Constitutional Court Of South Africa Research Articles

Social Justice Coalition & 2 others v Minister of Police and 4 others: Right to City as a Mitigating Concept to Harms on Public Safety

The South African constitution in section 9(3) prohibits unfair discrimination against anyone. This paper aims to unpack a judgement handed down by the Constitutional Court of South Africa on 19 July 2022 relating to the unfair allocation of policing resources in South Africa, thus resulting in unfair discrimination. The case discussed is the case of Social Justice Coalition and 2 others v Minister of Police and 4 others. Systematic discrimination has seen less allocation of police resources amongst poorer communities such as Khayelitsha in Cape Town. The paper further aims to see how local government can play a meaningful role in promoting public safety in its law and policy, thus promoting the ‘right to city’ and adhering to United Nations normative approaches on Urban crime and safety. This may mitigate systematic discrimination that historically disadvantaged areas have in policing resources across South Africa. Generally, South Africa is ranked one of the most violent societies. Murder, robbery, rape, femicide, and domestic violence occur at alarming levels. Cities such as Cape Town rank amongst the twenty most violent cities in the world, with the likes of some Latin and Central American cities, which are countries that are not in any form of civil war or civil unrest. It is a general norm that some areas have developed a reputation of being high risk to public safety because of various violent crimes such as gun shooting, stabbing, and rape. Certain areas in metropolitan cities, such as Khayelitsha Cape Town, are known to have high unreported incidents of violent crimes. It is worth pointing out that the application brought before the courts focuses on the lack of policing resources in Cape Town. This judgement also fits into the reality of the situation across South African townships under-resourced with policing resources to deal with violent crime and other crime. The paper will be structured in a way that first gives a background of the case, secondly a critical analysis of the case through the concept of ‘right to city’ and thirdly, submissions and a conclusion.

The UDHR at 75: Analysing the Prevalence of the Use of the UDHR and Other Human Rights Treaties in the Work of the Constitutional Court of South Africa

South Africa’s democracy turned 30 years old in 2024. At the same time, its constitutional order and jurisprudence marked three decades since the Interim Constitution and its successor, the 1996 Constitution, came into operation. Coincidentally, the Universal Declaration of Human Rights (UDHR) turned 75 years old in the previous year, 2023. The confluence of these facts is quite poignant in the context of a constitutional text that is often lauded for its commitment to the protection of human rights and the eradication of the injustices of the past, which were firmly entrenched by the segregationist policies of the apartheid regime. At the centre of this hype about South African constitutional jurisprudence is the centrality of international law to the interpretation of the Bill of Rights as well as the development of the common law, customary law, and statutory law. With the UDHR being such a central pillar in the human rights sector, this study set out to determine the extent to which the Constitutional Court of South Africa relied on the UDHR and other international instruments in carrying out the mandate set out above. The study analysed cases delivered by the Court in two separate years, spaced ten years apart. The study did not necessarily attempt to determine a correlation, but simply to use descriptive statistics to determine how often, in those two years, the Court relied on international law in general, and on the UDHR in particular, in its interpretive and legal development mandate.

Judicial Collegiality and Tolerance of Difference: Insights from Justice Johan Froneman's Dissents

The retirement of Justice Johan Froneman from the Constitutional Court of South Africa provides an ideal opportunity to reflect on his approach to collegiality and tolerance of difference. Like his predecessors, Justice Froneman navigated a delicate balance between collegiality and dissent. While the diverse backgrounds and experiences of his judicial colleagues enriched the Court's deliberations, Justice Froneman's dissents demonstrated the need for the Court to function as a cohesive unit to resolve judicial differences. His insistence on understanding the proper context of issues, taking account of relevant facts and synthesising opposite viewpoints was particularly pronounced in cases involving potentially divisive moral and ideological questions. Cases that touched on South Africa's contested political history and the proper role of the Court in a constitutional democracy further provided him with the platform to strike a balance between collegiality and dissent, thereby showing that tensions between unity and diversity among judges can be resolved amicably and that doing so would positively contribute to the development of the Court's jurisprudence on tolerance

Legal security of the protection of judicial constitutional control: general guidelines for understanding

