essay questions

Consequential Courts

JUDICIAL ROLES IN GLOBAL PERSPECTIVE

Edited by

DIANA KAPISZEWSKI University of California, Irvine

GORDON SILVERSTEIN Yale Law School

ROBERT A. KAGAN University of California, Berkeley

CAMBRIDGE UNFVERSiry PRESS

92 Alexei Trochev

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3

Constitutional Authority and Judicial Pragmatism

Politics and Law in the Evolution of South Africa's

Constitutional Court

HeinzKlug*

Judging from comments in judicial opinions and academic journals. South Africa's

Constitutional Court is held in high esteem around the world. Although this might

seem an unsurprising response to the highest court in a post-apartheid South Africa,

this chapter argues that the Court's image as well as its judicial authority are the

product of a very particular set of conditions and politics and cannot be taken for

granted now or in the future. Implicit in this argument is the idea that the Con-

stitutional Court plays a number of different roles that vary over time. In order to

understand the evolution of the Constitutional Court and of its roles in the gov-

ernance of the country, it is important to explore three dimensions of the Court's

history and function, which taken together, provide insight into the way in which

the courts and judges have entered into national political life, and what dififer-

ence their participation has made in the construction of constitutional democracy

in South Africa. These three dimensions are: (i) the sources of judicial authority;

(2) the practice of the judiciary in exercising this authority; and (3) the challenges

faced by the court as political conditions shift, and as it is confronted with increas-

ingly difficult cases rooted in seemingly intractable socioeconomic and political conditions.

In terms of the causal framework this volume employs, we can identify three

distinct sets of factors that have helped to define the roles the South African Con-

stitutional Court has performed: (i) the original conditions that enabled the Court

to issue the rulings for which it has become famous; (2) the internal motivations

or actions of the Court; and (3) the external influences that encouraged the Court

to adopt the stance it has taken. These three factors provide a means to identify

and evaluate how particular cases and events have shaped each of the three dimen-

sions that need to be explored in order to understand the roles the Court has and

Evjue-Bascom Professor of Law, University of Wisconsin Law School, Honorary Senior Research

Associate in the School of Law, University of the Witwatersrand.

94 Heinz Klug

continues to play in governance. In practice, these factors - and the various roles they

enable or provoke - are not distinct or separate from one another. At any moment

the Court is both tackling a particular set of cases defined by a host of factors that are

mostly beyond its control, as well as managing its own broader role in the polity with

respect to other institutions and the public more generally. Understanding how the

Court's various roles have evolved thus requires both identifying particular strands

within the general functioning of the Court, as well as appreciating the continuous

change that marks the life of an institution seeking to build its own jurisprudential

body of doctrine at the same time its primary decision makers are being periodi-

cally replaced, and it is being reshaped as a working entity adopting principled and

strategic responses to the world.

To build an understanding of the Constitutional Court's evolving roles, this chap-

ter begins by discussing the sources of judicial power, including the historical legacies

of law and practice; the Court's origins and the appointment of justices; the Court's

early decisions and the triumph of rights; international recognition; and finally, the

efforts to promote a constitutional patriotism around the court. Second, the chapter

explores the ways in which the Court has pursued its task: both its strategic engage-

ment with issues and a degree of judicial pragmatism help to account for the Court's

success in institutionalizing its role within the political system. Finally, the chapter

turns to discuss a series of cases that brings the Court to the margins of its power,

raising a number of concerns about the limits of its power and the growing struggle

and debate about the role of law - and constitutional adjudication in particular -

in the politics of South Africa today. Although the Constitutional Court continues

to play a central role in the legal system, the political tensions that are inevitable in

a country facing enormous social, political, and economic challenges have not left

the judicial system unaffected. The chapter will conclude with a discussion of these

tensions and the continuing attempts by the government and the Court to find a way

forward that both protects the legitimacy of the Court and addresses the tensions

inherent in the relationship behveen a powerful political center and a Court with

unique constitutional authority.

Before addressing these specific dimensions of the Constitutional Court's experi-

ence, it will be useful to give a brief snapshot of the history and practice of the Court.

As a direct product of the political negotiations that ended apartheid, the Constitu-

tional Court - provided for in the 1993 "interim" Constihjtion - was established in

the first half of 1995, about a year after South Africa's first democratic election, with

the appointment of eleven justices to the Court. The Court was formally opened

in October 1995. Empowered to exercise both concrete and abstract review, as well

as to take direct applications and serve as a court of final review, the Constitutional

Court has had a broad scope of authority within which to establish its role. On

average, the Court decided about hventy-five cases per year during its first decade

and ruled against the government in about 40 percent of cases. Of the cases that the

Court decided, approximately 60 percent were on the basis of claims of violations

Constihitional Authority and Judicial Pragmatism 95

rights, and 30 percent arose out of criminal cases. About 78 percent of all cases

were decided by a unanimous Court.

SOURCES OF JUDICIAL POWER AND THE EMERGENCE OF MULTIPLE ROLES FOR THE COURT

The South African Constitutional Court has wielded significant power over the first

fifteen years of constitutional democracy in South Africa, despite the well-rehearsed

notion that the judiciary is the "least dangerous branch" of government (Bickel

1962). In making this claim, it is useful to identify the particular sources of power

that any judiciary may draw on, including formal and informal sources of power as

well as popular support and legitimacy. Apart from formal constitutional recognition

of the judiciary s power to decide cases and even exercise its jurisdiction over the

Executive and Legislature through administrative and constitutional review, I will

argue that judiciaries - and Constitutional Courts in particular - are empowered or

constrained by a number of specific conditions. These include specific processes,

legacies, roles, and even public campaigns, such as: the origins of the Court and

the processes through which justices are appointed; the specific historical legacy

of the courts and judiciary; the Court's handling of major cases, particularly in the

early years of a new jurisdiction; recognition of the Court's decisions both internally

and by an increasingly interested international audience; and finally, the ways in

which the Court works to establish its place within the political life of the society,

for example through the promotion of a constitutional patriotism or other strategies

to enhance the role of the Court, law, and constitution in particular.

