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Constitutional Adjudication in Africa edited by Fombad, Charles M (31st August 2017)

Part 5 Decision-Making and Working Practices, 14 The Birth of the South African Constitutional Court

Richard J Goldstone

From: Constitutional Adjudication in Africa

Edited By: Charles M Fombad

(p. 323) 14  The Birth of the South African Constitutional Court

1.  Introduction

The post-Second World War German constitution that came into force on 23 May 1949 established the German Constitutional Court. It began sittings in 1951 at its seat in Karlsruhe. The model was influenced by that of the United States Supreme Court and the Austrian Constitutional Court. The new German Constitutional Court, with jurisdiction over only constitutional issues, was placed above the then-existing court system.

In turn, it was the German model that influenced President Nelson Mandela’s demand for a new South African Constitutional Court to be the guardian of the South African constitution, which was to be the foundation of a democracy in the post-apartheid era.1 Mandela took into account that, during the last fifteen or so years of the apartheid era, some progressive judges were able to interpret apartheid laws in a way that these laws impacted less oppressively on the disenfranchised black majority. A substantial number of these cases were brought to the courts by the Legal Resources Centre (LRC), a public interest law firm established in 1980 with substantial input and expertise from the United States. Indeed, the LRC was basically modelled on the Legal Defense Fund of the National Association for the Advancement of Colored People (NAACP). The founding director of the LRC was Arthur Chaskalson, who led the LRC for fourteen years until his appointment by President Mandela as the first president of the new Constitutional Court of South Africa.

The LRC came to pass in consequence of the first ever human rights conference held in South Africa, which was convened in 1979 at the University of Cape Town. The establishment of the LRC was made possible with generous funding from United States foundations. It was not to be a legal aid bureau. It brought cases on issues that would affect whole communities. It chose its cases carefully and notched up an impressive record of successes. In two significant cases, the enforcement of the draconian and hated ‘pass laws’ was effectively ended.2 They established the rights of families of black South Africans to join their husbands and fathers, who were permitted to live and work in urban areas. For decades, such permits had been held by lower courts not to allow such family rights. The effect of these laws was the severe dislocation of millions of South Africans. It resulted in husbands and fathers being kept away from their families for over eleven months every year. The number of single parent mothers burgeoned. The decisions beneficially affected the lives of many hundreds of thousands of South Africans.

(p. 324) In another case brought by the LRC, the enforceability of residential segregation under the notorious Group Areas Act was effectively ended by a decision that people living in the ‘wrong’ group area could not be evicted unless there was proof that alternative accommodation was available to them.3 These and other decisions were politically controversial. However, the apartheid government of the day found these decisions politically advantageous in that it could boast in the international arena that South Africa had an independent judiciary. When criticized for these developments, the government disingenuously blamed these progressive legal and social developments on the judges, thereby implicitly denying their responsibility. As will be seen below, it is significant that, while four of the justices on the new Constitutional Court were required to be sitting judges appointed during the apartheid era, President Mandela appointed six of them—a majority of the eleven-judge court.

Notwithstanding these developments, Mandela did not wish only the judges who had been appointed during the apartheid era to have the final word on the interpretation or application of the constitution. This was not surprising, having regard to the fact that, to a greater or lesser extent, the overwhelming majority of those judges supported the system of apartheid and felt no discomfort in implementing racially-oppressive laws. Mandela also wanted a court that would be representative of the people of South Africa. At the time, the superior courts were 99 per cent white and 99 per cent male. The last apartheid president, F W de Klerk, reluctantly accepted the uncompromising demand for a new Constitutional Court. However, de Klerk, in turn, demanded that four of the judges on the new court should be sitting judges. Mandela agreed on the basis that the new court would consist of a bench of eleven judges.

