Constitutional Court Of South Africa Research Articles

Constitutional court statistics for the 2015 term

This note provides descriptive statistics on the work of the Constitutional Court of South Africa (the Court) in 2015, organised in a number of tables. The method of constructing each table is given in the text that follows it. The objectives and methods of this annual set of statistics are more fully laid out in the 1995 edition and subsequent editions of the SAJHR. Part I covers those decisions in which the Court produced a written judgment while Part II covers applications that were considered in chambers and dismissed without a judgment being given.

Substantive Equality and Sexual Orientation: Twenty Years of Gay and Lesbian Rights Adjudication Under the South African Constitution

One of the exceptional elements of the South African Equality Clause is its novel and progressive inclusion of anti-discrimination protections for lesbians and gay men. The prohibition of discrimination based on sexual orientation is particularly important because it occurred — for the first time in any national constitution — as a result of the closely watched drafting of South Africa’s historic “human rights” Constitution. The South African Constitution advanced the hopes of international gay rights advocates and set a benchmark for future constitutional drafters. Over the last two decades, the Constitutional Court of South Africa decriminalized same-sex sexual activity, required equal treatment of same-sex life partners in areas of immigration and government benefits, and affirmed the fundamental validity of same-sex relationships, including recognition of full marriage equality. The Court’s opinions included express affirmations of the dignity and equality of gays and lesbians in an unbroken series of unanimous, pro-gay decisions. But although twenty years have passed since sexual orientation discrimination was prohibited by the Equality Clause, its practical effect has been markedly inadequate to achieve the safety and social equality of LGBT persons in South Africa. In sharp contrast to its expansive textual protections and progressive jurisprudence, the lived reality of South African gays and lesbians, particularly in poorer communities, is typified by condemnation, discrimination, and homophobic violence. Hence, the Equality Clause is a symbol of both the progressive aims of the post-apartheid Constitution and the appalling gulf between those aims and reality. Examining the historical successes and failures of the Constitution’s sexual orientation protections highlights three categories of insights drawn from the last two decades of constitutional rights in South Africa. These lessons include an encouraging insight about novel and progressive elements in the drafting of modern constitutions; some modest claims about the capacity of courts to combat inequality based on sexual orientation despite the limitations of purely legal victories; and a hopeful affirmation of the value of even unrealized constitutional aspirations for the fields of comparative constitutionalism and gay and lesbian equality.

South Africa's Law on Foreign State Immunity: A Pandora's Box of Phantom Waivers, Red Herrings and Dark Continents

Does South Africa still adhere to the restrictive state immunity doctrine? This is the million-rand question that arises from the Constitutional Court of South Africa’s (CCSA) decision in the case of Zimbabwe v Fick (Fick case) in which it created a new common law rule permitting the exercise of jurisdiction and the registration of judgments issued by international courts against foreign states. Crucially, the Fick Foreign State Jurisdictional rule (FFSJ rule) enables South African courts to exercise jurisdiction over foreign states irrespective of whether the judgment sought to be registered and enforced against the foreign state concerns a dispute over acta jure imperii. This article argues that the CCSA’s decision in the Fick case is seriously flawed. However, if it accurately represents South African law then it is authority for the proposition that the country no longer adheres to the restrictive state immunity doctrine.

Can law avoid creating culture and religion in its own image? The context for diversity, religion and culture in MEC for Education: KwaZulu-Natal and Others v Navaneethum Pillay: Reflections a decade later

This article reviews the important MEC for Education: KwaZulu-Natal and Others v Navaneethum Pillay decision, handed down by the Constitutional Court of South Africa, against reflectionsregarding law and religion in the ten years since that decision was delivered. It places the decision in relation to scholarly debates about the nature of a diverse society and, in particular, how certainstrands of what pass for “liberal” theory do not, in fact, provide for respect for diversity and difference. In particular, the article reviews various ways in which moves towards homogeneity may employ the language of diversity to achieve their ends against the goals of the South African Constitution, which, properly understood, should maximize genuine diversity and accommodation. The article also discusses briefly the recent decision of Organisasie vir Godsdiens Onderrig en Demokrasie v Randhart et al., which interprets sec. 15(2) of the Constitution as allowing religious observances in public schools as long as such observances are not exclusive and exclusionary. The article supports this interpretation and suggests that the goals sought by the applicant in Organisasie vir Godsdiens Onderrig en Demokrasie v Randhart et al. exemplified the kind of “convergence” and “civic totalism”. Also discussed is whether other listed constitutional terms such as ‘culture’, ‘belief’ and ‘conscience’ should attract the same kind of protections as ‘religion’ and whether there is a risk that, by categorizing the protection of other concepts too broadly, important aspects of religion (for example, that it is not simply an individual, but a communitarian right) might be trivialized. Finally, the article reviews certain developments in other countries (France and Canada) to suggest that how the State is understood in the context of accommodation will vary in relation to how the terms ‘secular’ and ‘diversity’ are defined.

