The Constitutional Court of South Africa is a supreme constitutional court established by the Constitution of South Africa. It was originally the final appellate court for constitutional matters. Since the enactment of the Superior Courts Act in 2013, the Constitutional Court has jurisdiction to hear any matter if it is in the interests of justice for it to do so.
The court was first established by the Interim Constitution of 1993, and its first session began in February 1995. It has continued in existence under the Constitution of 1996. The court sits in the city of Johannesburg; since February 2004 it has occupied a purpose-built complex on Constitution Hill.
The Constitutional Court consists of eleven judges who are appointed by the President of South Africa from a list drawn up by the Judicial Service Commission. The judges serve for a term of twelve years. The court is headed by the Chief Justice of South Africa and the Deputy Chief Justice. The duty of the judges is to uphold the law and the constitution, which they must apply impartially and without fear, favour or prejudice.
The constitution requires that a matter before the court be heard by at least eight judges. In practice, all eleven judges hear almost every case. Decisions are reached by a majority vote of the judges sitting in a case. Each judge must indicate his or her decision, and the reasons for the decision are published in a written judgment.
Appointment procedure and tenure
Sections 174 to 178 of the Constitution deal with the appointment of judicial officers. Judges may not be members of Parliament, of the government or of political parties. To select judges the Judicial Service Commission first draws up a list of candidates which list must have three or more names than the number of vacancies. The Commission does this after calling for nominations and holding public interviews.
Then the President, after consultation with the Chief Justice and the leaders of political parties represented in the National Assembly, chooses the judges from this selection.
The judges ordinarily serve for a non-renewable term of 12 years, unless it is extended by an Act of Parliament.
Current Constitutional Court justices (correct at September 2015):
- Chief Justice Mogoeng Mogoeng (appointed by Jacob Zuma in 2009 and elevated in 2011)
- Deputy Chief Justice Dikgang Moseneke (born 1947, appointed by Thabo Mbeki in 2004 and elevated by Thabo Mbeki in 2005)
- Justice Edwin Cameron (born 1953, appointed by Kgalema Motlanthe in 2008)
- Justice Johan Froneman (appointed by Jacob Zuma in 2009)
- Justice Chris Jafta (appointed by Jacob Zuma in 2009)
- Justice Sisi Khampepe (appointed by Jacob Zuma in 2009)
- Justice Mbuyiseli Madlanga (appointed by Jacob Zuma in 2013)
- Justice Bess Nkabinde (born 1959, appointed by Thabo Mbeki in 2006)
- Justice Johann van der Westhuizen (appointed by Thabo Mbeki in 2004)
- Justice Raymond Zondo (appointed by Jacob Zuma in 2012)
One seat is currently vacant due to the retirement of Justice Thembile Skweyiya in May 2014.
For this reason the following acting judges were appointed in January 2015 by Jacob Zuma:
- Justice Achmat Jappie, Deputy Judge President of the KwaZulu-Natal Division of the High Court, for the period 1 February 2015 to 31 March 2015.
- Justice Zukisa Tshiqi of the Supreme Court of Appeal, for the period 1 April 2015 to 31 May 2015, and
- Justice Mohube Molemela, the Judge President of the Free State Division of the High Court, for the period 1 February to 31 May 2015.
Former Chief justices
- Chief Justice Pius Langa (born 1939, appointed by Nelson Mandela in 1994, elevated to Deputy President of the Court by Nelson Mandela in 1997, became Deputy Chief Justice in 2001, elevated to Chief Justice by Thabo Mbeki in 2005, retired in 2009, died in 2013)
- Chief Justice Sandile Ngcobo (born 1953, appointed by Nelson Mandela in 1999 and elevated by Jacob Zuma in 2009, retired in 2011)
- Chief Justice Arthur Chaskalson (born 1931, appointed by Nelson Mandela as President of the Constitutional Court in 1994, became the Chief Justice in 2001, retired in 2005, died in 2012)
- Justice Tholie Madala (born 1937, appointed by Nelson Mandela in 1994, retired in 2008, died in 2010)
- Justice Yvonne Mokgoro (born 1950, appointed by Nelson Mandela in 1994, retired in 2009)
- Justice Kate O’Regan (born 1957, appointed by Nelson Mandela in 1994, retired in 2009)
- Justice Albie Sachs (born 1935, appointed by Nelson Mandela in 1994, retired in 2009)
- Justice John Didcott (born 1931, appointed by Nelson Mandela in 1995, died in office in 1998)
- Justice Ismail Mahomed (born 1934, appointed by Nelson Mandela in 1995, elevated to Chief Justice of the Supreme Court of Appeal in 1998, died in 2000)
- Justice Lourens Ackermann (born 1934, appointed by Nelson Mandela in 1994, retired in 2004)
- Justice Richard Goldstone (born 1938, appointed by Nelson Mandela in 1994, retired in 2003)
- Justice Johann Kriegler (born 1932, appointed by Nelson Mandela in 1994, retired in 2003)
- Justice Zak Yacoob (born 1948, appointed by Nelson Mandela in 1998, retired in 2013)
- Justice Thembile Skweyiya (appointed by Thabo Mbeki in 2003, retired in 2014, died in 2015)
The constitution as the supreme law
The judgments of the court are based on the constitution, which is the supreme law of the land. They guarantee the basic rights and freedoms of all persons. They are binding on all organs of government, including the parliament, the presidency, the police force, the army, the public service and all courts. This means that the court has the power to declare an Act of Parliament null and void if it conflicts with the constitution and to control executive action in the same way.
