South Africa’s Constitutional Court
174	 JCL 3:2
South Africa’s Constitutional Court:
Enabling Democracy and Promoting
Law in the Transition from Apartheid
Heinz Klug
INTRODUCTION
South Africa’s Constitutional Court is a product of the country’s democratic transition
away from Apartheid in the early 1990s. The democratic transition was achieved through
a two-stage process of constitutional change. In the first stage an ‘interim’ constitution
was adopted and a democratic election held to both elect a new government as well as
legislative body whose two houses met jointly to form a Constitutional Assembly that
produced a ‘final’ Constitution for post-apartheid South Africa. This two-stage process
was facilitated by an agreement to adopt a set of Constitutional Principles that would be
attached as a schedule to the negotiated ‘interim’ Constitution providing the framework
within which the democratically-elected Constitutional Assembly would formulate a
‘final’ Constitution. While the new constitutions both introduced extensive bills of rights
as a response to the country’s history of colonialism and apartheid, the Constitutional
Principles promised those who would loose power in a democratic election that their
fundamental concerns would still be addressed in the final constitutional dispensation. It
was in order to guarantee this outcome that the negotiating parties agreed that there would
be a Constitutional Court and that it would serve the unique function of certifying whether
the ‘final’ constitution produced by the Constitutional Assembly was in conformity with
the parameters set by the Constitutional Principles.
The Constitutional Court’s power is based on both the Constitution’s proclamation
that it is the supreme law of the land and its explicit grant of authority declaring the Court
the final arbiter of the meaning of the Constitution. As a direct product of the political
negotiations that ended apartheid, the Constitutional Court, provided for in the 1993
‘interim’ Constitution, was established in the first half of 1995, about a year after South
Africa’s first democratic election, with the appointment of 11 justices to the Court. The
Court was formally opened in October 1995. Empowered to exercise both concrete and
abstract review, as well as to take direct applications and to serve as a court of final review,
the Constitutional Court has had a broad scope of authority within which to establish its
role. On average the Court decided about 25 cases per year during its first decade and
ruled against the government in about 40 percent of cases. Of the cases that the Court
JCL 3:2 175
heinz klug
decided approximately 60 percent were based on claims of violations of rights, 30 percent
arose out of criminal cases and about 78 percent of all cases were decided by a unanimous
Court.
In order to appreciate the emergence of the South African Constitutional Court
and its contribution to constitutional law in South Africa and around the globe, this
article will first discuss the origins of the Court and the role it played in the transition
to a constitutional democracy in South Africa. Second, it will consider how the Court’s
early rights jurisprudence provided the institution with a high degree of legitimacy
while the Court adopted a strategic approach to its own role, both as an interpreter of
the Constitution and arbiter of power between the different regional and institutional
locations of power in the new South Africa. Finally, the paper considers how the Court
has begun to address issues that touch on the fundamental relations of power in South
African society – effecting gender, land and traditional authorities – while also becoming
increasingly embroiled in the complex and high stakes power struggles that have roiled
the government and ruling party, from the corruption trials of the ANC President to the
problems of judicial independence.
ORIGINS AND CREATION OF THE CONSTITUTIONAL COURT
Rejection of tyranny and the embrace of rights is a logical reaction to their systematic
violation, yet it does not explain why a particular society would choose to turn to the
judiciary as the ultimate protectors of such rights. This is particularly so when the judiciary
and the law in general was intimately associated with the construction and maintenance
of a prior oppressive regime. In South Africa judicial review of legislative authority had
historically been explicitly rejected, and in the period just prior to the democratic transition
all the major parties remained committed to notions of democracy which assumed that a
democratic South Africa would continue to embrace parliamentary sovereignty. In fact, the
struggle against apartheid was always understood as a struggle against racial oppression
and minority rule, and conversely, as a struggle for majoritarian democracy. This history
makes the empowerment of judges in a democratic South Africa not just unnecessary to the
goals of democratization, but a rather unexpected outcome of the democratic transition.1
Despite this legacy, the origins of the Constitutional Court as well as the legitimacy
of the justices appointed by a newly elected President Nelson Mandela, brought an
extraordinary degree of legitimacy to this new institution. Prior to the 1994 Constitution
the South African high court system was composed of a Supreme Court, the architecture
of which provided for a number of provincial and local divisions exercising both original
and review jurisdiction with a final appeal to an Appellate Division. The judiciary was
appointed by the executive and as a matter of custom its members were drawn from the
ranks of senior Advocates, the equivalent of barristers, in South Africa’s divided bar. As a
result of both the reluctance of a number of senior advocates who considered the apartheid
judiciary to be tainted as well as the increasing tendency of the Apartheid regime to
appoint judges sympathetic to its world view, the integrity of some justices, particularly
Chief Justice Rabie, was increasingly called into question. FW De Klerk’s appointment of
1
 See, Klug, H (2000) Constituting Democracy: Law, Globalism and South Africa’s Political Reconstruction,
Cambridge University Press.
South Africa’s Constitutional Court
176	 JCL 3:2
the more liberal Justice Corbett at the beginning of the democratic transition seemed to
acknowledge the importance of shoring up the legitimacy of the judiciary in this period. At
the same time the liberation movement was suggesting that there needed to be a complete
replacement or at least vetting of Apartheid judges.
As attention shifted to the negotiation of a new constitution a debate began over the role
of the judiciary in a new South Africa. While there was early agreement in the negotiations
on the principle that there should be a competent, independent and impartial judiciary that
should have the ‘power and jurisdiction to safeguard and enforce the Constitution and all
fundamental rights’,2
the parties remained far apart in their proposals for the structure
and functioning of a new court. While there seemed at first to be agreement that the
appointment of new judges more representative of the population would be an important
benefit of establishing a new constitutional court, a number of other issues continued to
separate the parties, including: whether a constitutional jurisdiction would be a parallel
system of courts or integrated into the existing court system; whether the judges who
would exercise this jurisdiction had to be senior judges from within the existing judiciary
or possibly new appointees with little or no judicial experience; whether it would be a
court of appeal or have first and final jurisdiction over the validity of laws; whether it
would have sole jurisdiction or serve as the court of final appeal in a system of review
that was integrated into the jurisdiction of the existing courts; and finally, would the Chief
Justice in an integrated court or the Constitutional Court itself, as a separate body, decide
whether a particular matter was constitutional in nature or not, and hence who would
have the power to exercise jurisdiction in the particular case.3
Responding to the South African Law Commission’s earlier proposal that a specialist
Constitutional Court be created to uphold a Bill of Rights, the apartheid government
argued that such a court should not be a separate institution but rather a special
chamber within the existing Appellate Division of the Supreme Court. This position was
strongly supported by the newly appointed Chief Justice Corbett who felt that a separate
Constitutional Court would undercut the prestige and authority of the Appellate Division.
