Historical Background of the Constitutional Court

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The Constitutional Court was established in 1994 by South Africa's first democratic constitution - the interim constitution of 1993. The Court, the key institution of our constitutional democracy, continues to function under the final Constitution of 1996.

The 1993 constitution, agreed upon at multiparty talks , ushered in a legal order based on the concept of constitutional supremacy . From 27 April 1994, the interim constitution became the law's touchstone. And the 11-person court it established became the highest legal authority in the land in all constitutional matters.

Why did South Africa need a Constitutional Court?

In 1994, the judiciary was overwhelmingly White (and male) and therefore limited in its legitimacy 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 1956 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.

The Court is opened

The members of the Court met for the first time on the last day of October 1994. At the end of that year they undertook a study visit to Germany, a country whose constitution - along with those of Canada, India and Namibia - had had a strong influence on the writers of South Africa's interim constitution.
The Court was formally opened by President Nelson Mandela on the morning of 14 February 1995.
Mandela told the Court : "The last time I appeared in court was to hear whether or not I was going to be sentenced to death. Fortunately for myself and my colleagues we were not. Today I rise not as an accused, but on behalf of the people of South Africa, to inaugurate a court South Africa has never had, a court on which hinges the future of our democracy."
The judges took oaths of office wearing their specially designed green robes in front of the president and the Minister of Justice, Dullah Omar.
The inauguration was completed with the unveiling, in the foyer of the Court, of a commemorative plague that depicts the Court's logo - a representation of the African concept of justice under a tree .
 

Last updated : 24-Mar-2016

This article was produced for South African History Online on 30-Mar-2011