law, and was also to be found in the binding provisions of the following instruments in paragraphs 29 and 30: the UN Convention Relating to the Status of Refugees 1951, the UN Protocol Relating to the Status of Refugees of 1967, and the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa of 1969.

From the foregoing results drawn from the two selected periods, the results show that in 2013, only six out of 51 cases referenced international law, whilst in 2023, only 13 out of 46 cases referenced international law. In doing so, the Court did not only rely on the UDHR but also drew inspiration from various international law and regional law instruments. Also featured in some of these cases was the Court’s reliance on customary international law. It is clear from the foregoing, that where the Court is of the view that there is sufficient wherewithal within the domestic sphere to reference in interpreting a particular right, the court will rely on domestic law to interpret a right in the Bill of Rights; and it will not make reference to international law, as seen in the case of The Ad Hoc Central Authority for the Republic of South Africa v HK N.O. [2023] ZACC 37.

8. Conclusions

The study began with the assumption that given the background of the design and development of the South African Constitution, international law and particularly the UDHR would play a major role in the interpretation of its Constitution and the Bill of Rights. This assumption was backed by scholarly opinions that South Africa’s Constitution was inspired by international law, and that its section 39 enjoins the Court to consider international law in interpreting the rights in the Bill of Rights. It was further inspired by the provisions of section 232, which stipulates that international customary law forms part of the law of the Republic, unless it is inconsistent with the Constitution or any other piece of legislation.

The results over a period of ten years showed a different story. An analysis of two sets of cases delivered by the same court in 2013 and 2023, the two periods which this paper concerned itself with, showed a similar trend. The percentage of cases in which international law in general, and the UDHR in particular, was utilised was very minimal. For 2023, this stood at 28 percent, while in 2013, it stood at 11.8 percent, showing an improvement of 16.2 percent. The overall trend showed that there was an increase in the usage of international law or the UDHR following the amendment of the Constitution in 2013 to broaden the jurisdiction of the Court.