Constitutional Court Review - Volume 1, Issue 1, 2008
Volume 1, Issue 1, 2008
On the uses of interpretive 'charity' : some notes on application, avoidance, equality and objective unconstitutionality from the 2007 term of the Constitutional Court of South Africa : lead essay / responseAuthor Frank I. MichelmanSource: Constitutional Court Review 1, pp 1 –61 (2008)More Less
To hear Stu Woolman tell it, disturbing lapses and weaknesses - an apparent 'lack of analytical rigour' suggesting what could be a 'penchant for outcome-based decision-making' - have been showing up recently in the work of a Constitutional Court whose prior record of performance has deservedly garnered widespread applause. Woolman cites as evidence three decisions from the Court's work in the year 2007: Barkhuizen, Masiya, and NM, and suggests that his reactions to these decisions are widely shared among South Africa's well-informed Court-followers. He makes a worthy, illuminating, formidable case, one that the Court would do well to consult and ponder.
The Constitutional Court, court watchers and the Commons : a reply to Professor Michelman on constitutional dialogue, 'interpretive charity' and the citizenry as sangomas : lead essay / responseAuthor Tshepo MadlingoziSource: Constitutional Court Review 1, pp 63 –75 (2008)More Less
On 20 August 2007, the Court was hearing Merafong Demarcation Forum v President of the Republic of South Africa. After a long period of struggle in which they had employed both institutional and extra-institutional mechanisms of democracy, the people of Khutsong decided to take their case to the Constitutional Court. Why? 'The government does not want to listen.' On that day more than a 1 000 protesters gathered outside the court room toyi toying and singing liberation songs. During the course of the day, things turned nasty when protesters started burning tyres, brandishing dangerous weapons and allegedly pelting the police with stones. For me, this episode vividly demonstrates the fragile state of South Africa's constitutional culture.
Author A.J. Van der WaltSource: Constitutional Court Review 1, pp 77 –124 (2008)More Less
The purpose of subsidiarity can therefore not be pure avoidance. Much rather, it should be acknowledgement and respect for the fact that courts face the aporia of the countermajoritarian dilemma every time they hear a constitutional case. On the one hand they must respect and give full effect to the legitimate efforts of the democratically elected branches to honour their constitutional obligations in bringing about the reforms legitimised by the Constitution. Doing that requires the courts to consider the interplay between Constitution and legislation and to give the fullest possible purposive effect to legislation enacted by the legislature. At the same time the courts must apply pre-constitutional legislation and the common law in a way that acknowledges the undemocratic origin and history of those sources of law and the dilemmas caused by their continued validity, in both instances by reading them through the corrective lens of s 39(2).
Author Karl KlareSource: Constitutional Court Review 1, pp 129 –154 (2008)More Less
My purpose is to show the limitations of subsidiarity analysis, but also to offer a platform for discussion of issues that may well arise as the jurisprudence of SANDU and Bato Star evolves. In fact, the hypothetical bears more than a passing resemblance to matters that have already concerned South African courts.
'Oh, what a tangled web we weave ...' hegemony, freedom of contract, good faith and transformation - towards a politics of friendship in the politics of contractAuthor A.J. Barnard-NaudeSource: Constitutional Court Review 1, pp 155 –208 (2008)More Less
Author Cora HoexterSource: Constitutional Court Review 1, pp 209 –234 (2008)More Less
The cases of Masetlha, Sidumo and Chirwa presented the Constitutional Court with opportunities to pronounce on the intersection of labour law and administrative law in employment matters, and to expound on the relationship between the constitutional rights concerned and their associated pieces of legislation. As I have tried to show in this article, the judgments of the Constitutional Court are full of interest. Sidumo in particular develops the connection between the relevant rights in a creative manner, while Chirwa raises fundamental questions about the concept of administrative action and the nature of public power.