Historical Legacies

Although the rejection of tyranny and embracing of rights may seem a logical reac-

tion to a period in which rights have been systematically violated, this does not

explain why a particular society would choose to turn toward the judiciary as the

ultimate protectors of such rights. This is particularly so when the judiciary and the

law in general were intimately associated with the construction and maintenance

of a prior oppressive regime. In South Africa, judicial review of legislative authority

had historically been explicitly rejected, and in the period just prior to the demo-

cratic transition all the major parties remained committed to notions of democracy

that assumed a future democratic South Africa would continue to embrace parlia-

mentary sovereignty (Klug 2000). In fact, the struggle against apartheid was always

understood as a struggle against racial oppression and minority rule, and conversely,

as a struggle for majoritarian democracy. This history makes the empowerment of

judges not just unnecessary to the original goals ofdemocratization, but an interest-

ing development that reflects both global dynamics around judicial empowerment

and internal notions of the proper role of the judiciary in the new South Africa.

96 Heinz Klug Constitutional Authority and Judicial Pragmatism 97

Despite attempts by participants in the antiapartheid struggle to defend themselves

in the courts against the abuses of the state, it was only in the last decade of the

apartheid era that they began to actively engage the judiciary in an attempt to

challenge apartheid laws and create legal spaces for contesting the policies and

actions of the apartheid state (Abel 1995; Harris 2008). Although there were significant

victories in the Supreme Court against the States of Emergency, such as requiring

the police to account for their actions (Haysom and Kahanovitz 1987), it is important

to distinguish the Supreme Court from the lower courts. In both highly publicized

inquest hearings and what came to be described as a system of punishment by

process" in the lower courts, the experience of the majority of participants in the

legal system provides a completely different perspective. Although more than seventy

political detainees are known to have died in security police detention behveen

1963 and 1990, the courts repeatedly exonerated their torturers "either because the

conspiracy of silence and outright lying by police officers made it impossible to

reach the truth or because the courts too readily believed the fairytales proffered as

fact... [and] in the face of glaring evidence to the contrary, they resolutely declared

that no one was to blame" (Bizos 1998: 6-7).

Even the superior courts came under direct criticism after antiapartheid lawyers

in the mid-1980s - who had gained early judicial victories against the worst

restrictions of the state of emergency - experienced a wave of successive judg-

ments by the Appellate Division that held that the state had virtually unlimited

power under emergency provisions (Haysom and Kahanovitz 1987; Rickard 1988).

Criticism came particularly from external bodies such as the International Com-

mission of Jurists, whose observer at the treason trial of Helene Passtoors in 1986

concluded that there is "justification to the viewpoint of black people and concerned

whites that most South African courts in their uncritical and 'positivist' approach

to apartheid legislation merely serve as instruments of repression" (Sidley 1986: 2).

Thus, although it may be reasonable to believe that the victims of apartheid would

support the introduction of a bill of rights in response to the massive denial of rights

under apartheid, there is less reason to believe that there should be an equivalent

faith in the judiciary as the upholder of such rights.

Given this historical experience it is difficult to conclude that the new Con-

stitutional Court was in a position to draw on either a vast reservoir of judicial

legitimacy or respect for past law. Instead, it is easier to see how the new court would

be able to use the past to distinguish itself as a completely new institution with a

fundamentally different role in protecting individuals and promoting a culture of

rights in a democratic South Africa. In fact, the Constitutional Court has treated

the country's colonial and apartheid history and its continuing legacy as a constant

backdrop and justification for its generous interpretations of rights. In their first

major judgment striking down the death penalty (Makwanyane), the justices of the

new Constitutional Court made repeated reference to the country's recent history

as a justification for both their own role as interpreters of the Constitution as well as

their purposive approach to interpretation. Justice Mahomed, for example, argued

that:

In some countries the Constihition only formalizes, in a legal instrument, a his-

torical consensus of values and aspirations evolved incrementally from a stable and

unbroken past to accommodate the needs of the future. The South African Con-

stitution is difFerent: it retains from the past only what is defensible and represents

a decisive break from and a ringing rejection of that part of the past which is disgracefully racist, authoritarian, insular and repressive.... What the Constitution

expressly aspires to do is to provide a transition from these grossly unacceptable

features of the past to a conspicuously contrasting "future founded on the recog-

nition of human rights, democracy and peaceful co-existence and development

opportunities for all South Africans, irrespective of colour, race, class, belief or sex."

(State v Makwanyane and Another: para. 262)

In this way, history has been used by the justices of the new Constitutional Court

as a way to repeatedly assert the Court's role in building a new culture of rights and

distinguish the past, including past law, as a counterexample or anti-modelto itself.

The Court's Origins and the Appointment of Justices

Prior to the 1993 interim Constitution, the architecture of the South African

high court system (the Supreme Court) was composed of a number of provincial

and local divisions of the Supreme Court - which had both original and review

jurisdiction - from which a final appeal was made to the Appellate Division of the

Supreme Court. The judiciary was appointed by the executive, and as a matter of

custom its members were drawn from the ranks of senior advocates - the equivalent

of barristers - in South Africa's divided bar. As a result of both the reluctance of a

number of senior advocates - who considered the apartheid judiciary to be tainted -

as well as the increasing tendency of the apartheid regime to appoint judges

sympathetic to its world view, the integrity of some justices - particularly the very

conservative Chief Justice Rabie - had been increasingly brought into question.

F. W. De Klerk's appointment of the more liberal Justice Corbett at the very

beginning of the democratic transition in 1989 seemed to acknowledge the impor-

tance of shoring up the legitimacy of the judiciary during this period. At the same

time, the liberation movement was suggesting that there needed to be a complete

replacement or at least vetting of apartheid judges. In stark contrast to this negative

and contested historical legacy, the origins of the Constitutional Court as well as

the legitimacy of the justices appointed by the newly elected President Nelson

Mandela brought an extraordinary degree of legitimacy to this emerging institution.