2.  The New Constitutional Court

From its inauguration by President Mandela on 15 February 1995 until 23 August 2013, the jurisdiction of the Constitutional Court was limited to constitutional matters, and the Supreme Court of Appeal (formerly the Appellate Division of the Supreme Court) was the highest court in respect of all other matters. According to the provisions of the Superior Courts Act 10 of 2013, the Constitutional Court became the highest court with respect to all issues which it decides are in the interests of justice to be decided by it. From 1995 until 2001, the position of chief justice was held by the senior judge in the Supreme Court of Appeal. However, since 2001 that office has been held by the senior justice in the Constitutional Court.

The first eleven justices of the Constitutional Court were appointed under the interim constitution that was in operation as the basic law of South Africa from 17 April 1994 until it was superseded by the final constitution on 4 February 1997. As already mentioned, the first president (before he was appointed as chief justice) was Arthur Chaskalson. He was appointed by President Mandela under the provisions of section 97(2)(a) of the interim constitution, which provided:

There shall be a President of the Constitutional Court, who shall … be appointed by the President in consultation with the Cabinet and after consultation with the Chief Justice.

The concurrence of the cabinet was, thus, required after good faith consultation with the then chief justice, Michael Corbett.

(p. 325) The four existing judges were appointed in terms of the provisions of section 99(3) of the interim constitution, which provided that:

Four judges of the Constitutional Court shall be appointed from among the judges of the Supreme Court by the President in consultation with the Cabinet and with the Chief Justice.

Here the concurrence of both the cabinet and chief justice was required. The remaining six justices were appointed in terms of section 99(4) and (5) of the interim constitution. These provisions required a shortlist of ten nominees to be provided by the new Judicial Service Commission after public hearings had been held by it on the suitability of those nominated for office. President Mandela appointed the six judges with the concurrence of the cabinet and good faith consultation with President Chaskalson.

In 1994 few, if any, South African judges or legal practitioners had received formal academic training in constitutional law or human rights law, as neither were relevant to law practice during the apartheid era. South Africa had no constitution, and the fundamental human rights of the majority of South Africans were violated by the myriad of apartheid laws under which they suffered. Without a constitution, there was no power of judicial review.

3.  First Meetings of the Constitutional Court Justices: Fashioning a New Court

The first time the eleven justices met together was not in South Africa, but in Karlsruhe, Germany. The then German ambassador to South Africa, Hans-Christian Ueberschaer, recognized the connection between the German and South African Constitutional Courts. He suggested to the then president of the German Constitutional Court, Jutta Limbach, that she should invite the eleven justices to join the members of her court for a five-day seminar on issues that might be useful for judges on a brand new constitutional court. This was a wonderful opportunity, and we learned much from our German colleagues. Enduring friendships were also made during that visit, and some indeed last until today.

Our first meetings were devoted to deciding how we would function in our new court. We agreed that in both appearance and procedure, our court should indicate to the people of South Africa that we were embarking on a new path under a democratic constitution. South African judges traditionally wore the robes that were inherited from English colonial times. We designed new robes that looked very different. We chose a green robe with stripes in the colours of South Africa on the sleeves, and wore French-style bibs. Importantly, the robes were unisex.

We decided that we would abandon the traditional form of addressing judges as ‘My Lord’ and ‘My Lady’, and opted for the United States practice of being called ‘Justice’ or, in the case of the president ‘Mr President’. When the presiding justice of the Constitutional Court became the chief justice, he was addressed simply as ‘Chief Justice’. It took some time for members of the bar to become accustomed to this change.

We also abandoned the system of judicial seniority. This decision was forced upon us, as some of the black members of the court would not have been eligible, in practice, for judicial appointment during the apartheid years. The existing judges were not prepared to have their seniority as judges taken into account. The president and deputy-president presided, and in each of the four terms every year, the nine other justices occupied different seats in an order chosen randomly by the president. The justices, thus, walk into and out of the courtroom in a different order each term. Judgments of the court are signed in (p. 326) alphabetical order. This procedure has continued to operate, with the chief justice and deputy chief justice presiding.

