The Constitutional Court at 30: Time for a critical reflection

Prof. Bheki Mngomezulu

The Constitutional Court is an apex court in the land. Its responsibility is to uphold the country’s constitution and to protect human rights. Over the years, significant changes have occurred within this institution. The court has been led by different judges, passed different judgements, and interacted with various high-ranking individuals and political parties. This has earned the court accolades and criticisms from different people.

Having existed since the dawn of democracy, it is the opportune moment to reflect on how the court has performed. In so doing, it is fair to consider both its highs and lows.

In 1993 as the country drew closer to turning a new page by moving from a racial era to the current political dispensation, an interim constitution was passed. It was this interim constitution which guided the first democratic election in 1994. The motivating factor was that at the time the judiciary was predominantly white male. As such, it lacked legitimacy since it did not represent the multiracial South African community. It was necessary, therefore, to establish a court that would protect the Constitution against anyone.

The Constitutional Court formerly opened its doors on 15 February 1995. It then facilitated the adoption of the 1996 constitution which is currently in place. As was expected, the new constitution confirmed the existence of the Constitutional Court which has 11 judges. These include the Chief Justice, Deputy Chief Justice and 9 other judges. It used interim offices before moving to the Constitution Hill in Braamfontein where it currently sits.

The signature case for the court was the case between the state and Makwanyane in 1995 on the death penalty. At the centre of this case was whether it was constitutional or not to use the death penalty under the new political dispensation. 

Delivering its judgement on 6 June 1995, the court unanimously agreed that indeed the death penalty was against the country’s constitution, especially Sections 10 on human dignity, 11 on the right to life, and 12 on freedom and security of the person. This was a landmark case which saw South Africa ending the death penalty which led to the loss of life of many liberation fighters at the hands of the apartheid operatives and their racist government.

Since then, the court has passed judgements on various cases including equality, violence, socio-economic rights, and political cases. There have also been cases on privacy and religion.

But while it is true that the court has tried its level best to uphold the constitution, and to interpret the constitution as part of its contribution to democratic consolidation, there have been instances where the court has been on the receiving end of the South African public. The question is why has the public been critical of this court? Importantly, what should the court do to redeem its public image?

The first concern about this court is that it spends more time dealing with political cases. Even parliament runs to this court about issues which should be resolved by parliament. In this regard, the concern is that the court is too accessible to politicians. Political parties like the DA have frequented the court about issues which should have been addressed by parliament. This has tarnished the image of the court.

Another accusation against the Constitutional Court is its weaponisation by the political elite. Some judges are accused of being too sympathetic to certain politicians while being excessively harsh against others. The removal of Adv. Busisiwe Mkhwebane from her position as Public Protector and the impeachment of Judge Hlophe were interpreted by the public as evidence of the politicisation of the court. The argument was that the court was used to fight political battles. Whether these accusations are true or not is not the main issue. What is concerning is that the court has lost credibility in the public eye.

The Zondo Commission had many instances which painted the court in a bad light. Firstly, the public was concerned about the appointment of Chief Justice Raymond Zondo to head the Commission. Part of the reason was that Zondo was not the best candidate that was recommended by the Judicial Services Commission (JSC) to President Ramaphosa. Justice Mandisa Maya received the nod. However, Ramaphosa used his constitutional prerogative and appointed Zondo to be the Chief Justice.

As the Commission carried out its work, the Constitutional Court was drawn in. Firstly, Zondo was seen to be lacking objectivity. He was accused of being too harsh against Former President Zuma but too soft on President Ramaphosa. This resulted in Zuma refusing to return to the Commission.

Zondo approached the Constitutional Court directly. Not only did he lay a charge against Zuma, but he also prescribed a sentence of two years. This raised eyebrows because the litigant also assumed the position of a judge. In its judgement, the court forced Zuma to return to the Commission. It also removed his right to remain silent – the same right which had been given to other witnesses like the late Dudu Myeni. Once again, the court was accused of being biased.

When Justice Sisi Khampepe was appointed Acting Chief Justice, she read her judgement against Zuma in an angry tone. She sentenced Zuma in absentia to 15 months in prison. This resulted in the loss of many lives, loss of jobs, and the destruction of the infrastructure. Many businesses which closed in 2021 never recovered. This tainted the image of the court.

Given these instances, the second question about the future of this court becomes relevant. Going forward, the court should take these criticisms seriously, identify those that are factual and act on them, but also consider the rest that have not been substantiated and investigate them to confirm their authenticity.

The two main issues that the court should take seriously include too much accessibility to it by politicians and the weaponization of the court by politicians. Failure to address these would further tarnish the court’s public image. 

* Prof. Bheki Mngomezulu is Director of the Centre for the Advancement of Non-Racialism and Democracy at Nelson Mandela University.

** The views expressed do not necessarily reflect the views of IOL, Independent Media or The African.