Constitutional Court of South Africa

Constitutional Court List 10 other official names: Konstitusionele Hof (Afrikaans) iKhotho yoMthetho-sisekelo (Southern Ndebele) iNkundla yoMgaqo-siseko (Xhosa) iNkantolo yoMthethosisekelo (Zulu) iNkantolo yeMtsetfosisekelo (Swazi) Kgorotsheko ya Molaotheo (Northern Sotho) Lekgotla la Dinyewe la Molaotheo (Sotho) Kgotlatshekelo ya Molaotheo (Tswana) Khoto ya Vumbiwa (Tsonga) Khothe ya Ndayotewa (Venda)
Constitutional Court building
Emblem of the Constitutional Court
26°11′19″S 28°2′36″E
Established	1994
Jurisdiction	South Africa
Location	Constitution Hill, Johannesburg
Coordinates	26°11′19″S 28°2′36″E
Composition method	Presidential appointment, after consultation
Authorized by	Constitution of South Africa
Judge term length	non-renewable 12 years (extendable by Parliament)
Number of positions	11
Website	www.concourt.org.za
Chief Justice of South Africa
Currently	Raymond Zondo
Since	1 April 2022
Deputy Chief Justice of South Africa
Currently	Mandisa Maya
Since	1 September 2022

The Constitutional Court of South Africa is the supreme constitutional court established by the Constitution of South Africa, and is the apex court in the South African judicial system, with general jurisdiction.

The Court was first established by the Interim Constitution of 1993, and its first session began in February 1995. It has continued in existence under the Constitution of 1996. The Court sits in the city of Johannesburg. After initially occupying commercial offices in Braamfontein, it now sits in a purpose-built complex on Constitution Hill. The first court session in the new complex was held in February 2004. Originally the final appellate court for constitutional matters, since the enactment of the Seventeenth Amendment of the Constitution in 2013, the Constitutional Court has jurisdiction to hear any matter if it is in the interests of justice for it to do so.

The Constitutional Court consists of eleven judges who are appointed by the President of South Africa from a list drawn up by the Judicial Service Commission. The judges serve for a term of twelve years. The Court is headed by the Chief Justice of South Africa and the Deputy Chief Justice. The Constitution requires that a matter before the Court be heard by at least eight judges. In practice, all eleven judges hear almost every case. Decisions are reached by a majority and written reasons are given.

History

The movement for the establishment of a constitutional court in South Africa was begun in 1920 by the African National Congress (ANC).

Frontage of the Constitutional Court in South Africa

By 1956, judges and liberals in the country had drawn up a bill of rights in support of the creation of the court. The first meeting of selected members of the court took place in 1994. In 1995, President Nelson Mandela appeared at the court to deliver a speech for its commissioning. According to South African History Online Mandela said, "The last time I appeared in court was to hear whether or not I was going to be sentenced to death. Fortunately for myself and my colleagues we were not. Today I rise not as an accused, but on behalf of the people of South Africa, to inaugurate a court South Africa has never had, a court on which hinges the future of our democracy."

The Constitutional Court building

Constitution Hill is the seat of the Constitutional Court of South Africa. The Constitution Hill precinct is located at 11 Kotze Street in Braamfontein, Johannesburg near the western end of the suburb of Hillbrow. The Hill overlooks downtown Johannesburg to the South and the wealthy northern suburbs of Houghton, Parktown and Sandton to the north.

An eternal flame burning on Constitution Hill in Johannesburg, South Africa

The court building was constructed using bricks from the demolished awaiting-trial wing of the former prison. Most of the prison was demolished to make way for the new court, but the stairwells were kept and incorporated into the new building as a reminder of the Constitution's transformative aspirations. Inside the main room, a row of horizontal windows has been set up behind the seats of the judges. While the windows are at head-height on the inside, they are on ground level on the outside. Those sitting in the court consequently have a view of the feet of passersby moving along, above the heads of the judges, to remind them that in a constitutional democracy the role of judges is to act in the interests of the people of the nation, rather than in their own self-interest. The first court session in the new building at this location was held in February 2004. The court building is open to the public who want to attend hearings or view the art gallery in the court atrium. The court houses a collection of more than 200 contemporary artworks chosen by Constitutional Court judge Albie Sachs, including works by Gerard Sekoto, William Kentridge, and Cecil Skotnes.