He was also concerned that a separate Court would be considered political and thus would
undermine the ‘evolution of a human rights culture in South Africa and the legitimacy
of the Constitution as the Supreme Law’.4
Another concern was expressed by Etienne
Murenik, who as advisor to the opposition Democratic Party, supported the creation of
a separate Constitutional Court but argued that ‘the values of the Bill of Rights [should]
permeate every corner of our law’, building a ‘culture of justification … in which every
lawmaker and every official can be called upon to justify his or her actions in terms of
the values for which the bill of rights stands’.5
Despite these arguments the Technical
Committee’s Report was adopted by the two major parties accepting the creation of a
separate Constitutional Court with final jurisdiction over constitutional matters.
2 Third Report to the Negotiating Council, Kempton Park, May 28, 1993, p2.
3 See, Spitz, R and Chaskalson M, The Politics of Transition: a hidden history of South Africa’s negotiated settlement,
Hart Publishing, 2000, pp.191-198.
4 Id at 194.
5 Id 194-195.
JCL 3:2 177
heinz klug
JURISDICTION AND RELATIONSHIP TO THE COURTS OF GENERAL
JURISDICTION
Despite distrust of the old judicial order, the idea of superimposing a constitutional
court as the final interpreter of a new constitution gained early acceptance among
participants in the political transition while the exact parameters of its power was left
to subsequent negotiation. In fact, the Constitutional Court first created under the 1993
‘interim’ Constitution was initially placed in a co-equal position with the old Appellate
Division of the Supreme Court of South Africa which retained final jurisdiction over all
non-constitutional matters but had no jurisdiction at all over constitutional questions.
The 1996 ‘final’ Constitution retained this basic jurisdictional division, but integrated the
courts into a new hierarchy: the Constitutional Court is now the highest Court, retaining
original jurisdiction over direct constitutional applications6
and serving as the final court
of appeal on the Constitution.7
The Supreme Court of Appeals, which hears appeals from
the High Courts, now has appellate jurisdiction over all matters, including constitutional
issues,8
but since constitutional jurisdiction is very far reaching, including not only all
government related activity9
but also certain private activity,10
as well as the duty to
develop the common law and indigenous law in conformity with the requirements of the
Bill of Rights,11
the Constitutional Court increasingly serves as a final Court of appeal on
most important questions.
When it comes to direct access however the Constitutional Court has in practice applied
rather strict criteria to those seeking direct access,12
preferring to allow a case to be argued
up through the lower courts so as to get as full a development as possible of the facts and
legal arguments before the case reaches the Court. While the lower courts (including the
Supreme Court of Appeals) may hear constitutional challenges to law and actions under
the law, including legislative and executive acts, there is an express limit to their power
in this regard. Any lower court decision declaring National Legislation or an act of the
President in violation of the Constitution must be forwarded to the Constitutional Court
for confirmation before it can take effect. As a result all challenges to acts of the President
or national legislation are considered by the Constitutional Court. In addition to these
cases the Constitutional Court is also the final court of appeal on all other constitutional
matters, including the question of whether an issue is a constitutional issue or not.
APPOINTMENTS TO THE CONSTITUTIONAL COURT
Initially, little attention was paid to the proposal by the technical committee to the MultiParty
Negotiating Process that Constitutional Court Judges be nominated by an all-party
parliamentary committee and be appointed by a 75 percent majority of both houses of
6
 S. Afr. Const. (1996) section 167(6)
7
 S. Afr. Const. (1996) sections 167(3)-(5)
8
 S. Afr. Const. (1996) section 168(3)
9
 S. Afr. Const. (1996) section 8(1)
10
 S. Afr. Const. (1996) section 8(2)-(3)
11
 S. Afr. Const. (1996) section 39(2)
12
 See, Dugard, J ‘Court of First Instance? Towards a Pro-Poor Jurisdiction for the South Afircan Constitutional
Court’, 22 South African Journal of Human Rights 261 (2006).
South Africa’s Constitutional Court
178	 JCL 3:2
parliament. However, as the significance of the Constitutional Court became increasingly
clear, a major political conflict exploded.13
In fact conflict over this process brought the
multi-party negotiations, once again, perilously close to deadlock. Despite this inauspicious
beginning, the resolution of this conflict was with minor changes retained in the ‘final’
constitution. The resolution involved an elaborate compromise in which the newly elected
President was required to follow three distinct processes in appointing members of the
Constitutional Court for a non-renewable period of seven years.14
First, the President
appointed a president of the Constitutional Court in consultation with the Cabinet and
Chief Justice.15
Second, four members of the court were appointed from among the existing
judges of the Supreme Court after consultation between the President, Cabinet and the
Chief Justice.16
Finally, the President, in consultation with the Cabinet and the President
of the Constitutional Court, appointed six members from a list submitted by the Judicial
Service Commission (JSC),17
a newly created body dominated two-to-one by lawyers.18
The final Constitution extended the period of non-renewable appointment from
7 to 12 years but also imposed a mandatory retirement age of 70 years. A subsequent
constitutional amendment provides that the term of an individual justice may be extended
by an Act of Parliament.19
Appointments to the court are made by the President, either
in consultation with the JSC and the leaders of the political parties represented in the
National Assembly — in the case of the Chief Justice and the Deputy-Chief Justice — or
for the remaining positions on the court, from a list of nominees prepared by the JSC after
the President consults with the Chief Justice and the leaders of political parties. The JSC
is required to provide three more nominees than the number of appointments to be made
and the President may refuse to appoint any of these by giving reasons to the JSC why
the nominees are unacceptable — requiring the JSC to provide a supplemental list. The
President’s power of appointment is further restricted by the requirement that ‘at all times,
at least four members of the Constitutional Court must be persons who were judges at the
time they were appointed’.20
The President is required to remove a judge from office if
the JSC ‘finds that the judge suffers from an incapacity, is grossly incompetent or is guilty
of gross misconduct’ and the National Assembly votes by a two-thirds majority for that
judge’s removal.
Appointment to the Constitutional Court is also determined by the requirement that
the person must be a South African citizen and that consideration must be given to the
‘[n]eed for the judiciary to reflect broadly the racial and gender composition of South
Africa’.21
In practice the Constitutional Court has, despite its young age, experienced a
regular change in the composition of its panel. This has occurred as a result of a number of
developments, including: the transfer of the first Deputy-President of the Court to become
13
 See, Mureinik, E ‘Rescued from illegitimacy?’ Weekly Mail & Guardian, Review/Law, Supplement, Vol. 1, No.
5, Dec. 1993 at 1; and Haysom, N ‘An expedient package deal?’ Weekly Mail & Guardian, Review/Law, Supplement,
Vol. 1, No. 5, Dec. 1993 at 1.