As attention shifted in the early 19903 to the negotiation of a new Constitution, a

debate began over the role of the judiciary in a postapartheid South Africa. Although

there was early agreement in constitutional negotiations at Kempton Park in

98 Heinz Klug

on the principle that there should be a competent, independent, and impartial

judiciary that should have the "power and jurisdiction to safeguard and enforce

the Constitution and all fundamental rights" (Third Report, 1993: 2), the parties

remained far apart in their proposals for the structure, functioning, and means of

appointing judges to a new court. Resolution of this conflict involved an elaborate

compromise requiring the newly elected president to follow three distinct processes

in appointing members of a new Constitutional Court for a nonrenewable period

of seven years (1993 Const.: S99[i]). First, the president appointed a president of

the Constitutional Court in consultation with the cabinet and chief justice (1993

Const.: s9y[2][a]). Second, four members of the court were appointed from among

the existing judges of the Supreme Court after consultation behveen the president,

cabinet, and chief justice (1993 Const.: s99[3]). Finally, the president, in consul-

tation with the cabinet and the president of the Constitutional Court, appointed

six members from a list submitted by the Judicial Service Commission (JSC) (1993

Const.: S99[3J), a newly created body dominated two-to-one by lawyers (1993 Const.:

S10?[l]). The "final" Constitution extended the period ofnonrenewable appointment from

seven to hvelve years but also imposed a mandatory retirement age of seventy years. A

subsequent constitutional amendment provides that the term of an individual justice

may be extended by an act of Parliament (1996 Const.: si76[i]). Appointments to the

court are now made by the president, either in consultation with the JSC and the

leaders of the political parties represented in the National Assembly (in the case of

the chief justice and the deputy chief justice), or from a list of nominees prepared

by the JSC after the president consults with the chief justice and the leaders of

political parties (for the remaining positions on the court). The JSC is required to

provide three more nominees than the number of appointments to be made and the

president may refuse to appoint any of these by giving reasons to the JSC why

the nominees are unacceptable - requiring the JSC to provide a supplemental list.

The president's power of appointment is further restricted by the requirement that

"at all times, at least four members of the Constitutional Court must be persons who

were judges at the time they were appointed" (1996 Const.: si74[5J).

Appointment to the Constitutional Court is also determined by the requirement

that justices must be South African citizens and consideration must be given to the

"[njeed for the judiciary to reflect broadly the racial and gender composition of

South Africa" (1996 Const.: si74[i] and [2]). In practice, the Constitutional Court

has, despite its young age, experienced regular changes in composition. This has

occurred as a result of a number of developments, including the transfer of the first

deputy president of the Court to become chief justice (a position at the helm of

the Supreme Court of Appeal exercising final appeal jurisdiction over nonconstitu-

tional matters), the death of Justice Didcott, numerous retirements, and the fairly

frequent use of acting (temporary) justices when permanent members were either

on temporary assignment to international organizations or on leave. The Judges

Constitutional Authority and Judicial Pragmatism 99

Remuneration and Conditions ofEmploymentAct of 2001 nowprovides thatwhereas

the formal length of a justice's term remains twelve years, justices may continue

until they have completed fifteen years of total judicial service or reached the age

ofseventy-five - whichever comes first - in order to ensure that those who have not

sly held judicial office may still retire from the Court with a full judicial

i. Although the first appointments to the Constitutional Court were domi-

nated by lawyers, judges, and legal academics who had gained high stature during

the struggle against apartheid or whose integrity was recognized nationally and inter-

nationally, concern for the need to achieve or maintain racial and ethnic represen-

tation seems to have determined more recent appointments. Fifteen years after its

inauguration, the justices of the Constitutional Court reflected the diversity of South

Africa with hvo female, three white, seven African, one Indian, and one physically

disabled justice on the eleven-person panel.

Early Decisions and the Triumph of Rights

In its first politically important and publicly controversial holding, the South African

Constitutional Court struck down the death penalty (Makwanyane 1995). Although

there had been a moratorium placed on executions from the end of 1989, as part

of the initial moves toward a negotiated political transition, possibly as many as

400 persons were awaiting execution at the time of the Court's ruling. In declaring

capital punishment unconstitutional, the Court emphasized that the transitional

Constitution established a new order in South Africa, one in which human rights and

democracy are entrenched and in which the Constitution is supreme. The Court's

declaration of a new order on the basis of constitutional rights was forcefully carried

through in the adoption of a generous and purposive approach to the interpretation

of the fundamental rights enshrined in the Constitution (Klug 2006).

The unanimous opinion, authored by Justice Arthur Chaskalson, the president

of the Court, was judiciously tailored. Finding that the death penalty amounted to

cruel and unusual punishment under most circumstances, Chaskalson's opinion

declined to engage in a determinative interpretation of other sections of the bill of

rights that may also have impacted on the death penalty, such as the right to life,

dignity, and equality. Although the individual concurring opinions of the remaining

ten justices were not as restrained, they all joined Justice Chaskalson in giving explicit

and great weight to the introduction of constitutional review. They emphasized that

the Court "must not shrink from its task" of constitutional review (Makwanyane:

para. 22), otherwise South Africa would be back to parliamentary sovereignty and by

implication back to the unrestrained violation of rights so common under previous

legislatures (Id.: para. 88). Even the recognition that public opinion seemed to favor

the retention of the death penalty was met with a clear statement that the Court

would "not allow itself to be diverted from its duty to act as an independent arbiter

of the Constitution" (Id.: para. 89) and that public opinion in itself is "no substihjte

100 Heinz Klug

for the duty vested in the Courts to interpret the Constitution and to uphold its

provisions without fear or favor" (Id.: para. 88). If public opinion were to be decisive,

Chaskalson argued, "there would be no need for constitutional adjudication" (Id.).

The Court took a similarly strong stand in its other early rulings striking down

legislation in violation of the equality clause, and numerous criminal cases involving

both procedural and substantive rules that the Court found in violation of the Bill

of Rights. In its first year, more than 64 percent of the Court's caseload involved

criminal matters, although this dropped to around one-third in the following hvo

years. In considering the willingness of this new court to strike down legislation and

reverse official decisions, it is important to note that the vast bulk of the legislation it

struck down in this early period, and most of the official decisions and acts it reversed,

were inherited from the apartheid era. Although the old regime had insisted on legal

continuity - the idea that all laws would remain in place until either reversed by new

legislation or found to be inconsistent with the new Constitution by the Court - the

outcome of this approach was to indirectly empower the new Constitutional Court

as it proceeded to strike down old laws and regulations without any resistance from

the new democratic government. WW might under other circumstances have been

perceived as a countermajoritarian and hence antidemocratic exercise of power was

instead embraced as the triumph of human rights standards over the legacies of

apartheid.

