Regsvinding: Die nederlandse en duitse ervaring

Abstract

The South African judiciary prefers non-critical interpretation of the law (especially legislation). In the Netherlands and Germany there is an ongoing debate on the role of the judiciary as lawmakers. In South Africa, however, the discussion of new ways of interpretation of legislation has up till now excluded this possibility. In this article a short overview of lawmaking in general is given. Following that, lawmaking in the interpretation of legislation is discussed with reference to the role of equity, the interpretation of general terms and phrases, the filling of gaps in legislation, the modification of strict law, the role of discretionary powers and the testing of legislation. The aim of the article is to add another point of view to the present debate on law reform, of which the interpretation of statutes is, amongst other aspects, a central theme. This is especially relevant considering the role of the Smith African judiciary subsequent to the introduction of a Bill of Rights.