The Constitutional Court: A pillar of democracy and transformation

By Jessie Taylor

25th anniversary of The Constitutional Court

One of the pillars of South Africa’s democracy, the Constitutional Court, has been upholding the rule of law and furthering transformation for 25 years. The Constitution celebrates its 25th anniversary in 2021, after being signed into law in 1996. The Constitutional Court was created as a transformative legal entity that would provide justice for all races, by safeguarding this key legislation.

Upholding the supreme law of the land

The Constitutional Court is the highest court in the county and is responsible for the interpretation, protection and enforcement of the Constitution. The court only hears matters that involve the application or interpretation of the Constitution. As the supreme law of the land, no other law or government action can supersede its provisions. It contains the Bill of Rights, the fundamental human rights of all people in the country, and affirms the democratic values of human dignity, equality and freedom.

The Bill of Rights is based on the Universal Declaration of Human Rights and the South African Freedom Charter, but the idea of a Bill of Rights for South Africa can be traced as far back as an ANC document in the early 1920s, some 30 years before the development of the Freedom Charter.

While the notion of human rights for all received much support, the question of who would implement it came under much debate. This was settled at a conference organised by the Constitutional Committee of the ANC in 1991 when a commitment was made to form a Constitutional Court that would be able to hear cases by direct access, as well as by referral and on appeal.

The leadership at the time felt a court, independent of existing judiciary structures, needed to be created to protect the Constitution. At the time of the Constitutional Court’s creation, the judiciary was overwhelmingly made up of white and male legal practitioners. This limited the judiciary’s legitimacy and its capacity to draw on the sense of justice of all communities.

In creating a new court to protect the Constitution and the fundamental human rights of all South Africans, it was decided to include more representation of South Africa’s diverse population. The Constitutional Court approved the Constitution on 4 December 1996. Six days later, it was signed into law by then-President Nelson Mandela.

The Constitutional Court took up its home at Constitution Hill on 21 March 2004, Human Rights Day and 10 years after South Africa became a democracy. Then-President Thabo Mbeki, speaking at the opening, said:

“The court represents the conversion of the negative, hateful energy of colonialism, subjugation and oppression into a positive, hopeful energy for the present and the future…”

The noblest of tasks

At the establishment of the Constitutional Court, Mandela summarised the work of the panel of judges – a task that is still undertaken daily.

“Yours is the most noble task that could fall to any legal person. In the last resort, the guarantee of the fundamental rights and freedoms for which we have fought so hard, lies in your hands. We look to you to honour the Constitution and the people it represents,” he said.

Since its establishment in 1995, the Constitutional Court has heard several landmark cases and has handed down judgements that have not only changed the legal landscape but also affected the daily lives of South Africans.

The first of these landmark cases was heard in 1995 when the death penalty was outlawed. This case was heard in the Court’s very first sitting on 15 February 1995. The 11 judges heard arguments over three days, examining if the death penalty violated the right to life, the right to dignity and the right to be free from torture and cruel punishment. In its judgment, handed down on 6 June 1995, the Court unanimously found that the death penalty was unconstitutional.

In the same year, the Court also declared corporal punishment as a sentence for juveniles unconstitutional. Since then, the Constitutional Court has ruled on other landmark cases, such as the right to housing, permitting same-sex marriages, prohibiting employment discrimination against an HIV positive person. These rulings speak to the Constitutional Court’s responsibility to safeguard democratic rights and protect our democracy. The Court has continued to exert its authority by reviewing all democratic processes, including the functioning of legislative bodies such as the National Assembly.

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