International Recognition

It was this boldness in the upholding of rights that brought international attention to

the new Court. From the moment the Court struck down the death penalty it was

held up around the world as a shining model, a new and progressive institution arising

out of the ashes of apartheid. When it first reversed a decision made by President

Mandela, he welcomed the ruling and publicly thanked the Court for doing its duty.

By the time the court was faced with making decisions at odds with the policies of

the new government, it had garnered a significant amount of international support

and recognition. The international recognition achieved by the Court has helped

secure its role as the premier institution defending human rights in postapartheid

South Africa.

The Old Fort and Constitutional Patriotism

Adding to the symbolic stature of the new Constitutional Court has been the project

of renovating and transforming the site of a cluster of prisons, known as the "Old

Fort," located in the center of Johannesburg. The Constitutional Court was first

housed in a Johannesburg business park. Placing the new Court building in the

center of the Old Fort site - along with the renovation of the Old Fort and related

prison buildings as historical monuments to the history of the "lawful" violation

Constitutional Authority and Judicial Pragmatism 101

of rights - placed the Court in the midst of a project to build what has been

termed in the German context "constitutional patriotism." This project, pursued

more vigorously by some justices than others, seems to be aimed at solidifying the

historic role of the Court in the building of a new South Africa. Despite continuing

social inequalities and periodic examples of blatant disrespect for rights by some

government officials, the notion that South Africa is building a culhire of rights on

the basis of the new Constitution is consistently asserted by the government. As long

as the political leadership in all branches of government continues to assert that

the Constitution is South Africa's highest achievement in the transition away from

apartheid, the Court will be able to pursue its role of publicly promoting a culture of

rights and constitutional supremacy, both through its decisions and the articulation

of a project of constitutional patriotism.

A Powerful Court?

There can be little doubt that the Constitutional Court is one of the most successful

institutions to emerge in postapartheid South Africa. Not only is it the guardian of

the political transition's most explicit symbol - the final Constitution - but unlike

all other branches of government, it began its life as a brand-new institution, its

personnel largely untainted by apartheid. Further, its most explicit task is to uphold

the promise of rights that embody the hopes and aspirations of those who struggled

against apartheid. These attributes do not, however, guarantee power or authority

given the inherent institutional limits of an apex Court. Instead, the Court has used

its symbolic authority to publicly engage in what has been termed a "post-liberal"

or transformative constitutionalism" - a rejection of the negative past, a generous

interpretation of rights, and a commitment to "inducing large-scale social change

through nonviolent political processes grounded in law" (Klare 1998: 150). At the

same time, however, the Court has always wielded this power conscious of what this

assertion suggests about its broader roles in governance - in what may be viewed

paradoxically as a form of judicial pragmatism rather than the symbolic judicial

activism the Court's rights jurisprudence has led most international observers to

applaud.

STRATEGIC ENGAGEMENT AND JUDICIAL PRAGMATISM IN DEFINING THE COURT'S ROLE

Asserting a constitutional patriotism and declaring a culture of rights have been the

hallmarks of the early life of the Constitutional Court. However, at the same time,

the Court has always been concerned about its own role in the new political order

(Klug 2011). Aware of their unique status within the new constitutional order, the

justices of the Constitutional Court have been careful to define their role as simply

upholding the law and have denied claims they might be substituting their own

102 Heinz K/ug Constitutional Authority and Judicial Pragmatism 103

political decisions for those of the democratically elected branches of government

through their formal role as interpreters of the Constitution. Furthermore, the Court

has in fact had to manage a number of quite explicit challenges to its role. In one

case concerning the appointment of a commission of inquiry by the president, for

example, one party demanded that all of the justices recuse themselves because they

had been appointed by President Mandela. More recently, the Johannesburg High

Court upheld a claim that the justices of the Constitutional Court had violated

the constitutional rights of Cape Judge President John Hlophe, whom the justices

had publicly accused of attempting to interfere in the Court's decision making on

pending appeals by then-ANC President Jacob Zuma. The Court also came under

direct political attack by senior ANC politicians who objected to legal processes

involving Jacob Zuma before his election as president of the country in 2009. Despite

these setbacks, the Court has remained quite conscious of the different ways in which

it is responsible for ensuring the transition to democracy. Moreover, in response to

these attacks, President Kgalema Motlanthe (who was installed by Parliament after

the resignation of President Mbeki in September 2008) as well as his newly appointed

minister of justice - Enver Surty - publicly reasserted the importance of judicial

independence and respect for the Constitutional Court. In contrast to the history

of other Constitutional Courts - including those of Hungary and Russia - where

judges were replaced at the end of their terms in office by more-government-friendly

judges or the Court was simply closed down by the government, the South African

Constitutional Court has thus far managed - through both its strategic engagement

and a pragmatic jurisprudence - to retain its authority and survive strong political

attacks.

Jurisdiction and Authority

The Court's formal power is on the basis of the Constitution's proclamation that

it is the supreme law of the land, and on its explicit grant of authority to the

Constitutional Court to be the final arbiter of the meaning of the Constitution.

Despite distrust of the old judicial order, the idea ofsuperimposing a constitutional

court as the final interpreter of a new constitution gained early acceptance among

participants in the political transition and the exact parameters of this power were left

to subsequent negotiation. The Constitutional Court first created under the 1993

interim Constitution was given exclusive jurisdiction over constitutional appeals,

and was placed in an equal position with the old appellate division of the Supreme

Court, which retained final jurisdiction for all nonconstitutional matters but had no

jurisdiction over constitutional questions. The 1996 final Constitution retained this

basic jurisdictional division. However, the Supreme Court of Appeals, which hears

appeals from the High Courts, was awarded appellate jurisdiction over all matters,

including constitutional issues (1996 Const.: si68[3]), with the Constitutional Court

retaining original jurisdiction over direct applications (Id.: si67[6]) and serving as

the final court of appeal on constitutional cases (Id.: s^y^H;]). Constitutional

jurisdiction is, however, very far-reaching, as it not only deals with all government-

related activity (Id.: s8[i]) but also certain private activity (Id.: s8[2]-[3]) as well as

the duty to develop the common law and indigenous law in conformity with the

requirements of the Bill of Rights (Id.: s39[2J).