During the apartheid era, law clerks or researchers assisting judges were uncommon in South Africa. South African judges, following the example of the English and most other Commonwealth systems, did their own research and had no assistance in the writing of judgments. The interim constitution and, later, the final constitution, obliged South African judges, in interpreting the constitution, to have regard for international law, and invited them to have regard for foreign law. It was obvious that the new Constitutional Court judges would require considerable research assistance, and it was agreed that we would each have one law clerk in our chambers. A substantial United States foundation, Atlantic Philanthropies, generously agreed to fund a second law clerk for each of the justices, on condition that the appointment of the second law clerk was made on an affirmative action basis; that is, that he or she came from a disadvantaged background.

After about two years, the South African government agreed to pay also for the additional law clerks. Additionally, the court has every year accepted up to five foreign law clerks. These law clerks are provided with office accommodation in the chambers of the judges, but they have to secure their own funding for travel and subsistence. These clerks have come from the United States, Canada, Germany, and South Korea and, in recent years, from some African countries. The law clerks have made a substantial contribution to the work of the justices and, in turn, their experiences have given them a substantial advantage in their future careers in law. The Supreme Court of Appeal has also instituted a system of law clerks.

4.  The Constitutional Court and the Media

Important new committees were established by the justices. It was decided that it was important that the decisions of the Constitutional Court should reach and be understood by as many people in the country as possible. During the apartheid era, there was no formal communication between judges and the media, and the few journalists who devoted their time to the courts had to do the best they could to inform the public of decisions of the courts. The justices of the Constitutional Court established a special media committee with a brief to make the court media-friendly. The first innovation was to attach a media summary to every written judgment of the court. This is prepared by the chambers of the justice who writes the lead judgment. It is not an official document, and the full judgment constitutes the only official version of the judgment. The media summary contains a one or two-page précis of the judgment, including any dissent, written in lay language, and designed for immediate use by journalists. Facilities were set up at the court for use by journalists, including telephone and computer facilities, to enable them to be in rapid contact with their newspapers and so to facilitate the swift reporting of important decisions.

The problems associated with television cameras broadcasting live from the courtroom took some years to be resolved. The views of the justices were split between those who saw live broadcasting as a good means of making the hearings of the court accessible to a wide audience, and those who felt strongly that it would inhibit the free flow of discussion during oral hearings. There was also the fear that short clips in news bulletins would misrepresent what had actually transpired in the courtroom. It frequently happens that propositions are put to counsel not because the judge putting the question subscribes to that view, but rather to test submissions made by counsel. A clip of such a question, so it was feared, could be embarrassing and misleading. On (p. 327) the other hand, so it was argued, this danger also existed in the case of written reports by journalists present during the hearing. One justice threatened that if television cameras were allowed in court, he would refrain from asking questions. This did not happen.

I had had previous experience of cameras in court: in the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda. From the outset, there was live feed to television stations around the world. It was the experience of the judges and counsel that, after a while, they were not conscious of the cameras and were able to proceed with the work of the court unaffected by the cameras.

The way forward was an incremental one. At first, the television cameras were allowed to show only the justices walking into court and taking their seats. As soon as the appeal was called, the cameras had to be switched off. This became a rather tedious spectacle and caused embarrassment when old footage was used to introduce a television report during the evening news bulletin of a hearing in which one of the judges shown on the video clip had recused himself. The next development was allowing the cameras into court for the handing down of judgments. This was always accompanied by a short oral statement by the judge who writes the lead opinion. At first, this judge was restricted to reading from the opinion. This changed when some justices decided to explain the decision in lay language.

Eventually, one of the television stations threatened to bring an application for an order allowing full television broadcasting of oral argument. The claim was that the ban on television cameras constituted a violation of the freedom of the media, protected in the bill of rights. The justices pre-empted this application by agreeing to allow cameras in court during oral argument. Once permission had been granted for cameras to be in the courtroom, the novelty soon wore off and only important cases attracted the attention of television stations.

