Report From South Africa: The Constitutional Court

South Africa’s Constitutional Court, the highest court on Constitutional matters and matters connected with decisions on constitutional matters, came into existence at the end of 1994 as a direct result of the country’s transition from apartheid rule to democracy. Because the South African judiciary was severely tainted by its role in enforcing apartheid legislation, constitutional negotiators agreed on the creation of an entirely new court outside the existing judicial hierarchy. Only five of the eleven members of the new court, appointed by then President Nelson Mandela, had served as judges before their appointment. The other judges were selected from among legal academics and human rights lawyers who had opposed apartheid in various ways.

In 1994, South Africa experienced a profound legal change, not only because the country moved from an undemocratic apartheid system to a democratic form of government, but also because the system moved away from Parliamentary supremacy to a system of Constitutional supremacy. Moreover, the new system allocated wide powers to the Constitutional Court to declare invalid legislation and executive action if it failed to conform to the Constitution. The democratically elected Constitutional Assembly adopted a “final” Constitution after two years of intense negotiations.

The Nature of the Bill of Rights

The “final” Constitution in operation today is widely held to be one of the most progressive and modern Constitutions in the world with one of the most comprehensive Bills of Rights.

The Bill of Rights does not only apply vertically between citizens and the state, but also applies horizontally in the sense that private individuals or institutions can invoke its provisions against other private individuals or institutions. Moreover, courts and tribunals have a duty when they interpret legislation or when they develop the common law or customary law to “promote the spirit, purport and objects of the Bill of Rights.”

This means that courts in South Africa has a duty to develop the basic rules and principles of the common law to ensure that the common law is in line with the values in the Bill of Rights. This has led to dramatic changes to the common law of defamation in line with the requirements of freedom of expression and the common law rules extending the delictual (tort) liability of the police. The Bill of Rights jurisprudence of the Constitutional Court is therefore not confined to traditional public law concerns.

The Bill of Rights contains an expansive set of civil and political rights, including a provision prohibiting discrimination on the basis of, inter alia, sexual orientation. It also contains rights of access to housing, health care and social assistance and a right to education. Some of these social and economic rights are qualified in that they only require the state to take reasonable steps, within its available resources, to progressively realise the rights. However, the Constitutional Court has handed down some groundbreaking decisions in which it declared invalid the government’s housing policy and found that the state was not fulfilling its Constitutional duty to provide access to health care because it had failed to take adequate steps to prevent the mother to child transmission of HIV.

The Court is provided with wide remedial powers and can make any order it sees as just and equitable. This means that the Court has, at times, been rather bold and has not only struck down legislation adopted by Parliament or actions taken by the President, but has also rewritten statutes to give effect to the requirements of the Bill of Rights.

Recent Developments

Since its inception the Constitutional Court has grown in stature and confidence and this has been reflected in the boldness of some if its decisions. Over the past year, two decisions dealing with very different constitutional issues have clearly demonstrated that the Court can be bold when it deals with both controversial human rights issues and institutional issues.

Same-Sex Marriage

In December 2005, the Constitutional Court became the first in the Southern Hemisphere to declare that the prohibition on same sex marriage in common law was unconstitutional. In a wide-ranging judgment (see Minister of Home Affairs and Another v Fourie and Another, [2005] ZACC 19), written in ringing prose by Justice Albie Sachs, the Constitutional Court affirmed that the right to marry is an inalienable right that belongs to all who live in South Africa.

Marriage, held the court, is a unique institution and constitutes ‘much more than a piece of paper’. On the one hand, marriage until recently was the only source of socio-economic benefits such as the right to inheritance, medical insurance coverage, adoption, access to wrongful death claims and the like. On the other hand, marriage also bestows a myriad of intangible benefits on those who choose to enter into it. As such, marriage entitles a couple to celebrate their commitment to each other at a public event so celebrated in our culture.

It has become custom that the married couple is showered with presents as symbols of congratulation and throughout their lives married persons are able to commemorate the event of their marriage at anniversaries, while pictures of the day can be displayed in their house and in the houses of their families. Well aware of and affirming the centrality attributed to marriage and its consequences in our culture, the Court held that to deny same-sex couples a choice in this regard “is to negate their right to self-definition in a most profound way.” As Sachs J so prosaically put it:

The exclusion of same-sex couples from the benefits and responsibilities of marriage, accordingly, is not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. It represents a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples. It reinforces the wounding notion that they are to be treated as biological oddities, as failed or lapsed human beings who do not fit into normal society, and, as such, do not qualify for the full moral concern and respect that our Constitution seeks to secure for everyone. It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples.

In a peculiar twist, the Court did not order the state immediately to allow same sex couples to marry, but provided Parliament with one year to remedy the Constitutional breach itself. If Parliament failed to adopt the required legislation within the one year time limit, the original order, which would extend marriage to same sex couples, would kick in. Parliament managed to pass the legislation towards the end of 2006 a few days before the deadline set by the Court.

Public Participation in Law-Making

Towards the end of 2006 the Constitutional Court was called upon to decide on the perplexing question of what was to be done when Parliament failed to adhere to all the formal requirements prescribed by the Constitution to pass legislation. In the case of Matatiele Municipality and Others vs President of the Republic of South Africa and Others, [2006] ZACC 2, a disgruntled community in a rural area challenged the amendment of the provincial boundaries which had the effect of changing the province within which that community resided.

They were moved from KwaZulu-Natal to the Eastern Cape and they were unhappy because the latter province was perceived to be poorer and less well organised to provide basic services to its inhabitants. Despite intense and sustained protests, the National Parliament changed the boundaries of the provinces. One of the legal requirements for affecting such a change was approval from the provincial government which, in turn, was required by the Constitution to “facilitate public involvement in the legislative and other processes of the legislature and its committees”.

A majority of the Court found that South Africa’s democracy encompassed both representative and participatory elements and that legislatures had a duty to facilitate reasonable public participation in its activities. The nature and extent of public participation required would depend on a number of factors. These included the nature and the importance of the legislation and the intensity and impact on the public. The more discrete and identifiable the potentially affected section of the population, and the more intense the possible effect on their interests, the more reasonable it would be to expect the legislature to be astute enough to allow for some form of public participation.

In this case, the majority found that the impact was potentially severe and the issues important, which meant that the failure of the legislature to allow for public participation in its decision to support the boundary change meant that it had failed to comply with the provisions of the Constitution and thus, that the legislation was therefore invalid. This order of invalidity was suspended for a period of eighteen months.


Since its inception the Constitutional Court has developed a rich and nuanced jurisprudence of a relatively progressive nature. On some issues – such as sexual orientation discrimination – the Court has shown a willingness to find in favour of marginalized, unpopular and vulnerable minority groups. It has also flexed its muscle to hold Parliament to account and to ensure that the legislature and the executive adhere to the provisions of the Constitution.

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