Certification Judgments

The most extraordinary role given to the new Constitutional Court was certifying that

the Constitutional Assembly had abided by the thirty-four constitutional principles

contained in Schedule 4 of the 1993 interim Constitution. Thrust into the unique

role of arbiter in this second and final phase of the constitution-making process, the

Constitutional Court faced a number of distinct pressures. First, the democratically

elected Constitutional Assembly represented the pinnacle of the country's new

democratic institutions empowered with the task of producing the country's final

Constitution - the end product of the formal transition from apartheid. Given

a history of parliamentary sovereignty and the failure of the courts to check the

antidemocratic actions of the executive in the dark days of apartheid and during the

States of Emergency, how could a newly appointed Constitutional Court stand up

against the first truly democratic legislature and constitution-making body in South African history?

Second, the credibility of the Constitutional Court was at stake. As the Court

heard argument on the certification of the Constihition, numerous sectors - includ-

ing important elements within the established legal profession - openly specu-

lated whether the Court had sufficient independence to confront the Constih.itional

Assembly particularly over the key issue of the entrenchment of the Bill of Rights. In

this view, failure to refuse certification on at least this ground would have amounted

to a failure of the certification function and proof that the Court lacked the inde-

pendence necessary to play this role.

Third, the Constitutional Court's certiEcation powers were not only unique but

were to be exercised on the basis of a set of Constitutional Principles negotiated in

the preelection transition. The Principles had - in the dying days of the multiparty

negotiations and context of a rebellion by various conservative groups who came

together as the Concerned South Africans Group - become the focus of unresolved

demands. This led to the last-minute inclusion of a number of contradictory Princi-

pies designed more to encourage contending groups to continue participating in the

process than to establish a coherent set of Constitutional Principles by which a future

draft Constitution could be judged. Significantly, however, the basic framework of

Principles - which traced their heritage to the ANC's Constitutional Principles of

1988, the Harare Declaration, and the United Nations General Assembly Resolution

on Apartheid, and were finally adopted by the major parties at the Convention for a

Democratic South Africa (CODESA) - remained at the core of the Constihitional

i04 Heinz Klug

Principles. It was this basic framework, guaranteeing broad democratic participa-

tion, a justiciable Bill of Rights, and an independent judiciary that provided the

fundamental basis for the Constitutional Court's analysis of the content of the text

and its role in the certification process.

Fourth, the Constitutional Court's review of the text was permeated with the

Court's own unarticulated assumptions about the institutional implications of the

new constitutionalism. These assumptions are evident in the Courts response to

those elements of the text that had implications for its own institutional role. In fact,

many of the grounds on which the Court declined to certify the text had institu-

tional implications for the Court, including: the Court's demands to strengthen the

procedures and threshold for amendment of the Bill of Rights; its striking down of

attempts to insulate the labor clause from judicial review; and the Court s argument

that the provision - that a bill passed by the National Council of Provinces is pre-

sumed to indicate a national interest overriding a separate regional interest - tipped

the balance against the adequacy of the basket of regional powers guaranteed in the

Constitutional Principles. Thus, the Court's approach to the new text indicated a

profound concern with guaranteeing its own institutional prerogatives - establishing

itself as the institutional repository of the power to decide who decides. The impera-

tive to secure this role for the Court- guardian of a constitutional democracy on the

basis of the explicit foundations of constitutional supremacy - weighted the balance

in the first certiEcation judgment.

Despite this imperative, refusing to certify the text of a constitution adopted after

last-minute political compromises by 86 percent of the democratically elected Con-

stitutional Assembly was, on its face, a bold assertion of the power of constitutional

review. However, the Constitutional Court's denial of certification was far more

measured and subtly Grafted than this bold assertion of unconstitutionality implies.

In fact, the Constitutional Court was careful to point out in its unanimous and

unattributed opinion that "in general and in respect of the overwhelming majority

of its provisions" the Constitutional Assembly had met the predetermined require-

ments of the Constitutional Principles (First Certification Judgment: para. 31). In

effect, then, the ruling was very limited and circumscribed. This analysis was con-

firmed when the major political parties rejected any attempt to use the denial of

certification as a tool to reopen debates; instead, the Constitutional Assembly - in

producing a new text - focused solely on the issues raised by the Constitutional

Court (Madlala 1996).

Rights and Stmcture in the Court's Jurisprudence

South Africa's Bill of Rights is often heralded as the crowning achievement of

the democratic transition and as having produced "some of the most progressive

decision-making in the world, including the prohibition of the death penalty and

the legalization of abortion" (Sparks 2003: 47). Discussing the new Constitution

Constitutional Authority and Judicial Pragmatism 105

and the Bill of Rights first introduced in the interim Constitution, the late Etienne

Mureinik argued that both must serve as a "bridge away from a culture of authority,"

and lead the country toward a "culture of justification - a culture in which every

exercise of power is expected to be justified" (Murienik 1994: 32). Although there

is a great deal of continuity between the Bill of Rights in the interim and final

Constitutions, it is the inclusion of a commitment to the rule of law, in addition to

constitutional supremacy, in the founding provisions of the final Constitution that

highlights postapartheid South Africa's formal commitment to a particular culture

of justification.

Despite the boldness of the Courts rights jurisprudence - especially its early deci-

sions interpreting the Bill of Rights and assertion of constitutional powers in the death

penalty case - its approach in cases involving the distribution of power among dif-

ferent parts of government is markedly different. The first such case, involving the

demarcation of local government boundaries and constituencies (the Western Cape

case. Executive Council of the Western Cape), came to the Court within three months

of the death penalty decision. Differences behveen the death penalty case and the

demarcation case are clear. The death penalty case involved the interpretation of

fundamental rights and the striking down of law and practice closely associated with

the violations and inequalities of the apartheid era. The demarcation case involved

the allocation of powers between levels of government under an act negotiated by all

parties as part of the transition to democracy. The salience of this difference lies in

the distinction behveen two judicial roles: adjudicating rights and allocating powers.

In deciding on the relative powers of the legislature and executive and the national

and provincial, the Court faces the threat that any of these sites of governmental

power could simply ignore or publicly disregard its decisions.