Other courts in South Africa have followed the lead of the Constitutional Court, and in cases of public interest it is not uncommon for the presiding judge or judges to allow live television broadcasting from the courtroom. Perhaps the most widely-broadcast South African trial was the recent case of Oscar Pistorius, the Paralympic ‘blade runner’ who was charged with murdering his girlfriend. This trial was watched by many millions of people around the world. I have no doubt that this development has been a positive one and in the interests of allowing many South Africans to gain a better understanding of the justice system.

Another innovation introduced by the media committee was a very informal annual meeting between some justices and the editors of major newspapers and broadcasters. Both sides were able to have frank discussions on positive and negative experiences. Misunderstandings were removed, and at least one positive outcome was the improvement of facilities for journalists at the court. In the early years of the Constitutional Court, the judges hosted a one-day workshop on court reporting. Leading South African journalists were joined by Anthony Lewis, a celebrated former United States Supreme Court reporter for the New York Times. This was a good learning experience for the judges and journalists.

Yet another committee that was established was for the law clerks. This consisted of two or three justices and three or four South African law clerks and one foreign law clerk. The law clerks were able to bring to the attention of the judges any problems they were encountering and were able to make suggestions for improvement. This committee constantly reviewed the working conditions of the clerks.

(p. 328) 5.  New Constitutional Court Building

For the first nine years of its existence, the Constitutional Court operated from rented accommodation in Johannesburg. The first justices were consulted on the features of the accommodation. For example, it was decided that the bench should not be high above the level of counsel’s tables or the public gallery. We did not wish to replicate the colonial heritage of judges sitting high above ordinary mortals. We wished to be able to converse easily with counsel and be at eye level with them. We realized that we would require an extensive constitutional law library, and sufficient space had to be allocated for it. As a consequence, the court has built up the largest constitutional law library on our continent.

In 2004, the Constitutional Court moved into new premises in Johannesburg. It was the first post-apartheid government building in South Africa. After much debate, it was decided to situate it on what was known as Johannesburg’s Braamfontein ridge, now renamed Constitution Hill. It was the site of a former British fort that later became a prison complex. Many thousands of South Africans were jailed there, including Mahatma Gandhi, Albert Luthuli, and Nelson Mandela. The prison was closed in 1983 but remained a constant reminder of the dark apartheid era. It was thought to be an appropriate place both to remember the oppressive past and to look to the democratic future.

The design of the building was the result of a government-sponsored international architectural competition. The brief given to the contestants was to design a building that was at one with the South African landscape and history. The competition was widely advertised in newspapers and architectural journals around the world, and an international jury was set up to judge the entries. There were almost 200 entries, including forty from abroad. The jury was not aware of the names of the entrants or the countries from which they came. In the result, a South African firm of architects was chosen by the jury. The firm consisted of three young South African architects from Durban and Johannesburg. At the ceremony to announce the winner of the competition, former President Nelson Mandela, said:4

The Constitutional Court building, indeed the entire Constitutional Hill precinct, will also stand as a beacon of light, a symbol of hope and celebration. Transforming a notorious icon of repression into its opposite, it will ease the memories of suffering inflicted in the dark corners, cells and corridors of the Old Fort Prison. Rising from the ashes of that ghastly era, it will shine forth as a pledge for all time that South Africa will never return to that abyss. It will stand as an affirmation that South Africa is indeed a better place for all.

The building is a welcoming and warm one and has several unusual features. The courtroom has one wall of old face brick that was taken from the awaiting-trial block of the former prison. Three prison buildings remain on the site and have been converted into an important and interesting museum. There is also a conference facility. The building was inaugurated by President Thabo Mbeki on South African Human Rights Day in May 2004. The proceedings took place in the presence of chief justices and appellate judges from many countries in Africa and other continents.

A hallmark of the court building is its impressive art collection. It was the result of a passion on the part of one the original eleven justices, Albie Sachs. The works are (p. 329) predominantly by South African artists, and all of them have some connection with the constitution and its norms and values. Some of the works were donated by the artists, and financial contributions came from foreign governments and foundations.

