The need for
a new Court
As South Africa began to negotiate its way to a new democratic constitution it became clear that a special court would be needed to protect what would become the nation’s most precious asset – the Constitution. Under apartheid, the justice system had been used as an instrument of oppression and therefore with the advent of a new constitutional democracy the justice system had to be transformed. The idea of a separate constitutional court was accepted, in principle, early on in the negotiations process by political leaders, but the manner in which the court would be established was now an intense and complex battle.
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With a new constitution coming into being, the Court had to be the guardian of the fundamental rights enshrined in the Constitution.
In carrying out its function to interpret the Constitution, it had to point the way with regard to the new direction chosen by the people of
The idea of a Constitutional Court
In 1991, the African National Congress (ANC) invited international judges, legal specialists, members of opposition parties and ANC members to a symposium to discuss the idea of a constitutional court. At a hotel in the Magaliesberg, some of the world’s best legal minds presented papers and rigorously examined constitutional court models from all over the world. After in-depth discussions, the committee resolved that a new court, with a blend of elements taken from different constitutional models, would best suit South Africa.
The then Law Commission and the Department of Justice agreed that a specialist court was needed but argued firmly that it should be a branch of the Appellate Division, the highest court under apartheid. So while the idea of a constitutional court was beginning to take shape in the minds of political parties and the legal fraternity, everybody had a different vision of how it should be established.
Pius Langa, an advocate and member of the ANC’s Constitutional Committee, was one of the voices that proposed that there should be a brand-new court instead of just a new branch of the existing Appellate Division. He firmly believed that the existing overwhelmingly white, male judiciary was tainted with the abuses of apartheid and would have very limited legitimacy in the eyes of the majority of South Africans. In Pius Langa’s opinion, simply extending the present judiciary would only ‘perpetuate disadvantage and inequality.’
Negotiations over the Constitutional Court
In June 1993 the question of the structure, composition and jurisdiction of the Constitutional Court was addressed in much detail at the Multi-Party Negotiating Process (MPNP). Although the idea of a separate court that would safeguard the constitution had been agreed to early on in the negotiations it was only at this late stage that the issues were addressed in any detail. When the Technical Committee for Constitutional Matters realised how contentious the establishment of the Court was, they drafted the first detailed report – known as the Twelfth Report – and presented this to the Negotiating Council. This was followed by long and vigorous debates. These were four of the most important issues that had to be resolved.
Under the Interim Constitution, (and for some of the period after its repeal and replacement by the 1996 Constitution), the Court treated constitutional review as exceptional. The adjudication of constitutional issues was a matter of last resort, to be avoided if there was some way to resolve a dispute … No longer … [After a seminal judgment in 2000 there is] an entirely new conception of the role of the Constitution in the legal system, and a remarkable expansion of the field of constitutional adjudication.
The institutional nature of the Constitutional Court
Should the new Constitutional Court be established as a separate court with jurisdiction over all constitutional matters or should it be a chamber of the then highest court, the Appellate Division?
The power of judicial review
Should the new Constitutional Court have the power of judicial review – a process under which executive or legislative actions are able to be reviewed by the judiciary?
Qualifications of the judges
What qualifications should be required of prospective judges of the Constitutional Court?
How should judges be appointed?