In rejecting the Western Cape's claim that President Mandela had exceeded his

powers in issuing a proclamation on the demarcation of local government bound-

aries in the province, the Provincial Division of the Supreme Court had argued that

Parliament's amendment of the Local Government Transition Act had effectively

transferred Parliament's highest legislative powers to President Mandela by "allow-

ing the President to make laws in its place." On appeal, the Constitutional Court was

faced with resolving a crisis that by early September 1995 was threatening to prevent

the holding of nationwide local government elections and halt the very process of

democratic transition. Deflecting the potentially explosive issue of provincial auton-

omy and avoiding the politically sensitive issue of local government demarcation,

the Constitutional Court focused on the constitutionality of the legislature's delega-

tion of amending powers to the executive, calling into question the constitutionality

of section i6A of the act, which was the legal basis on which President Mandela had acted.

In reversing the lower court - striking down Mandela's proclamations and Parlia-

ment's amendment of the Local Government Transition Act - the Constitutional

Court was hailed by opponents of the government for defending the Constitution,

io6 Heinz Klug

standing up to the ANC-dominated executive and legislature, and fulfilling the

promise of judicial review. However, when President Mandela publicly praised the

Constitutional Court's decision, stating that "this judgment is not the first, nor will

it be the last, in which the Constitutional Court assists both the government and

society to ensure constitutionality and effective governance," it became clear that

the Court had effectively traversed the "fundamental questions of constitutional

law" and "matters of grave public concern" that Justice Chaskalson had raised in the

opening paragraphs of the Court's decision {Executive Council of the Western Cape:

para. i). The sting of the ruling against the legislature was removed, in part, by the

remedy granted (giving the legislature a period of time to correct the defect in the

act), whereas executive concern was addressed by the Court s tacit prioritization of

the powers of the central government over the provinces in controlling the restruc-

turing and regulation of local government. In the end, however, the Constitutional

Court had for the first time, in a most judicious manner, struck down intensely

politicized legislation passed by a democratically elected Parliament and a highly

popular president.

RIGHTS, POLITICS, AND THE MARGINS OF JUDICIAL POWER

Although the Constitutional Court has continued to receive acclaim for its jurispru-

dence, there was concern that it had still not addressed a range of difficult issues

affecting the legal lives of a majority of ordinary South Africans; issues with the

potential to confront some of the more ingrained aspects of inequality and conflict

that continue to pervade postapartheid society. At the same time, there has been

increasing political tension over the judiciary, including the Constitutional Court.

These tensions have diverse origins, including concern over the rate of crime, case

management in the courts that at times seems chaotic, attempts by the government

to take greater control over the administration of the courts, accusations of racism

among judges, complaints over the appointment process and against individual

judges, and an open conflict between the justices of the Constitutional Court and

the Judge President of the Cape High Court. These varied circumstances directly

raise questions about the capacity of the courts, and the Constitutional Court in

particular, to continue to play the role they have been playing in the political life

of the country. At the same time, it is clear from the responses of the highest state

officials that they do not wish to lose the legitimacy, both international and local,

that the prominent role of courts has brought to the new South Africa.

A Problem of Rights and Expectations

Over the last few years, the Constitutional Court has decided a group of cases that

hold profound consequences for the hopes and aspirations of the majority of South

Africans. These cases include challenges to the "customary" laws of succession on

Constitutional Authority and Judicial Pragmatism 107

rounds of gender discrimination (Bhe); the KwaZulu-Natal Pound Ordinance on

the grounds that it denied cattle owners' rights of equality and access to the courts

(Zondi); and the Land Claims Court's decision that a community claiming land

under the Restitution of Land Rights Act had failed to prove that their dispossession

was the result of discriminatory laws or practices (Richtersveld). In each of these cases,

the decision of the Court would hold important consequences for power relations

behveen: men and women living under indigenous law; landowners (usually white)

and landless Or land-hungry stock owners (usually black); as well as landowners and

land-claiming communities whose claims did not self-evidently fall within the terms

of the Restitution of Land Rights Act.

In both the Bhe and Richtersveld cases, the majority of the Court acknowledged

the constitutional status of indigenous law. In the first instance, the Court struck

down a rule of customary law that discriminated on the basis of gender; in the

second instance the Court held that "indigenous law is an independent source of

norms within the legal system, [but like all other] law is subject to the Constitution

and has to be interpreted in light of its values" (Richtersveld: para. 51). In Bhe,

the Constitutional Court directly struck down - at least with respect to intestate

succession - the customary rule of primogeniture held by many traditionalists and

others to be a key element of the customary legal system. In effect, the Court's

decision will profoundly impact the rights of wives and daughters who until now

relied on the system ofextended-family obligation historically inherent in indigenous

law, long disrupted by social and economic change. On the other side, the Court's

decision in Richtersveld recognized indigenous law as a source of land rights, thus

strengthening the claims of those who have argued that their land rights - including

rights to natural resources - were not automatically extinguished by the extension of

colonial sovereignty over their territories. Their dispossession, through means other

than the direct application of specific, discriminatory, apartheid land laws will also

be recognized for the purpose of claiming restitution of their land rights. Although

of somewhat limited impact, the symbolic value of this recognition of indigenous

land rights makes an important contribution to legitimizing the new constitutional

order among ordinary South Africans.

Finally, the Zondi case involved a challenge to a set of legal provisions thatformed a

central plank of the system of control and dispossession in the rural areas of apartheid

South Africa. Under the Pound Ordinance, landowners were historically empowered

to seize and impound animals trespassing on their land without notice to the livestock

owner, unless the owner was a neighboring landowner. Subsequently, the livestock

would be sold in execution if the owners could not afford the impounding fees and

damages claimed by the landowner or if the owners of the livestock could not be

readily identified. Without notice requirements or judicial process, the effect was

that white landowners used these rules to exert power over rural communities who

lived on the land as sharecroppers, labor tenants, or wage laborers and held what little

wealth or economic security they had in livestock. In effect, these rules, although

io8 Heinz Klug

not racially based, interacted with the racially based landownership rules to both

structure rural social relations and perpetuate a continuing process ofdispossession,

as the ownership of livestock continually shifted at below-market prices from black

to white farmers.