Sustainable development in practice : fuel Retailers Association of Southern Africa v Director-General Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province : case commentsAuthor Loretta FerisSource: Constitutional Court Review 1, pp 235 –253 (2008)More Less
In the opening salvo of his dissenting judgment in Fuel Retailers Justice Sachs notes the irony behind the fact that the first environmental rights case before the Constitutional Court came from 'an organised section of an industry frequently lambasted both for establishing world-wide reliance on non-renewable energy sources and for spawning pollution'. However, this fact does not come as a total surprise. The fuel sector and filling stations in particular have been involved in several cases concerning environmental matters. In some of these cases the issue of sustainable development, which is guaranteed in the South African environmental right, has taken centre stage. As a result, even before Fuel Retailers, we have seen the emergence of a South African jurisprudence on sustainable development.
Author Dire TladiSource: Constitutional Court Review 1, pp 255 –258 (2008)More Less
Fuel Retailers is, without question, a most interesting and significant decision : (1) Interesting because the decision tackles head on the difficult task of balancing apparently conflicting interests - the right to a healthy environment and economic imperatives of development; (2) Significant because, as the first decision in which the Constitutional Court gives content to section 24 of the Constitution, one expects the decision to play a major role in the development of environmental law and sustainable development.
Author Patrick LentaSource: Constitutional Court Review 1, pp 259 –293 (2008)More Less
Laws and regulations in modern liberal democracies rarely discriminate deliberately against members of religious and cultural groups or target religious and cultural practices. In one relatively recent example, Church of Lukumi Babalu Aye, Inc v City of Hialeah (Church of Lukumi Babalu Aye), the US Supreme Court invalidated municipal ordinances adopted by the city of Hialeah for the specific purpose of proscribing animal sacrifice practised by the Santeria religion. Since these ordinances did not constitute a neutral law of general applicability, but deliberately targeted a religious practice, the Supreme Court determined that they were invalid unless they served a compelling state interest. Since the state could not show such an interest, the ordinances were declared, relatively uncontroversially, to be in violation of the Free Exercise clause (the US equivalent of South Africa's right to freedom of religion and conscience) and so invalid.
The case for religious inclusivism and the judicial recognition of religious associational rights : a response to Lenta : case commentsAuthor Iain T. BensonSource: Constitutional Court Review 1, pp 295 –310 (2008)More Less
Patrick Lenta, in his comment on Pillay and in earlier work, has done South African jurisprudence a great service by forcing us to attend to the complexity of cultures and the problems associated with the accommodation of religious belief and practice in constitutional democracies.
Media freedom and the law of privacy : NM & Others v Smith & Others (Freedom of Expression Institute as amicus curiae) 2007 (5) SA 250 (CC) : case commentsSource: Constitutional Court Review 1, pp 311 –334 (2008)More Less
The Constitutional Court is a specialist court that does not have unlimited jurisdiction. While section 167(3)(a) of the Constitution proclaims that the Constitutional Court is the highest court on all 'constitutional matters', the next paragraph stipulates that the Court 'may decide only constitutional matters, and issues connected with decisions on constitutional matters'. The threshold of a 'constitutional matter' (and connected issues) thus determines the line beyond which the Constitutional Court's authority does not extend. While the Constitutional Court is the highest court on constitutional matters, the Supreme Court of Appeal has the last word on non-constitutional matters.
Wanted : a principled approach to the balancing of policy considerations. Steenkamp NO v Provincial Tender Board, Eastern Cape : case commentsAuthor Sanele SibandaSource: Constitutional Court Review 1, pp 335 –350 (2008)More Less
My focus in this section will be on what I take to be the main point of disagreement between the two opinions: namely the approach to the balancing of public policy considerations. I will not, therefore, concern myself with the actual decision reached on the non-constitutional point of delictual wrongfulness. For purposes of this note I am satisfied that the Court could conceivably have gone either way.
Severing the umbilical cord : a subtle jurisprudential shift regarding children and their primary caregivers : case commentsAuthor Ann SkeltonSource: Constitutional Court Review 1, pp 351 –368 (2008)More Less
This case note examines the focus in the judgment on the child's rights as distinct from the rights of their caregivers. It is argued that this distinction presents a new development in the Court's child rights jurisprudence, and that some of the Constitutional Court's earlier pronouncements on children in relation to their caregivers should be re-examined in the light of S v M.