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The Constitutional Court of South Africa: an introduction.

I. INTRODUCTION

On 14 February 1995, the new Constitutional Court of South Africa was officially inaugurated by President Nelson Mandela. The Minister of Justice, Mr. Dullah Omar, said on this occasion that: (1)
 It was a long, long journey that brought us here, a journey full of
 suffering and pain. A journey that was so long and so arduous that
 many died in making it. But there was one thing that sustained us
 on that journey. Hope. The hope that, one day, in South Africa, we
 would win human rights for all. The belief that, one day, the cry
 that the people of South Africa sent out to the world in 1955 would
 at last be heard: 'That South Africa belongs to all who live in it,
 black and white, and that no government can justly claim authority
 unless it is based on the will of the people.' Today, forty years
 after the Congress of the People held at Kliptown, we come together
 to inaugurate an institution that will have, as its most sacred
 task, the guarding of the rights of all South Africans.


The Constitutional Court, as the culmination in many ways of that 'long journey' and the starting point for a fresh route towards a different future, bears a heavy responsibility: the emblem of the Court depicts a group of people, black and white, sheltered under the protective branches of a tree. In the paradigm of legal theory and in the popular imagination, the Court is the embodiment of the promise of'never again.' Of course, the Court is established at present under an interim Constitution and, while it seems inevitable that the new Constitution will contain a bill of rights--the interpretation of which will be informed by the jurisprudence developed under the interim Constitution--and will empower an adjudicative institution of some nature to enforce the Constitution as the supreme law of the country, many details of how the final system will look remain to be decided.

This article is an introduction to the functioning of the Court. The first section deals with the composition, jurisdiction and procedures of the Court and the second section discusses the cases which have been decided thus far. The second section is divided into two subsections; the first deals with four identifiable themes which may already be discerned from the Court's first year of constitutional jurisprudence and the second briefly outlines the substantive constitutional principles decided in those cases. (2)

II. THE CONSTITUTIONAL COURT

A. THE APPOINTMENT OF JUDGES

The Constitutional Court consists of the President of the Court, his or her Deputy (3) and nine other judges. The President of the Court is appointed by the President of the Republic in consultation with (4) the Cabinet, after consultation with (5) the Chief Justice (6) and the Judicial Service Commission. For the purposes of the appointment of the first President of the Court, which took place before the establishment of the Judicial Service Commission, the consultation with that Commission is dispensed with by the Constitution; (7) the President had only to consult the Cabinet and the Chief Justice.

After appointing the President of the Court, the President of the Republic has to appoint four additional judges to the Court from the ranks of the judges of the Supreme Court. He makes the appointments in consultation with the Cabinet and with the Chief Justice. (8)

Because the Judicial Service Commission plays such an important role in the appointment of the judges of the Court, it is important to note the composition and role of this body. The Commission is a body established under section 105 of the Constitution. It consists of the Chief Justice, the President of the Court, one Judge President designated by the Judges President, (9) the Minister of Justice, two practising advocates designated by the advocates' profession, two attorneys designated by the attorneys' profession, one professor of law designated by the deans of all the law faculties at South African universities, four senators, and four persons who should be either practising attorneys or advocates designated by the President in consultation with the Cabinet. In general, the function of the Judicial Service Commission is to make recommendations regarding the appointment, removal, terms of office and tenure of the Supreme Court and

Constitutional Court judges.

While the Judicial Service Commission has to be consulted in the appointment of the President of the Court and the other four judges, it plays an even greater role with regard to the appointment of the remaining six judges of the Constitutional Court. It and it alone has the power to invite nominations from the general public. From the nominations, it compiles a short list of twenty-five names and interviews the short-listed candidates. The interviews are public, but cameras are not allowed. On the basis of the interviews it then compiles a short list of ten names which is presented to the President. The President appoints six judges from the shortlist of ten.

Persons eligible to be nominated and appointed must be either: (i) judges of the Supreme Court, (ii) persons who are qualified to be admitted as advocates or attorneys and who have practised as such for a cumulative period of ten years or who have lectured in law at a university for that period, or (iii) persons who by reason of their experience or training have expertise in the field of constitutional law, provided that no more than two persons from this category may be members of the Court at the same time. The procedure for the appointment of judges of the Constitutional Court is similar to that for the appointment of the judges of the Supreme Court. The remuneration of all judges is guaranteed in section 104(2) of the Constitution (10) and a judge may only be removed from office by the President, "on grounds of misbehaviour, incapacity or incompetence, established by the Judicial Service Commission"; his or her removal must furthermore be requested by both the National Assembly and the Senate. (11)

The mode of appointment of judges differs from the manner in which judges were appointed under the old dispensation. Then, as in Canada now, (12) the State President, who was the head of the executive, had the power to appoint judges and had only to consult his cabinet. The new procedure allows for a greater involvement of the legal profession in the appointments and the interviews allow for some transparency in the process. All in all, the process by which judges are appointed is far more transparent: the executive retains the power to appoint, but that power is constrained by the extensive consultation requirements. Arbitrariness is minimized by the fact that the executive does not control the compilation of the list from which appointments have to be made, and by the greater involvement of the legal profession.

Another significant departure from the past in South Africa is the appointment of attorneys and advocates who are not members of the Bar. (13) In the past, to be appointed a judge one had to be a Senior Counsel. Attorneys and academic lawyers were completely excluded from appointment to the bench. This new framework for the appointment of judges is likely to contribute a different perspective to the deliberations of the Court and will in all probability lead to a closing of the gap between the academic profession and legal practice, both of which stand to be enriched by the new system. Allowing attorneys right of audience in the Court will undoubtedly make the Court more accessible to the public.

The appointment of judges was certainly the subject of some of the most heated debates at the multi-party negotiating process at Kempton Park. There were those who advocated that Parliament should have the power to appoint judges; some wanted the Constitutional Court judges to be appointed from the ranks of existing judges; others thought that the judges of the Constitutional Court should be drawn from outside the existing judiciary entirely. The formation of the Judicial Service Commission was a delicate compromise between these extremes (14) and remains controversial. Although only five of its members are politicians, (15) the President has the power to appoint the four attorneys and advocates and, although they may not necessarily be party members, the President is not constrained from appointing persons who might be sympathetic to his views. Thus, although direct political intervention in the appointment process has been minimized, it remains to be seen whether the present system will be retained in the final Constitution, given the significant influence which a single dominant political party is still able to extend. (16) Another question as to the future system is whether or not all candidates for appointment will be subjected to public interviews. Although Kriegler J. found it a 'bit embarrassing to have to sing for my supper, (17) O'Regan J. indicated in her interview that the split process whereby some judges were interviewed and others were not was the product of a compromise, and that, in the future, all candidates should be subjected to the grilling process. (18)

Presently, the President of the Constitutional Court is Justice Arthur Chaskalson, a distinguished jurist with a long track record as a human rights lawyer. He was a member of the defence team which defended Nelson Mandela and his colleagues in the Rivonia trial in 1964 and was a founder of the Legal Resources Centre, a human rights organization which defended detainees and accused persons in the 1980s. The Deputy President of the Court is Justice Ismail Mahomed, Chief Justice of Namibia, Judge of the High Court of Lesotho and Swaziland, and a distinguished human rights lawyer. The judges drawn from the Supreme Court presently serving at the Court are: Justice Richard Goldstone, who had been appointed to chair the Goldstone Commission which investigated the 'third force' activities of the army and the police in the period before the elections, and who is presently serving as prosecutor for the International Criminal Tribunal for the former Yugoslavia and Rwanda, (19) Justice Johan Kriegler who was a judge of the Appellate Division and chairman of the Independent Electoral Commission which oversaw the first democratic elections, and Justices John Didcott, Tholakele Madala and Laurie Ackermann who are judges from the Natal, Transkei and Cape Provincial Divisions, respectively. These judges had distinguished themselves as vigorous advocates for the protection of human rights during the apartheid era. In 1987, Ackermann J. resigned his post as a judge and inaugurated the Harry Oppenheimer Chair in Human Rights Law at the University of Stellenbosch, the first of its kind in South Africa; Madala J. had been active as an advocate in the Transkei and had played an important role in establishing anti-apartheid advocates' forums; and Didcott J. is renowned for several decisions protective of human rights which were ultimately overturned by the Appellate Division. (20) In one of these decisions he proclaimed that indigent accused had a right to counsel in order to ensure a fair trial. The other four positions on the Court were filled by prominent academics and advocates. Justice Pius Langa was a Senior Counsel and noted defender of human rights who also served as President of the National Association of Democratic Lawyers. Justices Yvonne Mokgoro and Kate O'Regan, the only women on the Court, were both prominent academics with a reputation for outstanding scholarship and active involvement in human rights issues. Mokgoro J. is the first black female judge in the country. After completing her studies, she worked as a public prosecutor and later became a law professor. As a researcher attached to the Centre for Constitutional Analysis of the Human Sciences Research Council, she conducted extensive research and published.many articles on human rights issues. O'Regan J. had a distinguished academic career and, as an attorney specializing in labour issues, she was often in contact with the problems of ordinary working people. She has published extensively on gender, equality, land redistribution and labour law. Justice Sachs was an advocate who left South Africa after having been detained under the 180 day detention law. He lived in exile and was the victim of a car bomb blast orchestrated by South African security agents in Maputo. In the blast he lost his right hand and survived by a miracle. He has written extensively on constitutional law and human rights and was the senior member of the ANC Constitutional Committee which assisted in the drafting of the Constitution. The term of office of the judges of the Constitutional Court is seven years and is not renewable. (21)

B. CONSTITUTIONAL JURISDICTION

Under the Interim Constitution, the Appellate Division remains the highest court of the land on all non-constitutional issues, (22) while the new Constitutional Court is the highest court on constitutional issues. The Constitutional Court has jurisdiction as the court of final instance (23) over all matters relating to the interpretation, protection and enforcement of the provisions of the Constitution. Section 98(2) of the Constitution gives the Constitutional Court exclusive jurisdiction over the following matters:

(i) any inquiry into the constitutionality of any law, including an Act of Parliament, irrespective of whether such law was passed or made before or after the commencement of the Constitution;

(ii) any dispute over the constitutionality of any Bill before Parliament;

(iii) any dispute of a constitutional nature between organs of state at any level of government; and

(iv) the determination of any disputes as to whether any matter falls within its jurisdiction.

According to section 101 of the Constitution, the Supreme Court retains the jurisdiction, including its inherent jurisdiction, which it had before the commencement of the Constitution. While the Appellate Division has no jurisdiction to adjudicate on any matter within the jurisdiction of the Constitutional Court, (24) the provincial and local divisions of the Supreme Court have concurrent jurisdiction with respect to the following constitutional matters:

(i) any alleged violation or threatened violation of any fundamental right entrenched in chapter 3;

(ii) any dispute over the constitutionality of any executive act or administrative act or conduct or threatened executive or administrative act;

(iii) any dispute of a constitutional nature between local governments or between a local and a provincial government;

(iv) any dispute over the constitutionality of a Bill before a provincial legislature; and

(v) the determination of disputes as to whether any matter falls within its jurisdiction.