6.  Writing of Judgments

The procedures adopted by the justices in the writing of judgments appear to differ substantially from those adopted in most other apex courts, and especially from those of the United States Supreme Court. Prior to the hearing of oral argument, the chief justice allocates one member of the court to circulate the first draft judgment. After the hearing, the judges discuss the case in conference. If there is unanimity, the judge pre-appointed will circulate a draft by email to the other chambers. After exchanges of emails, the draft will be discussed and finalized in conference. Where differences of opinion emerge in conference, the matter will be debated until there clearly is no room for reaching agreement. In difficult and contentious cases, the judges might confer repeatedly for some weeks. These debates were always a joy and privilege to attend, and in which to participate. The arguments on all sides were honed and the eventual decisions benefited enormously from this rigorous procedure. The final judgment or judgments were also considered in conference with the aim of making them, whether majority or minority, the best they could be. This procedure also helped to develop the warm atmosphere of camaraderie that marks the relationship between the justices.

While it may be time-consuming, it contributes substantially to the quality of the judgments and, fortunately, the Constitutional Court controls the size of its own docket. There is no automatic right of appeal—leave to appeal from the court is required for cases to reach the court. Whether this deliberative process will continue in the same form if and when the caseload of the court increases remains to be seen. I would suggest that it is worthwhile keeping the docket sufficiently contained to allow this invaluable procedure to continue. The procedure I have described also explains the sometimes unusual order in which some judgments of the Constitutional Court are reported. The first draft judgment circulated will, of necessity, contain the relevant background and history of the case. Even if this judgment becomes a sole dissent, it will be reported first in order that the judgments that follow are understood.

As all appellate judges will agree, heads of argument are an essential aid to the members of the bench. They influence the direction of research prior to the oral hearing and allow ideas and analysis to be considered that might not otherwise be present to the minds of the judges. In my opinion, however, there is also considerable assistance from hearing full oral argument. The United States Supreme Court deprives itself of much of the latter assistance by allowing only limited oral hearings. The practice in England is to the contrary: in some cases oral hearings on one appeal may occupy some days. In the South African Constitutional Court, no more than one appeal is heard on any day. In cases where there are long records or complex issues, the appeal may be set down for more than one day. This allows the judges sufficient time to discuss their problems, views, and approach with counsel. It was my experience that I seldom left the courtroom after oral argument with the same views that I had prior to the hearing. Even in cases where my view about the outcome of the appeal may not have changed, I seldom failed to develop a more nuanced approach to some of the arguments justifying the conclusion.

(p. 330) 7.  International and Foreign Law

For many decades South African judges frequently turned to foreign law for inspiration. The law reports during the apartheid years are replete with foreign law references with regard to commercial law—companies, intellectual property, and negotiable instruments—and criminal law and procedure. In those areas of the law, South Africa borrowed a great deal from the laws of England and other Commonwealth countries and, in later years, from those of the United States. Those foreign sources were certainly not regarded as binding on South African judges, but rather as guides to legal developments and trends in other similar jurisdictions.

The bill of rights expressly obliges judges to have regard to international law and invites judges to have regard to foreign law.5 Section 233 of the constitution requires a court when interpreting legislation to ‘prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law’. It is further provided that customary international law is law in South Africa unless inconsistent with the constitution or an act of parliament. Section 36 of the constitution provides that the rights in the bill of rights may only be limited by a law of general application and ‘only to the extent that the limitation is reasonable and justifiable in an open and democratic based on human dignity, equality and freedom’. Therefore, in interpreting the bill of rights, judges are obliged to consider the limitations of rights that have been discussed and considered in other open and democratic jurisdictions and, in interpreting legislation, judges are obliged to consider international law. It is thus not surprising that, in its earliest cases, the Constitutional Court was obliged to consider what was embraced by the references to ‘international law’ and ‘foreign law’.