14
 S. Afr. Const. 1993, section 99(1)
15
 S. Afr. Const. 1993, section 97(2)(a)
16
 S. Afr. Const. 1993, section 99(3)
17
 S. Afr. Const. 1993, section 99(3)
18
 S. Afr. Const. 1993, section 105(1)
19
 S. Afr. Const. 1996, section 176(1).
20
 1996 Constitution, section 174(5).
21
 1996 Constitution, section 174(1) and (2).
JCL 3:2 179
heinz klug
Chief Justice (then head of the Supreme Court ofAppeal exercising final appeal jurisdiction
over non-constitutional matters); the death of Justice Didcott, numerous retirements and
the fairly frequent use of acting Justices when permanent members were either seconded
to international organizations or on leave. The Judges Renumeration and Conditions of
Employment Act of 2001 now provides that although it is a single 12 year term of office,
justices may continue until they have completed fifteen years of total judicial service or
reached the age of 75, which ever comes first, in order to ensure that those who have not
previously held judicial office may still retire from the Court with a full judicial pension.
While the first appointments to the Constitutional Court were dominated by lawyers,
judges and legal academics who had gained high stature during the struggle against
apartheid or whose integrity was recognized nationally and internationally, concern for
the need to achieve or maintain racial and ethnic representivity on the panel seems to have
determined more recent appointments. Ten years after its inauguration the Justices of the
Constitutional Court reflect the diversity of South Africa with two female, four white, six
African, one Indian and two physically-disabled justices on the eleven person panel.
EARLY DECISIONS AND THE TRIUMPH OF RIGHTS
In its first politically important and publicly controversial holding the South African
Constitutional Court struck down the death penalty.22
Although there had been a
moratorium placed on executions from the end of 1989, as part of the initial moves towards
a negotiated transition, as many as 400 persons were awaiting execution at the time of the
Court’s ruling. In declaring capital punishment unconstitutional the Court emphasized
that the transitional constitution established a new order in South Africa, in which human
rights and democracy are entrenched and in which the Constitution is supreme. The
court’s declaration of a new order based on constitutional rights was forcefully carried
through in the adoption of a generous and purposive approach to the interpretation of the
fundamental rights enshrined in the Constitution.
The unanimous opinion of the court, authored by the President of the Constitutional
Court Justice Arthur Chaskalson, was however, judiciously tailored. Finding that the
death penalty amounted to cruel and unusual punishment under most circumstances
Chaskalson’s opinion declined to engage in a determinative interpretation of other sections
of the bill of rights that may also have impacted upon the death penalty, such as the right
to life, dignity and equality. The individual concurring opinions of the remaining ten
justices were not as restrained. Despite their concurrence in Justice Chaskalson’s opinion
each of the remaining ten members of the court went far beyond the majority opinion in
their interpretation of other rights and in their prescriptions on the future trajectory of the
courts jurisprudence.
All ten justices joined Constitutional Court President Chaskalson in giving explicit
and great weight to the introduction of constitutional review. They emphasized that the
court ‘must not shrink from its task’ of review,23
otherwise South Africa would be back
to parliamentary sovereignty and by implication back to the unrestrained violation of
22
 S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) [hereinafter Makwanyane].
23
 Makwanyane at para. 22, quoting the South African Law Commission Interim Report on Group and Human
Rights Project 58 (August 1991) para 7.33.
South Africa’s Constitutional Court
180	 JCL 3:2
rights so common under previous parliaments.24
Even the recognition that public opinion
seemed to favor the retention of the death penalty was met with a clear statement that the
Court would ‘not allow itself to be diverted from its duty to act as an independent arbiter
of the Constitution’,25
and that public opinion in itself is ‘no substitute for the duty vested
in the Courts to interpret the Constitution and to uphold its provisions without fear or
favour’.26
If public opinion were to be decisive, Chaskalson argued, ‘there would be no
need for constitutional adjudication’.27
A similarly strong stand was taken by the court in its early cases striking down
legislation in violation of the equality clause, although the ability of the court to move
beyond formal equality and to fulfill the transformative promise of substantive equality
remains in question.28
The Court also took up numerous criminal cases involving both
procedural and substantive rules that the Court found in violation of the Bill of Rights.
In its first year over 64% of the Court’s case load involved criminal matters although this
dropped to around one-third in the following two years. In considering the willingness
of this new court to strike down legislation and reverse official decisions it is important
to note that the vast bulk of legislation struck down in this early period as well as official
decisions and acts that were reversed were based on laws and regulations inherited from
the Apartheid era. While the old regime had insisted on legal continuity – the idea that
all laws would remain in place until either reversed by new legislation or found to be
inconsistent with the new constitution by the Court – the outcome of this approach was to
indirectly empower the new Constitutional Court as it proceeded to strike down old laws
and regulations without any resistance from the new democratic government. What might
under other circumstances have been perceived as a counter-majoritarian and hence antidemocratic
power was instead embraced as the triumph of human rights standards over
the legacies of apartheid.
INTERNATIONAL RECOGNITION AND THE COURT’S INNOVATIVE
JURISPRUDENCE
It was the same boldness in the upholding of rights that brought international attention to
the new Court. From the moment the Court struck down the death penalty it was being
held up around the world as a shining model, a new and progressive institution arising out
of the ashes of apartheid. When it first reversed a decision made by President Mandela, he
welcomed the decision and publically thanked the Court for doing its duty. By the time the
court was faced with making decisions at odds with the policies of the new government,
it had garnered a significant amount of international support and recognition as well as
local respect, which ensured that its opinions would not face overwhelming resistance
in the new order. International interest in the Constitutional Court’s jurisprudence has
been particularly acute in relation to the Constitution’s guarantee of socio-economic
rights as well as opinions in which the Court has addressed cases involving religious and
24
 Makwanyane at para 88.
25
 Makwanyane at para 89.
26
 Makwanyane at para 88.
27
 Ibid.
28
 See, Albertyn, C ‘Substantive Equality and Transformation in South Africa’, 23 South African Journal on
Human Rights 253 (2007).
JCL 3:2 181
heinz klug
cultural conflict through its particular articulation of the relationship between these forms
of individual and collective identity and how these interact with the Constitution in the
‘rainbow’ nation.
The inclusion of justiciable socio-economic rights in the 1996 Constitution has been
heralded as a mark of the Constitution’s extraordinary status and has raised questions
about how these provisions would be interpreted in a situation of vast socio-economic
inequalities and limited governmental capacity. Responding to concerns about the
justiciability of these rights in the First Certification case the Constitutional Court rejected
the rigid distinction between different types of rights and instead argued that ‘[a]t the very
minimum, socio-economic rights can be negatively protected from improper invasion’.29
In the now famous case addressing the scope of socio-economic rights — Grootboom30
— the Court was called upon to define both the negative and positive obligations that
the constitutional right to housing imposed on the government. In this case the Court
reviewed a local government’s action in evicting squatters from private land that was to
be used for low income housing. In the process of eviction the homes the squatters had
erected were destroyed and much of their personal possessions and building material had
also been deliberately destroyed.
