SA's Constitutional Court at 30: a solid foundation but cracks are showing

The Constitutional Court has played a leading role in realising constitutional justice over the past 30 years; however, many forces seek to undermine its role, and civil society needs to be resolute in defence of the court, said the University of Cape Town’s (UCT) Emeritus Professor Hugh Corder.

South Africa’s Constitutional Court stands out as one of the few government institutions that have protected and advanced the constitutional vision of a participatory democracy and social justice. Many other government institutions which ought to have allied themselves with the court have been weakened or have failed to deliver.

The court has consistently championed one of the fundamental values to be found in section 1 of the constitution, 1996. This requires that the exercise of public power be accountable, responsive and open. Despite this, but also because of it, the court faces challenges from outside and from within.

The duty of the apex court in any constitutional democracy is to deliver judgments which provide the final authority on the meaning of any constitutional provision. Thus, the manner and limits of the exercise of public power by parliament, the cabinet and any public official stand to be tested in court for their constitutionality and lawfulness. This is an exceptionally onerous authority. Those who wield it must be beyond reproach, careful not to exceed their authority.

The Constitutional Court succeeded beyond expectations in establishing its political and public legitimacy in its first 15 years since it was founded in 1994. But the second half of the democratic era has been a mixed bag.

My scholarly research has since 1979 focused on the judicial branch of government under colonialism and apartheid, and in the democratic era. I was also privileged to be a technical adviser on fundamental rights during the negotiations of 1993 to end apartheid. This involved me in debates about judicial independence and accountability in the future. I have continued to publish on these topics regularly.

The first 15 years

The court’s judgments during its first 15 years were characterised by careful, wise, fair and at times courageous commitment to constitutional principle and practice, often in challenging circumstances.

The Constitutional Court heard its first case in early 1995, with a very strong bench of 11 justices. Almost all of them had a very good sense of the political landscape.

It deliberately chose the constitutionality of the death penalty, a divisive issue, as its first case. It produced an astonishingly strong set of judgments, both collective and separate, in unanimously holding that the bill of rights outlawed the death penalty.

It held Nelson Mandela, the first president of a democratic South Africa, to account for the legality of his actions in highly unpopular circumstances. His opponent was a remnant of the apartheid regime, in the form of the provincial executive council of the Western Cape. The parties were in dispute about the arrangements for the first post-apartheid local government elections. Mandela did more for the legitimacy of the court than its judgments when he announced on television that he recognised the court as the final arbiter of such questions. He immediately complied with its order.

Public confidence in the Constitutional Court contributes greatly to its legitimacy. When civil-society advocacy agitates justifiably for recognition of constitutional rights, the court has the opportunity to enhance such confidence. So it was a significant milestone when the court ruled that the approach of President Thabo Mbeki’s administration (1999-2008) to the treatment of HIV/AIDS in mother-to-child transmission was irrational and unconstitutional.

On the other hand, the court recognised sensibly that there were financial and other resource limits which prevented the complete provision of socio-economic rights to health, housing and water. Some argued that the court had been too cautious. But most agreed that it had been true to its mandate and the wording of the bill of rights.

The turning point

Since 2009, the court’s record has been mixed. This period coincided with the end of the term of office of the last members of the original Constitutional Court. Most of them had deep roots in the anti-apartheid struggle, and thus an impressively nuanced understanding of the challenges facing the executive, parliament and broader society. The other factor was the accession to power of President Jacob Zuma, who subscribes to a popular majoritarian version of democracy and resents the role of the judiciary in upholding the constitutional democracy in place since 1994.

Granted, the court’s judgments have remained broadly in line with foundational constitutional values. They have generally continued to hold those who exercise public power to account. (Most prominent was the unanimous Nkandla judgment of March 2016 regarding Zuma’s use of public funds for his private homestead.) However, division of opinion among the justices has increased. And the transformative vision of the constitution has not often been advanced, particularly in the development of the common law.

What accounts for this patchy performance since 2009? Several factors seem to have contributed, among them:

• The appointment of some less than stellar court justices. It’s a tough job serving on such a court. It requires enormous reserves of intelligence, stamina, wisdom, courage and political nuance. In addition, the court has come under unrelenting attack in the public domain, chiefly from those whose corrupt and unlawful conduct is threatened by criminal and civil process. Judges are prevented from mounting a defensive justification of their work: their judgments must speak for them. The psychological impact of these assaults on the judiciary must have had a subconsciously restraining effect.

• Aligned with this, the Judicial Service Commission (as both appointing and disciplinary institution) has often delivered bitterly farcical recommendations. These have resulted in the appointment of the least offensive candidates, scaring off superior-court judges who would likely have been excellent Constitutional Court justices.

• Directly related to this is inadequate leadership shown by the chief justices and heads of court, with singular exceptions. Sadly, former chief justice Mogoeng Mogoeng realised the gloomy predictions made at the time of his appointment that he had neither the temperament nor the stature to be effective. And the disciplinary journey of Western Cape judge president John Hlophe has been a blight on the legitimacy of the judiciary.

• The failure to fill vacancies on the court promptly – when the retirement date of every justice is known from the moment of their appointment – is unfathomable and harmful. It meant that for long periods there were several acting Constitutional Court justices. This denied the court the chance to be a stable, competent and secure-in-tenure body which could establish efficient and collegial working relationships.

• Finally, this under-capacitation of the court coincided with the expansion of its appellate jurisdiction in 2013 potentially to any question of law of general public importance, not only to constitutional matters. This has resulted in hundreds of such applications being made annually, each of which requires the court to exercise the discretion whether to hear it or not.

The wheels of constitutional justice have, as a result, turned twice as slowly as they did in the first 15 years.

In sum, the Constitutional Court has played a leading role in realising constitutional justice over the past 30 years, exceeding the expectations of many sceptics. However, many forces seek to undermine its role, and civil society needs to be resolute in defence of the court, while holding it to account and to remain true to its mandate.

Hugh Corder, Professor Emeritus of Public Law, University of Cape Town.