Constitutional Court Review - Volume 4, Issue 1, 2011
Volume 4, Issue 1, 2011
Source: Constitutional Court Review 4, pp 1 –29 (2011)More Less
Socio-economic rights are a central terrain of struggle in new democracies. Often deemed essential for the legitimacy of the constitution at the time of adoption, they are subject to downstream pressures at the implementation stage as governments confront limited budgets and the need for macroeconomic credibility. The result is a gap between promise and reality. It is not surprising that, in an age of judicialisation, socio-economic rights have become a central topic of constitutional adjudication in many new democracies, as courts struggle to balance normative commitments with democratic prerogatives.
Rationality, reasonableness, proportionality : testing the use of standards of scrutiny in the constitutional review of legislationAuthor Christian CourtisSource: Constitutional Court Review 4, pp 31 –50 (2011)More Less
At least three cases decided by the South African Constitutional Court in the 2010 term deal with constitutional challenges to legislation. In this brief overview, I discuss the Court's choice regarding the standard of scrutiny, and the way in which the selected standard is applied in each concrete case critically. Issues to be explored include: what is the justification for choosing a particular test? What are the practical consequences of applying different standards of scrutiny? Does it really make a difference? To which degree does the Court actually employ the sets of questions or prongs that it uses to characterise each test? How intense is the scrutiny made under the chosen test?
The democratic turn and (the limits of) constitutional patriotism after the Truth and Reconciliation Commission : Albutt v CSVRAuthor Wessel Le RouxSource: Constitutional Court Review 4, pp 51 –72 (2011)More Less
On 23 February 2010, the South African Constitutional Court unanimously dismissed an appeal against an interim interdict which prevented President Zuma from pardoning apartheid criminals, until such time as the victims of the crimes in question had been given an opportunity to make representations to the President.
Given its subject matter, the Albutt judgment forms part of an important quartet of recent cases in which the Constitutional Court was asked to revisit the nature, scope and effect of the amnesty process administered in the late 1990s by the Truth and Reconciliation Commission (TRC) under the Promotion of National Unity and Reconciliation Act 34 of 1995. An obvious way of reading the Albutt judgment would therefore be to explore its place within the recent constitutional retrospective of the TRC process. Fruitful and important as such a reading might be, it is not one which I wish to pursue here.
Author Douglas MailulaSource: Constitutional Court Review 4, pp 73 –112 (2011)More Less
In a developmental African state such as South Africa, judges face land issues which are sensitive, complicated, challenging, and controversial. When adjudicating upon these issues, the judiciary should courageously face the challenges head-on and deal with the issues decisively as and when they arise, in order to, among others, play their transformative role, and also ensure legal certainty. This task is particularly important in a constitutional state, with a transformative mandate, like South Africa. However, in doing so, the judiciary must be sensitive to the unique and complicated character of land holding, the controversies around it, and the sensitivities of the land holders.
Author Stewart MothaSource: Constitutional Court Review 4, pp 113 –136 (2011)More Less
Spectres haunt the rule of law in South Africa. Law is deeply implicated in constituting and sustaining the structures and practices of the colonial and apartheid regimes. Despite this legacy, law is at the heart of transformation and renewal. The constitutional dispensations of 1994 and 1996 expressed a great faith in law - especially in 'the law of the law'. The early transformative metaphors of the 'book' and the 'bridge' in the Epilogue to the interim constitution evidence the aspiration that the introduction of a fundamental law and constitutional supremacy would help a fractured and wounded polity to turn the page, 'open a new chapter', and journey to a new social and political order. The abandonment of parliamentary sovereignty in favour of constitutional supremacy placed the rule of law and its custodians - judges - at the apex of the juridico-political order. It can of course be argued that this dispensation was arrived at through a representative and deliberative process where the peoples' delegates constituted a new order, which, through democratic means, posited the constitution as supreme. This reflects a feature of many modern liberal constitutional orders that claim to logically sustain the tension between constitutional supremacy and the sovereignty of the 'people', or indeed to sustain a productive tension about where sovereignty is located. This very liberal story is replete with tensions and contradictions - ones that are amplified and potentially unsustainable and undesirable in the South African setting. In this essay I consider aspects of the rule of law and constitutional supremacy as a feature of neoliberal governance. I contrast this with approaches to plurality that can inform the rule of law in ways that are more consistent with the aspiration of renewing the social and juridical order.
Author Mkhululi D. StubbsSource: Constitutional Court Review 4, pp 137 –165 (2011)More Less
This case comment considers certain specific effects of courts' decisions on national politics and in international political arenas. As we shall see, the Constitutional Court in Glenister v President of the Republic of South Africa upset the accepted separation of powers applecart in the domain of international political dynamics. Put pithily, the decision brought the courts more pervasively into a playing field ordinarily the domain of politicians and the political branches.
However, in the commentary below the focus is not upon whether this incursion is good or bad in normative terms. The objective here is descriptive in nature. I analyse certain consequences of Glenister in the context of existing dynamics between political negotiations and municipal law-making in South Africa in order to better understand what is at stake, strategically, when certain issues pertaining to international agreements are in play. I shall contend that the majority's approach in Glenister is a new development in regard to the way in which courts in South Africa approach the interpretive import and effect of international law. Whilst deferring analysis of certain questionable features of the judgment for another day, this comment emphasises the extent to which the courts in South Africa have emerged as strategic actors with respect to international political decision-making.
Author Francois VenterSource: Constitutional Court Review 4, pp 167 –188 (2011)More Less
In terms of section 83 of the South African Constitution the President is both head of state and head of the national executive. Section 85 vests the executive authority of the Republic in the President, who exercises it 'together with other members of the Cabinet'. In terms of section 86 the President is elected by the majority in the National Assembly, meaning in practice that the leader of the majority party becomes President. Section 91(2) provides that the President appoints the Deputy President and Ministers and assigns their powers and functions, and may dismiss them'. In law there are therefore no limitations on the leader of the majority party regarding the selection, dispatch and control of members of Cabinet. Limitations on the President that may exist in this regard therefore depend almost wholly upon the political culture of the governing party. As long as a president remains in command of the majority party, he or she may require Cabinet and Parliament to do his or her bidding, albeit - thankfully - within the bounds of the Constitution.