Beneath lowering skies on Human Rights Day, Sunday March 21, and before a coterie of international and local legal luminaries, President Thabo Mbeki declared the new Constitutional Court building at No 1, Constitution Hill, open. ”May it be a shining beacon of hope for the protection of human rights and the advancement of human liberty and dignity,” he proclaimed.
A little more than nine years after its official inauguration on February 14 1995, South Africa’s Constitutional Court now has a magnificent permanent home that combines the worst of the past in the form of the old Johannesburg Fort on whose premises it is sited and, hopefully, the best of the future, as promised by the 27 human rights carved into the imposing doors in 11 official languages.
But the impressive building, the historical site, the symbolic kgotla tree in the foyer, the accessibility and the magnificent art collection are, in the end, trappings. The Constitutional Court is only as valuable as the decisions made by the 11 judges charged with safeguarding what is widely considered to be one of the most progressive constitutions in the world, with serving ”as an agent of transformation, guided by the vision of equality”, and with ”[infusing] the government and the common law with the values of the Constitution”.
Some of those present at the opening read into the words of Mbeki in his address a subtle warning about the consequences to the court if it fails to keep ”a weather eye” on ”community values in order to retain the relevance of their decisions to that community”. Ultimately, the president stated, ”the defence and enforcement of the rule of law, and therefore respect for the decisions taken by our Constitutional and other courts must rest on whether our people are convinced that these decisions are consistent with ‘basic values representative of community values’”. It will be a delicate balancing act.
The concept of the Constitutional Court, says Iain Currie, director of the Wits law school’s research unit for law and administration, grew out of a need to move away from the apartheid judicial system and create a new court staffed by judges who shared ”the values of the new country”. So, initially, it was a body ”awkwardly grafted on to the legal system” and given the unprecedented power to adjudicate the constitutional principles under which it was to operate.
In a remarkably short time, though, the court moved from its ungainly position to occupy the apex of the judicial system. Under the 1996 Constitution there was no longer any doubt about its place in the hierarchy of the judiciary; a status confirmed when, in 2001, the position of president of the court was transformed to that of chief justice.
Since its inception the court has operated under two different constitutions, the text of one of which it was called upon to certify; has developed an extensive body of jurisprudence; and is respected worldwide for the quality of its judgements. It finds itself, by constitutional mandate, in the centre of not only the legal, but also the social and political transformation of South African society.
But what does this mean to the average South African — the ”community” to which the president alluded?
Sometimes not a great deal. Much has been made of the fact that Irene Grootboom, who gave her name to one of the court’s most famous decisions, cited as a triumph for socio-economic rights, is not personally much better off than she was when the court ruled that the state housing programme was not reasonable ”in that it failed to make reasonable provision within its available resources for people in the Cape Metropolitan area with no access to land, no roof over their heads”.
Sadly for her, the ruling was not intended to give her personal relief but to instruct the government to have a policy to deal with situations like hers. To that degree it has succeeded — the government’s housing policy has been amended. Not much consolation for Grootboom, but a significant victory for a broad-based rights policy.
Others have gained more directly from some of the decisions. Chief among those was Mr Makwanyane, beneficiary of one of the earliest decisions — the abolition of the death penalty on the grounds that ”the rights to life and dignity are the most important rights and the source of all other personal rights” — a case in which, if opinion polls are to be believed, ”community values” were not a consideration.
A number of decisions on gay rights have affected a broad spectrum of gay couples and individuals; the Treatment Action Campaign (TAC) victory in July 2002 may literally give a new lease on life to millions of South Africans; and the return of its land to the Richtersveld community will have a major impact on the quality of life of its members.
Less fortunate was the late Thiagraj Soobramoney, for whom the court was unable to order the provision of renal dialysis in a state hospital because it was reluctant to ”interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters”.
Broadly speaking, the decisions of the court can be divided into three categories. Two of these seldom make headlines. They are the cases that deal with the technical issues of the court’s own procedures and powers and those that deal with the Constitution’s division of political power among the various organs of state and spheres of government.
The best-known aspect of the court’s work falls into a third category — human rights cases. The court spent much of its time in its first few years dealing with the remnants of the apartheid statute book. Now, with most old-order legislation out of the way, its human rights decisions have begun to focus on other issues: the common law (for example, the case of Alix Carmichele, which develops a right to claim the protection of the criminal justice system and to sue for damages when it has failed) and the socio-economic rights cases.
But headline cases aside, to a considerable degree, says Currie, the Constitutional Court is ”an institution of elite politics”, and a crucial test of its success is its relationship with the other branches of state — a relationship which has, he believes, been adroitly managed by its first president, now Chief Justice, Arthur Chaskalson.
The relationship between the government and the court, say observers, can generally be described as one of ”cordiality and mutual respect”. The judges have ”navigated the difficulties of judicial review expertly and the government has responded appropriately. The court has successfully become the institution that South Africans need it to be.”
But has it, as some believe, also become the institution the government needs it to be? Does it tend to lean in favour of the government?
Certainly Louis Luyt, then president of the South African Rugby Football Union (Sarfu), believed it did. Luyt it was, in April 1999, who asked five judges, including the president and deputy president of the court, to recuse themselves in the case brought by then president Nelson Mandela, who was challenging a Transvaal High Court decision setting aside his appointment of a commission of enquiry into Sarfu. The judges declined to recuse themselves and the case, which lasted for two years, went ahead.
Indeed, a significant number of the judges have had close links with the ruling African National Congress. But inevitably judges appointed in post-1994 South Africa would, at the very least, have had sympathies with the liberation movements and, said advocate Gilbert Marcus, responding to Luyt’s attack on the court, ”if allegations of past political affiliation and personal indebtedness by reason of appointment to the court were to carry sway, the work of the Constitutional Court would effectively be paralysed”.
The fact is that, with few exceptions (the TAC case being an obvious one), there has been little reason for the Constitutional Court to test itself against a government that has not to date tried to take any action against the rule of law that might confront the court with a constitutional crisis. Those observers who see the court as fundamentally government-sympathetic are cynical about the outcome of such a confrontation should it ever arise. Others, like Currie, are more sanguine, believing that the court is ”more or less in line with national politics and the chances of a serious split are not great”.
In the meantime, though, even its detractors would find it difficult to decry its undoubted achievements and the effect of the 207 judgements handed down between April 1995 and December last year.
One of the most important of these achievements, Currie believes, is that it has ”invigorated the whole legal system” and the effect of that is that constitutional values are beginning to trickle down from the Supreme Court of Appeal to the high courts and to the magistracy ”where they will have the most effect”.
Magistrates now receive judicial training that teaches them about the Constitution; an education that will hopefully redound to the benefit of those who appear by their hundreds and thousands in the lower courts.