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The Constitutional Court of South Africa
By Richard Knight, July 20, 2001
Overview
The Constitution Court pays a role in interpreting South
Africa's constitution similar to that of the U.S. Supreme Court. In
1993 an interim constitution was adopted creating a two-house Parliament. In 1996 a final constitution was
adopted. The interim constitution and final constitutions include
a Bill of Rights. These rights are
enforceable by the courts. Rights
guaranteed include freedom of speech
and expression, religion and the right to assembly and petition. Every person
is equal before the law and is guaranteed the right to life and human
dignity. Nobody can be detained without
trial. Torture and cruel or inhuman
punishment are prohibited. Discrimination
on based on race, gender, sexual orientation and age is prohibited. A series of social and economic rights are
included in the final Constitution including the right to adequate housing and
of children to shelter. It is the
government’s duty to take reasonable legislative and other measures, within its
available resources, to achieve the progressive realization of these
rights. A specific provision allows for
affirmative action measures.
Many of the judges have
a strong human rights background. The
President of the Court, Justice Arthur Chaskalson, in
1978 helped established Legal Resources Centre, which sought to use law to
pursue justice and human rights, and served as director for 15 years. Justice Richard Goldstone headed a commission
of inquiry into political violence established in 1991. Justice Albie Sachs
went into exile in 1966 and in 1988 was almost killed by a car bomb while
working in Mozambique. Justice ZM Yacoob, who has been blind since youth, represented members
of the UDF including at the Delmas Treason Trial
(1985-1989).
Two
Landmark Cases
In June 1995 the Court ruled the death penalty unconstitutional. In its ruling the Court said
“The rights to life and dignity are the most important of all
human rights, and the source of all other personal rights in Chapter
Three. By committing ourselves to a
society founded on the recognition of human rights we are required to value
these two rights above all others. And
this must be demonstrated by the State in everything that it does, including
the way it punishes criminals. This is
not achieved by objectifying murderers and putting them to death to serve as an
example to others in the expectation that they might possibly be deterred
thereby”
In October 2000, in Government of South Africa v. Grootboom and others, the court made an important ruling
upholding the state's obligations under Constitution to meet right of access to
adequate housing and shelter for children.
The Constitution recognizes the difficulty of achieving this task and
does not oblige the state to go beyond its available resource to realize these
rights immediately. Mrs. Grootboom was
one of a group of 510 children and 390 adults living in an informal settlement
near Cape Town. The Court emphasized
that the Constitution did not give the respondents the right to shelter
immediately. However, the Court found
that the programs in operation in the area of the Cape Metropolitan Council
fell short of its obligations. Although
the state's overall housing program had resulted in a significant number of
homes being built, it failed to provide any form of temporary relief to those
in desperate need, with no roof over their heads, or living in crisis
conditions. The immediate need for
relief could be met short of housing which fulfils the requisite standards of
durability, habitability and stability.
The Court stressed that the judgement should not be understood as
approving any practice of land invasion for the purpose of coercing the state
into providing housing. (See longer summary below.)
Richard Knight is President of the Southern Africa
Committee.
|
Note: The following two items Information about the Constitution Court and the Summary Government of South Africa v. Grootboom
and others is taken verbatim from the Court's web page. |
Information about the Constitutional Court
The Court was established in 1994 in terms of
South Africa's first democratic constitution - the interim Constitution of
1993. In terms of the 1996 Constitution the Court established in 1994 continues
to hold office. The Court began its first sessions in February 1995. It
consists of eleven judges - nine men and two women. They may serve for a
non-renewable term of 12 years, but must retire at the age of 70. They are all
independent. Their duty 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 is heard by at least eight judges. In practice, all eleven judges hear
every case. If any judge is absent for a long period or a vacancy arises, an
acting judge may be appointed by the President of the Republic on a temporary
basis. Decisions of the Court are reached by majority vote of the judges
sitting in a case. Each judge must indicate his or her decision. The reasons
for the decision are published in a written judgment.
The Court played an important role in the adoption
of the 1996 Constitution. In terms of the interim Constitution, Parliament
sitting as the Constitutional Assembly was required to produce a new
constitutional text. In turn, the Court was required to certify that the new
text complied with the 34 Constitutional Principles agreed upon in advance by
the negotiators of the Interim Constitution. In its decision in Ex parte Chairperson of the Constitutional Assembly: in re
Certification of the Constitution of the Republic of South Africa 1996
1996 (4) SA 744 (CC) (6 September 1996) the Court
ruled that the constitutional text adopted by the Constitutional Assembly in
May 1996 could not be certified. The Court identified the features of the new
text that did not in its view comply with the Constitutional Principles and
gave its reasons for that view. The Constitutional Assembly then had to
reconsider the text, taking the Court’s reasons for non-certification into
account. The Constitutional Assembly reconvened and on 11 October 1996 adopted
an amended constitutional text, containing many changes from the previous text,
some dealing with the Court’s reasons for non-certification and others
tightening up the text. The amended text was then sent to the Constitutional
Court for certification. In its judgment in Certification of
the Amended Text of the Constitution of the Republic of South Africa, 1996
(4 December 1996) the Court held that all of the grounds for non-certification
of the earlier text had been eliminated in the new draft and accordingly
certified that the text complied with the requirements of the Constitutional
Principles. The text duly became the Constitution of the Republic of South
Africa, 1996 and came into effect in February 1997.