Framing human dignity: visual jurisprudence at South Africa's Constitutional Court

The Constitutional Court of South Africa is a unique space by international comparison because it houses a large visual art collection developed by and for the court. The purpose of this article is to look at the connections between human dignity and art at the Constitutional Court. Is the performance of dignity in the art collection a utopian ideal, achievable objective, or unrealised potential? I argue that the art collection is a kind of visual jurisprudence that responds to, but also comprises, conceptions of human dignity as a right, a value and a touchstone of democracy — conceptions that are closely entwined with South Africa's human rights governance, but that manifest in very different ways. At the same time that human dignity becomes realised by the spatial transformation of the site of the court, it remains in the art collection something that must ever be worked towards. This article arises out of six months of participant observation fieldwork at the Constitutional Court, conducting 54 semi-structured interviews with people involved in the collection.

Constitutional Court statistics for the 2014 term

This note provides descriptive statistics on the work of the Constitutional Court of South Africa in 2014, organised in a number of tables. The method of constructing each table is given in the tex...

24 Constitutional Court of South Africa : Transport and Allied Workers Union of South Africa v PUTCO Limited, CCT94/15 [2016] ZACC 7, 8 March 2016

24 Constitutional Court of South Africa : Transport and Allied Workers Union of South Africa v PUTCO Limited, CCT94/15 [2016] ZACC 7, 8 March 2016

Twenty-three years of gender transformation in the Constitutional Court of South Africa : progress or regression

Twenty-three years of gender transformation in the Constitutional Court of South Africa : progress or regression

Caso Simelane: o controle judicial dos atos de nomeação expedidos pelo chefe do Poder Executivo à luz do critério das considerações relevantes e do princípio da racionalidade

Este artigo pretende difundir subsídios teóricos hauridos do julgamento do processo judicial Democratic Alliance v. President of South Africa and Others (caso Simelane). Analisam-se as peculiaridades desse caso concreto, os principais argumentos esposados pela Suprema Corte de Apelação e pela Corte Constitucional da África do Sul, o posicionamento da doutrina sul-africana, o contexto subjacente do Direito Administrativo e do Direito Constitucional sul-africanos contem­porâneos e o seu diálogo com o Direito Administrativo Comparado e com a história do Direito sul-africano. Ao fim, inspira-se em tal julgado para propor a adoção do princípio da racionalidade e do critério das considerações relevantes como balizas para o controle, pelo Poder Judiciário brasileiro, de nomeações que consubstanciam atos de natureza político-governamental ou análoga.

Thinking together through pictures: The community of philosophical enquiry and visual analysis as a transformative pedagogy

This qualitative study explores how a community of enquiry pedagogy in combination with a social semiotic approach to visual analysis influenced the changing knowledge and concepts of knowledge experienced by students in an undergraduate teacher education course. The art of the Constitutional Court of South Africa was the focus of our study and students developed structured and logical frameworks for analysing artworks as well as playing with laterally extending concepts such as art, justice, equality and humanity. The findings suggest that the dialogical and embodied practice of a community of enquiry pedagogy and the meaning-making strategies offered by a social semiotic approach to visual analysis strongly influenced my students’ and my own awareness of knowledge as a creative and experiential opening up and as a companion to the equally valuable experience of not knowing. Visual and embodied forms of knowledge explored through artworks forged a link between ‘self’ and ‘learning self’. These findings have implications for the selection of appropriate teacher education pedagogies.

National Commissioner of the South African Police Service v. Southern African Human Rights Litigation Centre

Constitutional Court of South Africa ruling on duty of South African police to investigate alleged torture by Zimbabwean police in Zimbabwe against its citizens

Of State Immunity, Phantom Waivers and Dark Continents: The Curious Case of Zimbabwe v Mr. Fick

Following the Constitutional Court of South Africa’s (CCSA) ruling in the case of Zimbabwe v Fick and Others (the Fick case), it is now in doubt whether South Africa adheres to the restrictive State immunity doctrine. In the Fick case, the CCSA dismissed Zimbabwe’s plea of State immunity on the erroneous basis that Southern African Development Community (SADC) States had expressly waived their immunity over the registration and enforcement of judgments issued by the SADC Tribunal. The CCSA also created a new law enabling South Africa to register and enforce judgments issued by international courts against foreign States, irrespective of whether the disputes concerned acta jure imperii or acta jure gestionis. This article argues that the CCSA’s ruling and its consideration of the issue of foreign State immunity are flawed and constitute a threat to (i) the security of foreign States’ property, interests and investments in South Africa; (ii) intra-SADC trade relations; (iii) the effective resolution of disputes arising under SADC’s investment law and the SADC Protocol on Finance and Investment; and (iv) the development of coherent principles on SADC law on State immunity.

