Constitutional Court of South Africa
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The South African Constitutional Court 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 judges, headed by a Chief Justice and Deputy Chief Justice. Currently eight of the judges are men and three are women. They may serve for a non-renewable term of 12 years, but must, in any event, retire at the age of 70 even if their 12 year term has not been completed. They are all independent. 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 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. 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.
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[edit] Current justices
Constitutional Court justices as of June 2005:
- Chief Justice Pius Langa (born 1939, appointed by Nelson Mandela in 1994 and elevated by Thabo Mbeki in 2005)
- Deputy Chief Justice Dikgang Moseneke (born 1947, appointed by Thabo Mbeki in 2004 and elevated by Thabo Mbeki in 2005)
- Justice Tholie Madala (born 1937, appointed by Nelson Mandela in 1994)
- Justice Yvonne Mokgoro (born 1950, appointed by Nelson Mandela in 1994)
- Justice Sandile Ngcobo (born 1953, appointed by Nelson Mandela in 1999)
- Justice Bess Nkabinde (born 1959, appointed by Thabo Mbeki in 2006)
- Justice Kate O'Regan (born 1957, appointed by Nelson Mandela in 1994)
- Justice Albie Sachs (born 1935, appointed by Nelson Mandela in 1994)
- Justice Thembile Skweyiya (appointed by Thabo Mbeki in 2003)
- Justice Johann van der Westhuizen (appointed by Thabo Mbeki in 2004)
- Justice Zak Yacoob (born 1948, appointed by Nelson Mandela in 1998)
[edit] 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 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.
[edit] 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 Protector, 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 courts, the Magistrates Courts, the High Courts and the Supreme Court of Appeal, deal with day-to-day disputes between citizens and the state.
[edit] 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.
[edit] 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.
[edit] Decision on Marriage in South Africa
On 1st December 2005 (Case CCT 60/04 and Case CCT 10/04), the Court legalized same-sex marriage in the case of Minister of Home Affairs v. Fourie. Writing for a Court that was unanimous on all matters except as to the remedy, Justice Albie Sachs, relying on the express protection of sexual orientation under the Constitution (ch. 2, § 9), said that South Africa has a multitude of family formations that are evolving rapidly as society develops, so that it is inappropriate to entrench any particular form as the only socially and legally acceptable one; there was an imperative constitutional need to acknowledge the long history in South Africa and abroad of marginalization and persecution of gays and lesbians although a number of breakthroughs have been made in particular areas; there is no comprehensive legal regulation of the family law rights of gays and lesbians; and that South Africa's Constitution represents a radical rupture with the past based on intolerance and exclusion, and the movement forward to the acceptance of the need to develop a society based on equality and respect by all for all. He pointed out that at issue was the need to affirm the character of society as one based on tolerance and mutual respect.
[edit] 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 Hlophe 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.
[edit] External links
- Constitutional Court of South Africa official site
- 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. [1]