The doors to the Court have the 27 rights of the Bill of Rights carved into them, written in all 11 official languages of South Africa. One of the stairwells from the old awaiting-trial block with the Portuguese words A luta continua (the struggle continues) written in lights, has been retained.

Justices

Appointment procedure and tenure

Sections 174 to 178 of the Constitution deal with the appointment of judicial officers. Judges may not be members of Parliament, of the government or of political parties. To select judges the Judicial Service Commission first draws up a list of candidates, which must have at least three more names than the number of vacancies. The Commission does this after calling for nominations and holding public interviews. Then the President, after consultation with the Chief Justice and the leaders of political parties represented in the National Assembly, chooses the judges from this list.

In terms of section 176(1) of the Constitution, judges of the Constitutional Court serve for a non-renewable term of 12 years or until they reach the age of 70, whichever is earlier; but these limits may be extended by an Act of Parliament. Section 4 of the Judges' Remuneration and Conditions of Employment Act 47 of 2001 has extended the term limit to an effective term of 15 years including prior service on other courts. The effect is that judges who had served more than 3 years before their appointment to the Constitutional Court retain a 12-year term limit; those who did not, have a longer tenure. The same section extends the retirement age to 75. However, in terms of section 3(2)(b), if the judge has already been a judge (in any court) for 15 years by the time they reach the age of 65, they may voluntarily retire.

Current justices

Name	Born	Appt. by	Age at appt.	First day / Length of service	Mand. retirement	Opt. retirement	Previous positions	Succeeded
Raymond Zondo (Chief Justice of South Africa)	4 May 1960 (age 64) in Ixopo, KwaZulu-Natal	Jacob Zuma (Deputy) Cyril Ramaphosa (Chief)	52 (Deputy) 61 (Chief)	1 September 2012 11 years, 11 months (Deputy) 1 April 2022 2 years, 4 months (Chief)	1 September 2024	N/A	Labour Court North Gauteng High Court	Sandile Ngcobo Dikgang Moseneke (as Deputy Chief Justice) Mogoeng Mogoeng (as Chief Justice)
Mandisa Maya (Deputy Chief Justice of South Africa)	20 March 1964 (age 60) in Tsolo, Eastern Cape	Cyril Ramaphosa	58	1 September 2022 1 year, 11 months	20 March 2034	N/A	Eastern Cape High Court Supreme Court of Appeal	Mogoeng Mogoeng Raymond Zondo (as Deputy Chief Justice)
Mbuyiseli Madlanga	27 March 1962 (age 62) in Mount Frere, Eastern Cape	Jacob Zuma	51	1 August 2013 11 years	1 August 2028	N/A	Eastern Cape High Court	Zak Yacoob
Nonkosi Mhlantla	2 May 1964 (age 60) in Port Elizabeth, Eastern Cape	Jacob Zuma	51	1 December 2015 8 years, 8 months	1 December 2027	N/A	Eastern Cape High Court Supreme Court of Appeal	Thembile Skweyiya
Leona Theron	7 November 1966 (age 57) in Durban, KwaZulu-Natal	Jacob Zuma	51	1 July 2017 7 years, 1 month	1 July 2029	N/A	KwaZulu-Natal High Court Supreme Court of Appeal	Johann van der Westhuizen
Steven Majiedt	18 December 1960 (age 63) in Kenhardt, Northern Cape	Cyril Ramaphosa	58	1 October 2019 4 years, 10 months	18 December 2030	N/A	Northern Cape Division Supreme Court of Appeal	Dikgang Moseneke
Zukisa Tshiqi	11 January 1961 (age 63) in Cefane, Ngcobo, Eastern Cape	Cyril Ramaphosa	58	1 October 2019 4 years, 10 months	11 January 2031	N/A	South Gauteng High Court Supreme Court of Appeal	Bess Nkabinde
Jody Kollapen	19 May 1957 (age 67) in Lady Selbourne, Pretoria, Gauteng	Cyril Ramaphosa	64	1 January 2022 2 years, 7 months	19 May 2027	N/A	North Gauteng High Court	Edwin Cameron
Rammaka Mathopo	28 January 1963 (age 61) in Gauteng	Cyril Ramaphosa	58	1 January 2022 2 years, 7 months	28 January 2033	N/A	South Gauteng High Court Supreme Court of Appeal	Johan Froneman
Owen Rogers	22 October 1958 (age 65) in Cape Town, Western Cape	Cyril Ramaphosa	63	1 August 2022 2 years	22 October 2028	N/A	Western Cape High Court Competition Appeal Court	Chris Jafta

