South Africaâs Constitutional Court stands out as one of the few government institutions that have protected and advanced the constitutional vision of a participatory democracy and social justice. The duty of the apex court in any constitutional democracy is to deliver judgments which provide the final authority on the meaning of any constitutional provision.
Thus, the manner and limits of the exercise of public power by parliament, the cabinet and any public official stand to be tested in court for their constitutionality and lawfulness. This is an exceptionally onerous authority.
The court has consistently championed one of the fundamental values to be found in section 1 of the constitution, 1996. This requires that the exercise of public power be accountable, responsive and open.
The Constitutional Court heard its first case in early 1995, with a very strong bench of 11 justices. It deliberately chose the constitutionality of the death penalty, a divisive issue, as its first case.
It produced an astonishingly strong set of judgments, both collective and separate, in unanimously holding that the bill of rights outlawed the death penalty.
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Public confidence in the Constitutional Court contributes greatly to its legitimacy. When civil-society advocacy agitates justifiably for recognition of constitutional rights, the court has the opportunity to enhance such confidence.
The Constitutional Court succeeded beyond expectations in establishing its political and public legitimacy in its first 15 years since it was founded in 1994.
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.
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.
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Frontage of the Constitutional Court in South Africa
History and Establishment
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."
Location and Design
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 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.
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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.
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 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.
Composition and Appointment of Judges
The Constitutional Court consists of eleven judges who are appointed by the President of South Africa from a list drawn up by the Judicial Service Commission. The judges serve for a term of twelve years.
The Court is headed by the Chief Justice of South Africa and the Deputy Chief Justice. 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.
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 must have at least three more names than the number of vacancies. The Commission does this after calling for nominations and holding public interviews.
In terms of section 176(1) of the Constitution, judges of the Constitutional Court serve for a non-renewable term of 12 years or until they reach the age of 70, whichever is earlier; but these limits may be extended by an Act of Parliament.
Section 4 of the Judges' Remuneration and Conditions of Employment Act 47 of 2001 has extended the term limit to an effective term of 15 years including prior service on other courts. The effect is that judges who had served more than 3 years before their appointment to the Constitutional Court retain a 12-year term limit; those who did not, have a longer tenure. The same section extends the retirement age to 75.
Functions and Powers
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 open to the public and the press. No cameras or recorders are ordinarily permitted. The public is invited to attend all sessions.
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.
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.
Notable Cases
In a recent case, OâBrien N.O., the International Commission of Jurists (ICJ) welcomed the judgement of the Constitutional Court of South Africa (the Court). The applicant, a Lieutenant-Colonel in the South African National Defence Force (SANDF) and a former military judge, challenged the constitutionality of the provisions of the Military Discipline Supplementary Measures Act No.
The applicant also challenged section 15 of the Military Discipline Supplementary Measures Act as it permits the Minister and the Adjutant General to make renewal assignments of military judges, for short periods, at their sole discretion, and without any objective criteria. Additionally, the applicant requested the Court to assess the constitutionality of sections 101 and 102 of the Defence Act No.
Government authorities argued before the Constitutional Court that military courts are not âcourtsâ and military judges are therefore not âjudicial officersâ entitled to the guarantees for judicial independence provided by the Constitution. The Court rejected this argument, asserting that given their significant jurisdiction over criminal matter âthe inescapable conclusion is that military judges are indeed judicial officersâ entitled to constitutional protection of their independence.
Drawing on its jurisprudence on judicial independence, the Court emphasized what it indicated were âcore requirementsâ or âessential conditionsâ for institutional independence of judges, including: âfreedom from any outside interference (especially from the executive), security of tenure, and non-renewable termsâ.
The Court, in line with submissions made to it by the ICJ, also drew substantially on South Africaâs international law obligations in respect of judicial independence, including under the International Covenant on Civil and Political Rights and the African Charter on Human Peoplesâ Rights (African Charter).
The ICJ also successfully applied for leave to adduce as evidence a government report which identified at least 438 alleged cases of sexual misconduct cases against military staff and officials. âIn essence, the ICJ is placing reliance on the report to show that complaints of sexual offences are widespread in the SANDF and that the scourge of gender-based violence in the SANDF makes it all the more important that military courts should be truly independent.
Taking into account the way military courts operate, their rules and implication of their orders, the Court concluded that military judges were âjudicial officersâ under section 174(7) of the Constitution. âMilitary judges are the only full-time judicial officers who are appointed for short, renewable terms, notwithstanding their significant geographical and penal jurisdiction.
The Court rejected the respondentsâ argument that the term âcourtâ did not include military courts in terms of section 166(e) of the Constitution. In so doing, the Court considered that the court of a military judge has wide criminal jurisdiction to try members of the SANDF for serious offences committed under the Code, the common law, and statute and the power to impose substantial sentences of imprisonment.
Here is a summary of key points from the case:
| Issue | Constitutional Court Ruling |
|---|---|
| Status of Military Courts | Military courts are considered "courts" and military judges are "judicial officers" under the Constitution. |
| Judicial Independence | Military judges are entitled to constitutional protection of their independence. |
| Renewal Assignments | The Minister and Adjutant General cannot make renewal assignments of military judges without objective criteria. |
| International Law Obligations | South Africa's international law obligations in respect of judicial independence must be upheld. |
Democracy in the making. Six landmark cases of the Constitutional Court of South Africa
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