Text Matters: Some Reflections on the Forging of a New Constitutional Jurisprudence in South Africa
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00886.x |
| Date | 01 January 2012 |
| Published date | 01 January 2012 |
THE
MODERN LAW REVIEW
Volume 75 January 2012 No 1
Text Matters: Some Reflections on the Forging of a New
Constitutional Jurisprudence in South Africa
Kate O’Regan*
The South African Constitution establishes a constitutional democracy with a strong form of
constitutional review. The Constitutional Court is required to declare invalid any legislation or
conduct of the President which is inconsistent with the Constitution.The author, a former judge
of the Constitutional Court, argues that the text of the Constitution has been an important
determinant of the Court’s jurispr udence, both in relation to the Court’s jurisprudence concern-
ing the institutional structures established by the Constitution and its Bill of Rights jurisprudence.
INTRODUCTION
Unlike the United Kingdom, South Africa is a constitutional democracy that
affords the Constitutional Court the power, and indeed the duty, to declare
invalidActs of Parliament that are inconsistent with the Constitution.1This strong
form of judicial review has been exercised regularly by the Court, on average five
times a year since 1994.The debate about whether courts should be given strong
judicial review powers of this sort is a vigorous one,2and is based on differing
conceptions of democracy and the role of democratic institutions, as well as on
debates about the nature and content of human rights. Interesting as these debates
are, they are by and large beyond the scope of my address today. For, as a judge
of the Constitutional Court of South Africa from 1994 to 2009, my task was to
implement the jurisdiction conferred upon the Court by the Constitution.
The powers of the South Afr ican Constitutional Court are, quite simply,
immense.As mentioned above,following the logic of the supremacy clause of the
Constitution,3the Constitutional Court, when deciding a constitutional matter,
*Judge of the Constitutional Court of South Africa (1994–2009).This is the text of the 40th Annual
Chorley lecture given at the London School of Economics,14 June 2011 (finally revised 30 September
2011).
1 Section 172 of the Constitution.The full text is set out below at p 31.
2 See,for example,J. Waldron,Law and Disagreement (Oxford:Oxford University Press,1999) and also
Conor Gearty’s 2005 Hamlyn lectures: C. Gearty, Can Human Rights Survive? (Cambridge:
Cambridge University Press, 2006).
3 Section 2 of the Constitution is as follows
The Constitution is the supreme law of the Republic; law or conduct inconsistent with it is
invalid, and the obligations imposed by it must be fulfilled.
© 2012The Author.The Modern Law Review © 2012 The Modern Law ReviewLimited. (2012) 75(1) MLR 1–32
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
must declare law or conduct inconsistent with the Constitution invalid to the
extent of its inconsistency.4The Court may qualify the effect of an order of
invalidity, by making an order that is ‘just and equitable’ in the circumstances, a
matter to which I return in a moment.5
The most renowned function of the Court is to ensure that the provisions of
the Bill of Rights are protected.The ambit of the Bill of Rights is particularly
broad. First, it includes not only the civil and political rights traditionally pro-
tected in a bill of rights, but also a wide range of additional rights such as
environmental rights,6the right to just administrative action,7the right of access
to information8and, of course,social and economic r ights.9Secondly,the bearers
of obligations under the Bill of Rights are not limited to the state and its organs.
Provisions of the Bill of Rights bind the judiciary in the exercise of its duties,10
and also bind private individuals and corporations to the extent that the relevant
right ‘is applicable,taking into account the nature of the r ight and the nature of
any duty imposed by the right’.11
An equally important, if less litigated,aspect of the Court’s power flows from
its jurisdiction to ensure that the structural provisions of the Constitution are
observed. These provisions establish the other two arms of government (the
4 Section 172(1)(a) of the Constitution.
5 See section 172(1)(b) of the Constitution.
6 Section 24 of the Constitution provides:
Everyone has the right –
(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected, for the benefit of present and future generations,
through reasonable legislative and other measures that –
(i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure
ecologically sustainable development and use of natural resources while promoting justifiable
economic and social development.
