Finding the constitutional court's place in South Africa's democracy : the interaction of principle and institutional pragmatism in the court's decision making

Abstract

Ever since its establishment in 1995, the South African Constitutional Court has been called upon to address issues and to face challenges that would be considered extraordinary for any judiciary. From the task of certifying whether the Constitutional Assembly had remained faithful to the constitutional principles in the 1993 interim Constitution to the ruling of a High Court accepting the allegation by the Judge President of the Western Cape High Court that the justices of the Constitutional Court had violated his rights by publicly accusing him of improperly attempting to influence the outcome of a case before them, the Court has been repeatedly buffeted by the strong winds of political conflict. The Court has also faced direct challenges to its legitimacy, as was the case when the newly appointed justices were asked to recuse themselves from a case against President Nelson Mandela on the grounds that he had appointed them. At the same time, the Court has received positive global attention for its rights jurisprudence while facing domestic criticism for its unwillingness to be more assertive - either in defining a minimum core in socioeconomic rights cases, or by being more willing to institute either structural remedies, or making more determinative rights decisions, instead of using its ability to send issues back to the legislature for corrective action. While verbal attacks on the Court by political actors and attempts by the executive to assert greater control over the administration of justice have been publicly decried as a threat to judicial independence and largely warded off by the Court, the departure of the last justices of the founding generation and continuing political tension in the country - often played out in the courts - has led some commentators to fear that the Constitutional Court will fall short of its promise as a principled defender of the Constitution. By exploring the interaction, in the Court's decisions, between 'principled argument' and 'institutional pragmatism', this paper argues that, when considered within the broader context of apex courts in democratic societies, the story of the Constitutional Court is perhaps less dramatic. In managing this tension between legal principles and institutional pragmatism within its decisions the Court has thus far avoided the dangers posed by political 'lawfare', on the one hand, and the 'utopian' or 'principled' declaration of rights, on the other, and has instead sought to find its place as a constitutional court in a young and turbulent democracy.