Constitutional Court of South Africa
Encyclopedia
The Constitutional Court of South Africa was established in 1994 by South Africa
's first democratic
constitution
: the Interim Constitution of 1993. In terms of the 1996 Constitution
the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February 1995. Since February 2004, Constitution Hill
in Johannesburg
has been the seat of the court. The court consists of eleven judge
s, headed by a Chief Justice
and Deputy Chief Justice
. Currently eight of the judges are men
and three are women
. Their duty is to uphold the law and the constitution, which they must apply impartially and without fear, favour or prejudice.
The constitution requires that a matter before the court be heard by at least eight judges. In practice, all eleven judges hear almost every case. If any judge is absent for a long period or a vacancy arises, an acting judge may be appointed by the President of the Republic
on a temporary basis on the recommendation of the Minister of Justice acting with the concurrence of the Chief Justice. Decisions of the Court are reached by majority vote of the judges sitting in a case. Each judge must indicate his or her decision. The reasons for the decision are published in a written judgment.
Then the President, after consultation with the Chief Justice and the leaders of political parties represented in the National Assembly, chooses the judges from this selection.
The judges ordinarily serve for a non-renewable term of 12 years, unless it is extended by an Act of Parliament.
null and void if it conflicts with the constitution and to control executive action in the same way.
When interpreting the Constitution, the court is required to consider international human rights
law and may consider the law of other democratic countries. The Constitutional Court is the highest court in the land for all constitutional matters, while the Supreme Court of Appeal
is the highest court for all matters which do not involve the interpretation of the constitution. The Constitutional Court has final authority to determine which matters are constitutional matters and which are not.
, formerly called the Ombudsman
. A Human Rights Commission
has been established to handle complaints of violation of human rights in daily life. The ordinary courts, notably the small claims court
s, the Magistrates' Courts, the High Court
s and the Supreme Court of Appeal
, deal with day-to-day disputes between citizens and the state.
The hearings of the court are open to the public and the press. No cameras or recorders are ordinarily permitted. The public is invited to attend all sessions. Ordinary rules of decent dress and decorum apply.
to the Judicial Service Commission as a result of what they described in their statement as an approach to certain of them "...in an improper attempt to influence this Court's pending judgement in one or more cases". The statement stated further that the complaint related to four matters in which either Thint (Pty) Ltd or the Deputy President, Jacob Zuma
, were involved. Judge Hlophe was reported to have rejected the allegations as "utter rubbish" and as "another ploy" to damage his reputation.
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
's first democratic
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
: the Interim Constitution of 1993. In terms of the 1996 Constitution
Constitution of South Africa
The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...
the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February 1995. Since February 2004, Constitution Hill
Constitution Hill, Johannesburg
The Constitution Hill precinct, located at the western end of the suburb Hillbrow in Johannesburg, is the seat of the Constitutional Court of South Africa. The first court session in the new building at this location was held in February 2004.-History:...
in Johannesburg
Johannesburg
Johannesburg also known as Jozi, Jo'burg or Egoli, is the largest city in South Africa, by population. Johannesburg is the provincial capital of Gauteng, the wealthiest province in South Africa, having the largest economy of any metropolitan region in Sub-Saharan Africa...
has been the seat of the court. The court consists of eleven judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s, headed by a Chief Justice
Chief Justice of South Africa
The Chief Justice of South Africa is the head of the judiciary of South Africa, who exercises final authority over the functioning and management of all the courts...
and Deputy Chief Justice
Deputy Chief Justice of South Africa
The Deputy Chief Justice of South Africa is a judge in the Constitutional Court of South Africa and the second-highest judicial post in the Republic of South Africa, after the Chief Justice...
. Currently eight of the judges are men
Man
The term man is used for an adult human male . However, man is sometimes used to refer to humanity as a whole...
and three are women
Woman
A woman , pl: women is a female human. The term woman is usually reserved for an adult, with the term girl being the usual term for a female child or adolescent...
. Their duty is to uphold the law and the constitution, which they must apply impartially and without fear, favour or prejudice.