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 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. The Constitutional Court is the highest court in
the land for all constitutional matters.
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 and the High Courts) deal with day-to-day disputes between
citizens and between citizens and the state.
Anyone wishing to bring a constitutional case
before the Constitutional Court must usually start in the High Court. The
Constitution makes it possible for a wide range of individuals and public and
private bodies to raise constitutional questions in litigation before the High
Court. In certain circumstances, legal aid will be provided. The case will be
dealt with by the High Court which has the power to award relief including the
invalidation of provincial or parliamentary legislation. Should the High Court
invalidate provincial or parliamentary legislation, the order of invalidity
must be confirmed by the Constitutional Court before it has any effect. Should
the High Court decide not to award the relief sought, the Constitutional Court
may be approached on appeal. Appeals can be lodged with the Constitutional
Court. The judges of the Court will decide if an important question of
principle relating to the interpretation of the Constitution has been raised in
the application for leave to appeal and will consider whether there is a
reasonable prospect that the appeal may succeed. There is no automatic right of
appeal against a refusal by a High Court to award constitutional relief.
|
Summary Government of South Africa v. Grootboom
and others Constitutional Court - CCT11/00 2001 (1) SA 46 (CC) 4 October 2000 Right of
access to adequate housing. This case raises the state's obligations under
section 26 of the Constitution, which gives everyone the right of access to
adequate housing, and section 28(1)(c), which
affords children the right to shelter. It concerns questions about the
enforceability of social and economic rights.
Mrs Grootboom was one of a group of 510 children and 390 adults living
in appalling circumstances in Wallacedene informal
settlement. They then illegally occupied nearby land earmarked for low-cost
housing but were forcibly evicted: their shacks were bulldozed and burnt and
their possessions destroyed. Their places in Wallacedene
had been filled and in desperation they settled on its sports field and in an
adjacent community hall. The Cape of
Good Hope High Court found that the children and, through them, their parents
were entitled to shelter under section 28(1)(c) and
ordered the national and provincial governments as well as the Cape
Metropolitan Council and the Oostenberg
Municipality, immediately to provide them with tents, portable latrines and a
regular supply of water by way of minimal shelter. This decision formed the
basis for the appeal to the Constitutional Court. The Human
Rights Commission and the Community Law Centre of the University of the
Western Cape were admitted as amici curiae in the
appeal. At the hearing on 11 May 2000,
the Grootboom community accepted an offer by the state to relieve the crisis
in which they were living. By 21 September the state had not implemented its
offer and an urgent application was launched in this Court. On that date,
after communication with the parties, the Court made an order putting the
municipality on terms to provide certain rudimentary services. In a
unanimous decision, written by Justice Yacoob, it
was noted that the Constitution obliges the state to act positively to
ameliorate the plight of the hundreds of thousands of people living in
deplorable conditions throughout the country. It must provide access to
housing, health-care, sufficient food and water, and social security to those
unable to support themselves and their dependants. The Court stressed that
all the rights in the Bill of Rights are inter-related and mutually
supporting. Realising socio-economic rights enables
people to enjoy the other rights in the Bill of Rights and is the key to the
advancement of race and gender equality and the evolution of a society in
which men and women are equally able to achieve their full potential. Human
dignity, freedom and equality are denied to those without food, clothing or
shelter. The right of access to adequate housing can thus not be seen in
isolation. The state must also foster conditions that enable citizens to gain
access to land on an equitable basis. But the Constitution recognises that this is an extremely difficult task in
the prevailing conditions and does not oblige the state to go beyond its
available resources or to realise these rights
immediately. Nevertheless, the state must give effect to these rights and, in
appropriate circumstances, the courts can and must
enforce these obligations. The question is always whether the measures taken
by the state to realise the rights afforded by
section 26 are reasonable. To be reasonable, measures cannot leave out of
account the degree and extent of the denial of the right they endeavour to realise. Those
whose needs are the most urgent and whose ability to enjoy all rights is most
in peril must not be ignored. If the measures, though statistically
successful, fail to make provision for responding to the needs of those most
desperate, they may not pass the test of reasonableness. The Court emphasised
that neither section 26 nor section 28(1)(c) gave
any of the respondents the right to claim shelter immediately. However, the programme in force in the area of the Cape Metropolitan
Council at the time the application was launched fell short of the
obligations imposed upon the state by section 26. Although the overall
housing programme implemented by the State since
1994 had resulted in a significant number of homes being built, it failed to
provide for any form of temporary relief to those in desperate need, with no
roof over their heads, or living in crisis conditions. Their immediate need
could be met by relief short of housing which fulfils the requisite standards
of durability, habitability and stability. After the
case had been started in the High Court, an Accelerated Managed Land
Settlement Programme had been introduced by the
Cape Metropolitan Council to fulfil this need. This programme
needs to be effectively implemented. The Court stressed that the judgment
should not be understood as approving any practice of land invasion for the
purpose of coercing a state structure into providing housing on a
preferential basis to those who participate in any exercise of this
kind. The Court issued a declaratory
order which required the state to devise and implement a programme
that included measures to provide relief for those desperate people who had
not been catered for in the state programme
applicable in the Cape Metropolitan area before the Accelerated Managed Land
Settlement Programme had been introduced. Please
note: This summary does not form part of the judgment, and is not binding on
the Court |
|
South African Bill of
Rights (Excerpts) Life
11. Everyone has the right to life. Freedom
and security of the person 12.