Facially race neutral, the Pound Ordinance survived the dismantling of apartheid

laws, but nevertheless continues to have a predominantly racial effect because rural

landownership remains, even a decade and a half after apartheid, largely in white

hands. On the other side, as Justice Ngcobo noted in his opinion, are people such as

"Mrs. Zondi, who belongs to a group of persons historically discriminated against by

their government... which still afifects their ability to protect themselves under the

laws of the new order" (Zondi: para. 51). With respect to the question of notice, the

Court noted that the statute did not even require anyone to tell the livestock owner

of the impending sale, and Justice Ngcobo pointed out that even a general public

notice in government publications or newspapers is likely to be insufficient where a

large portion of the population... is illiterate and otherwise socially disadvantaged.

Mrs. Zondi is indeed illiterate. The thumbprint mark she affixed to her founding affi-

davit bears testimony to this" (Id.). Furthermore, the statute permitted the landowner

to "bypass the courts and recover damages through an execution process carried out

by a private businessperson or an official of a municipality without any court inter-

vention" (Zondi: para. 75). Holding the statutory scheme unconstitutional - among

other reasons because its effect is to limit the right of access to the courts - Jus-

tice Ngcobo noted that the scheme removes "from the court's scrutiny one of the

sharpest and most divisive conflicts of our society. The problem of cattle trespassing

on farm land... is not merely the ordinary agrarian irritation it must be in many

societies. It is a constant and bitter reminder of the process of colonial dispossession

and exclusion" (Zondi: para. 76).

Enforcing Rights, Remedies and Judicial Authority

Although the Constitutional Court has been held in high regard and the government

has repeatedly acknowledged its authority and accepted its decisions/ a period of

heightening political tensions has seen the law increasingly used as a weapon in

internecine conflict among government officials and within political parties. Along

with this atmosphere of legal conflict has come increasing tension over the work of

the judiciary, individual judges, and the judicial appointment process. Although the

Ministry of Justice has proposed statutory reforms and constitutional amendments

designed to improve the functioning of the courts and administration of justice, these

have raised fears that government is undermining the independence of the judiciary.

Even as the government was forced to withdraw some of these proposals, the JSC

' In its ruling on Minister of Health v Treatment Action Campaign, para. 129, the Court stated, The

government has always respected and executed orders of this Court. There is no reason to believe that

it will not do so in the present case.

Constitutional Authority and Judicial Pragmatism 109

acknowledged that it was unable to attract sufficient numbers of highly

qualified individuals as candidates for judicial appointment. It is in this context then

that the courts - and the Constitutional Court in particular - are confronting growing

concern at the failure of government officials to effectively implement court orders

requiring public officials to resolve systemic problems of public administration and

corruption, especially at the local level.

In response, there has been intense debate about the types of remedies the courts

should provide (Roach and Budlender 2005), including demands for bolder judicial

action: that the courts award mandatory relief and retain supervisory jurisdiction.

The Constitutional Court, however, has been very careful to frame its orders in

ways that encourage compliance but also attempt to bring the democratic organs of

government into the decision-making process. Whereas the Court has asserted its

right to provide appropriate relief- including mandatory orders and structural relief -

it has also used its ability to suspend declarations of invalidity to give the legislature

or executive the time and flexibility to formulate constitutional alternatives (Id.). In

this way, the Court has effectively engaged in a dialogue with the other branches of

the government in its attempt to both assert its power and preserve and protect its

own institutional authority against potential popular and political backlashes.

CONCLUSION

The creation and legitimation of a Constitutional Court in South Africa has provided

a unique institutional site within which a process of mediation between alternative

constitutional imaginations has occurred. The Court's existence and legitimacy also

created the possibility that the judiciary - in its role as primary interpreter of the

Constitution - would be able to sustain and civilize the tensions inherent in the

repeated referral and contestation of political differences in the postapartheid era.

However, there has been growing concern among nongovernmental organizations

and human rights bodies that the social crisis in the country - including the con-

tinuing disparities in wealth (and their racial character) as well as the levels of

violence and criminal activity - may pressure the government into eroding some of

the exemplary human rights gains of the democratic transition. In this sense, debates

over the funding of constitutionally mandated bodies designed to protect and fur-

ther democracy such as the Independent Electoral Commission, the Human Rights

Commission, and the Commission on Gender Equality have focused on the rela-

tionship between their fiscal dependence and the potential threat to their autonomy

posed by the ruling party and government. Those concerned with the autonomy of

these institutions have expressed their concerns in terms of these institutions' impor-

tance both to implementing the Constitution's human rights guarantees and the

future of democracy itself. Others - including most notably the ruling ANC - argue

that it is the socioeconomic disparities and their continuing racial character that

need to be addressed if the future of democracy and human rights is to be secured.

110 Heinz Klug Constitutional Authority and Judicial Pragmatism

Although the Constitutional Court has played a fundamental role in enabling

the democratic transition in South Africa, the conditions of its emergence as well

as the strategies of its justices have allowed the institution to play a number of other

roles, from promoter and symbol of a transformed justice to the more traditional

role of conflict resolution and absorber or deflector of intense interregional political

conflict. Whereas the initial conditions of its creation and caliber of its justices

enabled the Court to build significant legitimacy among a range of constituencies -

from the bar to government officials and the ruling party - the changing conditions

of the country have begun to reshape the terrain on which the Court functions. At

first, it was the persistence of inequality and the tragic HIV/AIDS pandemic that

saw the court increasingly confront the government. More recently, the political

struggle within the ruling party has created a political vortex into which an increasing

array of constitutional and public institutions - including the Public Protector,

National Prosecuting Authority, and its investigative arm, the Directorate of Special

Operations (Scorpions) - have been sucked. Although in the past the dominant

motivation of Constitutional Court justices may have been to enhance the power

and legitimacy of their institution, more recently they have found themselves as a

body, defending their own integrity after a lower court found that they had violated

the rights of a senior judge of the High Court by publicly announcing their complaint

to the JSC that he had attempted to interfere in the outcome of a case against Jacob

Zuma - soon to become the nation's fourth president.

When we consider the brief history of the South African Constitutional Court,

it is possible to identify a number of very important political and social roles it has

been called on to play or has taken on itself as South Africa's democratic transition

has proceeded. First, the Court played a key role in the democratic transition by

certifying that the Constitutional Assembly had, in writing a new final Constitution

abided by the Constitutional Principles that were the essence of the negotiated deal

to end apartheid. Second, the Court has continued to serve as the one legitimate

alternative to the ANC government when that government has failed to uphold or

promote the rights guaranteed in the Bill of Rights. Third, the Court has played at

least a symbolic (if not substantive) role as an independent institution upholding the

rule of law, despite claims by the vociferous political opposition that the ANC has

colonized the state through its policy of cadre deployment and thereby undermined

the Constitution and democratic order. Fourth, the Court has played an important

role in prompting legislative action by suspending its own orders of constitutional

invalidity and referring the affected legislation to the legislature for amendment.