The first case in which oral argument was heard by the Constitutional Court related to the constitutionality of the death sentence. With regard to international law, the President of the Court, Arthur Chaskalson, said, with regard to the relevant provision of the interim constitution:6

[P]ublic international law would include non-binding as well as binding law. They may both be used under the section as tools of interpretation. International agreements and customary international law accordingly provide a framework within which the Bill of Rights can be evaluated and understood, and for that purpose, decisions of tribunals dealing with comparable instruments, such as the United Nations Committee on Human Rights, the Inter American Commission on Human Rights, the Inter-American Court of Human Rights, the European Commission on Human Rights, and the European Court of Human Rights, and, in appropriate cases, reports of specialised agencies such as the International Labour Organisation, may provide guidance as to the correct interpretation of particular provisions of the Bill of Rights.

The use of foreign law was especially important in the absence of South African precedents relating to human rights.

8.  Operating as a Single Bench

It is important for a court of final appeal to sit in bench. There are few such courts that do not do so. One exception is the Supreme Court of the United Kingdom. Its twelve judges sit (p. 331) in panels of three, five, seven, or nine judges. Especially in controversial cases, where there is unanimity or near unanimity on the bench, an important message is sent to the nation. This was significant when the Constitutional Court was called upon to certify that the ‘final constitution’, drafted by the democratically-elected Constitutional Assembly, complied with the requirements of the interim constitution. A split court would have conveyed an unfortunate message. The fact that there was unanimity in first refusing to certify the constitution7 and, after amendment by the Constitutional Assembly, in agreeing to certify the final constitution,8 was crucial to the credibility of both the court and, more importantly, of the constitution itself.

9.  Social and Economic Rights

A similar unanimity marked early decisions on the interpretation and implementation of the social and economic rights entrenched in the bill of rights.9 With regard to its social and economic rights jurisprudence, the court has been criticized, mainly by academics, for having been too deferential to the executive and for failing to adopt and apply the ‘minimum core’ approach that has for some decades been applied by United Nations Committee on Economic, Social and Cultural Rights (ESCR Committee). In its General Comment No 3 of 1990, the Committee said:

It is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every state party. Thus, for example, a state party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant.

In refusing to follow this approach, the Constitutional Court said:10

It is not possible to determine the minimum threshold for the progressive realisation of the right of access to adequate housing without first identifying the needs and opportunities for the enjoyment of such a right. These will vary according to factors such as income, unemployment, availability of land and poverty. The differences between city and rural communities will also determine the needs and opportunities for the enjoyment of this right. Variations ultimately depend on the economic and social history and circumstances of a country. All this illustrates the complexity of the task of determining a minimum core obligation for the progressive realisation of the right of access to adequate housing without having the requisite information on the needs and the opportunities for the enjoyment of this right.

Further, in the Treatment Action Campaign judgment,11 the court added:

Courts are ill suited to adjudicate upon issues where court orders could have multiple social and economic consequences for the community. The constitution contemplates rather a restrained and focused role for the courts, namely, to require the state to take measures to meet its constitutional obligations and to subject the reasonableness of these measures to evaluation. Such determinations of reasonableness may in fact have budgetary implications, but are not in themselves directed at rearranging budgets. In this way, the judicial, legislative and executive functions achieve appropriate constitutional balance.

(p. 332) The court was not able, on the facts placed before it in any of these social and economic rights cases, to fashion a minimum core. It was not for a court of final appeal to initiate a fact-finding exercise for which it is ill-equipped. As is the case with most courts of appeal, the Constitutional Court is bound by the record placed before it.

It was recently suggested that the court should appoint commissions of inquiry to gather the relevant evidence. I would suggest that the court should not embark upon this path without appropriate enabling legislation. If that is to be the path to be taken, I would suggest that it be preceded by careful research. Apparently this is the procedure in the Indian Supreme Court.12 On my understanding, there have been long delays and inefficiencies following upon the use of such a procedure. There are so many questions that would have to be considered. These include the manner in which such commissions are to be established, who should sit on the commissions, and the liability for the considerable costs that would be incurred. Perhaps most important of all is the question of whether such a procedure, if it were to be introduced, might not be better situated at the level of trial courts, in order to avoid the huge additional burden that would be placed upon the Constitutional Court. Apart from the work load of the court, this is not, I would suggest, a function that should be performed by an apex court consisting of eleven judges who all participate in all cases coming before the court. While easier access to justice by poor and disempowered members of our society is urgent and essential, attempts should not be made to achieve this end at the expense of the efficiency and credibility of the Constitutional Court.