(1) Everyone has the right to
freedom and security of the person, which includes the right not to be
deprived of freedom arbitrarily or without just cause; not to be detained
without trial; to be free from all forms of violence from either public or
private sources; not to be tortured in any way; and not to be treated or
punished in a cruel, inhuman or degrading way. (2) Everyone has the right to bodily and
psychological integrity, which includes the right to make decisions
concerning reproduction; to security in and control over their body; and not
to be subjected to medical or scientific experiments without their informed
consent. Slavery,
servitude and forced labour 3. No one may be subjected to slavery,
servitude or forced labour. Property
25. (1) No one may be deprived of property
except in terms of law of general application, and
no law may permit arbitrary deprivation of property. (2) Property may be expropriated only in terms of
law of general application for a public purpose or in the public interest;
and subject to compensation, the amount of which and the time and manner of
payment of which have either been agreed to by those affected or decided or
approved by a court. (3) The amount of the compensation and the time
and manner of payment must be just and equitable, reflecting an equitable
balance between the public interest and the interests of those affected,
having regard to all relevant circumstances, including the current use of
the property; the history of the acquisition and use of the property; the
market value of the property; the extent of direct state investment and
subsidy in the acquisition and beneficial capital improvement of the
property; and the purpose of the expropriation. (4)
For the purposes of this section the public interest includes the nation's
commitment to land reform, and to reforms to bring about equitable access to
all South Africa's natural resources; and property is not limited to
land. (5) The state must take reasonable legislative and
other measures, within its available resources, to foster conditions which
enable citizens to gain access to land on an equitable basis. (6) A person or community whose tenure of land is
legally insecure as a result of past racially discriminatory laws or
practices is entitled, to the extent provided by an Act of Parliament, either
to tenure which is legally secure or to comparable redress. (7) A
person or community dispossessed of property after 19 June 1913 as a result
of past racially discriminatory laws or practices is entitled, to the extent
provided by an Act of Parliament, either to restitution of that property or
to equitable redress. (8) No provision of this section may impede the
state from taking legislative and other measures to achieve land, water and
related reform, in order to redress the results of past racial
discrimination, provided that any departure from the provisions of this
section is in accordance with the provisions of section 36(1). (9) Parliament must enact the legislation referred
to in subsection (6). Housing
26.
(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 realisation 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.
Health
care, food, water and social security 27.
(1) Everyone has the right to
have access to health care services, including reproductive health care;
sufficient food and water; and social security, including, if they are unable
to support themselves and their dependants, appropriate social assistance. (2) The
state must take reasonable legislative and other measures, within its
available resources, to achieve the progressive realisation
of each of these rights. (3) No one
may be refused emergency medical treatment.
Children 28.
(1) Every child has the right
to a name and a nationality from birth; to family care or parental care, or
to appropriate alternative care when removed from the family environment; to
basic nutrition, shelter, basic health care services and social services; to
be protected from maltreatment, neglect, abuse or degradation; to be
protected from exploitative labour practices; not
to be required or permitted to perform work or provide services that are
inappropriate for a person of that child's age; or place at risk the child's
well-being, education, physical or mental health or spiritual, moral or
social development; not to be detained except as a measure of last resort, in
which case, in addition to the rights a child enjoys under sections 12 and
35, the child may be detained only for the shortest appropriate period of
time, and has the right to be kept separately from detained persons over
the age of 18 years; and treated in a manner, and kept in conditions, that
take account of the child's age; to have a legal practitioner assigned to the
child by the state, and at state expense, in civil proceedings affecting the
child, if substantial injustice would otherwise result; and not to be used directly
in armed conflict, and to be protected in times of armed conflict. (2) A child's best interests are of paramount
importance in every matter concerning the child. (3) In this section “child” means a person under
the age of 18 years. Education 29.
(1) Everyone has the right to a
basic education, including adult basic education; and to further education,
which the state, through reasonable measures, must make progressively
available and accessible. (2) Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account equity; practicability; and the need to redress the results of past racially discriminatory laws and practices. |
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