The constitution requires that a matter before the court be heard by at least eight judges. In practice, all eleven judges hear almost every case. If any judge is absent for a long period or a vacancy arises, an acting judge may be appointed by the President of the Republic
President of South Africa
The President of the Republic of South Africa is the head of state and head of government under South Africa's Constitution. From 1961 to 1994, the head of state was called the State President....
on a temporary basis on the recommendation of the Minister of Justice acting with the concurrence of the Chief Justice. Decisions of the Court are reached by majority vote of the judges sitting in a case. Each judge must indicate his or her decision. The reasons for the decision are published in a written judgment.
Appointment procedure and tenure
Sections 174 to 178 of the Constitution deal with the appointment of judicial officers. Judges may not be members of Parliament, of the government or of political parties. To select judges the Judicial Service Commission first draws up a list of candidates which list must have three or more names than the number of vacancies. The Commission does this after calling for nominations and holding public interviews.Then the President, after consultation with the Chief Justice and the leaders of political parties represented in the National Assembly, chooses the judges from this selection.
The judges ordinarily serve for a non-renewable term of 12 years, unless it is extended by an Act of Parliament.
Current bench
Current Constitutional Court justices:- Chief JusticeChief Justice of South AfricaThe Chief Justice of South Africa is the head of the judiciary of South Africa, who exercises final authority over the functioning and management of all the courts...
Mogoeng MogoengMogoeng MogoengMogoeng Mogoeng is a judge in the Constitutional Court of South Africa. President Jacob Zuma announced Mogoeng as his preferred candidate to fill the vacant post of Chief Justice of South Africa and his appointment was confirmed on 8 September 2011....
(appointed by Jacob Zuma in 2009 and elevated in 2011) - Deputy Chief JusticeDeputy Chief Justice of South AfricaThe Deputy Chief Justice of South Africa is a judge in the Constitutional Court of South Africa and the second-highest judicial post in the Republic of South Africa, after the Chief Justice...
Dikgang MosenekeDikgang MosenekeDikgang Ernest Moseneke is the current Deputy Chief Justice of the Republic of South Africa. He was appointed to the bench in 2002 by Thabo Mbeki, and was elevated as Deputy Chief Justice in 2005 by Thabo Mbeki....
(born 1947, appointed by Thabo Mbeki in 2004 and elevated by Thabo Mbeki in 2005) - Justice Edwin CameronEdwin CameronEdwin Cameron is a South African Rhodes scholar and current Constitutional Court justice. Cameron served as a Supreme Court of Appeal judge from 2000 to 2008. He was the first senior South African official to state publicly that he was living with HIV/AIDS...
(born 1953, appointed by Kgalema Motlanthe in 2008) - Justice Johan Froneman (appointed by Jacob Zuma in 2009)
- Justice Chris Jafta (appointed by Jacob Zuma in 2009)
- Justice Sisi Khampepe (appointed by Jacob Zuma in 2009)
- Justice Bess NkabindeBess NkabindeBess Nkabinde is a judge in the Constitutional Court of South Africa. She was appointed to the bench in 2006 by Thabo Mbeki.-References:...
(born 1959, appointed by Thabo Mbeki in 2006) - Justice Thembile SkweyiyaThembile SkweyiyaThembile Skweyiya is a judge in the Constitutional Court of South Africa. He was appointed to the bench in 2003 by Thabo Mbeki.-References:...
(appointed by Thabo Mbeki in 2003) - Justice Johann van der WesthuizenJohann van der WesthuizenJohann van der Westhuizen is a judge in the Constitutional Court of South Africa. He was appointed to the bench in 2004 by Thabo Mbeki. He was previously a professor a the University of Pretoria Faculty of Law and the founding director of the Centre for Human Rights...
(appointed by Thabo Mbeki in 2004) - Justice Zak YacoobZak YacoobZakeria "Zak" Yacoob is a judge in the Constitutional Court of South Africa. He was appointed to the bench in 1998 by Nelson Mandela.-References:...
(born 1948, appointed by Nelson Mandela in 1998)
Former justices
- Chief JusticeChief Justice of South AfricaThe Chief Justice of South Africa is the head of the judiciary of South Africa, who exercises final authority over the functioning and management of all the courts...