While the Constitutional Court upheld the claimant’s argument that the municipality’s
action violated the negative obligation – the duty not to deprive them of shelter – owed
to them under section 26(1) of the Constitution, the Court proceeded to extrapolate on
the positive duties placed on the state. Although the government was able to present a
well documented national housing policy which met the obligation to ‘take reasonable
legislative and other measures, within its available resources, to achieve the progressive
realization of this right’,31
the Court found that the failure to have a policy to address
the needs for emergency shelter meant that the policy failed ‘to respond to the needs of
those most desperate’ and was thus unreasonable.32
At the same time however the Court
emphasized that ‘[t]he precise contours and content of the measures to be adopted are
primarily a matter for the legislature and executive’ and stated that the Court ‘will not
enquire whether other more desirable or favourable measures could have been adopted,
or whether public money could have been better spent’.33
Applying these arguments to the area of health, and HIV/AIDS in particular, posed
a major problem for the Constitutional Court. In the Treatment Action Campaign34
case
the Court was asked to require the government to provide a particular treatment — the
antiretroviral drug Nevirapine to HIV-positive women in childbirth and their newborn
babies — and not merely to have a reasonable policy to address the overwhelming HIV/
AIDS pandemic within the confines of the state’s resources. The Court’s decision to
require the provision of Nevirapine marked an important extension of the principle’s laid
out in Grootboom and an extraordinary reversal in the Court’s approach to health rights
29
 Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South
Africa, 1996, 1996 (4) SA 744 (CC) [hereinafter First Certification case]
30
 Government of the Republic of South Africa and Others v Grootboom and Others, 2001 (1) SA 46 (CC) [hereinafter
Grootboom].
31
 South African Constitution, 1996, Section 26(2).
32
 Grootboom para 44.
33
 Grootboom para. 41.
34
 2002 (5) SA 721 (CC).
South Africa’s Constitutional Court
182	 JCL 3:2
which only a short time earlier in a case involving access to renal dialysis35
had seemed to
be frozen by a combination of medical prerogatives and resource scarcity. Relying on the
constitutional guarantee of a right to the progressive realization of access to health care
services, the Constitutional Court argued in TAC that under the circumstances, in which
the cost of Nevirapine and the provision of appropriate testing and counseling to mothers
was less burdensome to the state then the failure to provide the drug, the government had
a constitutional duty to expand its program beyond the test sites already planned. While a
subsequent case in which non-citizen permanent residents challenged the denial of social
welfare benefits36
was decided by the Court through an analysis of intersecting rights that
brought together the courts concerns for equality and access to social resources, thus again
progressively extending the protection of socio-economic rights, the Court’s reliance on a
form of reasonableness review in this area continues to draw concern.37
THE OLD FORT, CONSTITUTIONAL PATRIOTISM,
AND THE COURT’S LEGITIMACY
Adding to the symbolic stature of the new Constitutional Court has been the project of
renovating and transforming the site of a cluster of prisons, known as the ‘Old Fort’ which
is located in the center of Johannesburg. While the Constitutional Court was first housed
in a Johannesburg business park, the building of the new Court building in the center
of the site of the Old Fort along with the renovation of the Old Fort and related prison
buildings into historical monuments to the history of the ‘lawful’ violation of rights, has
placed the Constitutional Court in the midst of a project to build what has been termed in
the German context ‘constitutional patriotism’. This ‘project’, pursued more vigorously by
some Justices in particular, seems to be aimed at solidifying the historic role of the Court
in the building of a new South Africa. Despite the continuing social inequalities and what
at times is a blatant disrespect for rights by some government officials, there is a consistent
public assertion by government of the notion that South Africa is building a culture of
rights based on the new Constitution. As long as the political leadership in all branches of
government continue to assert that the Constitution is South Africa’s highest achievement
in the transition away from Apartheid, then the Court will be able to pursue its public
promotion of a culture of rights and constitutional supremacy, both through its decisions
and the articulation of a project of constitutional patriotism.
There can be little doubt that the Constitutional Court is one of the most successful
institutions to emerge in post-apartheid South Africa. Not only is it the guardian of the
political transitions most explicit symbol – the ‘final’ Constitution – but unlike all other
branches of government it began its life as a brand new institution, its personnel largely
untainted by apartheid, and its most explicit task is to uphold the promise of rights that
embody the hopes and aspirations of those who struggled against apartheid. These
attributes do not however guarantee power or authority given the inherent institutional
limits of an apex Court. Instead the Court has used its symbolic authority to publically
35
 Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA 765 (CC).
36
 Khosa v Minister of Social development; Mahlaule v Minister of Social development 2004 (6) SA 505 (CC).
37
 See, Davis, D ‘Adjudicating the Socio-Economic Rights in the South African Constitution: Towards
“Deference Lite”?’ 22 South African Journal on Human Rights 301 (2006).
JCL 3:2 183
heinz klug
engage in what has been termed a ‘post-liberal’ or ‘transformative constitutionalism’38
– a
rejection of the negative past, a generous interpretation of rights and a commitment to
‘inducing large-scale social change through nonviolent political processes grounded in
law’.39
At the same time however the Court has always wielded this power with a strategic
eye to its own role, in what may be paradoxically viewed as a form of judicial pragmatism
rather than the symbolic judicial activism that the Court’s rights jurisprudence has led
most international observers to applaud.
STRATEGIC ENGAGEMENT OR JUDICIAL PRAGMATISM
Asserting a constitutional patriotism and declaring a culture of rights is all very well, but at
the same time the Court has always been concerned about its own role in the new political
order. Aware of their unique status within the new constitutional order, the justices of
the Constitutional Court have been careful to define its role as upholding the law and
have denied claims that they might be substituting their own political decisions in their
role as interpreters of the Constitution. The Court has in fact had to manage a number of
quite explicit challenges to its role, including the demand in one case that all the justices
recuse themselves because they were appointed by President Mandela, but at the same
time it has been quite conscious of the different ways in which it is responsible for ensuring
the transition to democracy. As a result, the Constitutional Court of South Africa has
managed to become a central institution in the management of conflict in post-apartheid
South Africa, whether between regions of the country, among branches of government, or
between the government and civil society.
CERTIFICATION JUDGMENTS
Thrust into the unique role of arbiter in the second and final phase of the constitutionmaking
process, the Constitutional Court was faced with a number of distinct pressures.
First, the democratically-elected Constitutional Assembly represented the pinnacle of
the country’s new democratic institutions empowered with the task of producing the
country’s final constitution – the end product of the formal transition. Given a history
of Parliamentary sovereignty and the failure of the courts to check the anti-democratic
actions of the executive in the dark days of Apartheid and during the States of Emergency,
how was a newly appointed Constitutional Court going to stand up against the first truly
democratic constitution-making body in South African history?
