The Constitutional Court of South Africa: Thoughts on its 25-Year-Long Legacy of Judicial Activism

Background: The emergence of the Constitutional Court as an activist judicial court

In the early 1990s, just a few years after the independence of Namibia in 1990 and the fall of the Berlin Wall a year before, a process of democratising social change swept throughout South African society, marking the first and most crucial step towards a negotiated political settlement in an increasingly violent and intense political culture. In 1993 South Africa adopted a new (interim) constitution, based on freedom and equality, it held landmark elections in April 1994, and later, in May, it inaugurated Nelson Mandela as the first democratically elected president of the country. Mandela embodied the dream that many people had, and he inspired a large, loyal and devoted following around the world. During the same period of democratic change, enormous changes on the constitutional front were witnessed, which took more wind out of the sails of the apartheid machinery. The establishment of the Constitutional Court of South Africa in April 1994 marked a turning point, and it could not have made constitutional rights proponents in the country more optimistic about the chances of making major strides towards constitutional democracy. The Court was established under section 98 of the Interim Constitution, and when it began its work in 1994, the Court consisted of 11 justices: a President and a Deputy President, and 9 justices, 4 of whom were appointed by the president of the country (Dickson, 1997: 532). The Court’s justices were nationally and internationally recognised as experts in civil and human rights law and litigation, and judging from their work in this field, it is quite clear that they took their responsibilities extremely seriously, which is to be expected given the glittering political career that some of them had, which stemmed directly from their long tradition of involvement and experience in the anti-apartheid struggle. These are the names of the 11 justices, the first generation of the Court’s constitutional justices, beginning in 1994: Arthur Chaskalson (President (renamed ‘Chief Justice’ in 2001)), Ismail Mahomed (Deputy President), Lourens Ackermann, Sydney Kentridge, Pius Langa, Johann Kriegler, Yvonne Mokgoro, Albie Sachs, Tholie Madala, Kate O’Regan, and John Didcott.

My focus in this article is on the historical circumstances and conditions that led to the emergence of the Court as a forum for constitutional interpretation in South Africa – the Court as an important institution historically, the guardian of the country’s constitutional democracy. This issue is considered alongside analysis of the Court’s jurisprudence – how it works in particular contexts, and what its work means for the rights of marginalised groups in society. The argument that forms part of this article is that the Court has a defined philosophy of the law, by which it provides guidance to members of society in terms of how their polity should function, and that this judicial philosophy, the underlying thinking behind what the Court believes, is based on a set of sociological assumptions often associated with the idea of the living constitution. From the lens of living constitution jurisprudence, constitutional values and norms are principles that are relative to a society’s particular historical context and culture, meaning that they are historically created, they are subject to growth, and they change as society itself changes (Parshall, 2007: 26). The jurisprudence offers a perspective on the constitution very different from that of legal scholars and writers in the so-called originalist school of constitutional jurisprudence, who argue that a constitution must be interpreted as it actually reads, and not as the courts themselves say it should be read. The willingness of originalism to encourage the need for judicial restraint rather than for efforts at judicial activism is the main reason why many scholars and writers believe it is the least controversial of the two theories of the judicial function, namely originalism and the living constitution. ¹ Originalism is most pronounced among jurists with a strong conservative upbringing, and it has been known to emphasise the use of abstract legal norms and principles in the interpretation of constitutional law (see Brewer-Carías, 2011: 14). Talking about judicial activism, I should note that the widespread use of the term ‘judicial activism’ suggests that it does not lend itself to a precise and defined meaning, but most legal scholars and writers seem to accept a very broad definition of the term, where a court of law that goes far beyond anything that the founders of the constitution, any constitution, had formerly thought and written when it interprets the law (see, for instance, Graglia, 1996: 13) can be considered to be involved in judicial activism. In this article, I underscore the term in my use of the term ‘living constitution’. I use the two terms (‘judicial activism’ and ‘living constitution’) interchangeably to refer to the reflexive (voluntaristic) component in modern jurisprudence, which has given effect to issues of change and transformation in constitutional norms, expanding the legal basis for the rights they protect.