7 Section 33 of the Constitution provides:
(1) everyone has the right to administrative action that is lawful,reasonable and procedurally fair;
(2) Everyone whose rights have been adversely affected by administrative action has the right to
be given written reasons.
(3) National legislation must be enacted to give effect to these rights . . .
8 Section 32 of the Constitution provides:
Everyone has the right of access to – (a) any information held by the state; and (b) any
information that is held by another person and that is required for the exercise of protection of
any rights.
9 See, for example, section 26 of the Constitution, which provides:
(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures,within its available resources,to
achieve the progressive realization of this right.
(3) No one may be evicted from their home,or have their home demolished, without an order
of court made after considering all the relevant circumstances. No legislation may permit
arbitrary evictions.
Section 27 of the Constitution also entrenches the right to have access to health care services;
sufficient food and water; and social security.
10 cf the provisions of the interim Constitution of 1993 (Republic of South Africa Constitution,Act
200 of 1993) which did not bind the judiciary.The implications of that for the application of the
Bill of Rights to common law are discussed in the various judgments in Du Plessis and Others vDe
Klerk and Another 1996 (3) SA 850 (CC).
11 Section 8(2) of the Constitution.
Text Matters
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited.
2(2012) 75(1) MLR 1–32
legislature12 and executive13), traditional leadership,14 constitutional institutions
such as the South African Police Service,15 the South African National Defence
Force,16 the prosecuting authority,17 the Electoral Commission18 and other insti-
tutions that protect democracy such as the South African Human Rights Com-
mission19 and the Auditor-General,20 as well as the three spheres of government
(national, provincial and local).21 Less than 10 per cent of the cases that come
before the Court are concerned with such matters, but they are often particularly
challenging cases, as I shall discuss below.
THE WIDER CONTEXT
This address provides a description of the approach the Court has taken to these
two different tasks.Before turning to the work of the Court, however, it is helpful
to provide some preliminary background concerning, first, the social, political
and economic situation in the country; secondly, a brief overview of the key
principles and content of the Constitution; and thirdly the origin and compo-
sition of the Court.
The social, political and economic context
South Africa is a middle income developing country with an extraordinarily
diverse population. Its gross domestic product in 2009 was US$211bn which,
with a population estimated at just under 50 million,22 works out at less than US
$5000 per capita. The majority of South Africans, close to 75 per cent, are of
African orig in (approximately 39.5 million people).There is a significant minor-
ity of Indian descent (approximately 1.3 million) whose ancestors came to work
the South African sugar estates as indentured labour in the late nineteenth
century.There is also a significant minority of mixed race descent (approximately
4.4 million), the so-called Coloured population, whose ancestors include the
indigenous Khoi people of the western Cape, the early Dutch settlers and slaves
brought to the Cape from what are now Indonesia and Malaysia in the late
seventeenth and early eighteenth centuries.White South Africans constitute just
12 Chapter 4 of the Constitution.
13 Chapter 5 of the Constitution.
14 Chapter 12 of the Constitution.
15 Sections 205–208 of the Constitution.
16 Sections 200–204 of the Constitution.
17 Section 179 of the Constitution.
18 Sections 190 and 191 of the Constitution.
19 Section 184 of the Constitution.
20 Section 188 of the Constitution.
21 See chapter 3, which establishes the principles of co-operative governance to regulate the rela-
tionship between the three spheres of government; as well as chapters 6 and 7 which regulate
provincial and local gover nment respectively.
22 These figures are taken from the Presidency’s report on Development Indicators, 2010.
http://www.thepresidency.gov.za/MediaLib/Downloads/Home/Publications/
NationalPlanningCommission4/Development%20Indicators2010.pdf (last visited 12 May 2011)
(the Presidency report).
Kate O’Regan
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited. 3
(2012) 75(1) MLR 1–32
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