Former chief justices

See also: Chief Justice of South Africa

• Chief Justice Arthur Chaskalson (born 1931, appointed by Nelson Mandela as President of the Constitutional Court in 1994, became the Chief Justice in 2001, retired in 2005, died in 2012)
• Chief Justice Pius Langa (born 1939, appointed by Nelson Mandela in 1994, elevated to Deputy President of the Court by Nelson Mandela in 1997, became Deputy Chief Justice in 2001, elevated to Chief Justice by Thabo Mbeki in 2005, retired in 2009, died in 2013)
• Chief Justice Sandile Ngcobo (born 1953, appointed by Nelson Mandela in 1999 and elevated by Jacob Zuma in 2009, retired in 2011)
• Chief Justice Mogoeng Mogoeng (born 1961, appointed by Jacob Zuma in 2009 and elevated in 2011, retired in 2021)

Former deputy chief justices

See also: Deputy Chief Justice of South Africa

• Deputy Chief Justice Pius Langa, appointed in 2001, elevated to Chief Justice in 2005,retired in 2009, died in 2013.
• Deputy Chief Justice Dikgang Moseneke, appointed to the Constitutional Court in 2002, elevated to Deputy Chief Justice in 2005, retired in May 2016.
• Deputy Chief Justice Raymond Zondo, appointed September 2012, elevated to Chief Justice as of April 2022.

Former justices

The courtroom of the Constitutional Court of South Africa

• Justice John Didcott (born 1931, appointed by Nelson Mandela in 1995, died in office in 1998)
• Justice Ismail Mahomed (born 1934, appointed by Nelson Mandela in 1995, elevated to Chief Justice of the Supreme Court of Appeal in 1998, died in 2000)
• Justice Richard Goldstone (born 1938, appointed by Nelson Mandela in 1994, retired in 2003)
• Justice Johann Kriegler (born 1932, appointed by Nelson Mandela in 1994, retired in 2003)
• Justice Lourens Ackermann (born 1934, appointed by Nelson Mandela in 1994, retired in 2004)
• Justice Tholie Madala (born 1937, appointed by Nelson Mandela in 1994, retired in 2008, died in 2010)
• Justice Yvonne Mokgoro (born 1950, appointed by Nelson Mandela in 1994, retired in 2009)
• Justice Kate O'Regan (born 1957, appointed by Nelson Mandela in 1994, retired in 2009)
• Justice Albie Sachs (born 1935, appointed by Nelson Mandela in 1994, retired in 2009)
• Justice Zak Yacoob (born 1948, appointed by Nelson Mandela in 1998, retired in 2013)
• Justice Thembile Skweyiya (appointed by Thabo Mbeki in 2003, retired in 2014, died in 2015)
• Justice Johann van der Westhuizen (appointed by Thabo Mbeki in 2004, retired in 2016)
• Justice Bess Nkabinde (appointed by Thabo Mbeki in 2006, retired in 2018)
• Justice Edwin Cameron (appointed by Kgalema Motlanthe in 2009, retired in 2019)
• Justice Johan Froneman (appointed by Jacob Zuma in 2009, retired in 2020)
• Justice Chris Jafta (appointed by Jacob Zuma in 2009, retired in 2021)
• Justice Sisi Khampepe (appointed by Jacob Zuma in 2009, retired in 2021)

The Constitution as the supreme law

The judgments of the court are based on the Constitution, which is the supreme law of the land. They enforce the basic rights and freedoms of all persons. They are binding on all organs of government, including the parliament, the presidency, the police force, the army, the public service and all courts. This means that the Court has the power to declare an Act of Parliament null and void if it conflicts with the Constitution and to control executive action in the same way.

When interpreting the Constitution, the Court is required to consider international human rights law and may consider the law of other democratic countries. Since the enactment of the Superior Courts Act, the Constitutional Court has had jurisdiction to hear any matter if it is in the interests of justice for it to do so.

