Constitutional Court Review - Volume 3, Issue 1, 2010
Volume 3, Issue 1, 2010
Finding the constitutional court's place in South Africa's democracy : the interaction of principle and institutional pragmatism in the court's decision makingSource: Constitutional Court Review 3, pp 1 –32 (2010)More Less
Ever since its establishment in 1995, the South African Constitutional Court has been called upon to address issues and to face challenges that would be considered extraordinary for any judiciary. From the task of certifying whether the Constitutional Assembly had remained faithful to the constitutional principles in the 1993 interim Constitution to the ruling of a High Court accepting the allegation by the Judge President of the Western Cape High Court that the justices of the Constitutional Court had violated his rights by publicly accusing him of improperly attempting to influence the outcome of a case before them, the Court has been repeatedly buffeted by the strong winds of political conflict. The Court has also faced direct challenges to its legitimacy, as was the case when the newly appointed justices were asked to recuse themselves from a case against President Nelson Mandela on the grounds that he had appointed them.
Author Conrado Hubner MendesSource: Constitutional Court Review 3, pp 33 –43 (2010)More Less
'For the Court, the greatest threat is that it is ignored.' Towards the end of his essay on the 2009 term of the South African Constitutional Court, Heinz Klug offers this incisive maxim about what should concern any court in charge of the onerous task of constitutional review. It suggests something constitutional theorists have tended to neglect: constitutional courts, both in less and in more consolidated democratic regimes, need to be vigilant about the dormant threats of non-compliance that often lurk behind intrusive judicial decisions directed against other major political actors.
Source: Constitutional Court Review 3, pp 45 –78 (2010)More Less
One of the key roles of a constitution is to specify the framework within which a society will be governed. This requires some understanding of the function and role of governance in relation to citizens. Yet, how are we to think of the relationship between a government and its citizens? The dominant model in political philosophy has conceived of there as being some form of social contract between government and its citizens.
Author Jason BrickhillSource: Constitutional Court Review 3, pp 79 –109 (2010)More Less
The purpose of this piece is to consider the role of precedent in the development of our constitutional jurisprudence and to seek to discern some of the attitudes of the Constitutional Court to it - primarily through the lens of Gcaba v Minister for Safety and Security and Others.
Author Geo QuinotSource: Constitutional Court Review 3, pp 111 –139 (2010)More Less
One of the main characteristics of constitutional transformation in South Africa is what Etienne Mureinik called the shift towards a culture of justification, in which 'every exercise of power is expected to be justified'. He argued that within such a culture, constitutional rights 'are standards of justification - standards against which to measure the justification of the decisions challenged under them'.
The role of courts in the quantitative-implementation of social and economic rights : a comparative studyAuthor Lucy A. WilliamsSource: Constitutional Court Review 3, pp 141 –199 (2010)More Less
A growing number of democratic constitutions combine three components: they entrench social and economic rights, impose affirmative obligations on government to promote and fulfil such rights, and render social and economic rights judicially enforceable at least in some degree. This combination brings forward new and challenging questions regarding separation of powers and the relative institutional competence of legislatures and courts. If constitutional social and economic rights are to be more than mere statements of aspiration, courts must have some powers to give them content and enforce them.
The desperate left in desperation : a court in retreat - Nokotyana v Ekurhuleni Metropolitan Municipality revisitedSource: Constitutional Court Review 3, pp 201 –222 (2010)More Less
Recently I was engaged in an intense discussion with one of my friends - a luminary legal mind - on some recent constitutional law developments in South Africa and elsewhere. In the course of that discussion, I mentioned my strong misgivings about the decision of the Constitutional Court of South Africa (the Constitutional Court) in Nokotyana & Others v Ekurhuleni Metropolitan Municipality & Others (the Nokotyana case).
Author Kirsty McLeanSource: Constitutional Court Review 3, pp 223 –242 (2010)More Less
The principle of 'meaningful engagement' developed in the judgment of Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (Centre on Housing Rights and Evictions and Another, Amici Curiae) 2010 (3) SA 454 (CC) (Joe Slovo), and earlier cases, has, in some instances, been lauded as a positive development in the evolving evictions jurisprudence. This case note critically examines that assumption.
The reach of amnesty for political crimes : which burdens on the guilty does national reconciliation permit?Author Thaddeus MetzSource: Constitutional Court Review 3, pp 243 –270 (2010)More Less
Let us suppose that the basics of the Reconciliation Act were morally justified. That is, for the sake of this article, set aside the rich debate about whether justice was adequately served by granting amnesty to those guilty of political crimes in exchange for full disclosure about them.
Author Bonita MeyersfeldSource: Constitutional Court Review 3, pp 271 –294 (2010)More Less
On 15 July 2009, the South African Constitutional Court decided that Fatima Gabie Hassam, the widow of Mr Ebrahim Hassam, should be entitled to receive maintenance from her late husband's estate. As is so often the case in judicial determinations, this seemingly uncontroversial decision was mired in a deeply human story.
Who's in and who's out? Inclusion and exclusion in the family law jurisprudence of the Constitutional Court of South AfricaAuthor Denise MeyersonSource: Constitutional Court Review 3, pp 295 –316 (2010)More Less
Traditionally, the law has tied the formal status of being married to an extensive range of rights, duties, benefits and burdens. Non-marital conjugal unions were largely 'invisible to law'. This approach has, however, come under increasing attack on the grounds that it rests on illegitimate, moralistic disapproval of non-marital relationships, involves unfair discrimination on the ground of marital status and is out of touch with contemporary social practices and the increasing variety of non-traditional family forms. The formal approach has as a result come to be eclipsed in the Western world by a functional approach to family law. The focus tends now to be on the substance of different relationships and the needs of the parties to them, rather than their form or official status.
Author Daria RoithmayrSource: Constitutional Court Review 3, pp 317 –346 (2010)More Less
This essay will explore the idea that in the wake of the Constitutional Court's decision in Mazibuko v City of Johannesburg, activists who are committed to dismantling persistent racial and class inequality should weigh carefully the costs and benefits of using rights-based litigation as a strategy to advance their interests.
Reflections on post-apartheid being and becoming in the aftermath of amnesty : Du Toit v Minister of Safety and SecurityAuthor Karin Van MarleSource: Constitutional Court Review 3, pp 347 –367 (2010)More Less
In this note I discuss the case of Du Toit v Minister of Safety and Security (Du Toit). Also, although my main focus will fall on Du Toit, I refer to the recent defamation case of Robert McBride briefly. Both these cases disclose a few of the many complexities of the 'intersection' between an apartheid past and a future that is post-apartheid, particularly post-apartheid being or rather becoming. Beyond illuminating the wider questions of post-apartheid being, becoming and subjectivity, these cases also contribute to something more specific, namely the becoming of a post-apartheid jurisprudence.