This has both stimulated democratic engagement with issues the majority in the

legislature would otherwise have preferred to ignore and created an implicit dialogue

behveen the Court and other branches of government. Finally, the Court has played

an important role in protecting the legitimate claims of regional authorities and

stemming overreaching by regional governments controlled by opposition parties

who have asserted greater autonomy than the constitutional framework or political

support has provided.

In short, the South African Constitutional Court's roles in politics and governance

have evolved significantly over the past fifteen years. Initially, the Court was called

into the political arena in order to play handmaiden to the negotiated agreement that

enabled the democratic transition. Although this role was formally accomplished

with the certification judgments, the related but more substantive role ofguarantee-

ing the rule of law and constitutional supremacy as key features of the new order

persisted. The Court continued to break new jurisprudential ground into the late

1990S, but its decisions were consistent with the steady implementation of an exten-

sive Bill of Rights, and it has continued to play the role of interpreting a supreme

Constitution The Court's roles seemed to be increasingly challenged at the end of

the 19905 and into the first half of the first decade of the new miHennium. and its

approach of strategic engagement and judicial pragmatism gave way to confronta-

tion and political brinkmanship. The Court was perceived as taking sides in internal

political conflicts within the ANC as well as challenging the executive and legisla-

ture more directly. Apart from the cases involving ANC President Jacob Zuma'and

the related conflict with Judge President Hlophe, the Court also weighed into the

intense conflict over the provision ofantiretroviral treatment to mothers giving birth

in public-sector hospitals, and in the case of highly controversial attempts to alter

municipal boundaries, struck down both legislation and a constitutional amend-

ment on the grounds that the legislature in both cases had failed to provide the

required amount of democratic participation. It could be argued that by aggressively

expanding rights to democratic participation, socioeconomic resources, and gender

equality-including challenging indigenous law as patriarchal and recognizing the

equality rights of gays and lesbians, including the right to marry - the Court was

overreaching. However, the reaction of the government to instability in the Court,

including the controversy over Juge Hlophe as well as tensions over judicial appoint-

ments and the Court's management of its caseload, seems to have led the Court to

settle into a more tractable set of roles, demonstrating how occasional confrontation

with other parts of the state or internal divisions affect the roles it plays.

South Africa's experiment in constitutionalism is still young, and the conditions

that gave rise to the new constitutional order - as well as the continuing problems

of a postcolonial society facing the dual challenges of extreme inequality and a

devastating HIV/AIDSpandemic - have brought domestic tension as well as global

interest to the work of the Constitutional Court. Caught in the crosshairs of struggles

for the realization of the extensive promise of rights entrenched in the Constitution

and the limitations of governmental capacity and resources, the Court has thus

far tread a careful path avoiding the easy declaration of rights but continuing to

question government failings (Klug 2011). At the same time, the broader judiciary is

undergoing transformation. Tensions over this process continue to simmer within

Heinz Klug

the courts, and among the courts, government, and legal profession (See National

Judges Symposium 2003). In this regard, it is the government's responsiveness to

the courts and public claims of right that are of greatest concern, both for the

role of the Constitutional Court and the constitutional system more generally. The

Constitutional Court has repeatedly sought to remind government and its lawyers of

their duty to be responsive to litigants and ensure that statutes of limitation and other

barriers that inhibit either access to justice or other means of making government

transparent and accountable are not unduly burdensome. In one striking example,

the Court castigated the state for failing to respond to a case before the Constitutional

Court, stating that it "is regrettable" because the "state has an obligation to respond

to court processes." Noting that "[tjhis is not the first time that the state has not

responded to a matter that is before this court," the Court, in its per curium opinion,

described the failure of the State Attorney's Office in Johannesburg as "cause for

grave concern in a country governed by the rule of law" (Van Straaten: para. 9). In

order to prevent such neglect in the future, the Court requested that the registrar of

the Court to send a "copy of [the] judgement to the offices of the President and the

Minister of Justice and Constitutional Development. We are conEdent that these

offices will take appropriate steps to prevent a situation like this from occurring

again" (Id.: para. 10).

Indeed, the greatest threat for the Court is that it may be ignored. Although van

Straaten illustrates that the Court itself experienced the failures of governmental

capacity - so evident in many of the cases that it has been called on to decide and

which may truly threaten the rule of law - there is no evidence to date that the

government has actively attempted to circumvent or undermine the Court. Instead,

the government has repeatedly declared its allegiance to the constitutional order

and the roles the Constitutional Court plays within that order. Whereas elements

within the ruling party and its alliance partners have at times leveled criticism at the

Court, this has often produced a healthy public response in defense of the Court

and the Constihition more generally. It is this continuing and vociferous support for

constitutional democracy that is providing the space for the Constitutional Court to

play its multiple roles in South Africa's young democracy.

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COURT CASES

Alexkor Ltd et al v The Richtersveld Community and Others (hereafter Richtersveld),

SA46o(CC). Bhe et al v Magistrate, Khayelitsha et al. (hereafter Bhe), 2005 (i) SA 563 (CC). Ex parts Chairperson of the Constitutional Assembly. In re Certification of the Constitution of

the Republic of South Africa (hereafter First Certification Judgment), 1996 (4) SA 744 (CC). Executive Council of the Western Cape Legislature v President of the Republic of South Africa

(hereafter Executive Council of the Western Cape), 1995 (4) SA 877 (CC). State v Makwanyane and Another (hereafter Makwanyane), 1995 (3) SA 391 (CC); 1995 (6)

BCLR665(CC). Minister of Health v Treatment Action Campaign (No. 2) (hereafter TAG), 2002

(CC), Van Straaten v President of the Republic of South Africa (hereafter Van Straaten), 2009 i, SA

457 (CC); 2009 5 BCLR 480 (CC). Xolisile Zondi v Member of the Traditional Council for Traditional and Local Government

Affairs et al. (hereafter Zondi]), 2005 (3) SA 589 (CC).