Towards establishing the ‘security laws’ interpretation regime’ which will facilitate the interpretation of state security laws in a manner that upholds and protects the rule of law and human rights: a South African perspective.

Abstract

One issue that has confronted democratic states for many years is the often broad and vague nature of security laws, and the consequent need for striking a balance between security laws and the rule of law as well as human rights. A number of democratic states currently rely on legal interpretation as a method for striking the requisite balance. However, it is unfortunate that the courts do not have a consistent record when it comes to interpreting security laws consistently with the rule of law and human rights. To try and solve this conundrum, this thesis studies and analyses the South African security and emergency laws, and thereafter concludes that certain techniques which have evolved over time, can be used to secure the interpretation of security laws in a manner that is cognisant and respectful of the rule of law and human rights. Taken together, these techniques constitute what in this thesis is termed the ‘security laws’ interpretation regime’. Thus, the present thesis proposes the formal establishment of the said interpretation regime. Once established, the interpretation regime will become a precedent for how judges in democratic states can achieve a transformative, liberal, purposive and substantive interpretation of security laws that is cognisant and respectful of the rule of law and human rights. The envisaged interpretation regime will also set South Africa on the right path to being a precedent of good practice when it comes to the interpretation of security laws consistently with the rule of law and human rights.