ConCourt turns 30, facing a challenging future, but with much to celebrate

On Friday, 20 June, the Constitutional Court celebrated the 30th anniversary of its first hearing, S v Makwanyane, a case dealing with the constitutionality of the death penalty. The imposition of the death penalty was halted temporarily at the end of 1989 after a decade in which South Africa had annually executed more than 100 convicted prisoners.

The decision of the newly established court to hear this as its first case was an important symbol that the court was intent on adjudicating on key apartheid policy as part of its mandate to transform the existing legal system.

And what a court assembled to hear this case. Four of the 11 judges were appointed from the existing judiciary, the president of the court was appointed by President Nelson Mandela, and six members were appointed after interviews conducted by the newly created Judicial Service Commission (JSC).

Among the 11 were great lawyers who had earned their reputations in the fight against apartheid laws — the president of the court, Arthur Chaskalson, judges Ismail Mohamed, John Didcott, Johann Kriegler, Laurie Ackermann and Pius Langa SC, and two women who would grace the court with the greatest of distinction, Yvonne Mokgoro and Kate O’ Regan. Sitting as an acting judge in the absence of Judge Richard Goldstone was South Africa’s greatest advocate, Sydney Kentridge QC.

From that first judgment, the court set out to develop a viable constitutional jurisprudence that would contribute significantly to the transformation of South Africa from its racist, sexist, authoritarian past to a nonracial, non-sexist democracy.

Judgments that protected the rights of same-sex couples, protected occupiers of property from arbitrary eviction, gave content to the social and economic rights in the Constitution and held the executive accountable to its constitutional duties represented the profound contribution of that first court to the building of South Africa’s constitutional democracy.

When judges of the first court retired, it was fortunate to have appointed a further set of distinguished jurists: Zak Yacoob, Dikgang Moseneke, Sandile Ngcobo, Edwin Cameron, Johan Froneman and Sisi Khampepe.

It was only when Jacob Zuma became President that significant change took place that stultified the continued growth of the court. Instead of appointing the obvious leader of the court, Dikgang Moseneke, to be Chief Justice, Zuma chose the little-known Mogoeng Mogoeng to hold the highest office.

Nkandla case

By now, the pattern of the court’s jurisprudence was more difficult to divine. Positives did continue. It most certainly sought to respond to Zuma’s attempt to weaken the reaction to corruption by way of a majority judgment in the Glenister case. It held against Zuma when he sought to challenge the findings of the Public Protector in the Nkandla case, and in the case of Daniels v Scribante it endorsed an approach to property protection for the vulnerable that responded eloquently to the oppression of the past.

But clear divisions were now evident in the court. In another in the sequence of Zuma cases, this one dealing with whether Parliament had put in place mechanisms to hold Zuma accountable for failing to implement the Public Protector’s remedial action, Chief Justice Mogoeng described the majority judgment that held Parliament accountable as a textbook case of judicial overreach.

Significant division was evident in the area of administrative law. Socioeconomic rights jurisprudence never recovered from the conservative finding of the court in the Mazibuko case dealing with the right of access to sufficient water. Private law, particularly the law of contract, remained in the substantive grip of the common law, which had been crafted in the pre-democratic era. And the court, with an extended jurisdiction to hear non-constitutional cases, struggled to deal coherently with tax, competition and other commercial disputes.

The court was not helped by the appointment process. There can be little doubt that the JSC during the leadership of Mogoeng did not discharge its constitutional mandate as was required by the Constitution. Applicants were subjected to aggressive and offensive questioning, while judges who would have added greatly to the overall knowledge and expertise of the court were not recommended for no justifiable reason. The upshot was that talented, deserving potential members of the court refused to be subjected to this pattern of unfair treatment, and thus did not apply for appointment, much to the overall cost of the court.

Today the court is under new management, being the leadership of Chief Justice Mandisa Maya, and her first 10 months have seen a significant positive change, building on the positives of her predecessor, Raymond Zondo. Over the next 18 months there will be a number of vacancies on the court which can provide an opportunity for it to attract new talent and thus ensure it remains central to the construction of a viable constitutional democracy.

Early in its history, the court found against the ANC government led by Mandela. He reacted by stating that he respected the adverse outcome, emphasising the importance of the rule of law. In the 2024 elections, by contrast, some 27% of those who voted supported parties that wish to either abolish the Constitution or repeal significant parts thereof.

The Constitutional Court faces a challenging future. And while some of the initial gloss has worn off from the record of the first court, there remains much to celebrate concerning the 30 years of the court’s existence. A solid foundation has been built to continue to promote constitutional democracy and ward off the threat of the 27% parties. DM