In all these matters, the provincial or local division of the Supreme Court is the court of first instance and appeals against its decisions lie to the Constitutional Court. With regard to the issues over which the Constitutional Court has exclusive jurisdiction, the provincial or local division of the Supreme Court has no jurisdiction and, if in any matter before it an issue which falls within the exclusive jurisdiction of the Constitutional Court is raised, the local or provincial division may suspend the proceedings and refer the issue to the Constitutional Court. (25)

C. SYSTEM OF JUDICIAL REVIEW

In theory two systems of judicial review are known in constitutional states: the centralized and the decentralized system. A centralized system of judicial review refers to the form of judicial review where a single court has the power to test the validity of legislative instruments. The German Constitutional Court is an example of such a system. It and it alone has the power to declare Acts of Parliament invalid on account of their inconsistency with the Constitution. In France, the Conseil Constitutionnel is also the only organ vested with this power, but its jurisdiction extends only to Bills which have not yet become law. 'Decentralized systems' refers to those forms of judicial review where all the courts at all levels have authority to test the validity of legislative instruments. The United States system of judicial review is decentralized, since lower courts also have jurisdiction to pronounce on constitutional issues if those issues are important and relevant for the determination of the matter they have to resolve. However, the Supreme Court is the court of appeal in all cases where the validity of a statute is in question. In this sense the United States Supreme Court is comparable with the Canadian Supreme Court. (26)

Another way of classifying systems of judicial review is to examine whether the courts have a preventive or repressive power of judicial review. 'Preventive power of judicial review' refers to the power of a court to pronounce over a statutory instrument before that instrument becomes law. The French Conseil Constitutionnel has jurisdiction to pronounce over bills before they become law and its decisions are final and binding on all organs, with no appeal lying against them. Repressive judicial review, on the other hand, is exercised by a court which has jurisdiction to declare invalid an existing law which is in conflict with the Constitution. The United States Supreme Court and the German Constitutional Court have repressive powers of judicial review: in the United States the existence of a 'case or controversy' is a jurisdictional prerequisite for the hearing of constitutional issues; the court does not accept jurisdiction if it is being asked to adjudicate over an issue in which there is no adversarial relationship between the parties. (27)

The Constitutional Court of South Africa combines almost all of the above attributes. In the first place, South Africa has a centralized system of judicial review since the Constitutional Court alone has jurisdiction to pronounce on the validity of Acts of Parliament. No other courts, except the provincial and local divisions of the Supreme Court, have jurisdiction to deal with constitutional issues and even their jurisdiction is limited by the fact that they may not pronounce on the validity of Acts of Parliament. The Appellate Division has no jurisdiction whatsoever over constitutional matters. (28) It would appear that the main reason for choosing a centralized system of judicial review was that many felt that the Appellate Division was tainted by a legacy of gross violations of hiiman rights; it had sent many prominent figures in the liberation struggle to the gallows and to prison. As a result, the Court had lost its credibility and legitimacy in the eyes of the majority and it seemed incongruous to vest such a court with the power to decide controversial political and human rights problems. The judicial structure appears, therefore, to attempt a compromise by establishing a special organ with the legitimacy to deal with human rights and constitutional law questions while retaining the Appellate Division's jurisdiction over civil, criminal and other cases. This is clearly expressed by Professor J. van der Westhuizen: (29)
 The legal system is widely alleged to be experiencing a legitimacy
 crisis. The majority of South Africans have come to perceive the
 laws of the country, the courts and the police, in fact the legal
 order as such ... as part and parcel of the apartheid system and an
 instrument of oppression and exploitation, rather than the
 embodiment of justice or a system of protection ... The mere
 possibility of entrusting a new bill of rights to the existing
 judiciary often invokes serious scepticism as to the bill of rights
 idea as such and causes the concept of judicial review to be
 suspected as but another device to perpetuate apartheid and to
 secure dominant class interests.


A further possible reason for the split jurisdiction was to enable the new democratic order to play a role in the appointment of the judges who were to play such a vital role in the shaping of the new democracy.

Secondly, the Court has both repressive and preventive powers of judicial review, (30) since, apart from the power to determine the validity of Acts of Parliament, it also has jurisdiction to pronounce on the validity of bills which have not yet become law. Thus, in addition to section 98(2)(c) which empowers the court to inquire into the constitutionality of an Act of Parliament, section 98(2)(d) also authorises it to inquire into the constitutionality of a bill before Parliament or a provincial legislature. This power must be distinguished from the power of the Canadian Supreme Court under section 53 of the Supreme Court Act, which empowers it to hear and consider questions of law and fact referred to it by the Governor General in Council. The power derives from an Act of Parliament and not from the Constitution. Further, while the decision of the Constitutional Court is binding on everyone, including non-parties, the view in Canada is that the answers to a reference "are only advisory and will have no more effect than the opinions of the law officers." (31) Consequently, the opinion is neither binding on the parties to the reference nor does it have the same precedential weight as an opinion in an actual case. (32)

D. PROCEDURES FOR GAINING ACCESS TO THE COURT

Before the present Constitution came into force, the power of the courts to inquire into the validity of Acts of Parliament was governed by section 34(3) of the Republic of South Africa Constitution Act, 110 of 1983, which provided: (33)
 Save as provided in subsection (2), no court of law shall be
 competent to inquire into or pronounce upon the validity of an Act
 of Parliament.


This section was a codification of a rule established by the courts that, "[i]f a Legislature has plenary power to legislate on a particular matter no question can arise as to the validity of any legislation on that matter and such legislation is valid whatever the real purpose of that legislation is." (34)

The present Constitution has signalled an end to the era of Parliamentary sovereignty. Section 4(1) of the Constitution proclaims that:
 This Constitution shall be the supreme law of the Republic and any
 law or act inconsistent with its provisions shall, unless otherwise
 provided expressly or by necessary implication in this
 Constitution, be of no force and effect to the extent of the
 inconsistency.


Parliament is now subject to the Constitution and its laws must conform to the Constitution. The power of the court to pronounce on the constitutionality of Acts of Parliament is not limited to the question of the manner and form of legislation; it may also pronounce on the constitutionality of Acts of Parliament if the content of the legislation is in any way in conflict with the spirit, purport or letter of the Constitution.

The only limitation placed on the power of the courts is that not all courts may pronounce on the validity of Acts of Parliament; only the Constitutional Court has this power. Thus, if the constitutionality of an Act of Parliament is in dispute before any court, the matter must be suspended and the issue of the constitutionality of the Act of Parliament referred to the Constitutional Court. According to section 102(1) of the Constitution, an issue may be referred to the Constitutional Court if that issue is decisive for the case, the issue is in the exclusive jurisdiction of the Constitutional Court, and the lower court considers it to be in the interests of justice that the issue be referred to the Court. Section 100 of the Constitution makes provision for direct access to the Court, the prerequisites for which are concretised in Rule 17 of the Constitutional Court rules. These requirements are that the matter be of such urgency, or otherwise of such public importance, that any delay necessitated by the use of the ordinary procedures would prejudice the public interest or the ends of justice and good government. Once the Court has made a finding that a law referred to it or a provision thereof is inconsistent with the Constitution, it has full powers to declare such law or provision to be invalid to the extent of its inconsistency.

However, the Court also has the power, under section 98(5) of the Constitution, to suspend the coming into operation of the order of invalidity and instead require Parliament to correct the defect in the law or provision. The law then remains in force pending the correction or the expiry of the period specified within which Parliament was required to correct the defect. (35)

The normal course for accessing the Court, therefore, is either by way of referral from the provincial or local division of the Supreme Court or on appeal from such a court. Because the magistrates' courts have no jurisdiction to handle constitutional issues, whenever such courts are confronted with constitutional issues, they either have to dispose of the matter as if the law whose constitutionality is being questioned was valid, or refer the matter to the local or provincial division of the Supreme Court. The latter court either decides the matter or, if there are issues which are in the exclusive jurisdiction of the Constitutional Court, refers, those issues while suspending the proceedings pending the decision of the Court.

The Appellate Division of the Supreme Court is precluded from deciding constitutional issues. It has the power to refer to the Constitutional Court any issue which is within the jurisdiction of that court. An interesting section of the Constitution which touches on the relationship between the two courts is section 35(3). This section provides that:
 In the interpretation of any law and the application and
 development of the common law and customary law, a court shall have
 due regard to the spirit, purport and objects of this Chapter [on
 fundamental rights].


The question is: who has the jurisdiction to develop the common law? Does the Appellate Division have that power or is that a constitutional issue, in which case the Constitutional Court has jurisdiction? The issue is intricately linked to the difficult question of whether the Constitution applies to relationships between private citizens ('horizontality') and, if so, whether that application is direct (in that constitutional rights may be relied on in horizontal relationships) or indirect (in that the entire legal system should be embued by constitutional values).

III. THE BEGINNINGS OF A CONSTITUTIONAL JURISPRUDENCE

Since its inception in February 1995, the Court has heard 21 matters, has delivered 11 judgments and has, at present, some 11 matters on the roll still to be heard. (36) This section provides an introductory examination of the judgments thus far delivered. Although 11 decisions does not provide a fertile basis for discerning with certainty the existence of trends within the Court's jurisprudence, it is possible to trace an identifiable approach to at least four issues: the appropriate interpretive approach to constitutional adjudication, the proper role for comparative jurisprudence, the utilisation of a 'two-stage approach' to the limitations clause, and the interpretation of the principles enunciated in the limitations clause. However, these approaches are in their infancy and, even where reasonably clear perspectives can be discerned, these are no doubt susceptible to modification as the jurisprudence of the Court grows in depth and sophistication.

A. EMERGING THEMES

1. Constitutional Interpretation Three clearly identifiable considerations appear to have shaped the nature of constitutional interpretation by the Court. First, a recurrent theme has been the unique context of the South African Constitution. In S v. Makwanyane, (37) Mohamed J., as he then was, described the Constitution as follows: (38)
 In some countries, the Constitution only formalises, in a legal
 instrument, a historical consensus of values and aspirations
 evolved incrementally from a stable and unbroken past to
 accommodate the needs of the future. The South African Constitution
 is different: it retains from the past only what is defensible and
 represents a decisive break from, and a ringing rejection of, that
 part of the past which is disgracefully racist, authoritarian,
 insular, and repressive, and a vigorous identification of and
 commitment to a democratic, universalistic, caring and
 aspirationally egalitarian ethos expressly articulated in the
 Constitution. The contrast between the past which it repudiates and
 the future to which it seeks to commit the nation is stark and
 dramatic.