This article is devoted to the study of the new courts, which found a common European language of constitutionalism, which they not only learned to pronounce, but also could express new ideas in this language. At the same time, obtaining international standards is much more than adaptation, it was a mutual process. The real exchange of ideas was supported by the unique publicity that the international political situation offered to the new courts. Although only the Constitutional Court of South Africa is bound by the Constitution to consider foreign constitutional cases, constitutional courts today usually operate on a comparative law basis. On the other hand, László Szółom recalled a new mechanism of international cooperation: the Conference of European Constitutional Courts and the Commission for Democracy through Law (the «Venice Commission»). The integrative influence of the Venice Commission is indeed important and serves the globalization of constitutional justice. In addition, speaking about the specifics of constitutional control in Ukraine, it should be noted that as of 2019 it is a full-fledged special court, not a political body. This direction follows both from its functions and scope of jurisdiction, and from the analysis of constitutional guarantees for it as a collegial body and judges. In this context, the position regarding the understanding of constitutional control as an important component (one of the mechanisms) of legal protection of the constitution is valuable. Research in this direction is a productive direction of the development of legal science. The established courts have already found a common European language of constitutionalism, which they not only learned to pronounce, but also could express new ideas in this language. At the same time, obtaining international standards is much more than adaptation, it was a mutual process. The real exchange of ideas was supported by the unique publicity that the international political situation offered to the new courts. Although only the Constitutional Court of South Africa is bound by the Constitution to consider foreign constitutional cases, constitutional courts today generally operate on a comparative law basis. On the other hand, László Szółom recalled a new mechanism of international cooperation: the Conference of European Constitutional Courts and the Commission for Democracy through Law («Venice Commission»). The integrative influence of the Venice Commission is indeed important and serves the globalization of constitutional justice.In addition, speaking about the specifics of constitutional control in Ukraine, it should be noted that as of 2019, it is a full-fledged special court, and not a political body. This conclusion follows both from its functions and scope of jurisdiction, and from the analysis of constitutional guarantees for it as a collegial body and judges. In this context, the position regarding the understanding of constitutional control as an important component (one of the mechanisms) of legal protection of the constitution is valuable. Research in this direction is a productive direction of the development of legal science. The updated judicial system has already found a common European language of constitutionalism, which they not only learned to pronounce, but also could express new ideas in this language. At the same time, obtaining international standards is much more than adaptation, it was a mutual process. The real exchange of ideas was supported by the unique publicity that the international political situation offered to the new courts. Although only the Constitutional Court of South Africa is bound by the Constitution to consider foreign constitutional cases, constitutional courts today generally operate on a comparative law basis. On the other hand, László Szółom recalled a new mechanism of international cooperation: the Conference of European Constitutional Courts and the Commission for Democracy through Law («Venice Commission»). The integrative influence of the Venice Commission is indeed important and serves the globalization of constitutional justice. In addition, speaking about the specifics of constitutional control in Ukraine, it should be noted that as of 2019, it is a full-fledged special court, and not a political body. This conclusion follows both from its functions and scope of jurisdiction, and from the analysis of constitutional guarantees for it as a collegial body and judges. In this context, the position regarding the understanding of constitutional control as an important component (one of the mechanisms) of legal protection of the constitution is valuable. Research in this direction is a productive direction of the development of legal science.

A Review of the Decision of the Constitutional Court of South Africa in the Shilubana Case: Lessons for the Development of Customary Law in Ghana

In the case discussed in this article, the Constitutional Court of the Republic of South Africa was confronted with the issue of the customary law rule of male primogeniture and its discriminatory effects on women regarding chieftaincy succession. The court held that, given that the said customary law practice was discriminatory, it needed to be developed to meet the constitutional human rights value of gender equality. The court’s decision is regarded as the basis for new criteria by which living customary law can be developed further. The article seeks to review the decision of the Constitutional Court and its impact on the development of customary law in general. Against this backdrop, the author proceeds to evaluate and offer a comparative analysis of the judicial and legislative efforts by Ghana and South Africa to promote the development of customary law and whether the decision of the Constitutional Court of South Africa (Constitutional Court) could offer lessons for the development of Ghanaian customary law in general. It is contended that the measures put in place under Ghanaian law to promote the development of customary law are inadequate and thus recommendations for the development of Ghanaian customary law drawing on lessons from the decision of the Constitutional Court are made.

