Constitutional Court of South Africa

Constitutional Court of South Africa
Constitutional Court building
Established	1994
Jurisdiction	South Africa
Location	Constitution Hill, Johannesburg
Coordinates	26°11′19″S 28°2′36″E / 26.18861°S 28.04333°E / -26.18861; 28.04333Coordinates: 26°11′19″S 28°2′36″E / 26.18861°S 28.04333°E / -26.18861; 28.04333
Composition method	Presidential appointment, after consultation
Authorized by	Constitution of South Africa
Judge term length	12 years
Number of positions	11
Website	www.constitutionalcourt.org.za
Chief Justice of South Africa
Currently	Mogoeng Mogoeng
Since	8 September 2011
Deputy Chief Justice of South Africa
Currently	Dikgang Moseneke
Since	June 2005

The Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February 1995. Since February 2004, Constitution Hill in Johannesburg has been the seat of the court. The court consists of eleven judges, headed by a Chief Justice and Deputy Chief Justice. Currently eight of the judges are men and three are women. Their duty is to uphold the law and the constitution, which they must apply impartially and without fear, favour or prejudice.

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. If any judge is absent for a long period or a vacancy arises, an acting judge may be appointed by the President of the Republic on a temporary basis on the recommendation of the Minister of Justice acting with the concurrence of the Chief Justice. Decisions of the Court are reached by majority vote of the judges sitting in a case. Each judge must indicate his or her decision. The reasons for the decision are published in a written judgment.

Justices

Appointment procedure and tenure

Sections 174 to 178 of the Constitution deal with the appointment of judicial officers^[1]. 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 list must have three or 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 selection.

The judges ordinarily serve for a non-renewable term of 12 years, unless it is extended by an Act of Parliament.

Current bench

Current Constitutional Court justices:

• Chief Justice Mogoeng Mogoeng (appointed by Jacob Zuma in 2009 and elevated in 2011)
• Deputy Chief Justice Dikgang Moseneke (born 1947, appointed by Thabo Mbeki in 2004 and elevated by Thabo Mbeki in 2005)
• Justice Edwin Cameron (born 1953, appointed by Kgalema Motlanthe in 2008)
• Justice Johan Froneman (appointed by Jacob Zuma in 2009)
• Justice Chris Jafta (appointed by Jacob Zuma in 2009)
• Justice Sisi Khampepe (appointed by Jacob Zuma in 2009)
• Justice Bess Nkabinde (born 1959, appointed by Thabo Mbeki in 2006)
• Justice Thembile Skweyiya (appointed by Thabo Mbeki in 2003)
• Justice Johann van der Westhuizen (appointed by Thabo Mbeki in 2004)
• Justice Zak Yacoob (born 1948, appointed by Nelson Mandela in 1998)

Former justices

• Chief Justice Pius Langa (born 1939, appointed by Nelson Mandela in 1994 and elevated by Thabo Mbeki in 2005, retired in 2009)
• Chief Justice Sandile Ngcobo (born 1953, appointed by Nelson Mandela in 1999 and elevated by Jacob Zuma in 2009, retired in 2011)
• Chief Justice Arthur Chaskalson (born 1931, appointed by Nelson Mandela as President of the Constitutional Court 1994 - 2001; Chief Justice 2001 - 2005)
• Justice Tholie Madala (born 1937, appointed by Nelson Mandela in 1994, retired in 2008)
• 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 John Didcott (born 1931, appointed by Nelson Mandela in 1995, died in 1998)
• Justice Ismail Mahomed (born 1934, appointed by Nelson Mandela in 1995, elevated 1998, died in 2000)
• Justice Lourens Ackermann (born 1934, appointed by Nelson Mandela in 1994, retired in 2004)
• 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)

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 guarantee 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. The Constitutional Court is the highest court in the land for all constitutional matters, while the Supreme Court of Appeal is the highest court for all matters which do not involve the interpretation of the constitution. The Constitutional Court has final authority to determine which matters are constitutional matters and which are not.

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 basically 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. A 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 the state.

Co-operation with Parliament and Provincial Assemblies

The Constitutional Court has a special responsibility to parliament and 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 judgements

Further information: List of judgments of the Constitutional Court of South Africa

• S v Makwanyane and Another (6 June 1995): abolished the death penalty, declaring capital punishment to be inconsistent with the Interim Constitution.
• National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (9 October 1998): invalidated as unconstitutional the laws forbidding consensual sexual activities between men.
• Minister of Home Affairs and Another v Fourie and Another (1 December 2005): declaring the common-law definition of marriage and the Marriage Act to be unconstitutional to the extent that they allowed opposite-sex couples to marry but did not allow same-sex couples to do so. Required Parliament to rectify the situation within one year. (See same-sex marriage in South Africa.)

Attempted interference by Judge President John Hlophe

Main article: John Hlophe#Allegation of interference with Constitutional Court Judges

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 as a result of what they described in their statement as an approach to certain 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, were involved. Judge Hlophe was reported to have rejected the allegations as "utter rubbish" and as "another ploy" to damage his reputation.

See also

• Constitution
• Constitutionalism
• Constitutional economics
• Jurisprudence
• Judiciary
• Rule of law
• Rule According to Higher Law

References

1. ^ Constitutional Court of South Africa's official website

External links

• Judgments of the Constitutional Court of South Africa
• Light on a Hill: Building the Constitutional Court of South Africa. Edited by Bronwyn Law-Viljoen, photography by Angela Buckland. November 2006. Johannesburg: David Krut Publishing. 173 pages. ISBN 978-0-9584860-7-1. Available from David Krut Publishing. [1]
• "ART in ART Re: The Constitutional Court of South Africa". “ART in ART,” was created from artist Marsha Giegerich Torkelson's photographs taken as a tourist while viewing the art and architecture of South Africa’s new Constitutional Court in Johannesburg. The welcoming, uplifting qualities of the building’s design which includes sculpture, mobiles, tapestries, paintings, bead, metal and woven work and much more begin on the exterior of the building and continue with many surprises inside. She created collages by enlarging her photographs on transparencies and then placing them together with painted backgrounds to approximate the experience of viewing the Court’s integration of art into the architecture. In her 43 collages, she tried to give a sense in a multi-dimensional manner of the Constitutional Court’s goals of social justice and transparency as one sees them in the many images and objects symbolizing one of the Court’s main themes: traditionally people gather under the trees to settle problems in African villages. Thus, one sees artists’ renderings of tree trunks, leaves, sky and shadows from light shining through the branches throughout the building—“justice under the trees.” The collages celebrate these lofty themes and the art of the Constitutional Court as well as the spirit of all involved in its creation. It can be seen at Blurb.com