25 years of the SA Constitution: a look at the role of the judiciary

Variously described as ‘aspirational’, ‘transformative’ and ‘living’, there is no doubt that the South African Constitution is a remarkable document. With the values of human dignity, equality, and freedom at its core, the Constitution celebrated its 25^th anniversary on 10 December 2021. We take a look at the judiciary’s contribution to the advancement of the constitution.

Chief Justice Ismail Mohamed described the Constitution as ‘different’:

“[I]t retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution.”

This ‘break from the past’ also signaled a move away from parliamentary sovereignty – where parliament had the last word on all law; and under which the racist authoritarianism was enforced ­– to constitutional supremacy. The latter is where all law is now subject to the Constitution and anything to the contrary is invalid. This change carved out a new role for the judiciary – as not only enforcers of the law but also guardians of the constitution.

How have judges fared in this new role?

Early in South Africa’s transition to democracy, a new Constitutional Court of 11 judges was set up to be the final word on what the constitution means.

They quickly got to work and in one of their first cases, State v Makwanyane, they controversially struck down the death penalty as a violation of the right to life and dignity enshrined in the constitution.

Judges of the Constitutional Court and the rest of the court system took on their new role with vigour, in what some might describe as judicial activism. Judges found government in violation of the constitution for failing to give people emergency housing (Grootboom), to deliver lifesaving drugs to prevent HIV transmission (TAC), to give children textbooks (Section27) and food for school (Equal Education), and to deliver social assistance to the poorest (Khosa and Allpay). All these had tangible consequences for some of the most deprived members of South African society.

In pursuit of the constitution’s egalitarian society articulated by CJ Mohamed, judges have also had to step in to enforce the underlying values of the constitution – in both public and private spheres. Judges have found that even in business contracts, fairness and ubuntu apply (Barkhuizen). So too does it apply in private credit arrangements which would lead to injustice and homelessness (Jaftha v Schoeman, Standard Bank v Saunderson). Importantly, judges have found that in private employment and other relationships, no one may be discriminated against others (Hoffman v SAA).

Perhaps where the role of judges has had the most significant transformative impact is in holding the other arms of government accountable in terms of the constitution. On several occasions, the Constitutional Court has called out both Parliament (Mazibuko v Speaker) and the President (Dawood v President and EFF v Speaker) for failing to uphold their constitutional duties. Judges have also had to hold themselves accountable in terms of the constitution (SAAPIL v Heath and Nkabinde v JSC). They have also spoken out strongly on issues like corruption, and the government’s duty to combat it (Glenister).

One of the most exemplary examples of the use of these new powers conferred upon them by the constitution is the way in which judges have fiercely defended the rights of victims of discrimination and marginalisation – forging a new value system. In a long series of cases (Du Toit, Satchwell, National Coalition, and Fourie) the Constitutional Court firmly entrenched the right of LGBTIQI+ people to equality and protection from discrimination – a first in Africa and one of the first in the world.

In celebrating the last 25^th anniversary of the Constitution, it is crucial that we also credit the role the judiciary has played in ensuring that the constitution’s promises are realised in people’s lives.

From the examples above, there are several instances where judges have courageously intervened to protect the poorest and most marginalised in both public and private settings but also to set new standards of accountability for the government.

There is still plenty of work needed to build the new egalitarian society CJ Mohamed speaks of, and the judiciary needs to continue to play a leading role.

Read and download the Constitution of the Republic of South Africa, 1996 here.