When is discrimination unfair? A relational reconstruction of the Constitutional Court’s dignity-based approach

In this article, I examine the dignity-based test for unfair discrimination developed by the Constitutional Court of South Africa. First, I argue that the point of antidiscrimination rights is to protect equality. They seek to prevent a comparative wrong — wrongful disparities in treatment. Violating dignity appears, however, to be a non-comparative wrong — one that is independent of the treatment extended to others. Tying unfair discrimination to dignity violations therefore seems to miss the comparative concerns that underlie anti-discrimination rights. Adding that everyone is ‘equally’ entitled to be treated with dignity does not solve the problem. I respond to this apparent difficulty with the court’s approach by suggesting that the court is best understood as concerned with a distinctive kind of dignity — status dignity. I also argue that there is an attractive conception of equality — relational equality — that explains why violations of status dignity are violations of equality. This interpretation provides the requisite egalitarian foundation for the court’s approach. Secondly, I address the criticism that a dignity-based understanding of substantive equality is too limited to address systemic inequalities. I suggest that an understanding based in status dignity is suitably robust and requires far-reaching reforms and restructuring of social practices.

Nurturing Tomorrow’s Jurists: Rethinking the Indonesian Constitutional Court's Clerkship System through a Comparative Lens

This paper dives into the clerkship system at the Indonesian Constitutional Court (MK), an independent judicial organ that holds high importance as the guardian of the constitution. While the court’s nine justices benefit from the existence of a clerk’s office, its work is still very limited to administrative matters. The paper begins by questioning whether the current system is sufficient to assist justices in their work and fulfill the larger aims of judicial clerkship. Its ultimate objective as a follow-up to the question is to identify ways to improve MK’s clerkship system. In order to assess the Indonesian clerkship system, a comparative analysis study of three other countries’ courts that similarly act as guardians of their respective constitutions – namely the Supreme Court of the United States, Constitutional Court of South Africa, and Supreme Court of India – is conducted. It is found firstly that there is indeed a need to change the clerkship system in MK as there are multiple ways in which clerks can help the court and benefit from it. Consequently, the changes that should be made run deep into the very purposes and roles of clerks, the structure of the committee or program, and the expected qualifications and selection process. By drawing inspiration from the three aforementioned courts, a contextualized adoption can be identified by taking into account Indonesia’s own circumstances.

Intellectual Property and the Constitutional Court of South Africa: Lessons from the Deployment of Adjudicative Strategies

The Constitutional Court of South Africa recently handed down its fourth decision so far in the field of intellectual property. These decisions came against the backdrop of reforms and reform proposals concerning intellectual property rights in South Africa. These reforms and reform proposals were prompted by the need to establish intellectual property laws that are attuned to South Africa’s local context and needs, while complying with South Africa’s international treaty obligations. Parallel to South Africa’s policy and legislative agenda, this paper recognises these four decisions (referred to as the “IP quartet”) as the emergence of an intellectual property rights jurisprudence. The paper analyses the IP quartet and identifies a coherent narrative with respect to the intersection between intellectual property rights and constitutional rights and the appropriate approach to determining their real-life applications. The paper also explains this intellectual property rights jurisprudence and its contribution, and considers the adjudicative strategies employed by the Constitutional Court in applying constitutional provisions to dealing with issues involving intellectual property rights. An explanation of this jurisprudence arising from these cases will: (a) promote an understanding of the scope of intellectual property rights including the appropriate nature of their intersection with constitutional provisions (specifically fundamental rights expressed in Chapter 2 of the South African Constitution); and (b) offer some guidance to lower courts and the executive arm of government on the appropriate approach to the interpretation, conceptualization and application of the intellectual property legal framework.

Hard Cases Make Bad Law: Reflections on the South African Constitutional Court’s Jurisprudence on the Development of African Customary Law in South Africa

Judicial interpretation and adjudication are complex and controversial processes that the judiciary has been grappling with for centuries. This persists in modern constitutional judicial processes, particularly when adjudicating ‘hard cases.’ African customary law cases are indeed hard or difficult cases. This is especially so when it comes to the development of African customary law. This article reflects on the jurisprudence of the Constitutional Court of South Africa regarding the development of African customary law. It is concluded that although there were some commendable strides in the development of African customary law in a few cases at its inception, the court has in subsequent judgments faltered. In these ‘hard cases’ the court has, in many instances, adopted a conservative, formalistic, literalistic approach, often using technicalities to either avoid the development of African customary law or simply abdicate its judicial responsibility. This flies in the face of the project of transformative constitutionalism and produces bad law when it comes to the court’s jurisprudence on the development of customary law.

JUDICIAL REVIEW IN SOUTH AFRICA AND INDIA: ADVANCING CONSTITUTIONALISM OR UNDUE ACTIVISM?