In general, expectations with regard to social and economic rights have been set too high, and this has resulted in an inevitable sense of disappointment and frustration for many people. At the same time, litigating social and economic rights has substantially empowered civil society and made government departments more accountable for their policies and their implementation. This process should be pursued with vigour and in full recognition that the role of courts is complementary to the other two branches of government.

10.  Conclusion

All courts require the support of the state in order for their orders to be implemented. The independence of judges is crucial. In older democracies, this tends to be taken for granted. South Africa has been fortunate in that President Mandela explicitly promoted respect for the courts, and especially for the Constitutional Court. When the court ruled against the government, President Mandela promptly indicated that its decisions would be respected. This approach has been followed by his successors. In recent times, there have been some unfortunate instances in which government officials have been slow to implement some judicial decisions. At the time of writing, the government, at the highest level, appeared to be in contempt of a decision of the High Court prohibiting President Al-Bashir of Sudan departing from South Africa (where he attended a meeting of African Union heads of state) pending a decision on whether he should be arrested pursuant to a warrant issued for his arrest by the International Criminal Court.

On 13 March 2016, the Supreme Court of Appeal held that the South African government was under an obligation to cooperate with the ICC in arresting Sudanese President Omar Al-Bashir.13 In doing so, the Court dismissed the state’s appeal against a High (p. 333) Court ruling that the government’s failure to arrest Al-Bashir was inconsistent with its constitutional duties. The Court further said that the Al-Bashir’s case was of substantial public importance and it had been unlawful for the government to allow him to leave the country. The South African government is presently appearing before the ICC to explain why it did not arrest Al-Bashir.14

The Constitutional Court has played, and continues to play, a crucial role in the development of our new democracy. The demand for such a court by President Nelson Mandela has been fully justified during the first two decades of our new democracy.


1  In ascribing this demand and other views to Mandela, I take into account the important input from other leaders of the African National Congress and its constitutional advisers. However, from personal discussions with Mandela during 1992 and 1993, I was left in no doubt as to his own strong views about the Constitutional Court and its establishment being a non-negotiable demand.

2  Komani NO v Bantu Affairs Administration Board, Peninsula Area 1980 (4) SA 448 (A); Oos-Randse Administrasieraad v Rikhoto 1983 (3) SA 595 (A).

3  S v Govender 1986 (3) SA 969 (T).

4  Quoted on the website of Gauging Province, ‘The Constitutional Court of South Africa’ http://www.gauteng.net/attractions/entry/the_constitutional_court_of_south_africa/ (last accessed 1 July 2015).

5  The Constitution of the Republic of South Africa 1996 s 36(1).

6  S v Makwanyane 1995 (3) SA 391 (CC) 413–14.

7  Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC).

8  Certification of the Amended Text of the Constitution of the Republic of South Africa 1997 (2) SA 97 (CC).

9  Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC); Government of the Republic of South Africa v Grootboom and Others 2001 (1) SA 765 (CC); Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 721 (CC).

10  See Grootboom (n 9) [32].

11  See Treatment Action Campaign (n 9) [38].

12  The Commissions of Inquiry Act 1952, No 60, Acts of Parliament 1952 (India).

13  See The Minister of Justice and Constitutional Development and Others v The Southern Africa Litigation Centre and Others http://www.saflii.org/za/cases/ZASCA/2016/17.pdf (last accessed 17 April 2017).

14  See ‘South Africa Grilled by the ICC over Decision not to Arrest Al-Bashir’ http://www.702.co.za/articles/251616/south-africa-grilled-by-icc-over-decision-to-not-arrest-al-bashir (last accessed 17 April 2017).