Constitutional Court of South Africa
Constitutional Court
List
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26°11′19″S 28°2′36″E / 26.18861°S 28.04333°E | |
Established | 1994 |
Jurisdiction | South Africa |
Location | Constitution Hill, Johannesburg |
Coordinates | 26°11′19″S 28°2′36″E / 26.18861°S 28.04333°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 |
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
[edit]The movement for the establishment of a constitutional court in South Africa was begun in 1920 by the African National Congress (ANC).[1]
![](http://upload.wikimedia.org/wikipedia/commons/thumb/d/de/ConstitutionalCourtofSouthAfrica-entrance-20070622.jpg/220px-ConstitutionalCourtofSouthAfrica-entrance-20070622.jpg)
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."[2]
The Constitutional Court building
[edit]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.
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.[3] 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
[edit]Appointment procedure and tenure
[edit]Sections 174 to 178 of the Constitution deal with the appointment of judicial officers.[4] 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
[edit]Name | Born | Appt. by | Age at appt. | First day / Length of service |
Mand. retirement | Opt. retirement | Previous positions | Succeeded |
---|---|---|---|---|---|---|---|---|
Raymond Zondo | 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 | Sandile Ngcobo
Dikgang Moseneke (as Deputy Chief Justice) Mogoeng Mogoeng (as Chief Justice) |
Mandisa Maya | 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 | 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 | 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 | 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 | 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 | Johan Froneman |
Owen Rogers[5] | 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
[edit]- 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
[edit]- 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.[6]
- Deputy Chief Justice Raymond Zondo, appointed September 2012, elevated to Chief Justice as of April 2022.[7]
Former justices
[edit]![](http://upload.wikimedia.org/wikipedia/commons/thumb/6/67/Constitutional_Court_of_South_Africa.jpg/220px-Constitutional_Court_of_South_Africa.jpg)
- 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
[edit]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.[8] 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
[edit]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
[edit]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
[edit]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
[edit]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
[edit]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".[10] 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.[11] Commentators slammed Jafta and Nkabinde's "cowardice", which had brought the Constitutional Court into disrepute.[12] The judges claimed, in response, that they were simply upholding the Constitution.[13] The High Court dismissed the judges' application on 26 September 2014,[14] but they appealed.[15] 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".[16] 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.[17] 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.[18]
The Constitutional Court and the Judicial Service Commission
[edit]See also
[edit]- Constitutionalism
- Jurisprudence
- Judicial Service Commission (South Africa)
- Constitution Hill, Johannesburg
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References
[edit]- ^ "History of the Court". Archived from the original on 2 June 2024. Retrieved 19 August 2024.
- ^ "Address by President Nelson Mandela at the inauguration of the Constitutional Court, Johannesburg". Archived from the original on 13 August 2024. Retrieved 19 August 2024.
- ^ "Constitution Hill – City Sightseeing". Archived from the original on 25 June 2016. Retrieved 25 May 2016.
- ^ "Home". www.concourt.org.za.
- ^ "Owen Rogers appointed to the constitutional court". The Mail & Guardian. 8 June 2022. Retrieved 9 June 2022.
- ^ "Six sets of wise words from Moseneke". Mail & Guardian. 20 May 2016.
- ^ The, Presidency (11 March 2022). "President Ramaphosa appoints Justice Zondo as Chief Justice - The Presidency". presidency.gov.za. Archived from the original on 19 August 2024. Retrieved 19 August 2024.
- ^ Erskine, Daniel H (December 2008). "Judgments of the United States Supreme Court and the South African Constitutional Court as a Basis for a Universal Method to Resolve Conflicts Between Fundamental Rights". Journal of Civil Rights and Economic Development. 3 (22): 595. Retrieved 30 April 2016.
- ^ Court, Constitutional. "Landmark cases". Constitutional Court website. Constitutional Court. Retrieved 24 August 2024.
- ^ Smook, Ella (13 October 2008). "Judge Jafta pulls ConCourt application". IOL.
- ^ SAPA (21 October 2013). "Judges file Hlophe review application". IOL.
- ^ Mackaiser, Eusebius (7 October 2013). "Shame on those two Concourt judges". IOL.
- ^ Hawker, Dianne (21 October 2013). "Nkabinde and Jafta: We are fighting for the Constitution". eNCA. Archived from the original on 19 October 2022. Retrieved 9 April 2016.
- ^ Nkabinde and Another v Judicial Service Commission and Others [2014] ZAGPJHC 217; 2015 (1) SA 279 (GJ).
- ^ Tolsi, Niren (6 October 2014). "Hlophe 'misconduct': Jafta, Nkabinde stall matter". News24. South Africa.
- ^ "Nkabinde and Another v Judicial Service Commission and Others (20857/2014) [2016] ZASCA 12". SAFLII. 10 March 2016.
- ^ Affairs, SABC News and Current. "HLOPHE CONCOURT". iono.fm. Retrieved 7 April 2016.
- ^ "Hlophe v Premier of the Western Cape Province". SAFLII. 30 March 2012.