The Supreme Court of India and the Constitutional Court of South Africa, as apex courts, also function as guardians of the constitutions of each respective country. This article seeks to establish the extent to which judicial review in India and South Africa can be said to be more aligned with constitutionalism or undue activism. An assessment of the aforesaid is determined with regard to the transformative and progressive constitutional interpretation approach adopted by the aforesaid courts which also gives impetus to the living tree doctrine, the role that dignity plays in giving substantive meaning to democracy, ineptitude, and or corruption on the part of the executive precluding the effective realisation of socio-economic rights as well as parliament’s failure to hold members of the executive to account. The extent to which constitutionalism, as opposed to undue activism, has been advanced by the aforesaid courts is demonstrated with reference to specific cases.

In defense of the horizontal application of the due process clause

The main objective of this paper is to answer the following research problem: is it possible to apply the constitutional clause of due process of law in a horizontal dimension, in the context of relationships between private subjects? The hypothesis is the understanding of due process as an adaptive guarantee of the rule of law, which must be responsibly extended to new contexts outside the individual-state relationship, based on a specific test. As a main result, the factual and theoretical premises that support the hypothesis inform that the promotion of constitutional liberties, empirically, depends not only on the State, but also on the conduct of other social agents. Therefore, the conclusion is that by failing to consider the relevance of the internal structure of society — and thus failing to distinguish asymmetrical forms of power exercise — the liberal doctrine of state action fails considerably. The theoretical grounds of the paper are provided by a comparative analysis, with emphasis on the precedents of foreign Constitutional Courts — such as the Supreme Court of the United States and the Constitutional Court of South Africa — and international courts. The method employed is the hypothetical-deductive approach.

MEANINGFUL ENGAGEMENT: SOUTH AFRICAN CONTRIBUTIONS TO STRUCTURAL LITIGATION IN BRAZIL

Objective: The purpose of this article is to analyze a structural remedy model developed by the Constitutional Court of South Africa, called Meaningful Engagement, which can minimize the impact of traditional objections to structural litigation, as it increases community participation and interinstitutional dialogue between the various actors responsible for the solution of the problem. Methodology: As a research methodology, in addition to the traditional bibliographic research around the doctrine developed on the subject, a more in-depth analysis of the two paradigmatic cases that served as the basis for the development of the South African institute, Olivia Road and Joe Slovo, was carried out. Results: It is concluded that are intrinsic and extrinsic reasons for seeking inspiration in the Meaningful Engagement model. The South African model, by valuing institutional dialogue and public participation, mitigates the usual criticisms to structural litigation. Contributions: From the results, it is observed that: a) in dialogic structural remedies, affected communities are treated with dignity and can influence the formulation of public policies that concern them.; b) public participation guarantees the structural injunctions transparency and, to the judges, greater technical capacity, since only with the inclusion of the social segments affected by the problem that is intended to be overcome will the judge be able to produce measures consistent with the real needs the concrete case; c) finally, public participation and institutional dialogue also collaborate to mitigate the criticisms usually made of structural processes.

Reconsidering corruption as a violation of the rights to equality and non-discrimination based on poverty in South Africa

Many international organisations and national institutions such as, for example, the United Nations (UN) Human Rights Council, Transparency International, and the Constitutional Court of South Africa have agreed that corruption has a negative impact on the realisation and enjoyment of human rights. Vulnerable and marginalised groups are disproportionally impacted when it comes to the realisation of their socio-economic rights. This is especially the case where corruption limits access to quality and affordable social services essential for the realisation of rights such as the rights to adequate housing, sanitation, education, and healthcare. This article argues that the criminal law approach, traditionally employed to fight corruption, is not sufficient to address the social harm caused by corrupt acts and omissions. It is argued that a human rights-based approach, grounded in the principles of accountability, empowerment, participation, and non-discrimination, must be employed to provide adequate remedies to the victims of corruption. This article specifically explores the possible violation of the rights to equality and non-discrimination, where corrupt acts or omissions result in limited access to social services for one of the most vulnerable and marginalised groups in society, the poor. This argument is based on the recent judgment by the Equality Court in Social Justice Coalition v Minister of Police 2019 (4) SA 82 (WCC), where the Court found that poverty constitutes an unspecified ground for discrimination, as envisioned by the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. It is found that the state’s failure to adequately prevent corruption, particularly where corruption results in the limitation of access to quality and affordable social services such as education, housing, and healthcare, that are essential for the realisation of rights, impairs the fundamental human dignity of those living in poverty and adversely affects the realisation of their rights in a comparably serious manner. Thus, under a human rights-based approach, rights holders can hold the state accountable for violating duties, to which they are legally obliged under the human rights framework due to corrupt acts and omissions.

