Constitutional Court Review - Volume 2, Issue 1, 2009
Volume 2, Issue 1, 2009
'He had a mandate'; the South African Constitutional Court and the African National Congress in a dominant party democracyAuthor Sujit ChoudhrySource: Constitutional Court Review 2, pp 1 –86 (2009)More Less
We may never learn what actually happened when Justice Hlophe visited the chambers of Acting Justice Jafta and Justice Nkabinde at the Constitutional Court in April 2008. These meetings took place after the Constitutional Court had heard the argument but before it had rendered judgment in Zuma and Thint, two appeals arising out of the long-running legal-political saga of the arms deal that has dominated South African politics since 1999 and which directly involved the criminal investigation of Jacob Zuma.
Author Jonathan KlaarenSource: Constitutional Court Review 2, pp 87 –96 (2009)More Less
Choudhry's essay is not just an interesting take on the prominence of the controversy around Hlophe JP and judicial politics in South Africa over the last few years. It uses that set of political events as a springboard, as he puts it, to 'explore a different set of issues'. Before turning to the essay in more detail, a couple of observations regarding the form and content of the Hlophe JP controversy are nevertheless in order.
Author Stephen EllmannSource: Constitutional Court Review 2, pp 97 –143 (2009)More Less
In 15 years, South Africa's Constitutional Court - and the judges of the Supreme Court of Appeal and the High Courts - have traversed most of the history of US constitutional law, a history that took us two centuries to compile, and have marked out new ground of their own: abolition of the death penalty; recognition of free speech; judicial intervention in foreign relations; administrative justice; equal rights under law for blacks and whites, gays and straights, men and women; rights of public participation in legislative processes; and the progressive realisation of socioeconomic rights. To an American observer, it is a remarkable list: and to an American liberal observer, not much short of miraculous.
Author Christopher MbaziraSource: Constitutional Court Review 2, pp 145 –163 (2009)More Less
The novelty of Ellmann's paper derives primarily from the fact that it moves beyond the separation of powers and counter-majoritarian based critiques and analyses that have dominated academic discourse about South African constitutional law. For instance, in the second edition of the Constitutional law of South Africa, Woolman and Botha outline the multi-part structure of the fundamental rights analysis. The authors describe interpretation as characterised by a two-fold process: determining the meaning or the scope of a fundamental right followed by a determination of whether the right has been infringed. In most instances, a finding that the right has been limited leads to a third stage: limitations analysis. Under section 36, courts are, quite 'controversially', given the power to decide whether a democratically conceived law's infringement of a fundamental right indeed violates the Constitution or whether, in fact, the infringement of a right can be justified.
Author Catherine AlbertynSource: Constitutional Court Review 2, pp 165 –208 (2009)More Less
These four opening quotes illustrate the ongoing tensions between claims to culture and claims to gender equality in South Africa's constitutional democracy, especially in relation to the cultures, traditions and customary law of black South Africans. After, traditional leaders failed to insulate the cultural domain from constitutional scrutiny in the 1993 Constitution, a series of laws and court judgments have secured important equality rights for women living under customary law. Yet, even as parliament and courts have granted women equal rights within the family and to inheritance and recognition as traditional leaders; a 'stubborn persistence of patriarchy' means that these rights remain contested in the public and private spheres. Women's rights of access to communal land and within customary courts remain sites of struggle between the claims of traditional leaders and those of community members, including women. Much of this currently centres on the nature and extent of traditional (male) power over land, property and community.
Author Martin BrasseySource: Constitutional Court Review 2, pp 209 –237 (2009)More Less
In 1990 the highest court in the land held, in Administrator, Transvaal, and Another v Zenzile and Others, that the principles of administrative law provide public servants with a platform to challenge a decision terminating their employment. If a dismissed public servant could show that the decision was procedurally unfair or substantively unjustified, the decision would be reversed and, as an axiomatic consequence of such a finding, the employee would be reinstated with retrospective effect (that is, with full back-pay).
Principled calm amidst a shameless storm : testing the limits of the judicial regulation of legislative and executive powerAuthor Hugh CorderSource: Constitutional Court Review 2, pp 239 –267 (2009)More Less
This article seeks broadly to analyse some of the judgments handed down by the Constitutional Court (CC) in 2008 which directly or indirectly impact on the relationships between the judiciary on the one hand and the legislature and executive on the other. The organising theme is the doctrine of the separation of powers, as was required by Constitutional Principle VI of the transitional Constitution of 1993, compliance with which in the final Constitution was certified by the CC in the Certification judgments in 1996.