Second, the credibility of the Constitutional Court was at stake. As the court heard
argument on the Certification of the Constitution, numerous sectors, including important
elements within the established legal profession, openly speculated whether the Court
had sufficient independence to stand up to the Constitutional Assembly, particularly over
the key issue of the entrenchment of the Bill of Rights. Failure to refuse certification on
at least this ground would in this view have amounted to a failure of the certification
function and proof that the Court lacked the necessary independence.
38
 See, Klare, K ‘Legal Culture and Transformative Constitutionalism’, 14 South African Journal on Human
Rights 146 (1998).
39
 Id. p. 150.
South Africa’s Constitutional Court
184	 JCL 3:2
Third, the Constitutional Court’s certification powers were not only unique but were
to be exercised on the basis of a set of Constitutional Principles negotiated in the preelection
transition. The Principles had, in the dying days of the multi-party negotiations
become the focus of unresolved demands leading to the incorporation of a number of
contradictory Principles designed more to keep the contending participants within the
process than to establish a coherent set of Constitutional Principles by which a future draft
Constitution could be judged.
Fourth, many of the grounds upon which the Court declined to certify the text had
institutional implications for the Court. For example, the Court’s demand to strengthen
the procedures and threshold for amendment of the Bill of Rights and its striking down
of attempts to insulate the labour clause from judicial review, both indicated a profound
concern with securing the role of the Court, as guardian of a constitutional democracy,
based on the explicit foundations of constitutional supremacy.
Despite this imperative, refusing to certify the final constitution, even after it’s
adoption by 86% of the democratically-elected Constitutional Assembly, was on its face
a bold assertion of judicial power. At the same time the Constitutional Court was careful
to point out in its unanimous, unattributed, opinion, that ‘in general and in respect of
the overwhelming majority of its provisions’, the Constitutional Assembly had met the
predetermined requirements of the Constitutional Principles. In effect then, this was
a very limited and circumscribed ruling. The Court itself was careful to point out that
the Constitutional Assembly had a large degree of latitude in its interpretation of the
principles and that the role of the Constitutional Court was a judicial and not a political
role. This approach had the effect of limiting the political response to the decision as the
major political parties rejected any attempt to use the denial of certification as a tool to
reopen constitutional debates and instead the Constitutional Assembly focused solely on
the issues raised by the Constitutional Court.40
The Court took a similarly robust attitude to its judicial role in its second certification
judgment when the Court eventually certified the ‘final’ Constitution.41
In this case the
Court was faced with attempts by political parties and other interested groups to reopen
issues which had not been identified as the basis for the Court’s refusal to certify in the
first round of the certification process. While accepting these challenges the Court noted
the ‘sound jurisprudential basis for the policy that a court should adhere to its previous
decisions unless they are clearly wrong . . . . [and that] having regard to the need for
finality in the certification process and in view of the virtual identical composition of the
Court that considered the questions barely three months ago, that policy is all the more
desirable here’.42
As a result the Court made it clear that a party wishing to extend the
Court’s review beyond those aspects identified in the first certification judgment would
have a ‘formidable task’. Through this reliance on a classic judicial strategy of deference
to past decisions, the Court was able to significantly limit the scope of its role in the final
certification judgment. It was this change in posture towards the certification process
and the fact that the Constitutional Assembly fully addressed all but one of the Court’s
40
 Madlala, C ‘Final fitting for the cloth of nationhood’, Sunday Times, Oct. 13, 1996, at p.4. col. 2.
41
 Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the Constitution of the
Republic of South Africa, 1996, 1997 (2) SA 97 (CC) [hereinafter Second Certification Judgment].
42
 Second Certification Judgment at para. 8.
JCL 3:2 185
heinz klug
concerns that ensured a swift certification on the second round. Significantly, the Court
now relied less on the specifics of the Constitutional Principles and instead emphasized the
fundamental elements of constitutionalism contained in the text – ‘founding values which
include human dignity, the achievement of equality, the recognition and advancement
of human rights and freedoms, the supremacy of the Constitution and the rule of law’.43
While the Court still had to recognize that the powers and functions of the provinces - the
most contentious issue in the whole constitution-making process - remained in dispute
between the parties, the Court held in essence that the removal of the presumption of
constitutional validity of bills passed by the NCOP had tipped the balance.44
Thus despite
the recognition that provincial powers and functions in the Amended Text remained less
than or inferior to those accorded to the provinces in terms of the Interim Constitution, this
was not substantially so and therefore no longer a basis for denying certification.45
CONSTITUTIONAL STRUCTURE AND THE PROBLEM OF POWER
The Constitutional Court’s assertion of its constitutional powers in rights cases stands
in marked contrast to the Court’s dramatic shift in approach to the use of its authority
when addressing the allocation of powers, particularly regional or provincial powers.
Tensions between the central ANC government and non-ANC controlled provinces
soon brought cases to the Constitutional Court in which it was called upon to define the
parameters of cooperative government. Although wide-ranging in scope these early cases
have addressed three issues central to the question of legislative authority under the 1996
Constitution. First, the Court was called upon to define the constitutional allocation of
legislative power in a case in which a Province claimed implied legislative powers to
define the structure of its own civil service. Second, the Court was required to determine
the scope of residual national legislative power in a case where the national government
claimed concurrent authority over the establishment of municipal governments despite
the Constitution’s simultaneous allocation in this field of specific functions to different
institutions and spheres of government. Finally, an attempt by the national government to
extensively regulate liquor production, sale and consumption, a field in which the regions
were granted at least some exclusive powers under the Constitution, required the Court to
define the specific content of the exclusive legislative powers of the provinces.
One of the first such cases involved a challenge to national legislation which sought
to define the structure of the public service including all provincial public services. The
Western Cape argued that the legislation infringed ‘the executive power vested in the
provinces by the Constitution and detracts from the legitimate autonomy of the provinces
recognised in the Constitution’.46
The Court however pointed to the fact that not only did
the national Constitution provide that the public service is to be structured in accordance
with national legislation, but also that the Western Cape Constitution required the Western
43 Second Certification Judgment at para. 25.
44 Second Certification Judgment at paras 153-157.
45 Second Certification Judgment at para. 204(e).
46 The Premier of the Province of the Western Cape v The President of the Republic of South Africa and the Minister of
Public Service, CCT 26/98 (1999), 1999 (12) BCLR 1360 (CC) para. 4.