Pius LangaPius LangaPius Nkonzo Langa was previously Chief Justice of the Constitutional Court of South Africa. He was appointed to the bench in 1994 by Nelson Mandela, became Deputy Chief Justice in 2001 and was elevated as Chief Justice in 2005 by Thabo Mbeki. He retired in October 2009.-External links:**...
(born 1939, appointed by Nelson MandelaNelson MandelaNelson Rolihlahla Mandela served as President of South Africa from 1994 to 1999, and was the first South African president to be elected in a fully representative democratic election. Before his presidency, Mandela was an anti-apartheid activist, and the leader of Umkhonto we Sizwe, the armed wing...
in 1994 and elevated by Thabo MbekiThabo MbekiThabo Mvuyelwa Mbeki is a South African politician who served two terms as the second post-apartheid President of South Africa from 14 June 1999 to 24 September 2008. He is also the brother of Moeletsi Mbeki...
in 2005, retired in 2009) - Chief Justice Sandile NgcoboSandile NgcoboS. Sandile Ngcobo is former justice in the Constitutional Court of South Africa. He served as Chief Justice from 2009 to 2011.-Education:...
(born 1953, appointed by Nelson MandelaNelson MandelaNelson Rolihlahla Mandela served as President of South Africa from 1994 to 1999, and was the first South African president to be elected in a fully representative democratic election. Before his presidency, Mandela was an anti-apartheid activist, and the leader of Umkhonto we Sizwe, the armed wing...
in 1999 and elevated by Jacob ZumaJacob ZumaJacob Gedleyihlekisa Zuma is the President of South Africa, elected by parliament following his party's victory in the 2009 general election....
in 2009, retired in 2011) - Chief Justice Arthur ChaskalsonArthur ChaskalsonArthur Chaskalson, is a former President of the Constitutional Court of South Africa and Chief Justice of South Africa...
(born 1931, appointed by Nelson Mandela as President of the Constitutional Court 1994 - 2001; Chief Justice 2001 - 2005) - Justice Tholie MadalaTholie MadalaTholakele "Tholie" Madala was a judge in the Constitutional Court of South Africa. He was appointed to the bench in 1994 by Nelson Mandela. He retired in 2008.-References:...
(born 1937, appointed by Nelson Mandela in 1994, retired in 2008) - Justice Yvonne MokgoroYvonne MokgoroYvonne Mokgoro was born is a judge in the Constitutional Court of South Africa. She was appointed to the bench in 1994 by Nelson Mandela. She is a board member of the Centre for Human Rights at the University of Pretoria....
(born 1950, appointed by Nelson Mandela in 1994, retired in 2009) - Justice Kate O'ReganKate O'ReganKate O'Regan was a judge in the Constitutional Court of South Africa. She was appointed to the bench in 1994 by Nelson Mandela. She hold a B.A. and LL.B. from the University of Cape Town, an LL.M. from the University of Sydney and a Ph.D. from the London School of Economics...
(born 1957, appointed by Nelson Mandela in 1994, retired in 2009) - Justice Albie SachsAlbie SachsAlbie Sachs was a judge on the Constitutional Court of South Africa. He was appointed to the court by Nelson Mandela in 1994 and retired in October 2009...
(born 1935, appointed by Nelson Mandela in 1994, retired in 2009) - Justice John DidcottJohn DidcottJohn Mowbray Didcott was a South African judge who was a Justice of the Constitutional Court of South Africa from the court's opening on 14 February 1995 until his death.-References:...
(born 1931, appointed by Nelson Mandela in 1995, died in 1998) - Justice Ismail MahomedIsmail MahomedJustice Ismail Mahomed was a South African lawyer who served as the Chief Justice of South Africa and the Supreme Court of Namibia, and co-authored the constitution of Namibia.-Early life:...
(born 1934, appointed by Nelson Mandela in 1995, elevated 1998, died in 2000) - Justice Lourens AckermannLourens AckermannLourens Wepener Hugo Ackermann is a former justice of the Constitutional Court of South Africa, where he served from 1994 to 2004....