Given the reformative ideal of the Constitution, its dramatic context and the inherent genre of constitutional instruments, the Court has emphasised often that constitutional provisions are to be interpreted generously and purposively (39) and are not to fall victim either to the "austerity of tabulated legalism" or to an interpretation which restricts rights by "reading implicit restrictions into them, so as to bring them into line with the common law." (40)

On the other hand, there has been a strong recognition that the Constitution may not be treated as a document fallen from the sky, splashed onto the existing legal canvas with never a thought for its milieu. In S. v. Zuma, Kentridge A.J. warned that "regard must be paid to the legal history, traditions and usages of the country concerned, if the purposes of its constitution are to be fully understood." (41) Although the Court has referred extensively to foreign jurisprudence as an aid to interpreting the chapter on fundamental rights, it has not ignored the equitable principles dormant in our Roman-Dutch common law. (42)

Third, in 5. v. Mhlungu, Kentridge A.J. pointed out in dissent that, despite the powerful reasons for interpreting fundamental rights generously, the court should not lose sight of the fact that the Constitution remains a legal text, that respect has to be paid to the language used, (43) and that the constitutional injunction to the Court to interpret the Constitution in a manner designed to promote the values underlying a democratic society based on freedom and equality (44) would not be served by "doing violence to the language of the Constitution in order to remedy what may seem to be hard cases." (45) A 'purposive' approach directed the Court to search for the purpose of a specific provision within the context of the Constitution as a whole (46) and might not always accord with a 'generous' interpretation. In S. v. Zuma, Kentridge A.J. stated that "[i]t cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean." (47)

2. The Use of Legal Sources

Section 35(1) of the Constitution enjoins the Court, in interpreting the Constitution, to have regard to public international law and authorises it to consider "comparable foreign case law" and in a great many of the decided cases, there is extensive consideration of international and comparative human rights norms in the determination of concrete disputes. Reference is often made to case law from Canada, Germany, Australia, the United States, Botswana, Namibia, Zimbabwe and the Privy Council, as well as to international instruments such as the International Covenant on Civil and Political Rights and the European Convention on Human Rights. For example, the similar structure of the Canadian Charier of Rights and Freedoms (48) has persuaded the Court to accord substantial recognition to Canadian decisions in areas such as the constitutionality of 'reverse onus' provisions, (49) and the virtually unanimous international rejection of whipping as a form of punishment was an important guide to the interpretation of "cruel, inhuman or degrading treatment or punishment" (50) in our Constitution.

However, the most focused and pertinent attention to foreign case law has been in the construction of section 33 of the Constitution, which permits the limitation of rights by law of general application where it is shown to be, inter alia, reasonable and justifiable in an open and democratic society based on freedom and equality. In interpreting the meaning of the phrase "justifiable in an open and democratic society based on freedom and equality," the Court has looked to other democracies which might fit this description as a guide to the standards which it ought to set for the fledgling South African democracy, (51) while emphasising that "[t]his evaluation must necessarily take place against the backdrop of the values of South African society as articulated in the Constitution and in other legislation, in the decisions of our courts and generally against our own experiences as a people," (52) as well as within the boundaries of the text. (53)

The comparative project, however, has not been entirely Eurocentric. In S. v. Williams, Langa J. noted the special relevance of decisions from the Supreme Courts of Namibia and Zimbabwe, since "[n]ot only are these countries geographic neighbours, but South Africa shares with them the same English colonial experience which has had a deep influence on our law; we of course also share the Roman-Dutch legal tradition." (54)

Moreover, several of the justices have pointed to the importance of not allowing the comparative injunction in the Constitution to blind us to the richness and fertility of our own long-ignored African heritage. In the death penalty judgment, Justices Langa, (55) Madala, (56) Mokgoro (57) and Sachs (58) pointed to the fact that the Constitution requires the Court to have regard to the legal values of all sections of South African society, and not merely those proceeding from our colonial heritage. The provision on National Unity and Reconciliation (which can be found as an epilogue to the main text of the Constitution) specifically declares that there is "a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation." Mokgoro J. described the African value of ubuntu as follows: (59)
 Generally, ubuntu translates as 'humaneness.' In its most
 fundamental sense it translates as personhood and morality.
 Metaphorically, it expresses itself in umuntu ngumuntu ngabantu,
 describing the significance of group solidarity on survival issues
 so central to the survival of communities. While it envelops the
 key values of group solidarity, compassion, respect, human dignity,
 conformity to basic norms and collective unity, in its fundamental
 sense it denotes humanity and morality. Its spirit emphasises
 respect for human dignity, marking a shift from confrontation to
 conciliation. In South Africa ubuntu has become a notion with
 particular resonance in the building of a democracy. It is part of
 our rainbow heritage, though it might have operated and still
 operates differently in diverse community settings. In the Western
 cultural heritage, respect and the value for life, manifested in
 the all-embracing concepts of'humanity' and 'menswaardigheid,' are
 also highly priced.


3. The Dual Enquiry

The South African Constitution, like the Canadian Charter, (60) contains a general limitations clause, (61) rather than specific limitations as found, for example, in the European Convention on Human Rights. Like the Canadian Supreme Court, the South African Court has adopted a two-stage enquiry into alleged infringements of fundamental rights. The first issue, sometimes referred to as the 'threshold' question, is whether there has been a contravention of a guaranteed right. If there has, the Court must consider whether or not that infringement is justified under the limitations clause. (62) The consequence of this split examination may have important ramifications: in S v. Makwanyane, Chaskalson P. noted that courts in jurisdictions such as the United States and Hong Kong, whose Constitutions do not contain general limitations clauses, "have been obliged to find limits to constitutional rights through a narrow interpretation of the rights themselves," (63) whereas the two-stage approach may call for a broader interpretation of the fundamental right, qualified only at the second stage, (64)

Furthermore, the division of argument into two stages has the further consequence that the applicant does not bear the onus of establishing that there is no justification for the infringement of his or her right: it is for the legislature, or the party relying on the legislation, to establish this justification and not for the party challenging it. (65)

Despite repeated references to, and adoption of, the 'two-stage approach,' the Court has not yet been confronted with potential complexities as to the relationship between the two provisions. For example, the equality clause incorporates a prohibition against indirect discrimination which, in every other jurisdiction in which the concept of indirect discrimination, or disparate impact, is used, contains a definitionally inherent defence of justification; the relationship between justification at this stage and justification under the limitations section is not at all apparent. In S. v. Williams Langa J. noted, but expressly left open, the question of possible tensions in the relationship between the threshold question and the limitations clause. (66) However, Sachs J., in his dissenting judgment in Coetzee, (67) warned against a tendency of technocratic legalism by counsel in their separation of the two stages and advocated instead a "focus on what has been called the synergetic relation between the values underlying the guarantees of fundamental rights and the circumstances of the particular case." (68) He noted that the question of limitation would have to be decided in the light of the profundity of the interest protected, the nature of the infringement and the propriety of limitation (69) and it would thus be inappropriate to split the two stages in a "mechanical and sequentially divided way." (70)

4. The Limitations Clause

Section 33(1) permits the limitation of rights where that limitation is by law of general application and it is shown that the limitation is reasonable, justifiable in an open and democratic society based on freedom and equality and that it does not negate the essential content of the right. In relation to some rights, (71) the limitation moreover must be necessary. As previously noted, the onus is on the party seeking to uphold the provision under attack to show that it meets the criteria in the limitations clause.

The dictum by Chaskalson P. in S. v. Makwanyane (the death penalty case) has already, in this formative stage of the Court's existence, become something of a locus classicus with regard to the interpretation of section 33(1) and is worth citing at length: (72)
 The limitation of constitutional rights for a purpose that is
 reasonable and necessary, in a democratic society involves the
 weighing up of competing values, and ultimately an assessment based
 on proportionality. This is implicit in the provisions of s.33(l).
 The fact that different rights have different implications for
 democracy and, in the case of our Constitution, for 'an open and
 democratic society based on freedom and equality,' means that there
 is no absolute standard which can be laid down for determining
 reasonableness and necessity. Principles can be established, but
 the application of those principles to particular circumstances can
 only be done on a case-by-case basis. This is inherent in the
 requirement of proportionality, which calls for the balancing of
 different interests. In the balancing process the relevant
 considerations will include the nature of the right that is limited
 and its importance to an open and democratic society based on
 freedom and equality; the purpose for which the right is limited
 and the importance of that purpose to such a society; the extent of
 the limitation, its efficacy and, particularly where the limitation
 has to be necessary, whether the desired ends could reasonably be
 achieved through other means less damaging to the right in
 question. In the process regard must be had to the provisions of
 s.33(l) and the underlying values of the Constitution, bearing in
 mind that, as a Canadian Judge has said, 'the role of the Court is
 not to second-guess the wisdom of policy choices made by
 legislators.'


This approach has been referred to and followed often. (73) In Coetzee and Matiso, Sachs J., in a separate judgment, expanded in detail on the meaning of each element of the test. He held that the meaning of 'reasonable' implied more than a rational connection between the purpose to be served and the invasion of the right. (74) Thus, even where such a rational connection was present, a limitation could be unreasonable if it undermined a long established and now entrenched right, (75) if it imposed a penalty that was arbitrary, unfair or irrational (76) or if it employed means that were unreasonable. (77) Second, the requirement of justifiability in an open and democratic society based on freedom and equality required the court to "locate [itself] in the mainstream of international democratic practice." (78) Third, the requirement of necessity imposed a more onerous burden of persuasion on the party seeking to uphold a prima facie unconstitutional law than the tests of reasonableness or justifiability. (79)

B. SUBSTANTIVE DECISIONS

1. Transitional Issues

Given the 'historic break with the past' that the new Constitution signals, it is not surprising that problems in regulating a smooth transition from the old to the new have been the focal point of two judgments (80) and have featured tangentially in many others. Despite the fact that the Constitution itself features many provisions dealing with transitional issues, disputes have arisen as to the application of the Constitution to litigation pending on the 27th of April 1994 (the date on which the Constitution came into force) and in relation to the jurisdiction of the Supreme Court.

In Zantsi, the court heard an appeal from a decision by the Ciskei Provincial Division which held that local and provincial divisions of the Supreme Court had the power to enquire into the constitutionality of statutes passed before the commencement of the Constitution. Although section 98(2) of the Constitution vests exclusive jurisdiction in the Constitutional Court to declare an Act of Parliament invalid, section 101(2) provides that the Supreme Court shall maintain the jurisdiction it had prior to the commencement of the Constitution, including its inherent jurisdiction, and section 101(3) vests in the Supreme Court the additional jurisdiction to enquire into the constitutionality of any law, other than an Act of Parliament, irrespective of whether such law was passed before or after the commencement of the Constitution. The court below, directing itself to interpret the Constitution generously, accepted the argument that section 101 (3)(c) amounted to an ouster of the Supreme Court's jurisdiction and, as such, should be interpreted narrowly, as referring only to those Acts of Parliament passed after the commencement of the Constitution. (81) The Constitutional Court allowed the appeal, noting that section 101 was subject to section 98(2) and could not be held to constitute a modification of the Constitutional Court's exclusive jurisdiction. The term "Act of Parliament" did not only refer to the present Parliament, but also to that existing before the operation of the Constitution. However, the Court agreed with the court below a quo that the term did not embrace laws passed by the legislatures of the so-called 'TBVC states' (82) and that these laws were thus susceptible to constitutional review by the Supreme Court.