Constitutional Court statistics for the 2020 term

This note provides descriptive statistics on the work of the Constitutional Court of South Africa in 2020. The statistics are arranged in fifteen 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 and subsequent editions of the South African Journal on Human Rights. Section 1 covers those decisions in which the Court produced a written judgment, while Section 2 covers applications that were considered in chambers and dismissed without a judgment being given.

Is English becoming a threat to the existence of indigenous languages in institutions of higher learning in South Africa?

This article provides a critique of the judgment of the Constitutional Court of South Africa in Gelyke Kanse v Chairperson of the Senate of the University of Stellenbosch1 with specific reference to the concept of transformative constitutionalism and the use of indigenous languages in tertiary education. The discussion further highlights the significant role played by one's own language in his or her day-to-day life encounters and argues that the wait has been too long to have one of the indigenous languages fully utilised in one of the tertiary institutions, amongst others. Finally, the paper recommends that the use of indigenous languages at institutions of higher learning needs to be given urgent attention by all stakeholders and can no longer remain at the mercy of those who are tasked with language policies at tertiary institutions.

Constitutional Court statistics for the 2019 term

This note provides descriptive statistics on the Constitutional Court of South Africa’s (the Court) work in the year 2019. The objectives and methods of this annual set of statistics are more fully laid out in the 1995 edition and subsequent editions of the South African Journal on Human Rights. Section 2 of this note covers those decisions in which the Court produced a written judgment, while section 3 covers applications that were considered in chambers and were dismissed without a judgment being given.

Corporal punishment in the home: Is there a legal duty on the medical doctor to report it?

The infliction of corporal punishment on children (in the home) was found to be unconstitutional by the Constitutional Court of South Africa (September 2019). Corporal punishment was historically permitted if exercised within reasonable grounds (moderate or reasonable chastisement). In reaching its judgment, the apex court found that the child's right to human dignity and to be free from all forms of violence was unjustifiably infringed by the exercising of this form of discipline. In addition, the child's best interests was not served. Importantly, there were other non-violent means available to parents to discipline their children. This article examines what this judgment means for medical doctors who reasonably suspect that a child has been the victim of corporal punishment. It is argued that medical doctors have a duty to report such incidents in terms of section 110(1) of the Children's Act 38 of 2005.

A pandemic anniversary: 40 years of HIV/AIDS

A pandemic anniversary: 40 years of HIV/AIDS

When Politics Prevail Over the Rule of Law: The Demise of the sadc Tribunal

Abstract The article questions whether the Tribunal of the Southern Africa Development Community (sadc) ought to have entertained human rights cases given that the sadc Treaty does not endow it with such jurisdiction. It then analyses its demise in 2010, which was prompted by several rulings against Zimbabwe, whose policy of expropriating land without compensation was held to violate human rights. The pertinent aspects of these cases are reviewed, and the significance of Zimbabwe’s land reform programme is explained. The article elucidates why sadc leaders were prepared to suspend the Tribunal’s operation. This was a combination of alarm that it could evolve into a quasi-regional human rights court but also solidarity with the then President Mugabe, a hero of Africa’s liberation struggle. Finally, the pronouncements of the Constitutional Court of South Africa and the High Court of Tanzania on the lawfulness of the sadc Tribunal’s suspension are considered.

The Constitutional Court of South Africa: Thoughts on its 25-Year-Long Legacy of Judicial Activism

After almost 25 years of what could justifiably be called transformative change in South Africa, a truism is that the country’s new legal order, established by the Constitution in 1993 and 1996, provides the critical foundation of peace and security upon which its freedom has been built. The Constitutional Court was one of the most important of the new democratic institutions in the shaping of the country’s position as a constitutional democracy, upholding the values for which millions of people, black and white, had fought. This article is a brief reflection on the role of the Court in establishing the meaning of this democracy and giving it effect. The main goal of the article is to understand how the Court’s new jurisprudence works in particular contexts, how its work is related to crime and punishment, and what it means for the rights of marginalised groups in society. Using the examples of the Court’s decision in Makwanyane on the death penalty, and the Court’s decision on the findings of the Public Protector’s report on Nkandla, the article finds that the Court’s new jurisprudence takes quite a different view of legal developments in South Africa, insofar as the jurisprudence entrusts broad discretion to the Court and emphasises the need for sustained leadership of the Court to advance the battle for fundamental human rights, the rule of law, and democratic accountability.