South Africa’s Constitutional Court
186	 JCL 3:2
Cape government to implement legislation in accordance with the provisions of the
national constitution.47
Describing national framework legislation as a feature of the system of cooperative
government provided for by the Constitution, the Court noted that such legislation is
especially required to ensure sound fiscal planning, procurement and related matters.48
While the Court agreed that provincial governments are empowered to ‘employ, promote,
transfer and dismiss’ personnel in the provincial administrations of the public service’,
it rejected the idea of an implied provincial power depriving the national government
of its ‘competence to make laws for the structure and functioning of the civil service as a
whole’, which is expressly retained in section 197(1) of the Constitution.49
Turning to the
national government’s structuring of the public service and whether this encroached on
the ‘geographical, functional or institutional integrity’ of the provincial government, the
Court focused on the provisions of Chapter 3 of the Constitution dealing with cooperative
government. The Court’s interpretation of these provisions emphasized the description of
all spheres of government being ‘distinctive, inter-dependent and inter-related’, yet went
on to point out that the ‘national legislature is more powerful than other legislatures, having
a legislative competence in respect of any matter’, and that the ‘national government is also
given overall responsibility for ensuring that other spheres of government carry out their
obligations under the Constitution’.50
While the Court accepted that the Constitution prevents one sphere of government
from using its power to undermine other spheres of government it concluded that the
section ‘is concerned with the way power is exercised, not whether or not a power exists’.51
The relevant question before the Court in this case however was whether the national
government had the constitutional power to structure the public service.52
Finding that
indeed the power vests in the national sphere of government, the Court emphasized that the
Constitutional Principles ‘contemplated that the national government would have powers
that transcend provincial boundaries and competences’ and that ‘legitimate provincial
autonomy does not mean that the provinces can ignore [the constitutional] framework or
demand to be insulated from the exercise of such power’.53
The Court did however strike
down a clause in the law empowering the national minister to direct a provincial official to
transfer particular functions to another department (provincial or national) because such
power encroached on the ability of the provinces to carry out the functions entrusted to
them by the Constitution.
Although the Court seemed to come down strongly in favor of national legislative
authority, at least when it is explicitly granted in the Constitution, the question of the
allocation of legislative authority soon arose again, this time in the context of a dispute
between the national government and the regional governments of the Western Cape and
KwaZulu-Natal.54
The provincial governments in this case challenged provisions of the
47
 Public Service Case, Para 8.
48
 Public Service Case, Para 9 .
49
 Public Service Case, Para 11.
50
 Public Service Case, Para 18 and 19.
51
 Public Service Case, Para 23.
52
 Public Service Case, Para 23 and 24.
53
 Public Service Case, Para 25.
54
 The Executive Council of the Province of the Western Cape v The Minister for Provincial Affairs and Constitutional
JCL 3:2 187
heinz klug
Local Government: Municipal Structures Act 117 of 1998 in which the national government
claimed residual concurrent powers to determine the structure of local government,
despite the provisions of the local government Chapter of the Constitution which set out
a comprehensive scheme for the allocation of powers between the national, provincial and
local levels of government. Considering this allocation of power, the Court recognized that
the Constitution left residual legislative powers to the national sphere. But the Court also
determined that section 155 of the Constitution — which controls the establishment of local
governments — allocates powers and functions between different spheres of government
and the independent demarcation board so that:
(a) the role of the national government is limited to establishing criteria for
determining different categories of municipality, establishing criteria and
procedures for determining municipal boundaries, defining different types of
municipalities that may be established within each category, and making provision
for how powers and functions are to be divided between municipalities with
shared powers; (b) the power to determine municipal boundaries vests solely in
the Demarcation Board; and (c) the role of the provincial government is limited
to determining the types of municipalities that may be established within the
province, and establishing municipalities ‘in a manner consistent with the [national]
legislation enacted in terms of subsections (2) and (3).55
Applying this scheme to the challenged legislation the court found unconstitutional
the attempt in section 13 of the Municipal Structures Act to tell the provinces how they
must set about exercising a power in respect of a matter falling outside of the competence
of the national government. Despite claims by the national government that the provincial
official was only obliged to take the guidelines into account and not to implement them,
the Court argued that what mattered was that the national government legislated on a
matter falling outside its competence.56
Thus, despite the Court’s earlier recognition of
the predominance of the national sphere of government in the scheme of co-operative
government, here it drew the line and clarified that there was a constitutional limit to the
legislative power of the national government.
Although these early cases seem on the whole to have rejected the autonomy claims
of the provincial governments by recognizing the commanding role of the national
legislature, the Court was soon given the opportunity to explore the arena of exclusive
provincial power after the national parliament passed legislation which sought to regulate
the production, distribution and sale of liquor through a nationally defined licensing
scheme.57
Referred to the Constitutional Court by President Mandela, who had refused
to sign the Bill on the ground that he had reservations about its constitutionality, the law
sought in part to control the manufacture, wholesale distribution and retail sale of liquor,
functions which at least with respect to licensing are expressly included as exclusive
Development of the Republic of South Africa; Executive Council of KwaZulu-Natal v the President of the Republic of South
Africa and Others, 1999 (12) BCLR 1360 (CC).
55
 Municipal Structures Case, Para 14.
56
 Municipal Structures Case, Para 20 and 21.
57
 Ex Parte the President of the Republic of South Africa, In Re: Constitutionality of the Liquor Bill, CCT 12/99, 11
November 1999, 2000 (1) BCLR 1 (CC).
South Africa’s Constitutional Court
188	 JCL 3:2
legislative powers of the provinces in Schedule 5 of the Constitution. Citing a ‘history
of overt racism in the control of the manufacturing, distribution and sale of liquor’, the
national government contended that the ‘provisions of the Bill constitute a permissible
exercise by Parliament of its legislative powers’.58
The Western Cape complained however
that the ‘Bill exhaustively regulates the activities of persons involved in the manufacture,
wholesale distribution and retail sale of liquor; and that even in the retail sphere the
structures the Bill seeks to create reduce the provinces, in an area in which they would
(subject to section 44(2)) have exclusive legislative and executive competence, to the role of
funders and administrators’.59
Responding to the province’s claim, the Court argued that cooperative governance
includes the duty ‘not [to] assume any power or function except those conferred on them
in terms of the Constitution’ and that the Constitution’s ‘distribution of legislative power
between the various spheres of government’ and its itemization of functional areas of
concurrent and exclusive legislative competence, must be read in this light.60
Accepting
that the national government enjoys the power to regulate the liquor trade in all respects
because of the industry’s impact on the ‘determination of national economic policies, the
promotion of inter-provincial commerce and the protection of the common market in
respect of goods, services, capital and labour mobility’, the Court went on to conclude that
the structure of the Constitution precluded the national government’s regulation of liquor
licensing.61
The Court came to this conclusion by carefully defining three distinct objectives
of the proposed law and distinguishing those functions which would apply predominantly
to intra-provincial regulation as opposed to those aspects of the liquor business requiring
national regulation because of their extra-provincial and even international impact.