In Mhlungu, the Court considered the meaning of section 241(8) of the Constitution which provides that:
 All proceedings which immediately before the commencement of this
 Constitution were pending before any court of law, including any
 tribunal or reviewing authority established by or under law,
 exercising jurisdiction in accordance with the law then in force,
 shall be dealt with as if this Constitution had not been passed:
 Provided that if an appeal in such proceedings is noted or review
 proceedings with regard thereto are instituted after such
 commencement such proceedings shall be brought before the court
 having jurisdiction under this Constitution.


Mhlungu concerned a criminal trial where the crimes were alleged to have been committed in April 1993 and the indictment was served on the accused on 11 March 1994, before the commencement of the Constitution. The state sought to tender as evidence confessions made before a magistrate by four of the accused. According to section 217(l)(b)(ii) of the Criminal Procedure Act, 51 of 1977, confessions given before a magistrate and which met certain other requirements, are presumed to have been voluntarily given and the onus is consequently on the accused to rebut that presumption. (83) Counsel for the defence indicated his intention to challenge the constitutionality of the provision in question on the basis of the constitutional right to a fair trial, including the right to be presumed innocent. The issue before the Constitutional Court was whether the accused were entitled to invoke the protection of the Constitution, given the provisions of section 241(8).

Faced with conflicting judgments from different divisions of the Supreme Court, Mahomed J., for the majority, held that they were entitled to invoke the protection of the Constitution. He held that section 241(8) was intended to prevent legal uncertainty and dislocation in the judicial system by ensuring merely that the authority of pre-Constitutional courts continued and that these Courts were able to continue hearing trials commenced before the operation of the Constitution. This did not, however, mean that accused persons were not entitled to invoke the protection of the substantive rights in the Constitution in their defence. He recognised that section 241(8) was ambiguous and could be interpreted as excluding reliance on substantive rights in pending trials, but several absurdities and injustices would result from such an interpretation. For example, two accused might be arrested and charged for a crime which they committed together, but one of them might be charged after the commencement of the Constitution and the other before, in which case the former would be able to rely on her constitutional rights while the latter could not. Furthermore, (84)
 South African statutory law, prior to the enactment of the
 Constitution, is replete with the most disgraceful and offensive
 legislation which discriminates against South Africans of colour
 and criminalises, arbitrarily and purely on the grounds of race and
 colour, perfectly innocuous acts of life and living by such
 citizens. It is possible that a citizen charged with such an
 offence before the commencement of the Constitution could, on the
 literal interpretation, be convicted and sentenced, even after 27
 April 1994, for having contravened a law, which sought to punish
 him on racial grounds, if his case was pending when the
 Constitution came into operation.


In these circumstances, and with due regard to the character of the Constitution as a "ringing and decisive break with [the] past" (85) and the need for a construction which is "most beneficial to the widest possible amplitude," (86) the narrower interpretation of section 241(8) was to be preferred.

Kentridge A.J., writing for the minority, accepted that section 241(8) dealt with the continuing authority of pre-Constitutional courts, but held that it also referred to the invocation of substantive constitutional provisions in pending trials. While approving a generous approach to constitutional interpretation, and affirming the fundamental constitutional commitment to protecting individual rights against the public interest, he expressed the view that a generous interpretation would have to yield to the language itself, where it was "too clear to be capable of sensible qualification." (87) As to the absurdities which were of pressing concern to the majority, even Mahomed J.'s interpretation of section 241(8) would not obviate anomalous situations: in the example above, judgment in the trial of accused A might have been given before April 27th where judgment in accused B's case might only have been given afterwards; B would then be entitled to raise her constitutional rights when A could not. Section 241(8) of the Constitution is concerned with an orderly transition and the minimizing of dislocation within the legal system; given this purpose, anomalies are inevitable and are "the price which the lawmakers were prepared to pay for the benefit of orderly transition and for avoiding the disruption which would be caused by changing the applicable law in the middle of a case." (88)

Although it is now clear that accused persons are entitled to rely on substantive constitutional rights in trials which commenced before the 27th of April 1994, it remains to be seen whether the same principle will be applied in civil cases commenced before April 27th in which, judgment has not yet been given and the parties seek to rely on rights acquired under laws which have subsequently been invalidated.

2. Federal and Provincial Powers

a. The 'Western Cape Case' (89)

The Local Government Transition Act, 209 of 1993, was passed at about the same time as the Constitution. Its function was to regulate the restructuring of local government until the first local government elections. Like the Constitution and the Electoral Act, this statute was also the product of negotiation. It provided for the formation of provincial committees which were to be elected by the then Transitional Executive Council consisting of representatives of the negotiating parties at Kempton Park. However, the Act provided that, once the provincial governments had been formed, the vacancies on the Committee would be filled by the Minister for. Local Government of that province. The provincial committees had enormous powers because the Minister had to take all decisions in relation to local government in consultation with the committees and all disagreements were to be referred to a Special Electoral Court whose decisions were binding on all the parties.

One of the tasks of the Minister for Local Government was to delimit districts and wards for the purposes of the election, (90) but he could only make those decisions after the Provincial Committee had made recommendations.

In the Western Cape, the Minister for Local Government disapproved of the recommendations of the Committee. As it happened, there were at the time two vacancies on the Committee. Instead of referring the demarcation to the Special Electoral Court, he went ahead and filled the vacancies himself. It was alleged that his appointees were sympathetic to his proposals. He then tabled his own suggestion and this was passed by a two-thirds majority;

The Local Government Transition Act had previously been amended to include section 1.6A which entitled the President to amend the Act itself. Section 16A read:

(1) The President may amend this Act and any Schedule thereto by proclamation in the Gazelle.

(2) No proclamation under subsection (1) shall be made unless it is approved by the select committees: of the National Assembly and the Senate responsible for constitutional affairs.

(3) A proclamation under subsection (1) shall commence on a date determined in such proclamation, which may be a date prior to the date of publication of such proclamation.

(4) (a) The Minister shall submit a copy of a proclamation under subsection (J) within 14 days after the publication thereof to Parliament,

(b) If Parliament by resolution disapproves of any such proclamation or any provision thereof, such proclamation or provision shall cease to be of force and effect, but without prejudice to the validity of anything done in terms of such proclamation or such provision before it so ceased to be of force and effect, or to any right or liability acquired or incurred in terms of such proclamation or such provision before it so ceased to be of force and effect.

Soon after the appointments in the Western Cape had been made and the Minister's demarcation proposal accepted, the President amended the Act by proclamation and removed the power to fill vacancies from the provincial Minister and vested it in the national Ministers of Constitutional Affairs and of Justice. The proclamation was made retrospective and thus nullified all the appointments in the Western Cape, together with the Minister's demarcation. The proclamation was submitted and agreed to by the relevant select committees in Parliament and was not disapproved of by Parliament within 14 days of being passed, as provided for in the Act. Thus, all the requirements in the Local Government Transition Act for passing the proclamation had been complied with.

The government of the Western Cape attacked the constitutionality of the power given to the President by section 16A. The Western Cape Government argued that, in terms of the new Constitution, the power to legislate vested with the legislature and that the legislature could not divest itself of that power by delegation and that, by granting the President the power to amend the Act without any guidelines, Parliament had in effect granted the President the power to alter, change and even abolish an Act of Parliament. The government maintained that such delegation of legislative authority amounted to an abdication, by Parliament of its legislative power, and was not permitted under the Constitution.

Delivering the judgment on behalf of the majority, Chaskalson P. indicated that, although in the past South African courts had given effect to Acts of Parliament which vested wide plenary power in the executive, these decisions had been taken at a time when the Constitution was not entrenched and the doctrine of parliamentary sovereignty prevailed. Referring to cases from the United States, (91) Ireland, (92) Australia, (93) and Canada, (94) he concluded that delegation of legislative power to the executive to amend Acts of Parliament would be subversive of the manner and form requirements for passing legislation and would therefore purport to authorise the President to do what Parliament itself could not do. Ackermann and O'Regan J.J., who concurred with Chaskalson P., were more emphatic in their view. They held: (95)
 We also agree that, as stated in para. [51] of his judgment,
 Parliament has the implicit power to pass legislation delegating
 legislative functions within the framework of a statute under which
 the delegation is made and that there is a difference between this
 situation and 'assigning plenary legislative power to another body,
 including, as section 16A does, the power to amend the Act under
 which the assignment is made.' In our view, however, it makes no
 diffference in principle whether, in the latter case, the power to
 amend includes the power to amend the Act under which the
 delegation occurs. The great difference lies in the delegation of
 legislative power which is subordinate to Acts of Parliament as
 opposed to the delegation of legislative power to amend Acts of
 Parliament; it being irrelevant, in our view, whether this power to
 amend applies to the Act conferring the power or to any other Act
 of Parliament.


b. The KwaZulu case (96)

As part of a national plan to cut state expenditure, President Mandela had managed to convince his own executive to reduce their incomes by 20 per cent. The national government wished the provincial Executive Council members to participate in this exemplary measure and Parliament amended the Constitution to accommodate for this. Originally the Constitution had provided that the salaries of Executive Council Members would .be paid from the Provincial Revenue Fund and that their remuneration and allowances would be determined by the provincial legislature. The amendment provided that remuneration would continue to be paid from the Provincial Revenue Fund but that the remuneration and allowances would be determined by the President.

The attack launched by the applicants was that such an amendment of the Constitution had to follow the procedure prescribed by section 62(2) of the Constitution. Section 62 of the Constitution provides as follows:

Bills amending Constitution

62. (1) Subject to subsection (2) and section 74, a Bill amending this Constitution shall, for its passing by Parliament, be required to be adopted at a joint sitting of the National Assembly and the Senate by a majority of at least two-thirds of the total number of members of both Houses.

(2) No amendment of sections 126 (97) and 144 (98) shall be of any force and effect unless passed separately by both Houses by a majority of at least two-thirds of all the members in each House: Provided that the boundaries and legislative and executive competences of a province shall not be amended without the consent of a relevant provincial legislature.

The applicants argued that, despite the fact that the amendment had been passed in a joint sitting and it thus conformed with section 62(1), it was passed without following the prescribed procedure since it amounted to an amendment of the legislative competence of the province. According to section 62(2), this could not be done without the consent of the KwaZulu/Natal legislature.