Constitutional Court statistics for the 2013 term

This note provides descriptive statistics on the work of the Constitutional Court of South Africa in 2013, organised in a number of tables. Part I covers those decisions in which the Court produced a written judgment while Part II covers applications that were considered in chambers and dismissed without a judgment being given. The purpose of the Constitutional Court statistics is to shed light on issues such as voting patterns on the bench, the nature of cases heard by the Court, government success rates in Constitutional Court litigation, how cases are reaching the Court, and how long it is taking the Court to deliver its judgments. The statistics also provide some insight into the applications that are not being heard by the Court, which are otherwise not open to public scrutiny.

Lawrence Gostin: legal activist in the cause of global health

Lawrence Gostin: legal activist in the cause of global health

The Duty to Investigate Zimbabwe Crimes Against Humanity (Torture) Allegations

On 30 October 2014, the Constitutional Court of South Africa held, in a landmark unanimous judgment, that South Africa had a legal duty to investigate allegations of crimes against humanity committed in Zimbabwe by Zimbabweans against their fellow citizens and ordered South African authorities to do so. This was pursuant to universal jurisdiction provisions of the Implementation of the Rome Statute of the International Criminal Court Act (ICC Act) — the domestic legislation that incorporated international crimes and other obligations pursuant to the Rome Statute of the International Court (ICC) into South African law. While, in coming to that conclusion, the Court’s analysis of international law on the duty to investigate in a universal jurisdiction context was unsatisfying, the judgment is innovative since the duty to investigate was ultimately grounded on a domestic duty to investigate all crime under domestic law — whether international or otherwise. This bold and fresh technique has the potential to be duplicated in countries that recognize a general duty to investigate crime, have incorporated international crimes into domestic law and recognize universal jurisdiction over such offences. Further, in an attempt to rein in the wide-ranging implications, the judgment articulated guiding principles and limitations that in some respects draw directly from the ICC. In particular, the ICC’s signature ‘unwilling or unable’ complementarity test and the ICC Prosecutor’s preliminary examination mechanism were, in effect, judicially sanctioned for application in the South African legal order. As a result, there is potential for the ICC’s best practices and case law to directly influence the direction of South African investigations, proceedings and jurisprudence in the future exercise of her universal jurisdiction over international crimes in a manner that is consistent with the Constitutional Court’s judgment and international law.

Revolutionising the Civil Courts in South Africa Through Information Technology

A consultative approach was undertaken by a handful of academics in assessing the information technology of court systems from a global perspective inter alia southern hemisphere countries to European trends, which resulted in academics writing critically about this process in revolutionising the case management process and technology. Chief Justice Mogoeng Mogoeng of the Constitutional Court in South Africa remarked that the e-filing system was required to address some of the problems that judicial officers face in hearing appeals when dockets are lost in their entirety. In this specific context there is needed reform for the case management structure of matters that appear on the court roll. The time delay in transcribing records for Judges/Magistrates to access the evidence for writing their judgments inevitably creates backlogs of judgments only being delivered eight months after the trial. This is unfavourable for the litigants that have their matter unduly delayed and causes an incremental rise in litigation fees. A possible solution is for the technology that enables and allows for ‘real-time transcript,’ which ensures that when evidence is given in court it is automatically transcribed. This means that the Judge/Magistrate has immediate visual access to it on the computer. This particular technology could save costs and allow for accurate information to be given to the Judge/Magistrate for faster digestion of the matter before them. The paper-based system perpetuates that copious amounts of pages are filed at court. An environmental lawyer’s worst nightmare of seeing so many pages that have to be printed instead of referring to a ‘soft’ copy. To a litigants aghast, after the very tedious process of paginating the court files and their own files and on the day of the trial/application the court file goes walkabout. The result is that it is impossible for the matter to proceed on the same day, accordingly the trial is postponed to locate the file and the originals alternatively for the respective litigants to file the necessary copies to ensure that the matter can proceed with a copied file for a civil dispute. However from a criminal perspective when the docket is lost, then the case is postponed for the location of the docket and if it cannot be found then the matter is removed from the roll, until it can be found and then the matter will then be re-enrolled on the court roll, sometimes matters take years to re-appear if at all. The result sadly is that when documents go missing that criminals are released into society once again. European countries have adopted e-Courts that function on an online basis where witnesses can attest to evidence through online mediums akin to skype. In the Southern Hemisphere countries such as Singapore and Australia have some of the most advanced Information Technology systems such as e-filing systems and video conferencing are some of the developments that contribute to the ‘dawn of a new era of cybercourts.’ Australia had initially developed the online court system for matters that were ‘complex’ but then a particular necessity for it evolved and as a result at least one permanent cyber court sits in each court. Another reason for using information technology in Australia was to ease the backlog of a paper-based system. The trends in technology is not only to revolutionise business and marketing but also has its place in court. Advanced technology usually sums up convenience and especially in the struggle for access to justice ‘convenience’ is a fad that can address access to justice. A major drawback of information technology is that it is an expensive system, but surely government may address the cost concern if it weighs the successes of the system to paper-based outdated systems. In Singapore the courts have converted to an electronic litigation system, meaning every iota of the litigation is computerised. This paper shall only deal with an analysis of the court online system to revolutionise the civil system within a South African context.