When interpreting the Constitution, the court is required to consider international human rights law and may consider the law of other democratic countries. Since the enactment of the Superior Courts Act, the Constitutional Court has jurisdiction to hear any matter if it is in the interests of justice for it to do so.
Other bodies protecting human rights
The court is one of many bodies created by the constitution to defend the rights of citizens. It is concerned basically with matters of broad constitutional principle. Bad or incorrect conduct by state officials can be reported to the Office of the Public Protector, formerly called the Ombudsman. A Human Rights Commission has been established to handle complaints of violation of human rights in daily life. The ordinary courts, notably the small claims courts, the Magistrates’ Courts, the High Courts and the Supreme Court of Appeal, deal with day-to-day disputes between citizens and the state.
Co-operation with Parliament and Provincial Assemblies
The Constitutional Court has a special responsibility to parliament and provincial legislatures. If there is a dispute in parliament or in a provincial legislature concerning whether or not legislation that has been passed and assented to is constitutional, a third of the members of the body concerned may apply to the Constitutional Court to give a ruling. Similarly, the President or the Premier of a Province may refer a bill to the court for a decision on its constitutionality before assenting to that Bill.
Proceedings in court
The court does not hear evidence or question witnesses. It does not decide directly whether accused persons are guilty or whether damages should be awarded to an injured person. These are matters for the ordinary courts. Its function is to determine the meaning of the Constitution in relation to matters in dispute. One consequence of this is that the court works largely with written arguments presented to it by the parties. The hearings of the court are intended to address particularly difficult issues raised by the written arguments of the parties.
The hearings of the court are open to the public and the press. No cameras or recorders are ordinarily permitted. The public is invited to attend all sessions. Ordinary rules of decent dress and decorum apply.
- S v Makwanyane and Another (6 June 1995): abolished the death penalty, declaring capital punishment to be inconsistent with the Interim Constitution.
- Government of the Republic of South Africa v Grootboom (4 October 2000): the government is obliged to provide housing relief to those living in intolerable situations or in crisis situations.
- Mohamed v President of the Republic of South Africa (28 May 2001): suspects cannot be extradited under circumstances where they may face the death penalty.
- Alexkor v Richtersveld Community (14 October 2003): rights to land under customary law must be recognised, and communities dispossessed of land owned under customary law are entitled to restitution.
- Minister of Home Affairs and Another v Fourie and Another (1 December 2005): the government must recognize and allow same-sex marriage.
- Judgments of the Constitutional Court of South Africa
- Light on a Hill: Building the Constitutional Court of South Africa. Edited by Bronwyn Law-Viljoen, photography by Angela Buckland. November 2006. Johannesburg: David Krut Publishing. 173 pages. ISBN 978-0-9584860-7-1. Available from David Krut Publishing. 
- “ART in ART Re: The Constitutional Court of South Africa”. “ART in ART,” was created from artist Marsha Giegerich Torkelson’s photographs taken as a tourist while viewing the art and architecture of South Africa’s new Constitutional Court in Johannesburg. The welcoming, uplifting qualities of the building’s design which includes sculpture, mobiles, tapestries, paintings, bead, metal and woven work and much more begin on the exterior of the building and continue with many surprises inside. She created collages by enlarging her photographs on transparencies and then placing them together with painted backgrounds to approximate the experience of viewing the Court’s integration of art into the architecture. In her 43 collages, she tried to give a sense in a multi-dimensional manner of the Constitutional Court’s goals of social justice and transparency as one sees them in the many images and objects symbolising one of the Court’s main themes: traditionally people gather under the trees to settle problems in African villages. Thus, one sees artists’ renderings of tree trunks, leaves, sky and shadows from light shining through the branches throughout the building—“justice under the trees.” The collages celebrate these lofty themes and the art of the Constitutional Court as well as the spirit of all involved in its creation. It can be seen at Blurb.com