The flight from rights : rule aversion in dealing with the criminal process Molimi, Zuma, Thint (Holdings), Shaik and ZealandAuthor Frank SnyckersSource: Constitutional Court Review 2, pp 269 –311 (2009)More Less
In an adversarial criminal justice system, rules tend to favour the accused. Rules, when applied strictly, create rights. The fewer the rules, the more likely the conviction. The longer the view taken by a justice system, the more generous the system to those at its barrelend. Due process intrudes upon the immediate desire to punish with an appeal to the perennial need to be humane. It arrives at the critical moment, embodying the conscience of society, to spoil the quenching of the bloodlust at the hanging party. Woe betide the accused whose case is considered with regard only to its own facts, to the crime he stands accused of committing, and to the need to do something about it. More often than not, his salvation will lie in the extent to which he is able to invoke rules, rights and principles that were created for the benefit of others, for situations other than his, and for the long-term benefit of society. He will want the judge to apply an ancient rule uncritically, instead of asking whether, in the case at hand, society's interests in fighting crime outweigh the merits of whatever complaint he has raised about the way the trial is being conducted. Such balancing exercises will tend, in the nature of things, to end badly for him.
Vampire or prince? The listening constitution and Merafong Demarcation Forum & Others v President of the Republic of South Africa & OthersAuthor Michael BishopSource: Constitutional Court Review 2, pp 313 –369 (2009)More Less
On 19 August 2005 the Municipal Demarcation Board published the following innocent-sounding suggestion of the Minister for Provincial and Local Government:
The municipal areas of Merafong City Local Municipality (CBLC8) and Westonaria Local Municipality (GT414) to be excluded from the municipal area of West Rand District municipality (CBDC8), and included into the municipal area of Southern District Municipality (DC40).
A new approach to remedies in socioeconomic rights adjudication : Occupiers of 51 Olivia Road and Others v City of Johannesburg and OthersSource: Constitutional Court Review 2, pp 371 –393 (2009)More Less
Establishing an appropriate and effective remedy for the breach of a right is a challenge in rights adjudication. Fashioning remedies for socio-economic rights violations is an even bigger challenge. South African courts have, accordingly, been given wide remedial powers to grant appropriate and effective remedies in socio-economic rights cases. The courts may grant 'appropriate relief, including a declaration of rights' and when deciding a constitutional matter, 'must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency' and 'may make any order that is just and equitable'. In addition, the Constitutional Court has accentuated the importance of developing effective remedies as well as innovative remedies if necessary for the infringement of constitutional rights.
The significance of the living customary law for an understanding of law : does custom allow for a woman to be Hosi?Author Drucilla CornellSource: Constitutional Court Review 2, pp 395 –408 (2009)More Less
This may seem a strange title for a note on the Shilubana case. Why? Because ultimately, the argument of the National Movement of Rural Women - an invited amicus for the case - that the living customary law does not develop in the sense that Anglo-American lawyers are used to understanding the word was not determinative of the outcome of the case. However, as we will see, I defend the Rural Women's notion of the customary law and the significance it has for the understanding of both the role of custom in law and the place of the past in living customary law.
Between moral authority and formalism : Nyathi v Member of Executive Council for Dept of Health, GautengAuthor Pierre De VosSource: Constitutional Court Review 2, pp 409 –427 (2009)More Less
Wholesale non-compliance with court orders is a distressing phenomenon in modern day South Africa, both in the Eastern Cape and elsewhere. Where this non-compliance with court orders is rooted in the 'laziness and incompetence' of state officials and where it negatively affects often poor and vulnerable members of society who are, in effect, denied access to life-sustaining resources (which would otherwise have been provided by the state) because of the tardiness of state officials, courts are confronted with difficult issues that strike at the heart of the rule of law, and for respect for the moral authority of the judiciary. What is at stake in such cases is nothing less than the legitimacy of the legal system and the courts that underpin it. When indigent members of society turn to the courts (itself a rare occurrence, given the prohibitive cost and technical difficulties faced by many such individuals) to have the legal obligations of the state owed to them enforced and the system fails them due to a lack of respect for court orders, the rule of law - which EP Thompson controversially called an 'unqualified human good - is fundamentally threatened. Courts therefore have, both in pragmatic and ethical terms, a duty to take steps - within the limits of what is permissible by the Constitution and the law - to ensure that court orders are enforced and the court's legitimacy and authority is preserved.
The decisions in Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another 2009 (1) SA 337 (cc) : be wary of these holdingsAuthor Nico SteytlerSource: Constitutional Court Review 2, pp 429 –448 (2009)More Less
At the centre of the private dispute in Wary v Stalwo lies a contested vision of the new local government dispensation. Wary, the seller of a portion of a farm would have been able to escape from an unprofitable sale if the national Minister responsible for agriculture is still in charge of the subdivision of agricultural land and not the municipality. If the buyer could hold the reluctant seller to the sale, the powers of local government would have significantly increased at the expense of the Minister. The case is important for the development of South Africa's decentralised system of government, namely the division of powers between the three spheres of government with regard to land use management. The decision is also significant for the methodology the Court used to reach a decision on the division of powers. The split Constitutional Court decision reflects both different visions of local government and how to resolve division of powers questions through statutory interpretation.