Constitutional Court of South Africa

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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)
ConstitutionalCourtofSouthAfrica-20070622.jpg
Constitutional Court building
Constitutional Court of SA logo.svg
Emblem of the Constitutional Court
Constitutional Court of South Africa
26°11′19″S28°2′36″E / 26.18861°S 28.04333°E / -26.18861; 28.04333
Established1994
JurisdictionSouth Africa
Location Constitution Hill, Johannesburg
Coordinates 26°11′19″S28°2′36″E / 26.18861°S 28.04333°E / -26.18861; 28.04333
Composition method Presidential appointment, after consultation
Authorised by Constitution of South Africa
Judge term lengthnon-renewable 12 years (extendable by Parliament)
Number of positions11
Website www.concourt.org.za OOjs UI icon edit-ltr-progressive.svg
Chief Justice of South Africa
Currently Mandisa Maya
Since1 September 2024
Acting Deputy Chief Justice of South Africa
Currently Mbuyiseli Madlanga
Since1 September 2024

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.

Contents

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). [1]

Frontage of the Constitutional Court in South Africa ConstitutionalCourtofSouthAfrica-entrance-20070622.jpg
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." [2]

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 Eternal Flame on Constitution Hill in Johannesburg.JPG
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. [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

Appointment procedure and tenure

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

NameBornAppt. byAge at appt.First day /
Length of service		Mand. retirementOpt. retirementPrevious positionsSucceeded
Mandisa Maya

(Chief Justice of South Africa)

20 March 1964
(age 60)
in Tsolo, Eastern Cape 		Cyril Ramaphosa 58 (Deputy Chief Justice)

60 (Chief Justice)

1 September 2022
2 years, 2 months		20 March 2034N/A Eastern Cape High Court

Supreme Court of Appeal

Mogoeng Mogoeng

Raymond Zondo (as Deputy Chief Justice and Chief Justice)

Mbuyiseli Madlanga

(Acting Deputy Chief Justice of South Africa)

27 March 1962
(age 62)
in Mount Frere, Eastern Cape 		Jacob Zuma 511 August 2013
11 years, 3 months		1 August 2028N/A Eastern Cape High Court Zak Yacoob
Nonkosi Mhlantla 2 May 1964
(age 60)
in Port Elizabeth, Eastern Cape 		Jacob Zuma 511 December 2015
8 years, 11 months		1 December 2027N/A Eastern Cape High Court
Supreme Court of Appeal 		Thembile Skweyiya
Leona Theron 7 November 1966
(age 58)
in Durban, KwaZulu-Natal 		Jacob Zuma 511 July 2017
7 years, 4 months		1 July 2029N/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 581 October 2019
5 years, 1 month		18 December 2030N/A Northern Cape Division

Supreme Court of Appeal

Dikgang Moseneke
Zukisa Tshiqi 11 January 1961
(age 63)
in Cefane, Ngcobo, Eastern Cape 		Cyril Ramaphosa 581 October 2019
5 years, 1 month		11 January 2031N/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 641 January 2022
2 years, 10 months		19 May 2027N/A North Gauteng High Court Edwin Cameron
Rammaka Mathopo 28 January 1963
(age 61)
in Gauteng 		Cyril Ramaphosa 581 January 2022
2 years, 10 months		28 January 2033N/A South Gauteng High Court

Supreme Court of Appeal

Johan Froneman
Owen Rogers [5] 22 October 1958
(age 66)
in Cape Town, Western Cape 		Cyril Ramaphosa 631 August 2022
2 years, 3 months		22 October 2028N/A Western Cape High Court

Competition Appeal Court

 Chris Jafta

Former chief justices

Former deputy chief justices

Former justices

The courtroom of the Constitutional Court of South Africa Constitutional Court of South Africa.jpg
The courtroom of the Constitutional Court of South Africa

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. [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

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

Hlophe controversy

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". [9] 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. [10] Commentators slammed Jafta and Nkabinde's "cowardice", which had brought the Constitutional Court into disrepute. [11] The judges claimed, in response, that they were simply upholding the Constitution. [12] The High Court dismissed the judges' application on 26 September 2014, [13] but they appealed. [14] 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". [15] 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. [16] 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. [17]

See also

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References

  1. ↑ "History of the Court". Archived from the original on 2 June 2024. Retrieved 19 August 2024.
  2. ↑ "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.
  3. ↑ "Constitution Hill – City Sightseeing". Archived from the original on 25 June 2016. Retrieved 25 May 2016.
  4. ↑ "Home". www.concourt.org.za.
  5. ↑ "Owen Rogers appointed to the constitutional court". The Mail & Guardian. 8 June 2022. Retrieved 9 June 2022.
  6. ↑ "Six sets of wise words from Moseneke". Mail & Guardian. 20 May 2016.
  7. ↑ 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.
  8. ↑ 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.
  9. ↑ Smook, Ella (13 October 2008). "Judge Jafta pulls ConCourt application". IOL.
  10. ↑ SAPA (21 October 2013). "Judges file Hlophe review application". IOL.
  11. ↑ Mackaiser, Eusebius (7 October 2013). "Shame on those two Concourt judges". IOL.
  12. ↑ 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.
  13. ↑ Nkabinde and Another v Judicial Service Commission and Others [2014] ZAGPJHC 217; 2015 (1) SA 279 (GJ).
  14. ↑ Tolsi, Niren (6 October 2014). "Hlophe 'misconduct': Jafta, Nkabinde stall matter". News24. South Africa.
  15. ↑ "Nkabinde and Another v Judicial Service Commission and Others (20857/2014) [2016] ZASCA 12". SAFLII. 10 March 2016.
  16. ↑ Affairs, SABC News and Current. "HLOPHE CONCOURT". iono.fm. Retrieved 7 April 2016.
  17. ↑ "Hlophe v Premier of the Western Cape Province". SAFLII. 30 March 2012.

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