Avoiding Mazibuko: Water Security and Constitutional Rights in Southern African Case Law

The 2009 judgment by the Constitutional Court of South Africa in Mazibuko v City of Johannesburg is seen by many as a watershed in the interpretation of the fundamental constitutional right of access to water. The Constitutional Court ruled that the right of access to sufficient water does not require that the state provide every person upon demand and without more with sufficient water. Nor does the obligation confer on any person a right to claim "sufficient water" from the state immediately. Reactions to the judgment have been consistently negative, with criticisms largely focusing on the Court's apparent lack of appreciation for the situation of the very poor. It is not easy, however, to overturn a decision of the Constitutional Court and South Africa will need to work within the constraints of the precedent for many years to come. It is suggested in this article that two subsequent, recent judgments (one of the Supreme Court of Appeal in South Africa, City of Cape Town v Strümpher, 2012, and one of the High Court in Zimbabwe, Mushoriwa v City of Harare, 2014) show how it might be possible for courts to avoid the Mazibuko precedent and yet give special attention to water-related rights. Both cases concerned spoliation applications in common law, but both were decided as though access to water supply and water-related rights allow a court to give weight to factors other than the traditional grounds for a spoliation order. It can be argued that in both cases the unlawfulness necessary for a spoliation order arose from a combination of dispossession and breach of rights in respect of a very particular and special kind of property. In the arid and potentially water-stressed Southern African region, and in the context of extreme and apparently increasing poverty, there will undoubtedly be more court cases to come involving access to water. Conclusions are drawn as to how the two judgments considered might offer a way to ameliorate the harsh effects of the Mazibuko judgment.

Models of Judicial Tenure: Reconsidering Life Limits, Age Limits and Term Limits for Judges

Tenure is an important facet of judicial independence and a key principle underpinning the rule of law, yet its protection varies markedly from country to country. This article examines the historical development and empirical experience of three pre-eminent appellate courts — the Supreme Court of the United States, the High Court of Australia and the Constitutional Court of South Africa — as examples of prevalent models of tenure, namely, life tenure, age limits and term limits. Dissatisfaction with tenure arrangements in each jurisdiction has been impelled by increasing human longevity, growing awareness of incapacities that accompany ageing, and changing attitudes to age discrimination. These developments have led to constitutional and legislative reforms to ameliorate the problems that inhere in different models of tenure. However, the choice between models, and between key parameters within each model, reflect complex policy preferences. The article concludes that hybrid arrangements that incorporate age limits and term limits — illustrated by the Constitutional Court of South Africa — provide a suitable compromise between competing policy objectives.

Constitutional Court Statistics for the 2012 Term

This note provides descriptive statistics on the work of the Constitutional Court of South Africa in 2012, organised in a number of tables. The method of constructing each table is given in the text that follows it. The objectives and methods of this annual set of statistics are more fully laid out in the 1995 edition and subsequent editions of the SAJHR.

Constitutional Court Statistics for the 2010 Term

This note provides descriptive statistics on the work of the Constitutional Court of South Africa in 2010, organised in a number of tables. The method of constructing each table is given in the text that follows it. The objectives and methods of this annual set of statistics are more fully laid out in the 1995 edition and subsequent editions of the SAJHR. Part I covers cases in which the Constitutional Court produced a written judgment, while part II analyses applications that were considered in chambers and dismissed without a judgment being handed down.