ABOUT THE COURT

Why did South Africa need a Constitutional Court?

In 1994, the judiciary was overwhelmingly white (and male) and therefore limited in its ligitimacy and its capacity to draw on the sense of justice of all communities and both sexes. It was agreed that a new court, more representative of South Africa's diverse population, should be established to protect the Constitution and the fundamental human rights it entrences.  

The history of the idea

The notion of a bill of rights for South Africa can be traced back to an ANC document in the early 1920s. The Freedom Charter of 1955 carried the idea forward. In the following decades the idea of an entrenched bill of rights received support from liberal academics and judges. The question of who would enforce it, was, however, left open. This issue was debated at a conference organised by the Constitutional Committee of the ANC in 1991. What emerged was a commitment to a Constitutional Court in a hybrid continental form, such as that of Germany: able to hear cases by direct access, as well as by referral and on appeal. 

A question that arose in the negotiating process concerned the sort of institution needed to protect a constitution and the rights enshrined in it. Should South Africa create a specialist Constitutional Court, use the existing court structure to act as the guardian, or opt for a hybrid?

In many English-speaking countries, ordinary courts can scrutinise constitutional issues. But these courts needed to be credible and command respect. Could the highest structures of the South African judiciary - the Supreme Court and the Appellate Division - be transformed into such institutions?

The ANC felt that this task would be too difficult and that the new Constitution needed as its protector a new court - one untainted by the past. In this sense, the decision to create a Constitutional Court was a political one. And the process of appointment to the Court - clearly laid down in the interim constitution - was the product of compromise.