The Constitutional Court of South Africa and jurisdictional questions: In the interest of justice?

Abstract

When South Africans went to the polls in 1994 in their country’s first election by universal suffrage, they did so under an interim constitution. That text— the product of months of difficult and often contentious deliberations among the ruling National Party; its likely successor, the African National Congress (ANC); and a host of other political parties—incorporated human rights guarantees in a bill of rights and also created a Constitutional Court. The new Court represented a rupture with the apartheid order, which had bound judges to the doctrine of parliamentary supremacy. In the years that followed, however, the Court rendered multiple conflicting decisions on the question of access. It also took a restrictive view of the nature of constitutional matters and the scope of judicial review. As a result, few cases were brought before it. While the interim constitution’s successor, in force since 1997, took a broader view of such questions, it would be years before they were reflected in the opinions of the Constitutional Court. Even then, the decisions left great uncertainty as to which cases the Court would hear. The Court also has manifested a similarly narrow approach in the field of socioeconomic rights, thus failing to create a major role for itself in this area. The result has been an unhappy one for potential litigants as the Court’s docket remains small. The restrictive approach may prove unhappier still for the Court itself, which, unless it jettisons its jurisprudential caution, soon may find itself abolished by the government, as will be discussed below. For a society desperately in need of institutional stability and continuity, dispensing with the Court would be disastrous.