Having defined an aspect of the Bill which focused primarily on the provincial level, the
Court then proceeded to define the primary purpose of granting exclusive competencies to
the provinces as implying power over the regulation of activities ‘that take place within or
can be regulated in a manner that has a direct effect upon the inhabitants of the province
alone’. In relation to ‘liquor licences’, it is obvious, the Court argued, ‘that the retail sale
of liquor will, except for a probably negligible minority of sales that are effected across
provincial borders, occur solely within the province’. Given this fact the Court concluded
that the heart of the exclusive competence granted to the regions in the Constitution, must
in this arena ‘lie in the licensing of retail sale of liquor’.62
Having failed to justify the
necessity of national regulation in ‘regard to retail sales of liquor, whether by retailers or by
manufacturers, nor for micro-manufacturers whose operations are essentially provincial’,
the national Parliament did not have the competence, the Court held, to enact the Liquor
Bill and the Bill was therefore unconstitutional.63
58
 Liquor Licensing Case, Para 33.
59
 Liquor Licensing Case, Para 37.
60
 Liquor Licensing Case, Para 41.
61
 Liquor Licensing Case, Para 58.
62
 Liquor Licensing Case, Para 71.
63
 Liquor Licensing Case, Para 87.
JCL 3:2 189
heinz klug
RIGHTS, POLITICS AND THE MARGINS OF JUDICIAL POWER
While the Constitutional Court has made many important decisions there has been concern
that it was yet to address a range of difficult issues affecting the majority of ordinary South
Africans and which hold the potential of confronting some of the more ingrained aspects
of inequality and conflict which continue to pervade post-apartheid society. Most recently
the Court has decided a group of cases which hold profound consequences for the hopes
and aspirations of the majority of South Africans. These cases include challenges to the
‘customary’ laws of succession on grounds of gender discrimination;64
the KwaZulu-Natal
Pound Ordinance on the grounds that it denied cattle owners rights of equality and access
to the courts;65
and the Land Claims Court’s decision that a community claiming land
under the Restitution of Land Rights Act had failed to prove that their dispossession was
the result of discriminatory laws or practices.66
In each of these cases the decision of the
Court would hold important consequences for the relations of power: between men and
women living under indigenous law; between land owners (usually white) and landless
or land hungry stock owners (usually black); as well as between land owners and land
claiming communities whose claims did not self-evidently fall within the terms of the
Restitution of Land Rights Act.
In both the Bhe and Richtersveld cases the majority of the Court acknowledged the
constitutional status of indigenous law. In the first instance the Court struck down a rule
of customary law which discriminated on the basis of gender while in the second instance
the Court held that ‘indigenous law is an independent source of norms within the legal
system’, but like all other ‘law is subject to the Constitution and has to be interpreted
in light of its values’.67
The result in Bhe was for the Court to directly strike down – at
least with respect to intestate succession – the ‘customary’ rule of primogeniture held
by many traditionalists and others to be a key element of the customary legal system. In
effect, the Court’s decision will profoundly impact the rights of wives and daughters who
until now relied upon the system of extended-family obligation historically inherent in
indigenous law but long since disrupted by social and economic change. On the other side,
the Court’s decision in Richtersveld recognized indigenous law as a source of land rights
thus strengthening the claims of those who have argued that their land rights – including
rights to natural resources – were not automatically extinguished by the extension of
colonial sovereignty over their territories. Their dispossession, through means other then
the direct application of specific, discriminatory, apartheid land laws, will thus also be
recognized for the purpose of claiming restitution of their land rights. Even if not as broad
in its impact, the symbolic value of this recognition of indigenous land rights makes an
important contribution to legitimizing the new constitutional order among ordinary South
Africans.
Finally, the Zondi case involved a challenge to a set of legal provisions that formed
a central plank of the system of control and dispossession in the rural areas of apartheid
64
 Bhe et al v Magistrate, Khayelitsha et al, CCT 49/03, decided 15 October 2004 [hereinafter Bhe].
65
 Xolisile Zondi v Member of the Traditional Council for Traditional and Local Government Affairs et al, CCT 73/03
[hereinafter Zondi].
66
 Alexkor Ltd et al v The Richtersveld Community and Others, CCT 19/03, decided on 14 October 2003 [hereinafter
Richtersveld].
67
 Richtersveld, para 51.
South Africa’s Constitutional Court
190	 JCL 3:2
South Africa. Under the Pound Ordinance land owners were historically empowered to
seize and impound animals trespassing on their land without notice to the livestock owner,
unless the owner was a neighboring land owner. Subsequently the livestock would be sold
in execution if the owners could not afford the impounding fees and damages claimed by
the land owner or could not be readily identified. Without notice requirements or judicial
process the effect was that white landowners used these rules to exert power over rural
communities who lived on the land as sharecroppers, labor tenants or wage laborers and
held what little wealth or economic security they had in livestock. In effect, these rules,
while not racially-based, interacted with the racially-based landownership rules to both
structure rural social relations and to perpetuate a continuing process of dispossession as
the ownership of livestock continually shifted at below market prices from black to white
farmers.
Facially race-neutral the Pound Ordinance survived the dismantling of apartheid
laws but nevertheless continues to have a predominantly racial effect because rural land
ownership remains, even a decade after apartheid, largely in white hands. On the other
side, as Justice Ngcobo noted in his opinion, are people such as ‘Mrs Zondi, who belongs
to a group of persons historically discriminated against by their government . . . which
still affects their ability to protect themselves under the laws of the new order’.68
With
respect to the question of notice, the Court noted that the statute did not even require
anyone to tell the livestock owner of the impending sale and Justice Ngcobo pointed
out that even a general public notice in government publications or newspapers is likely
to be insufficient ‘where a large portion of the population . . . is illiterate and otherwise
socially disadvantaged. Mrs Zondi is indeed illiterate. The thumbprint mark she affixed
to her founding affidavit bears testimony to this’.69
Furthermore, the statute permitted
the landowner to ‘bypass the courts and recover damages through an execution process
carried out by a private businessperson or an official of a municipality without any court
intervention’.70
Holding the statutory scheme unconstitutional, among other reasons
because its effect is to limit the right of access to the court’s, Justice Ngcobo noted that the
scheme removes ‘from the court’s scrutiny one of the sharpest and most divisive conflicts
of our society. The problem of cattle trespassing on farm land . . is not merely the ordinary
agrarian irritation it must be in many societies. It is a constant and bitter reminder of the
process of colonial dispossession and exclusion’.71
ENFORCING RIGHTS, REMEDIES AND JUDICIAL AUTHORITY
While the Constitutional Court has been held in high regard and the government has
repeatedly acknowledged its authority and accepted its decisions,72
a period of heightening
political tensions has seen the law increasingly used as a weapon in internecine conflict
among government officials and within political parties. Along with this atmosphere
68
 Zondi para 51.