(born 1934, appointed by Nelson Mandela in 1994, retired in 2004) - Justice Richard GoldstoneRichard GoldstoneRichard Joseph Goldstone is a South African former judge. After working for 17 years as a commercial lawyer, he was appointed by the South African government to serve on the Transvaal Supreme Court from 1980 to 1989 and the Appellate Division of the Supreme Court of South Africa from 1990 to 1994...
(born 1938, appointed by Nelson Mandela in 1994, retired in 2003) - Justice Johann KrieglerJohann KrieglerJohann Christiaan Kriegler is a former Constitutional Court and Appeal Court judge from South Africa.-Early life:Born in Pretoria, he matriculated at King Edward Vll School in Johannesburg in 1949. He then attended the South African Military Academy for two years. He studied law at the University...
(born 1932, appointed by Nelson Mandela in 1994, retired in 2003)
The constitution as the supreme law
The judgments of the court are based on the constitution, which is the supreme law of the land. They guarantee the basic rights and freedoms of all persons. They are binding on all organs of government, including the parliament, the presidency, the police force, the army, the public service and all courts. This means that the court has the power to declare an Act of ParliamentAct of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
null and void if it conflicts with the constitution and to control executive action in the same way.
When interpreting the Constitution, the court is required to consider international human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
law and may consider the law of other democratic countries. The Constitutional Court is the highest court in the land for all constitutional matters, while the Supreme Court of Appeal
Supreme Court of Appeal of South Africa
The Supreme Court of Appeal is an appellate court in South Africa; it is the highest appeal court except in constitutional matters, which are ultimately decided by the Constitutional Court...
is the highest court for all matters which do not involve the interpretation of the constitution. The Constitutional Court has final authority to determine which matters are constitutional matters and which are not.
Other bodies protecting human rights
The court is one of many bodies created by the constitution to defend the rights of citizens. It is concerned basically with matters of broad constitutional principle. Bad or incorrect conduct by state officials can be reported to the Office of the Public ProtectorPublic Protector
The Public Protector is an office established by the Constitution of South Africa. It is one of the Chapter nine institutions, named for the constitutional chapter that establishes a number of bodies with the mandate to guard democracy....
, formerly called the Ombudsman
Ombudsman
An ombudsman is a person who acts as a trusted intermediary between an organization and some internal or external constituency while representing not only but mostly the broad scope of constituent interests...
. A Human Rights Commission
South African Human Rights Commission
The South African Human Rights Commission was inaugurated in October 1995 as an independent national institution. It draws its mandate from the South African Constitution by way of the South African Human Rights Commission Act of 1994....
has been established to handle complaints of violation of human rights in daily life. The ordinary courts, notably the small claims court
Small claims court
Small-claims courts have limited jurisdiction to hear civil cases between private litigants. Courts authorized to try small claims may also have other judicial functions, and the name by which such a court is known varies by jurisdiction; it may be known as a county or magistrate's court...
s, the Magistrates' Courts, the High Court
High Court of South Africa
The High Courts are superior courts of law in South Africa. The courts were created in 1996 on the adoption of the Constitution of South Africa, and inherited the jurisdiction of the provincial and local divisions of the former Supreme Court of South Africa...
s and the Supreme Court of Appeal
Supreme Court of Appeal of South Africa
The Supreme Court of Appeal is an appellate court in South Africa; it is the highest appeal court except in constitutional matters, which are ultimately decided by the Constitutional Court...
, deal with day-to-day disputes between citizens and the state.
Co-operation with Parliament and Provincial Assemblies
The Constitutional Court has a special responsibility to parliament and provincial legislatures. If there is a dispute in parliament or in a provincial legislature concerning whether or not legislation that has been passed and assented to is constitutional, a third of the members of the body concerned may apply to the Constitutional Court to give a ruling. Similarly, the President or the Premier of a Province may refer a bill to the court for a decision on its constitutionality before assenting to that Bill.Proceedings in court
The court does not hear evidence or question witnesses. It does not decide directly whether accused persons are guilty or whether damages should be awarded to an injured person. These are matters for the ordinary courts. Its function is to determine the meaning of the Constitution in relation to matters in dispute. One consequence of this is that the court works largely with written arguments presented to it by the parties. The hearings of the court are intended to address particularly difficult issues raised by the written arguments of the parties.The hearings of the court are open to the public and the press. No cameras or recorders are ordinarily permitted. The public is invited to attend all sessions. Ordinary rules of decent dress and decorum apply.