Mahomed D.P., for the Court, held that the amendment did not fall under section 62(2) because it applied not to one province but to all the provinces: (99)
 In order to be hit by the proviso, the purported amendment need not
 necessarily diminish "the legislative and executive competences of
 a province." It is equally effective against laws which might
 increase or qualify such competences. But, what is crucial is that
 if the law applies to all provinces, it is outside the proviso ...
 In its terms, the impugned amendment to section 149(10) does not,
 and does not purport to, target any particular province or
 provinces. It is of equal application to all the provinces. It
 therefore does not require the consent of the KwaZulu/Natal
 provincial legislature or any other provincial legislature.


However, in a significant obiter dictum the Court suggested that it "may perhaps be that a purported amendment to the Constitution, following the formal procedures prescribed by the Constitution, but radically and fundamentally restructuring and re-organizing the fundamental premises of the Constitution, might not qualify as an 'amendment' at all" and that the power of amendment of the Constitution could not be employed "to the extent of destroying the basic features and structure of the Constitution." (100)

This statement must be seen and understood against the backdrop of the South African Constitution which, according to Mahomed D.P., differs from other constitutions which only formalize in a legal instrument a historical consensus of values and aspirations evolved incrementally from a stable unbroken past to accommodate the needs of the future. The South African Constitution, on the other hand, is a break with the past and embodies a forceful rejection of that past. (101) From the obiter in the KwaZulu case, it is clear that the Court, while considering its power to strike down constitutional amendments as significantly constrained, believed nevertheless that it could strike down amendments which violate the fundamental precepts of the Constitution and seek to re-introduce rejected evils like racism, repression or authoritarianism.

3. Criminal Procedure

a. The Death Penalty

Capital punishment has long been a burning issue in South Africa and it is not surprising that the first ever case heard by the Court concerned the constitutionality of the death penalty. (102) The applicants attacked the 'death penalty provision' on a number of grounds, including the right to life (section 9), the right to human dignity (section 10), the right not to be subject to cruel, inhuman or degrading punishment (section 11(2)), and the right to equality (section 8).

i. The Right to Life

Unlike many other Constitutions, the South African Constitution contains no internal limitation on the right to life. (103) The Court thus had to consider whether the death penalty constituted an infringement of a fundamental right which could nevertheless be justified under the general limitations clause. The most problematic issue was whether the right to life could ever be limited without negating its essential content. Justice Mahomed drew attention to conceivable distinctions between rights which are inherently capable of incremental invasion and those which are not. (104) In Mahomed J.'s opinion the right to life belonged to the latter category; if it was limited, the holder would be dead and forever deprived of the right, whereas other rights such as freedom of speech could be limited without being destroyed. Ultimately, however, the division of rights into those capable of incremental limitation and those which are not, could not prevail since it was not justifiable on any constitutional basis. Furthermore, a conclusion that the essential content of the right to life was negated by the death penalty would have had implications for other issues such as abortion and euthanasia and would have invalidated a provision of the Criminal Procedure Act which legalized killing by policemen trying to affect an arrest if there is no other way of arresting the criminal. (105) It might also have made it impossible to raise self-defence as a justification to a charge of murder.

ii. The Right to Dignity

Against the background of these concerns, Chaskalson P. attempted to define the right to life in relation to other rights. He pointed out that the death penalty involves, by its very nature, a denial of the executed person's humanity since it treats "members of the human race as non humans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the clause that even the vilest criminal remains a human being possessed of common human dignity." (106)

The focus on the right to dignity produced a variety of opinions as to the scope and definition of that right. The President considered its scope as follows: "Respect for human dignity especially requires the prohibition of cruel, inhuman, and degrading punishments. [The state] cannot turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth and respect." (107) He concluded that the death penalty "is the supreme indignity to the individual, the ultimate corporal punishment, the final and complete lobotomy and the absolute and irrevocable castration. [It is] the ultimate desecration of human dignity." (108) Justice O'Regan, on the other hand, related the right to dignity to the right to life itself: "[i]t is not life as mere organic matter that the Constitution cherishes, but the right to human life: the right to live as a human being, to be part of a broader community, to share in the experience of humanity." (109) As this right to dignity was violated by the death penalty, capital punishment could not survive constitutional scrutiny.

iii. Cruel, Inhuman or Degrading Punishment

In the United States and in many countries where capital punishment is expressly authorized, courts nevertheless have been able to declare it unconstitutional in certain circumstances on the basis of the prohibition against cruel and inhuman punishment. The jurisprudence of the European Court of Human Rights is replete with cases discussing what has become known as the "death row phenomenon." In their oral argument, the applicants emphasized that the majority of prisoners on death row had been awaiting their fate for up to 5 years. Justice Madala described the experience of awaiting death as follows: "Throughout all this time the condemned prisoner constantly broods over his fate. The horrifying spectre of being hanged by the neck and the apprehension of being made to suffer a painful and lingering death is, if at all, never far from mind." (110) The Court approved the view, adopted in many other jurisdictions, that capital punishment was unacceptable in relation to contemporary standards of decency because it had the inherent capacity to inflict pain. Ultimately, the finding that it was cruel and inhuman flowed from the conviction that dignity and the nature of punishment are inseparable and that the death penalty is a form of punishment that degrades and dehumanizes those subjected to it as well as those who execute it.

iv. Arbitrariness

The applicants, drawing from American jurisprudence, also argued that the provisions of the Criminal Procedure Act authorising the death penalty were unconstitutional because the language was vague and gave the judges unbounded discretion. The Court, however, pointed out that the South African judicial system was different from the American system, where death penalty decisions are taken by juries and not by judges. In the Court's view, while juries need to be guided in their discretion to impose capital punishment, the criteria laid down by the Appellate Division was a sufficient guide for the well experienced judges in South Africa. (111)

In any event, the Court found the death penalty to be arbitrary in another respect. Throughout the criminal justice system, a process of selection takes place. At each of the many different stages (arrest, trial, conviction, sentence) which culminate in a sentence of death, some offenders are screened out while others remain. The result is that only a small proportion of those who commit murders ultimately receive the death penalty. In this selection process, a great variety of factors play a role. Accused persons who are the victims of the gallows are usually uneducated, indigent and disproportionately black. Those who have the means to defend themselves and do not depend on inexperienced, state-paid, pro deo defence lawyers, but on the services of senior experienced advocates, are unlikely to hang: "The outcome may be dependent upon factors such as the way the case is investigated by the police, the way the case is presented by the prosecutor, how effectively the accused is defended, the personality and particular attitude to capital punishment of the trial judge and, if the matter goes on appeal, the particular judges who are selected to hear the case." (112) While the Court recognised that the same could be said of any other form of punishment, it nevertheless held that death was different, and that such a punishment ought not to be available when the procedure is so pregnant with inherent discrimination and arbitrariness.

v. Ubuntu

The court made reference to the postamble of the interim Constitution which provides that, although the country is emerging from a history of conflict, division and gross violation of human rights, the Constitution is a bridge between the past and a future of reconstruction and reconciliation. The Constitution further lays down the preconditions for this future by providing that in that future there is "a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation." Mokgoro J., in her judgment, used the African value of ubuntu (113) to explain why capital punishment is in conflict with the Constitution and the future envisaged by the Constitution. According to the learned judge, ubuntu encompasses society's recognition of the worth of every human being, even the worst criminal. This recognition of the worth and dignity of all members of society demands that all be treated with dignity and respect. The death penalty, by treating the offender as devoid of humanity and dignity, as an object to be annihilated or treated without respect, does not belong to the society envisaged by the Constitution and runs counter to the concept of ubuntu, as it is a form of punishment which is aimed at vengeance and premised on retributive justice. Justice in this form could hardly be accommodated in a value-based society where human dignity and life are respected values and where people ought to be treated and subjected to punishments befitting human beings. (114) Chaskalson P., (115) Mahomed, (116) Madala (117) and Langa J.J. (118) all supported the view that ubuntu was a value which could not be reconciled with the death penalty.

vi. Deterrence

Having rejected retribution because it is incompatible with the constitutional value of ubuntu, the Court considered the other traditional justifications for punishment. As to deterrence, the Court referred to the statistics that had been placed before it. A significant fact was that the rate of apprehension of criminals was anything between 30-40 per cent. In the Court's view, the "greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is presently lacking in our criminal justice system; and it is at this level and through addressing the-causes of crime that the State must seek to combat lawlessness. (119) The Court further pointed out that there was no information which showed that abolition of the death penalty would increase the rate of crime. Justice Didcott dealt incisively with the issue of statistical evidence as follows: (120)
 The debate surrounding that question ... has often been marked by
 the production of statistical evidence tendered to show that the
 death penalty either does not or does serve a uniquely deterrent
 purpose, as the case may be. The rate of capital crimes committed
 in a state performing executions is compared with that of the
 selfsame crimes experienced contemporaneously in some place or
 another where none occurs. The records of countries that executed
 convicts formerly, but have ceased doing so, are also examined.
 Comparisons are then drawn between the rates of those crimes found
 there before the punishment was abandoned and the ones encountered
 afterwards. Such statistics, when analysed, have always turned out
 to be inconclusive in the end. ... Without empirical proof of the
 extent to which capital punishment worked as a deterrent, neither
 side could present any argument on the point better than the appeal
 to common sense that tends to be lodged whenever the debate is
 conducted. That the extreme penalty must inevitably be more
 terrifying than anything else was said, on the one hand, to speak
 for itself. It spoke superficially, we were told on the other, and
 unrealistically too. What stood to reason was this instead. A very
 large proportion of murderers were in no mood or state of mind at
 the time to contemplate or care about the consequences of their
 killings which they might personally suffer. Those rational enough
 to take account of them gambled by and large on their escape from
 detection and arrest, where the odds in their favour were often
 rather high. The prospect of conviction and punishment was much
 less immediate and seldom entered their thinking. It was fanciful,
 should that happen on relatively rare occasions, to imagine their
 being daunted by the possibility of a journey to the gallows, a
 journey taken by only a small percentage of convicted murderers
 even at the height of executions in this country, but not by the
 probability of incarceration in a jail for many years and perhaps
 for the rest of their lives.


vii. Public Opinion

The respondents, touching on concerns about the anti-majoritarian nature of constitutional adjudication, led extensive statistical evidence indicating that the majority of the population and, in particular, the majority of ANC members living in the townships, favoured capital punishment. Although the respondent (the Attorney-General) represented the state in opposing capital punishment, the government also appointed counsel to plead for its abolition. This was interpreted by some as an attempt by the government to by-pass the democratic process and to avoid losing public support by taking responsibility for abolition.

