What is the Constitutional Court?

Founded by South Africa’s first democratic constitution – the interim constitution of 1993 – the constitutional court was established in 1994 and began its first sessions in February 1995. It currently consists of eleven judges. They may serve for a non-renewable term of 12 years. They are all independent and 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 and reasons for the decision are published in a written judgment.

Anyone wishing to bring a constitutional case before the constitutional court must usually start in the high court, although with the creation of the equality courts, it is also possible for a claim eventually heard by the constitutional court to arise there. 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.

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 September 1996 the court identified features of the constitutional text that did not comply with the constitutional principles and gave its reasons for that view. The constitutional assembly then reconsidered the text and in October 1996, adopted an amended constitutional text, which was sent to the constitutional court for certification. In December 1996 the court certified that the text complied with the requirements of the constitutional principles, and the text duly became the Constitution of the Republic of South Africa, 1996 and came into effect in February 1997.

For more information about the constitutional court, see their website www.concourt.gov.za