Other bodies protecting human rights

The Court is one of many bodies created by the Constitution to defend the rights of citizens. It is concerned with matters of broad constitutional principle. Bad or incorrect conduct by state officials can be reported to the Office of the Public Protector, formerly called the Ombudsman. The Human Rights Commission has been established to handle complaints of violation of human rights in daily life. The ordinary courts, notably the small claims courts, the Magistrates' Courts, the High Courts and the Supreme Court of Appeal, deal with day-to-day disputes between citizens and between citizens and the state.

Co-operation with Parliament and Provincial Assemblies

The Constitutional Court has a special responsibility to parliament and the provincial legislatures. If there is a dispute in parliament or in a provincial legislature concerning whether or not legislation that has been passed and assented to is constitutional, a third of the members of the body concerned may apply to the Constitutional Court to give a ruling. Similarly, the President or the Premier of a Province may refer a bill to the Court for a decision on its constitutionality before assenting to that Bill.

Proceedings in court

The Court does not hear evidence or question witnesses. It does not decide directly whether accused persons are guilty or whether damages should be awarded to an injured person. These are matters for the ordinary courts. Its function is to determine the meaning of the Constitution in relation to matters in dispute. One consequence of this is that the Court works largely with written arguments presented to it by the parties. The hearings of the Court are intended to address particularly difficult issues raised by the written arguments of the parties.

The hearings of the Court are open to the public and the press. No cameras or recorders are ordinarily permitted. The public is invited to attend all sessions. Ordinary rules of decent dress and decorum apply.

Notable judgments

The death penalty

https://www.concourt.org.za/index.php/23-history-of-the-court/landmark-cases/90-landmark-cases

S v Makwanyane (1995) - the death penalty, Mohamed v President of the RSA (2001) - the constitutionality of extraditing an accused person to a country that imposes the death penalty

Violence

Kaunda & Others v The President of the Republic of South Africa and Others (2004) - The responsibility of the South African government to its citizens who are arrested in other countries S v Baloyi (1999) - the state's constitutional duty to provide effective remedies against domestic violence Rail Commuters Action Group and others v Transnet Ltd t/a Metrorail (2004) - the obligation of rail service providers to protect the safety of commuters on trains

Equality

Minister of Home Affairs and Another v Fourie and Another (Doctors for Life International and Others, Amicus Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others (2005) - the common law definition of marriage and section 30(1) of the Marriage Act of 1961 declared inconsistent with the Constitution. The Court found that the failure of the common law and the Marriage Act to provide the means whereby same-sex couples can enjoy the same status, entitlements and responsibilities accorded to heterosexual couples through marriage constitutes an unjustifiable violation of their rights. Hoffmann v South African Airways - employment discrimination against an HIV-positive person Larbi-Odam v MEC in the Department of Education of the North-West Province (1997) - striking down regulations preventing permanent residents from holding permanent posts in the Department of Education National Coalition for Gay and Lesbian Equality v Minister of Justice (1998) - striking down the criminal prohibition on sodomy between consenting adult males National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (1999) - unfair discrimination against same-sex life partners Brink v Kitshoff (1995) - unfair discrimination on grounds of sex and women's access to insurance policies Bhe and Others v The Magistrate, Khayelitsha and Others; Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa (2004) - gender equality and the right of African women to inherit under the African customary law of intestate succession KZN MEC of Education v Pillay (2007) – prohibition against wearing a nose stud to a public school amounted to unfair discrimination on grounds of religion and culture Shilubana and Others v Nwamitwa (2008) – development of customary law to bring it in line with the constitutional commitment to gender equality. Appointment by customary institutions of a female chief, contrary to tradition, was permissible

Political cases

August v Electoral Commission (1999) - right of prisoners to vote Azapo v President of the RSA (1996) - challenge to the TRC's amnesty powers United Democratic Movement v President of the RSA (2002) - constitutionality of amendments allowing "floor-crossing" Certification of the Constitution (1996)