The question of public opinion became a test for the Court. Was it to take a stand and oppose the overwhelming public opinion? If it did, how would this affect its legitimacy? On the other hand, a Constitutional Court exists precisely to strengthen democracy by serving as a counter to majoritarian control by being the champion of minority rights. The Court was prepared to assume that the evidence placed before it about public opinion was true and indicated that the majority was in favour of upholding capital punishment. (121) The Court also dismissed suggestions by the applicants that such public opinion was ill informed/However, it went on to emphasize the differences between itself and the democratic Parliament in Cape Town. The Court held that its task was not to consider and take a democratic decision. It was not called upon to decide what the majority of South Africans considered a proper sentence; its task was to consider whether the death penalty was consistent with the Constitution. The task of interpreting the Constitution had been expressly vested by the Constitution in the Court. This was one of the distinguishing features of the new Constitutional dispensation which was no longer characterized by Parliamentary sovereignty: (122)
 The very reason for establishing the new legal order, and for
 vesting the power of judicial review of all legislation in the
 courts, was to protect the rights of minorities and others who
 cannot protect their rights adequately through the democratic
 process. Those who are entitled to claim this protection include
 the social outcasts and marginalised people of our society. It is
 only if there is a willingness to protect the worst and the weakest
 amongst us that all of us can be secure that our own rights will be
 protected. ... This Court cannot allow itself to be diverted from
 its duty to act as an independent arbiter of the Constitution by
 making choices on the basis that they will find favour with the
 public.


b. Corporal Punishment for Juveniles

In Williams (123) the Court considered whether whipping juvenile offenders was a constitutional sentencing option. Although it was challenged on four grounds--the right to equality (since it was only juvenile males who could be whipped), (124) the right to dignity, (125) the rights of children, (126) and the right to be free from punishment or treatment that was cruel, inhuman or degrading (127)--the Court concluded that it was unconstitutional solely on the basis of the latter. Writing for a unanimous court, Langa J. emphasised the consistent condemnation of corporal punishment as a judicial sentence by South African judges, in foreign case law and in international human rights instruments, and held that whatever interpretation of "cruel, inhuman or degrading" one adopted, corporal punishment clearly fell within the core of that right.

In determining whether the infringement was justified, Langa J. considered the context of South African society. He thought South African society was an endemically violent one in which "[djisputes, whether political, industrial or personal, often end in violent assaults." (128) He noted the rising crime rate, as well as the history of institutionalized violence to which the Constitution was such a poignant response. The State argued that whipping was a punishment preferable to imprisonment which generally was a more brutalizing and traumatic experience for a young offender. Because of a lack of resources, imprisonment was often the only alternative to whipping. Justice Langa regarded this argument as "untenable." He noted that there had been moves afoot to reform the juvenile justice system (although these were still in their infancy) and rejected the suggestion that "the price to be paid for this state of unreadiness is to subject juveniles to punishment that is cruel, inhuman or degrading." (129) The State also had sought to justify whipping by reference to the traditional punitive philosophy of deterrence. The Court rejected this argument, holding that in an enlightened society, rehabilitation was the central focus of punitive measures aimed at juveniles. While other aims of punishment such as deterrence and retribution were still important, no evidence had shown that whipping was a more effective deterrent than other sentences (130) and the retributive effects of whipping could not outweigh the brutalization of young people, (131) inconsistent with the values of the Constitution: "It would be a negation of those values precisely where we should be laying a strong foundation for them, in the young; the future custodians of this fledgling democracy." (132) In conclusion Langa J. noted that it "is a practice which debases everyone involved in it;" (133) the "juvenile is, indeed, treated as an object and not as a human being." (134)

Interestingly, this matter had come before the Supreme Court by way of automatic review from the magistrates' courts. One of the magistrates had requested that the sentence of strokes be subjected to special review and had suspended the execution of the sentence, despite cogent precedent which might have denied him the authority to do so. (135) In its judgment, the Constitutional Court commended this magistrate for his commitment to protecting fundamental rights and emphasised the importance of courts at all levels being vigilant in their roles as defenders of individual rights, particularly the rights of the weakest and most vulnerable. (136)

c. The Presumption of Innocence

In S. v. Zuma, (137) the Court was forced to deal with the constitutionality of section 217(l)(b)(ii) of the Criminal Procedure Act, 51 of 1977, which provided that, where a confession by an accused had been reduced to writing in front of a magistrate and it appeared ex facie the document that it had been voluntarily made, the confession was presumed to be voluntary unless proved otherwise. The accuseds claimed that this provision infringed their constitutional rights to a fair trial, including the right of arrested persons to remain silent, the right not to be compelled to make a confession, the right of accused persons to be presumed innocent, and the right not to be compellable as a witness against oneself. (138)

Acting Justice Kentridge referred to the American 'rational connection' test which requires a presumption to bear a rational relationship between the fact proved and the fact presumed, (139) but pointed out that the test was not conclusive, and that ultimately the critical question was whether or not the accused could be convicted despite the existence of a reasonable doubt as to her guilt. The learned judge found the Canadian cases on reverse onus provisions to be particularly instructive, not only because of their persuasive reasoning, but also because of the similar 'two-stage' structure of the Canadian Charter of Rights and Freedoms and the shared English common law heritage between Canada and South Africa. (140)

The Court extrapolated three relevant principles from the Canadian case of R. v. Downey. (141) First, that the presumption of innocence is infringed whenever an accused stands to be convicted despite the existence of a reasonable doubt. Second that, if the accused is required by a presumption to establish, on a balance of probabilities, either an element of the offence or an excuse, this creates the risk of a guilty verdict where reasonable doubt exists, and is thus an infringement of the presumption of innocence. Finally, even if a rational connection exists between the proved and presumed facts, this would be insufficient to make valid a presumption which requires the accused to disprove an element of the offence. (142) The Court went on to hold the provision unconstitutional after considering the 'golden thread' of the presumption of innocence in the English common law, as recounted in Woolmington v. DPP. 143 However, the Court pointed out that the judgment should not be construed as a general condemnation of presumptions; the Court recognized the "pressing social need for the effective prosecution of crime" and suggested that there might be circumstances where the reversal of a legal onus would be justifiable, such as situations where the accused was required to show facts which were peculiarly within her own knowledge and which would have been unreasonable to expect the prosecution to prove. (144)

The second case dealing with 'reverse onus' provisions is S. v. Bhulwana; S. v. Gwadiso. (145) This case concerned a section in the Drugs and Drug Trafficking Act, 140 of 1992, which provided that, where an accused is found in possession of more than 115g of marijuana, she is presumed to be dealing in the drug until the contrary is proved. Affirming the Zuma case and, again, informed by Canadian case law on reverse onuses, the Court, per O'Regan J., held that since there was the prospect of an accused being convicted despite the existence of a reasonable doubt, the constitutional right to be presumed innocent had been infringed. (146) In determining whether the infringement was justified, the Court recognized the importance of an effective prohibition on the abuse of, and trafficking in, illegal drugs, but concluded that it had not been shown that the presumption substantially furthered the state and society's interest in curbing drug abuse. (147)

d. The Right to Legal Representation

The South African legal system is haunted by the image of vast numbers of accused persons who appear daily in the courts and who are sentenced to, inter alia, imprisonment without the benefit of legal representation. (148) In S. v. Vermaas; S. v.-Du Plessis, (149) the Court was asked to consider the meaning of section 25(3)(e) of the Constitution which grants to every accused person the right:
 to be represented by a legal practitioner of his or her choice or,
 where substantial injustice would otherwise result, to be provided
 with legal representation at state expense, and to be informed of
 these rights.


Although the Court, per Didcott J., held that the matter was improperly referred since it involved issues which were not within the exclusive jurisdiction of the Constitutional Court, the Court nevertheless went on to make two points about the right to legal representation. First, the determination of whether or not "substantial injustice" would flow from a lack of representation was a matter preeminently for the trial judge to decide; the Constitutional Court was ill-equipped in the first instance to adjudicate on the various factors influencing this decision, such as the complexity of the case, the aptitude or ineptitude of the accused, the gravity of the consequences of a conviction and any other relevant factor. (150) Second, section 25(3)(e) should be read disjunctively--that is, where the state is called upon to provide legal representation, the accused does not enjoy a right to the legal practitioner of her choice. (151) The Court also expressed some concern about the apparent failure to create any financial and administrative structures to give effect to the right to representation and described as "disturbing" the fact that, while accuseds were most probably informed of their right to representation, "[ijmparting such information becomes an empty gesture and makes a mockery of the Constitution" where there are no adequate mechanisms to provide that representation. (152)

e. Civil Imprisonment

In Coetzee (153) the Court considered the constitutionality of sections 65A to 65M of the Magistrates' Court Act, 32 of 1944, which provided for imprisonment as one possible response to a recalcitrant debtor. Although the Court unanimously held that the provisions were unconstitutional as an infringement of the right to freedom of the person, the justices delivered separate judgments as to the reasons. Justice Kriegler, writing for the majority, held that the statute was a manifest encroachment on the right to freedom, since it committed judgment debtors to prison without any criminal charge being levelled or any trial being held. (154) Although effective debt collection was a legitimate and reasonable governmental objective, (155) the means chosen here were not reasonable; the statute was overbroad since it did not distinguish with sufficient precision between those who were not able to pay and those who simply refused to pay. (156) Furthermore, an examination of the procedure revealed that it fell far short of the normal procedural safeguards enjoyed by criminal accused. (157) However, the Court expressly left open the question of whether or not a reformed procedure which did conform to certain minimum standards would be constitutionally permissible. (158)

Justice Sachs, in a separate concurring judgment, (159) responded to the state's argument that the Court ought to take a more expansive view of the values underlying the right to freedom and security of the person and postpone the declaration of invalidity pursuant to its powers under section 98(5). (160) Justice Sachs regarded civil imprisonment in circumstances where the debtor was unable to meet the debt as unconstitutional in principle, but left open the question of whether a more narrowly tailored provision dealing with wilful refusal to meet debts would pass the tests of reasonableness, necessity and justifiability. (161)

f. Access to Police Dockets

In Shabalala and Five Others v. Attorney General of the Transvaal and others, (162) the question referred to the Court was whether section 23 (163) of the Constitution could be relied upon by an accused in the exercise of the rights contained in section 25(3) of the Constitution, and whether any provision in the Constitution permits an accused to consult with prospective witnesses who have given statements to the police.

According to South African common law, "when statements are procured from witnesses for the purpose that what they say shall be given in evidence in a lawsuit that is contemplated, these statements are protected against disclosure until at least the conclusion of the proceedings, which would include any appeal or similar step after the decision in the court of first instance." (164) The information falling within the privilege includes notes made by state witnesses and statements taken by police from witnesses in contemplation of a prosecution. In practice, witnesses' statements, even if they do not deal with state secrets, methods of investigation by the police, identity of informers, or communication between a legal adviser and his or her client, are covered, by the privilege regardless of whether there is any risk that such disclosure might lead to the intimidation of witnesses or that it might impede the interests of justice.