69
 Ibid.
70
 Zondi para 75.
71
 Zondi para 76.
72
 See, Minister of Health v Treatment Action Campaign (No 2), 2002 (5) SA 721 (CC), in which the Court stated
that, “The government has always respected and executed orders of this Court. There is no reason to believe
that it will not do so in the present case,” para 129.
JCL 3:2 191
heinz klug
of legal conflict has come increasing tension over the work of the judiciary, individual
judges, and the process of judicial appointments itself. While the Ministry of Justice has
proposed statutory reforms and constitutional amendments designed to improve the
functioning of the courts and the administration of justice, these have raised fears that
government is undermining the independence of the judiciary. Even as the government
was forced to withdraw some of these proposals, the Judicial Service Commission
publically acknowledged that it was unable to attract sufficient numbers of highly qualified
individuals, acceptable to the members of the JSC, as candidates for judicial appointment.
It is in this context then that the courts, and the Constitutional Court in particular, are
having to confront a growing concern at the failure of government officials to effectively
implement court orders requiring public officials to resolve systemic problems of public
administration and corruption, especially at the local level.
The failure of government to effectively protect the rights: of welfare recipients;73
property owners;74
indigenous land-claiming communities;75
women in the context of
intestate succession in indigenous law;76
or to adequately protect newborns against
the mother-to-child transmission of HIV;77
or to recognize the marital rights of samesex
couples,78
have all led to extraordinary decisions by the courts and created intense
debates about the types of remedies the courts should provide.79
Although there has been a
constant clamoring for bolder judicial action – demands that the courts award mandatory
relief and retain supervisory jurisdiction – the Constitutional Court in particular has been
very careful to frame its orders in ways that encourage compliance but also attempt to
bring the democratic organs of government into the decision-making process. While the
Court has asserted its right to provide appropriate relief, including mandatory orders and
structural relief, it has also used its ability to suspend declarations of invalidity so as to
give the legislature or executive the time and the flexibility to formulate constitutional
alternatives.80
In this way the Court has effectively engaged in a ‘dialogue’ with the other
branches of the government in its attempt to both assert its power but also preserve and
protect its own institutional authority against potential popular and political backlashes.
CONCLUSION
The creation and legitimation of a Constitutional Court in South Africa provided a unique
institutional site within which the process of mediation between alternative constitutional
imaginations could be sustained. It created the possibility that the judiciary in its role
as primary interpreter of the Constitution would be able to sustain and civilize the
tensions inherent in the repeated referral and contestation of political differences in the
post-apartheid era. However, there has been growing concern among non-government
73
 Khosa v Minister of Social Development 2004 (6) SA 505 (CC).
74
 President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd, 2005 (5) SA 3 (CC).
75
 Alexkor Ltd v The Richtersveld Community, 2004 (5) SA 460 (CC).
76
 Bhe et al v Magistrate, Khayelitsha et al, 2005 (1) SA 563 (CC).
77
 Minister of Health v Treatment Action Campaign (2), 2002 (5) SA 721 (CC).
78
 Minister of Home Affairs and Another v Fourie et. al., 2006 (1) SA 524 (CC).
79
 See, Roach, K and Budlender, G ‘Mandatory Relief and Supervisory Jurisdiction: When is it appropriate,
Just and Equitable?’ 122 (2) South African Law Journal 325.
80
 Id.
South Africa’s Constitutional Court
192	 JCL 3:2
organizations and human rights bodies that the social crisis in the country — including
the continuing disparities in wealth and its racial character as well as the levels of violence
and criminal activity – may put pressure on government to sidestep and hence erode some
of the exemplary human rights gains of the democratic transition. In this sense, debates
over the funding of the independent constitutional institutions such as the Independent
Electoral Commission, the Human Rights Commission and the Commission on Gender
Equality – constitutionally mandated bodies designed to protect and further democracy –
have focussed on the relationship between their fiscal dependence and a potential threat to
theirautonomyfromtherulingpartyandgovernment.Thoseconcernedwiththeautonomy
of these institutions have expressed their concerns in terms of both the continuing need to
implement the Constitution’s human rights guarantees as well as a broader concern about
the future of democracy itself. Others, including most notably the ruling ANC, argue that
it is the very socio-economic disparities and their continuing racial character that need to
be addressed if the future of democracy and human rights are to be secured.
While the Constitutional Court has played a distinct role in enabling the democratic
transition in South Africa, the conditions of its emergence as well as the strategies of the
justices have enabled the institution to play a number of other roles, from promoter and
symbol of a transformed justice to the more traditional role of conflict resolution and
absorber or deflector of intense inter-regional political conflict. While the initial conditions
of its creation and the caliber of its justices enabled the Court to build significant legitimacy
among a range of constituencies, from the bar to government officials and the ruling party,
the changing conditions of the country have begun to reshape the terrain upon which
the Court functions. At first it was the persistence of inequality and the tragic HIV/AIDS
pandemic that saw the court increasingly confront the government and more recently it
has been the political struggle within the ruling party that has created a political vortex
into which an increasing array of constitutional and public institutions, from the Public
Protector to the National Prosecuting Authority and its investigative arm, the Directorate
of Special Operations (Scorpions) have been sucked. While their dominant motivations
in the past may have been to enhance the power and legitimacy of the institution, today
the justices of the Constitutional Court are themselves, as a body, defending their own
integrity in publically announcing a complaint of interference against a senior Judge of the
High Court who is publically aligned with Jacob Zuma, the presumptive future President
of South Africa.
While South Africa’s experiment in constitutionalism is very young, the conditions
which gave rise to the new constitutional order as well as the continuing problems of a
post-colonial society, facing the dual challenges of extreme inequality and a devastating
HIV/AIDS pandemic, has brought domestic tension as well as global interest to the work
of the Constitutional Court. Caught in the cross-hairs of struggles for the realization
of the extensive promise of rights entrenched in the Constitution and the limitations
of governmental capacity and resources, the Court has thus far treaded a careful path,
avoiding the easy declaration of rights yet continuing to question government failings.
At the same time, the courts themselves are undergoing transformation and tensions over
this process continue to simmer within the courts and between the courts, government
JCL 3:2 193
heinz klug
and the legal profession.81
The challenge facing the Court, as its composition changes and
it becomes increasingly part of a ‘normal society’ will be whether it is able to continue to
strike a balance between the need to address the legacy of apartheid, including the historic
exclusion of the indigenous legal systems, and continue to uphold the claims of individual
freedom and dignity which have become the hallmark of its first decade and a half.
81 See, ‘National Judges Symposium,’ The South African Law Journal, Vol. 120(4) pp. 647-718, 2003. This is a
report, including many of the speeches given, to the first plenary meeting of South African judges in seventy
years and took place against a background of public controversy between senior judges and politicians.