How does the Court
write its judgments?
Once a case has been heard, a post hearing conference of the justices is held to debate and discuss the issues raised in the hearing. The justices may meet immediately after the hearing is concluded. Sometimes the deliberations may not happen immediately after each hearing. In such a case the judge who has been assigned the case by the Chief Justice prepares a note identifying the issues for discussion raised during the hearing and possible solutions and this serves as the basis for a future discussion. Although there is no doubt that the size of the Court is valuable in many respects, the involvement of all justice can slow down the process of decision-making and writing of judgments compared to other courts.
Here at the Constitutional Court, decisions are made collectively. It’s a bit tedious [especially] when it came to writing judgments, because you have people with different views as individuals. So, it becomes quite a challenge to write a judgment that would be accepted and agreed to by everybody. I find the whole process of writing a judgment from the hearing up to the final stage of delivering the judgment, more taxing than it was at the Supreme Court of Appeal.
Preparation of main,
dissenting and concurring judgments
Once the post hearing discussion has been held, the justice nominated by the Chief Justice to prepare a draft judgment prepares a draft main judgment. At this stage, the other justices can prepare dissenting or concurring judgments. Thereafter the judgments are read through at a meeting with all the justices present. The substance of all the draft judgments are debated and questioned. The justices also consider the style and formulation of the draft judgments.
Orders are the concise rulings – often in a numbered list form by the Court which typically come at the end of the judgment. They are important because they clearly tell each party exactly what the Court is commanding and what is expected of them so that the Court’s judgment is effectively executed. For example, in the S v Makwanyane judgment, the Constitutional Court’s order was that the state is forbidden to kill any person already sentenced to death under any of the provisions of the law that the Court had declared to be invalid. The justices sometimes spend as much time discussing the order as they do debating the whole judgment.