As previously noted, the Constitutional Court is the highest court on constitutional issues, while the Appellate Division is the court of final instance on all matters relating to the interpretation of the common law. The question of whether the common law rule is in conflict with, the Constitution is a constitutional issue, but the question of what should replace the old rule if it is found to be in conflict with the Constitution is not a constitutional issue. Mahomed D.P. pointed out that (165)
 This Court is therefore entitled to decide whether that rule of the
 common law is consistent with the Constitution. However, it is for
 the Supreme Court in the first instance to determine what the
 content of the common law should be having "regard to the spirit,
 purport and objects" of the relevant provisions of he Constitution
 and to develop the common law.


On the constitutional issue, the Court decided that the "blanket docket privilege" (166) expressed by the rule in R. v. Steyn was inconsistent with the Constitution to the extent that it protected from disclosure all the documents in a police docket, in all circumstances, regardless of whether or not such disclosure was justified for the purposes of enabling the acccused properly to exercise his or her right to a fair trial under section 25(3). An accused's claim for access to documents in the police docket cannot be denied merely on the grounds that such contents are protected by a blanket privilege; but a claim can be denied on the grounds that disclosure is not justified to enable the accused to exercise her right to a fair trial, that disclosure leads to intimidation of witnesses, or that it prejudices the interests of justice. The Court has the power to examine the state's claim and has the discretion to allow the disclosure of documents or statements to the accused.

IV. CONCLUSION

The establishment of the Constitutional Court was a milestone in the journey towards creating a legal system based on democratic principles and the observance of human rights, but it remains a transitional institution and many questions as to the future of the Court, and of the judiciary in South Africa generally, remain unresolved. Especially problematic is the splitting of jurisdiction by the creation of two courts of final instance--the Constitutional Court for constitutional issues and the Appellate Division for non-constitutional issues. Although the Appellate Division has ultimate control over the common law, it must develop that law in accordance with the spirit, purport and objects of the Constitution. There is uncertainty, however, under the present Constitution as to how much control the Constitutional Court can exert over the interpretation of constitutional principles by the Appellate Division in interpreting the common law. It is not inconceivable that the division of responsibility will prove unworkable and that the framers of the final Constitution will opt instead for a unified constitutional and non-constitutional jurisdiction, although it is difficult to speculate on the relationship between the Constitutional Court and the Appellate Division which would result from such a merger. (167)

As previously noted, the Court at present has both preventive and repressive powers of judicial review, but it is not yet certain whether the final Constitution will retain the power to pronounce on the constitutionality of Bills before Parliament. This power was included in the interim Constitution as a compromise, to give minority political parties some control over the constitutionality of the legislative process. Given the fact that it was culled from the old German Constitution and that the framers of the final Basic Law decided to abandon it, its survival is not certain. (168) In addition, it raises a potentially difficult issue: once the Constitutional Court has certified a Bill to be constitutional, can an Act of Parliament resulting from it ever be challenged on the basis that a particular provision infringes the Constitution in a concrete set of facts? The relationship between repressive and preventive judicial review in a combined system has not yet confronted the Court, but this may well be another provision which the framers of the new Constitution might seek to revise. (169)

Despite these, and other uncertainties, the present Court is not likely to have merely a transient influence: its jurisprudence on the interpretation of the bill of rights will most certainly be highly persuasive in the future and, although specific issues such as the division of powers between central and provincial governments are likely to be defined differently in the final Constitution, basic principles, such as that concerning the power of Parliament to delegate its legislative competence, will ensure that decisions such as the Western Cape case are not redundant in the future.

For more than fifty years, the South African legal community was isolated and inexperienced in the field of human rights and, in the initial stages, the Constitutional Court has understandably referred extensively to foreign judgments and international human rights jurisprudence. Yet, from the very beginning, the Court has been conscious of the need to develop an indigenous jurisprudence based on South African values such as ubuntu and other common law principles. No doubt this delicate combination of not reinventing the wheel, but at the same time continuing to interpret the Constitution to reflect the history, traditions and culture of South African society will continue. It is hoped that someday constitutional judges in other jurisdictions will find occasion to consult the judgments of their South African colleagues for a comparative perspective on human rights issues which is international in scope, but truly African in its roots.

Perhaps one of the most significant achievements of the Court to date is the extent to which it has been able to win the confidence of a broad cross--section of South African society. Despite popular fears that it would be an 'ANC court,' it has repeatedly affirmed the supremacy of the Constitution and its role as the guardian of the rights of ordinary citizens. Its members have guarded their independence jealously and have not shirked from striking down laws in conflict with the Constitution, regardless of who framed those laws.

Patrie Mtshaulana * & Melanie Thomas **

* B. luris (Fort Hare) LLM (Vrije Universiteit Amsterdam); Advocate of the Supreme Court of South Africa; Researcher, Constitutional Court of South Africa/Senior Lecturer, University of the North.

** BA LLB (Cape Town) BCL (Oxon); Advocate of the Supreme Court of South Africa; Researcher, Constitutional Court of South Africa.

(1) "Address by Minister of Justice, Mr. Dullah Omar at the ceremony marking the Inaguration of the Constitutional Court" (Johannesburg, 14 February 1995) [unpublished].

(2) It should be emphasised at the outset that we are employees of the Court and, accordingly, it would be inappropriate to do more than provide an introductory descriptive piece for those who are unfamiliar with South African constitutional law.

(3) The appointment of a Deputy President was provided for by section 1 of the Constitution of Republic of South Africa Second Amendment Act, Act 44 of 1995.

(4) According to section 233(3) of the Constitution of the Republic of South Africa, Act 200 of 1993 [hereinafter "Constitution"], the phrase "in consultation with" means "with the concurrence of."

(5) Section 233(4) of the Constitution, supra note 4 provides that the phrase "after consultation with" means "such decision shall be taken in good faith after consulting and giving serious consideration to the views of such other functionary."

(6) The court structure of South Africa consists of a Constitutional Court headed by the President of the Court, the Supreme Court, consisting of the Appellate Division and provincial and local divisions, headed by the Chief Justice, and the magistrates' courts!

(7) Section 97(2)(a), read with section 99(6) of the Constitution, supra note 4 specifically dispenses with consultation with the Judicial Service Commission in relation to the first President appointed to the Court.

(8) Section 99(3). It is important to note that these 4 judges are appointed without consulting the Judicial Service Commission. [If the Constitution of the Republic of South Africa Bill (6 May 1996) becomes law, there will be some changes in the procedure for the appointment of judges. The JSC and leaders of the parties represented in Parliament will be involved in the appointment of both the President of the Court and all the other judges of the Court including those that are appointed from the ranks of the Supreme Court judges--s. 174.]

(9) Every provincial division of the Supreme Court is headed by a Judge President.

(10) Section 104(2) of the Constitution provides: "Judges of the Constitutional Court and the Supreme Court shall receive such remuneration as may be prescribed by or under law, and their remuneration shall not be reduced during their continuation in office."

(11) Section 104(4) of the Constitution, supra note 4.

(12) According to P.W. Hogg, Constitutional Law of Canada, 3rd ed. (Toronto: Carswell, 1992) at 206-07, judges of the Supreme Court are appointed by the Governor in Council.

(13) In South Africa the legal profession consists of the Side Bar for attorneys and the Bar for advocates. Only members of the latter were eligible for appointment as judges in the past. Members of the Side Bar are in direct contact with the general public, whereas members of the Bar have to be briefed by an attorney first and never take instructions directly from their clients.

(14) The Weekly Mail and Guardian (30 September 1994) at 37.

(15) The Minister of Justice and the four senators.

(16) [Section 174(3) of the Constitution of the Republic of South Africa Bill (6 May 19,96) provides that the President, "after consulting the Judicial Service Commission and leaders of parties represented in the National Assembly," appoints the President and Deputy President of the Constitutional Court. Section 174(4) provides that the President, "after consulting the President of the Constitutional Court and leaders of parties represented in the National Assembly" appoints other judges from lists provided by the Judicial Service Commission--Eds.]

(17) The Citizen (6 October 1994) at 4.

(18) The Star (4 October 1994) at 3.

(19) The President appointed several acting judges in his place. Among them are Kentridge A.J. who became famous for his role as the defence lawyer in the Steve Biko inquest in the 1970s. He is presently a barrister in England and has served on the bench in Botswana. The other two acting judges were Trengove and Ngoepe J.J.

(20) See infra note 11.9.

(21) [According to section 176(1) ofthe Constitution of the Republic of South Africa Bill, (6 May 1996) judges of the Constitutional Court are appointed to non-renewable terms of 12 years, and must retire by age 70--Eds.]

(22) Section 101(2) of the Constitution, supra note 4 reads: "Subject to this Constitution, the Supreme Court shall have the jurisdiction, including the inherent jurisdiction, vested in the Supreme Court immediately before the commencement of this Constitution, and any further jurisdiction conferred upon it by this Constitution or by any law."

(23) Section 98(2) of the Constitution, supra note 4.

(24) Section 101 (5) of the Constitution, supra note 4.

(25) Section 102(1) and (2) of the Constitution, supra note 4.

(26) However, it must be stressed that there are differences between the two courts' jurisdictions in respect of non-constitutional issues. In the United States, the Supreme Court has held that, except in matters governed by the Constitution, the law to be applied in any case is the law of the state. The federal courts have no constitutional jurisdiction to develop a federal common law in the absence of constitutional issues. (Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)). The position in Canada is different. The Supreme Court of Canada is the highest court of appeal for all provincial law matters and has jurisdiction to develop uniform common law rules for all the provinces of Canada.

(27) "Embodied in the words 'cases' and 'controversies' are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process" (Flast v. Cohen, 392 U.S. 83 (1968) at 94-95).

(28) Section 101(5) of the Constitution, supra note 4: "The Appellate Division shall have no jurisdiction to adjudicate any matter within the jurisdiction of the Constitutional Court."

(29) J. van der Westhuizen, "The Protection of Human Rights and a Constitutional Court for South Africa: Some Questions and Ideas" (1991) 24 De Jure 1. See also papers delivered by J. Dugard, "Judicial Power and a Constitutional Court", A. Chaskalson, "A Constitutional Court: Jurisdiction, Possible Models and Questions of Access" and K. Asmal, "Constitutional Courts: A Comparative Survey" (Papers presented at a Conference entitled "A Constitutional Court for South Africa," Magaliesburg, 1-3 February 1991) [unpublished].

(30) Repressive judicial review relates to an existing law. Preventive judicial review, on the other hand, prevents unconstitutional laws from coming into being at all.

(31) A ttorney General of Ontario v. Attorney General of Canada, [1912] A.C. 571 at 589.

(32) Hogg, supra note 12 at 217-19.

