Constitutional Court of South Africa

The movement for the establishment of a constitutional court in South Africa was begun in 1920 by the African National Congress (ANC).[2]

Frontage of the Constitutional Court in South Africa

By 1956, judges and liberals in the country had drawn up a bill of rights in support of the creation of the court. The first meeting of selected members of the court took place in 1994. In 1995, President Nelson Mandela appeared at the court to deliver a speech for its commissioning. According to South African History Online Mandela said, “The last time I appeared in court was to hear whether or not I was going to be sentenced to death. Fortunately for myself and my colleagues we were not. Today I rise not as an accused, but on behalf of the people of South Africa, to inaugurate a court South Africa has never had, a court on which hinges the future of our democracy."[2]

Constitution Hill is the seat of the Constitutional Court of South Africa. The Constitution Hill precinct is located at 11 Kotze Street in Braamfontein, Johannesburg near the western end of the suburb of Hillbrow. The Hill overlooks downtown Johannesburg to the South and the wealthy northern suburbs of Houghton, Parktown and Sandton to the north.

An eternal flame burning on Constitution Hill in Johannesburg, South Africa

The court building was constructed using bricks from the demolished awaiting-trial wing of the former prison. Most of the prison was demolished to make way for the new court, but the stairwells were kept and incorporated into the new building as a reminder of the Constitution's transformative aspirations. Inside the main room, a row of horizontal windows has been set up behind the seats of the judges. While the windows are at head-height on the inside, they are on ground level on the outside. Those sitting in the court consequently have a view of the feet of passersby moving along, above the heads of the judges, to remind them that in a constitutional democracy the role of judges is to act in the interests of the people of the nation, rather than in their own self-interest.[3] The first court session in the new building at this location was held in February 2004. The court building is open to the public who want to attend hearings or view the art gallery in the court atrium. The court houses a collection of more than 200 contemporary artworks chosen by Constitutional Court judge Albie Sachs, including works by Gerard Sekoto, William Kentridge, and Cecil Skotnes.

The doors to the Court have the 27 rights of the Bill of Rights carved into them, written in all 11 official languages of South Africa. One of the stairwells from the old awaiting-trial block with the Portuguese words A luta continua (the struggle continues) written in lights, has been retained.

The judgments of the court are based on the Constitution, which is the supreme law of the land. They enforce 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 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.[6] Since the enactment of the Superior Courts Act, the Constitutional Court has had jurisdiction to hear any matter if it is in the interests of justice for it to do so.

The Court is one of many bodies created by the Constitution to defend the rights of citizens. It is concerned with matters of broad constitutional principle. Bad or incorrect conduct by state officials can be reported to the Office of the Public Protector, formerly called the Ombudsman. The Human Rights Commission has been established to handle complaints of violation of human rights in daily life. The ordinary courts, notably the small claims courts, the Magistrates' Courts, the High Courts and the Supreme Court of Appeal, deal with day-to-day disputes between citizens and between citizens and the state.

The Constitutional Court has a special responsibility to parliament and the 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.

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.

• S v Makwanyane and Another (6 June 1995): abolished the death penalty, declaring capital punishment in South Africa to be inconsistent with the Interim Constitution.

• Government of the Republic of South Africa v Grootboom (4 October 2000): the government is obliged to provide housing relief to those living in intolerable situations or in crisis situations.
• Mohamed v President of the Republic of South Africa (28 May 2001): suspects cannot be extradited under circumstances where they may face the death penalty.

• Alexkor v Richtersveld Community (14 October 2003): rights to land under customary law must be recognised, and communities dispossessed of land owned under customary law are entitled to restitution.

• Minister of Home Affairs and Another v Fourie and Another (1 December 2005): the government must recognise and allow same-sex marriage.

• Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others (31 March 2016): recommendations of the Public Protector are binding.

On 30 May 2008, the judges of the Constitutional Court issued a statement reporting that they had referred Cape Judge President Judge John Hlophe to the Judicial Service Commission for what they described in their statement as approaching some of them "in an improper attempt to influence this Court's pending judgement in one or more cases".[7] The statement stated further that the complaint related to four matters in which either Thint (Pty) Ltd or the Deputy President, Jacob Zuma, was involved. Judge Hlophe was reported to have rejected the allegations as "utter rubbish" and as "another ploy" to damage his reputation.

Justices Chris Jafta and Bess Nkabinde had been the primary complainants and had supported the Court's complaint. Six years later, however, when the misconduct enquiry against Hlophe was pending, Jafta and Nkabinde brought a court challenge to the tribunal's jurisdiction, saying their own complaint was not legally valid.[8] Commentators slammed Jafta and Nkabinde's "cowardice", which had brought the Constitutional Court into disrepute.[9] The judges claimed, in response, that they were simply upholding the Constitution.[10] The High Court dismissed the judges' application on 26 September 2014,[11] but they appealed.[12] The Supreme Court of Appeal dismissed that appeal in March 2016, criticising Jafta and Nkabinde's damaging court application and implying that the case raised questions about their "integrity".[13] On 6 April 2016, Jafta and Nkabinde filed an appeal to the Constitutional Court – their own court – asking it to overturn the Supreme Court of Appeal's judgment.[14] They did so partly on the basis that the SCA made "hurtful" imputations about them. The Constitutional Court had already held, in 2012, that it could not hear appeals in the Hlophe matter and that any SCA judgment was final.[15]

• Constitutionalism
• Jurisprudence
• Judicial Service Commission (South Africa)
• Constitution Hill, Johannesburg

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