Constitutions in transition
Constitutions in transition

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Constitutions in transition

2.3.2 The Constitutional Court

Another institution tasked with defending and upholding the supremacy of the Constitution is the Constitutional Court. The Interim Constitution provided that an 11-strong judicial chamber act as the court of final instance over ‘all matters relating to the interpretation, protection and enforcement of the provisions of [the] Constitution’ (s98(2)). The Court is tasked with solving disputes on constitutional issues, ensuring the constitutionality of all executive acts or laws made in any of the Republic’s legislatures. The Interim Constitution provided that judgments of the Court would ‘bind all persons and all legislative, executive and judicial organs of state’ (s98(4)), highlighting the supremacy of the constitutional document and the provisions therein over all other social, legislative, judicial or administrative acts.

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Figure 6 The Constitutional Court of South Africa

At this stage, you may be wondering why so much attention has been paid to a temporary constitution. There are several reasons why the Interim Constitution is so significant:

  • It is the first constitutional response to the apartheid situation and, as mentioned before, provided the legal and political foundation for the first elections of post-apartheid South Africa.
  • It made provisions for a Constitutional Assembly of people who would be tasked with drawing up a permanent constitution, along with a set of principles that must be abided by in this process.
  • The Constitutional Court took shape and made several significant judgments under this Constitution.
  • During the life of this Constitution, a commission was established to compliment the legal and political transition from apartheid to post-apartheid South Africa.

A case brought before the Constitutional Court which exemplifies the institutional standing of the Constitutional Court in the administration of constitutional law in South Africa is State v Makwanyane [1995] ZACC 3. In Makwanyane, the Court considered the legitimacy of the death penalty. The defendants in this case were accused of and convicted on four counts of murder, with the Supreme Court agreeing with the court of first instance that the death penalty was the correct sentence, as provided for by s227(1)(a) Criminal Procedure Act 1977. The Constitutional Court disagreed, despite popular opinion to the contrary.

Box 1 Ubuntu

Makwanyane has, by some, been considered the case that gave birth to the Southern African philosophy of ubuntu as a judicial concept (Himonga et al., 2013) and it was defined as enveloping:

the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasises respect for human dignity, making a shift from confrontation to conciliation.

(Madala J in Makwanyane at 307; emphasis added)

On this basis, the Court found the death penalty to be unconstitutional, given the Bill of Rights’ commitment to human life and dignity; these concepts are interconnected with ubuntu, and it was recognised in this case that conciliation was as integral to ubuntu as dignity and life. This is a significant statement for the Constitutional Court, and it gives colour to the intent of the Constitution to make a break from the country’s violent past. Rather than succumb to anger and retribution, the characterisation of the death penalty, the Constitutional Court placed an emphasis on the need to consider the rights and dignity of Makwanyane and his co-defendant Mchunu.


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