(33) Subsection (2) contained the manner and form provisions relating to parliamentary procedure.

(34) Collins v. Minister of the Interior 1957 (1) S.A. 552 (A) at 565D.

(35) This power was used by the Court in the case of Executive Council, Western Cape Legislature v. President of the Republic of S.A. 1995 (4) S.A. 877 (C.C.) [hereinafter Western Cape] where the Court declared invalid section 16A of the Local Government Transition Act and all Proclamations which were made by the President under it. However, the Court gave Parliament 30 days in which to rectify the invalidity. Parliament was on recess at the time, but had to be reconvened and the proclamations legalised by passing them in the form of an Act of Parliament.

(36) As of December 1995.

(37) 1995 (3) S.A. 391 (C.C.) [hereinafter Makwanyane].

(38) Ibid. at para. 262.

(39) Although, in Makwanyane, supra note 37 at para. 9 n8, Chaskalson P. noted that these two approaches would not always produce identical consequences.

(40) S.v. Zuma 1995 (2) S.A. 642 (C.C.) [hereinafter Zuma] at para. 15, per Kentridge A.J., quoting Attorney-General v. Moagi 1982 (2) Botswana L.R. 124 at 184.

(41) Ibid. at para. 15.

(42) See, for example, Kentridge A.J.'s judgment in Zuma, supra note 40.

(43) S. v. Mhlungu 1995 (3) S.A. 867 (C.C.) [hereinafter Mhlungu] at para. 78.

(44) Section 35(1).

(45) Mhlungu, supra note 43 at para. 84.

(46) Ibid. at para. 63.

(47) Zuma, supra note 40 at para. 17.

(48) See discussion of the Limitations Clause in text associated with notes 70-78, below.

(49) Zuma, supra note 40 at para. 21.

(50) Section 11(2).

(51) Coetzee v. Government of the Republic of South Africa 1995 (4) S.A. 631 (C.C.) [hereinafter Coetzee].

(52) S. v. Williams 1995 (3) S.A. 632 (C.C.) [hereinafter Williams] at para. 59.

(53) Zuma, supra note 40 at para. 35.

(54) Williams, supra note 52 para. 31.

(55) Makwanyane, supra note 37 at para. 223 et seq.

(56) Ibid. para. 237 et seq.

(57) Ibid. para. 300 et seq.

(58) Ibid. para. 365 et seq.

(59) Ibid. para. 308.

(60) Canadian Charter of Rights and Freedoms, section 1.

(61) Section 33(1) of the Constitution, supra note 4. There are, however, noticeable differences between the two: the South African limitations clause has the further condition that no limitation may negate the essential content of the right. Furthermore, although s.33(l) is a general limitations clause, it does not operate at quite the same level of generality as the Charter's limitation clause.

(62) Zuma, supra note 40 at para. 21; Makwanyane, supra note 37 at paras. 100-102; Williams, supra note 52 at para. 54; Coetzee, supra note 51 at para. 9.

(63) Makwanyane, supra note 37 at para. 100.

(64) Zuma, supra note 40 at para. 21.

(65) Makwanyane, supra at note 37 para. 102 and para. 184.

(66) Williams, supra note 52 at para. 56.

(67) Coetzee, supra note 51.

(68) Ibid. at para. 46.

(69) Ibid. at para. 45.

(70) Ibid. at para. 46.

(71) The right to dignity (section 10); the right to freedom and security of the person (section 1 I); the right to be free from servitude and forced labour (section 12); the right to freedom of religion, belief and opinion (section 14[1]); political rights (section 21); the rights of detained, arrested and accused persons (section 25); the right of children not to be subject to neglect or abuse, or to exploitative labour practices (section 30[l][d] and [e]) and children's rights in detention (section 30[2]) all require a showing of necessity to justify limitation. Necessity is also required for the following rights insofar as they relate to free and fair political activity: free speech (section 15); assembly, demonstration and petition (section 16); association (section 17); freedom of movement (section 18); access to information (section 23); and administrative justice (section 24).

(72) Ibid. para. 104 [footnotes omitted].

(73) Williams, supra note 52 at para. 60; Coetzee, supra note 51 at para. 45.

(74) Ibid. at para. 50.

(75) Zuma, supra note 40 at para. 25.

(76) Makwanyane, supra note 37 at para. 106.

(77) Williams, supra note 52 at para. 58.

(78) Coetzee, supra note 5 1 at para. 51.

(79) Ibid. at para. 56 and 60.

(80) Zantsi v. Council of State, Ciskei, and others 1995 (4) S.A. 615 (C.C.) [hereinafter Zantsi], and Mhlungu, supra note 43.

(81) Zantsi, supra note 80 at para. 25.

(82) The term 'TBVC refers to the former 'homelands' of Transkei, Bophuthatswana, Venda and Ciskei.

(83) The substantive dimensions of this issue were decided in Zuma, supra note 40.

(84) Mhlungu, supra note 43 at para. 7.

(85) Ibid. at para. 8.

(86) Ibid. at para. 9.

(87) Ibid. at para. 84.

(88) Ibid.

(89) Supra note 35.

(90) Prior to April 27th 1994, only the 'white' surburbs took part in local government elections. They were rich and had resources, whereas the black townships were no more than reservoirs of cheap labour, poor and without any resources. Gerrymandering of the districts and wards was an inherent danger in the whole process.

(91) INSv. Chadha, 462 U.S. 919 (1983) at 951; Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) at 421; Hampton v. United States,.21'6 U.S. 394 (1928) at 407.

(92) Cityview Press Limited v. An Chomhairle Oiliuna, [1980] I.R. 381.

(93) Victorian Stevedoring and General Contracting Co. v. Dignam (1931), 46 C.L.R. 73 at 99-100.

(94) Re Manitoba Government Employees Association and Government of Manitoba (1977), 79 D.L.R. (3d) 1 at .15 (S.C.C.).

(95) Western Cape, supra note 35 at para. 148.

(96) Premier, KwaZulu/Natal v. President of the Republic of South Africa 1996 (1) S.A. 769 [hereinafter KwaZulu].

(97) Section 126 deals with the legislative competences of the provinces.

(98) Section 144 deals with the executive competences of the provinces.

(99) KwaZulu, supra note 96 at para. 23.

(100) Ibid. at para. 47.

(101) Makwanyane, supranote 37 at para. 262.

(102) Section 277 of the Criminal Procedure Act, 5 I of 1977 allowed the death penalty as a competent verdict.

(103) Constitution, supra note 4, section 9.

(104) Makwanyane, supra note 37 at para. 298.

(105) Section 49 of the Criminal Procedure Act, 51 of 1977.

(106) Gregg v. Georgia, 428 U.S. 153 (1976) at 230 quoted in Makwanyane, per Chaskalson P. at para. 57.

(107) Ibid. at para. 59, adopting [1977] 45 BVerfGE 187 at 228 (Life Imprisonment Case) [transi, by Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (1989) at 3 16].

(108) Kindlerv. Canada (1992) 6 CRR (2d) 193. (S.C.C.) at 241 adopted by Chaskalson P. at para. 60.

(109) Makwanyane, supra note 37 at para. 326.

(110) Per Madala, J, at para. 246, adopting Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General, Zimbabwe 1993 (4) S.A. 239 (ZSC) at 268E-H.

(111) Makwanyane, supra note 37 at para. 47.

(112) Ibid. at para. 48.

(113) See text associated with notes 55-59, above.

(114) Ibid. at para. 313.

(115) Ibid. at para. 131.

(116) Ibid at para. 263.

(117) Ibid. at para. 244.

(118) Ibid. at para. 223.

(119) Makwanyane, supra note 37 at para 122, per Chaskalson P.

(120) Ibid. at para. 182-183.

(121) Ibid. at para. 87 (per Chaskalson P.) and para. 182 (per Didcott J.). These statistics were contained in the brief of the South African Police Services and were referred to by the Attorney General in argument.

(122) Ibid. at para. 88-89.

(123) Supra note 52.

(124) Section 8.

(125) Section 10.

(126) Section 30.

(127) Section 11(2).

(128) Williams, supra note 52 at para. 5

(129) Ibid. at para. 63.

(130) Ibid. at para. 80-86.

(131) Ibid. at para. 86-88.

(132) Ibid. at para. 63.

(133) Ibid. at para. 89.

(134) Ibid. at para. 90.

(135) Ibid. at para. 6 n4.

(136) Ibid. para. 6-8.

(137) Supra note 40.

(138) Sections 25(2) and (3).

(139) Zuma, supra note 40 at para. 20 and 21.

(140) Ibid. at para. 21-25.

(141) (1992) 90 D.L.R. (4th) 449 (S.C.C.).

(142) Zuma, supra note 40 at para. 25.

(143) [1935] A.C. 462 (H.L.).

(144) Zuma, supra note 40 at para. 41.

(145) 1996 (1) S.A. 388 (C.C).

(146) Ibid. at para. 15.

(147) Ibid. at para. 24.

(148) See, for example, S. v. Khanyile and Another 1988 (3) S.A. 795 (N); S. v. Davids; S. v. Dladla 1989 (4) S.A. 172 (N); S. v. Rudman and Another; S. v. Mthwana 1992 (1) S.A. 343 (A).

(149) 1995 (3) S.A. 292 (C.C)

(150) Ibid. at para. 15.

(151) Ibid.

(152) Ibid. at para. 16.

(153) Supra note 51.

(154) Ibid. at para. 10.

(155) Ibid. at para. 12.

(156) Ibid. at para. 13.

(157) Ibid. at para. 14.

(158) Ibid. at para. 5 n.7; see also Didcott J.'s separate judgment at para. 20.

(159) Ibid. at para. 37-76.

(160) Supra note 35.

(161) Coetzee, supra note 51 at para. 72.

(162) 1996 (1) S.A. 725 [hereinafter Shabalala].

(163) Which provides a right to access to information where that is necessary for the exercise of constitutional rights.

(164) R. v. Steyn 1954 (1) S.A. 324 (A) at 335A-B.

(165) Shabalala, supra note 162 at para. 9.

(166) Ibid. at para. 72.

(167) [No clear merger has resulted from the Constitution of the Republic of South Africa Bill (6 May 1996) although s.l73 inter alia empowers the Constitutional Court "to develop the common law, taking into account the interest of justice."--Eds.]

(168) [The Constitution of the Republic of South Africa Bill (6 May 1996) grants the Constitutional Court both preventive and repressive powers of review. The President and provincial Premiers have the power to withhold their assent to legislative bills and to refer questions about their constitutionality to the Court (ss. 79, 121). Members of the National Assembly and provincial legislatures may apply to the Court for a determination of constitutionality only after an Act has been passed by the Assembly or Legislature (ss. 80, 122).--Eds.]

(169) [The Constitution of the Republic of South Africa Bill (6 May 1996) makes no provision for this potential conflict--Eds.]
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