Socio-economic rights

Government of the RSA v Grootboom (2000) - right to housing Minister of Health v Treatment Action Campaign (2002) - right to health care and access to HIV/Aids treatment Khosa and Others v Minister of Social Development; Mahlaule and Another v Minister of Social Development and Others (2004) - right of access to social security by permanent residents Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg and Others (2008) - before government evicts residents from their homes it has the duty to engage meaningfully with them about possible steps that can be taken to alleviate their omelessness Lindiwe Mazibuko and Others v City of Johannesburg and Others (2009) – found the use of prepayment water meters lawful and that the City’s free basic water policy was reasonable Leon Joseph and Others v City of Johannesburg and Others (2009) – when depriving residents of electricity, a service that is provided in fulfilment of constitutional and statutory duties, the City is obliged to provide them with procedural fairness, including fair notice of the disconnection.

Privacy and religion

Case v Minister of Safety and Security (1995) - striking down prohibition on possession of pornography Prince v Law Society of the Cape of Good Hope (2002) - freedom of religion, religious exemption for Rastafarians wanting to smoke marijuana Islamic Unity Convention v Independent Broadcasting Association (2002) - freedom of expression relating to broadcasting code restrictions S v Lawrence (1997) - right to freedom of trade and religion relating to the sale of liquor S v Jordan (2002) - constitutionality of the law criminalising prostitution

Criminal procedure and the judiciary

S v Zuma (1995) - striking down presumption that a confession was freely and voluntarily made S v Williams (1995) - corporal punishment as a sentence for juveniles declared unconstitutional Carmichele v Minister of Safety and Security (2001) - the duty of courts to develop the common law, in this case concerning duty of police to prevent sexual violence against women Van Rooyen v Minister of Justice (2002) - independence of the judiciary (magistrates) Centre for Child Law v Minister for Justice and Constitutional Development (2009) – striking down statute making minimum sentencing provisions applicable to 16 and 17 year old children

Control of public power

President of the RSA and Others v South African Rugby Football Union and Others (1999) - exercise of presidential powers to appoint Commission of Inquiry, the compulsion of the president to give oral evidence in civil proceedings; and Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and others (1995) - legislative authority of Parliament and the delegation of powers

Costs

Biowatch Trust v Registrar, Genetic Resources and Others (2009) – dealing with costs in constitutional litigation. Private litigants who bring constitutional claims, including non-governmental organisations, are given some measure of protection against exposure to adverse costs award

Hlophe controversy

Main article: John Hlophe gross misconduct

On 30 May 2008, the judges of the Constitutional Court issued a statement reporting that they had referred Cape Judge President Judge John Hlophe to the Judicial Service Commission for what they described in their statement as approaching some of them "in an improper attempt to influence this Court's pending judgement in one or more cases". The statement stated further that the complaint related to four matters in which either Thint (Pty) Ltd or the Deputy President, Jacob Zuma, was involved. Judge Hlophe was reported to have rejected the allegations as "utter rubbish" and as "another ploy" to damage his reputation.

Justices Chris Jafta and Bess Nkabinde had been the primary complainants and had supported the Court's complaint. Six years later, however, when the misconduct enquiry against Hlophe was pending, Jafta and Nkabinde brought a court challenge to the tribunal's jurisdiction, saying their own complaint was not legally valid. Commentators slammed Jafta and Nkabinde's "cowardice", which had brought the Constitutional Court into disrepute. The judges claimed, in response, that they were simply upholding the Constitution. The High Court dismissed the judges' application on 26 September 2014, but they appealed. The Supreme Court of Appeal dismissed that appeal in March 2016, criticising Jafta and Nkabinde's damaging court application and implying that the case raised questions about their "integrity". On 6 April 2016, Jafta and Nkabinde filed an appeal to the Constitutional Court – their own court – asking it to overturn the Supreme Court of Appeal's judgment. They did so partly on the basis that the SCA made "hurtful" imputations about them. The Constitutional Court had already held, in 2012, that it could not hear appeals in the Hlophe matter and that any SCA judgment was final.

The Constitutional Court and the Judicial Service Commission

The Constitutional Court has, for years, failed to either attract enough candidates to interview to fill existing vacancies or to have the minimum number of candidates to recommend for appointment by the President of the Republic of South Africa.

See also

• Constitutionalism
• Jurisprudence
• Judicial Service Commission (South Africa)
• Constitution Hill, Johannesburg

External links

Official website