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The Constitutional Court of South Africa
By Richard Knight, July 20, 2001
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.
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
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.
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).
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.
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.
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.