Notable judgements
- S v Makwanyane and AnotherS v Makwanyane and AnotherS v Makwanyane and Another was a landmark 1995 judgement of the Constitutional Court of South Africa. It established that capital punishment was inconsistent with the commitment to human rights expressed in the Interim Constitution...
(6 June 1995): abolished the death penalty, declaring capital punishmentCapital punishmentCapital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
to be inconsistent with the Interim Constitution. - National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (9 October 1998): invalidated as unconstitutional the laws forbidding consensual sexual activities between men.
- Minister of Home Affairs and Another v Fourie and Another (1 December 2005): declaring the common-law definition of marriage and the Marriage Act to be unconstitutional to the extent that they allowed opposite-sex couples to marry but did not allow same-sex couples to do so. Required Parliament to rectify the situation within one year. (See same-sex marriage in South AfricaSame-sex marriage in South AfricaSame-sex marriage has been legal in South Africa since 30 November 2006, when the Civil Union Act, 2006 came into force, having been passed by Parliament earlier that month. A ruling by the Constitutional Court on 1 December 2005 had given Parliament one year to make same-sex marriage legal...
.)
Attempted interference by Judge President John Hlophe
On 30 May 2008 the judges of the Constitutional Court issued a statement reporting that they had referred Cape Judge President Judge John HlopheJohn Hlophe
John Mandlakayise Hlophe is Judge President of the Western Cape High Court.-Background and career:...
to the Judicial Service Commission as a result of what they described in their statement as an approach to certain of them "...in an improper attempt to influence this Court's pending judgement in one or more cases". The statement stated further that the complaint related to four matters in which either Thint (Pty) Ltd or the Deputy President, Jacob Zuma
Jacob Zuma
Jacob Gedleyihlekisa Zuma is the President of South Africa, elected by parliament following his party's victory in the 2009 general election....
, were involved. Judge Hlophe was reported to have rejected the allegations as "utter rubbish" and as "another ploy" to damage his reputation.
See also
- ConstitutionConstitutionA constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
- ConstitutionalismConstitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- JurisprudenceJurisprudenceJurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
- JudiciaryJudiciaryThe judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
- Rule of lawRule of lawThe rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
- Rule According to Higher LawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
External links
- Judgments of the Constitutional Court of South Africa
- Light on a Hill: Building the Constitutional Court of South Africa. Edited by Bronwyn Law-Viljoen, photography by Angela Buckland. November 2006. Johannesburg: David Krut Publishing. 173 pages. ISBN 978-0-9584860-7-1. Available from David Krut Publishing. http://www.davidkrutpublishing.com
- "ART in ART Re: The Constitutional Court of South Africa". “ART in ART,” was created from artist Marsha Giegerich Torkelson's photographs taken as a tourist while viewing the art and architecture of South Africa’s new Constitutional Court in Johannesburg. The welcoming, uplifting qualities of the building’s design which includes sculpture, mobiles, tapestries, paintings, bead, metal and woven work and much more begin on the exterior of the building and continue with many surprises inside. She created collages by enlarging her photographs on transparencies and then placing them together with painted backgrounds to approximate the experience of viewing the Court’s integration of art into the architecture. In her 43 collages, she tried to give a sense in a multi-dimensional manner of the Constitutional Court’s goals of social justice and transparency as one sees them in the many images and objects symbolizing one of the Court’s main themes: traditionally people gather under the trees to settle problems in African villages. Thus, one sees artists’ renderings of tree trunks, leaves, sky and shadows from light shining through the branches throughout the building—“justice under the trees.” The collages celebrate these lofty themes and the art of the Constitutional Court as well as the spirit of all involved in its creation. It can be seen at Blurb.com