The current interest in judicial activism/living constitution jurisprudence also emerges in the context of ongoing debates and discussions in legal and academic circles about substantive equality, which stands for something more than formal equality. The jurisprudence about substantive rights (substantive due process) provides a platform for people to make claims about socio-economic rights – the right of access to healthcare, food, water, education, housing, and social security (Chaskalson, 2009: 36). It is interesting to note that in the South African context, these claims have often been justified on historical grounds, which is perhaps not surprising, given the country’s anomalous pattern of history. This history has meant that ‘a formal application of equality and anti-discrimination clauses might have entrenched existing patterns of [inequality] and hampered the achievement of the constitutional goal of transformation’ (Chaskalson, 2009: 36). The Constitutional Court could not have come at a better time for the South African ‘outsider’: the poor, the vulnerable, and the social outcasts. It often gets no attention, but in May 1994, when South African society became a constitutional democracy, the institutional mandate to review all legislation was vested in the Constitutional Court, in a move which meant that from that period, the Court became the highest court in the land in respect of all constitutional matters, and that its decisions on such issues were binding on all other courts (Chaskalson, 2009: 29). With the momentum building for the movement for anti-discrimination and equality of opportunity after May 1994, there had been increased recognition of the Court as the arbiter of the Constitution, a forum for constitutional interpretation that, by pure evolution of history since 1993, was designated as the custodian of South African democracy, providing the critical foundation of peace and security, which has sustained the unprecedented era upon which the country’s freedom of the last 25 years has been built. It may be helpful at this stage to attempt to explain why and how this transition occurred, that is, to provide a general background on how we got to where we are today.

Understanding the transition to South African democracy

The type of social change just described here generally refers to changes that have occurred in the underlying mores of South African society, which accelerated after 1993, with the passing of the new democratic constitution, which committed the country to a future founded on recognition and realisation of fundamental human rights. The change did not just happen, however. Rather, it was a transition that was a direct result of a constellation of factors, the explanations of which (in the scholarship about South African society and history) are many; different authors and writers have rendered different interpretations of why and how this transition occurred, which is to be expected when it comes to the recounting and rethinking of any great moment in history. For example, in the functionalist tradition of sociology – developed originally by Durkheim (Giddens, 2014) and then later by Talcott Parsons (see Macionis and Plummer, 2007; see also Ritzer and Stepnisky, 2014; Sztompka, 2000) as a field devoted to the study of the nature of traditional and modern societies – social change (references to the concept of social change should be understood here as references to the concept of transition) is treated in explicitly evolutionary terms. Its mechanisms are said to be internal to society and to suggest incompatibilities/incongruities within its component parts (its institutions) (Mouzelis, 2008: 18). Society is seen as an interacting social system consisting of interdependent parts, with changes in one part of the system being seen as having a major effect on the other parts to which it is connected, or interlinked (Fulcher and Scott, 2007: 25). The more the parts of the system are able to work well together in an interdependent way, and the more all of its members are able to make a commitment to a belief in some kind of moral framework to guide their conduct, the greater the chance for such a society to fulfil its need for social solidarity, and to survive and reproduce itself over generations (Fulcher and Scott, 2007: 26).

If we think about how this classical sociological paradigm (structural functionalism/systems theory) might be applied to the analysis of South African society before 1994, we might first have to recognise that the institutions that made up the society (and to which members of the society attached themselves, on a cultural and historical level) were dysfunctional, and hostile in many respects to liberal democratic values and norms. Their importance lay not in their contribution to the survival and reproduction of the society as a whole, but to the strengthening of the society’s hierarchical system of social order, in a move which created many anxieties about social solidarity and social cohesion. Racial policy created the most serious crisis in South African institutions, including the institutions of law and order, which operated largely through a draconian system of criminal law (such as capital punishment) and security legislation similar in many ways to those we often find in totalitarian systems and cultures (Chaskalson, 2009: 26). Where the institutions failed was in their responsibility to fulfil the functional needs of society and to provide some regulation of individual conduct and behaviour.

This historical context, where South African society was deeply divided by race and colour, and where the relationship of people to their government and institutions was very unstable and precarious, constitutes the background against which the rise of the national mobilisation of workers, students and teachers, which began in the mid-1980s and which advocated positive political change, should be understood. The struggle against apartheid, which was led by the African National Congress (ANC) in exile, led to a great deal of mass resistance and conflict and the reason why this was so is because it arose essentially as a protest fed by political despair – and a crisis of consumption in a country still reeling from the decision, first taken by the international community in the early 1980s, to intensify the campaign for economic sanctions (Esterhuyse, 2012), which caused huge damage to Africa’s biggest economy.

If popular resistance and struggle against apartheid did not come by complete surprise, the same was no less true of the decision made by former South African President F.W. de Klerk in February 1990 to unban the ANC and other political organisations and to release all political prisoners, including Nelson Mandela. The announcement, made as part of the initial moves by the government to ease growing racial tensions and allay fears of a looming civil war, gave a significant boost to a country otherwise in political turmoil and facing an uncertain future.

The next four years after the February announcement constituted another period of powerful, dramatic social change in a still divided and anarchic society: the first democratic constitution was passed in 1993, with a transformative project of human rights at its core (Andrews, 2004: 1164; see also Enslin, 2003). The constitution was an important constitution historically, having committed the country to a future in which all its people would have their right to dignity respected (Sarkin, 1996: 62), and to a legal culture based on transparency and democratic accountability. ² The constitution was also a leading part of the formation of a different but equally important set of organisations and institutions, which, although unique in their character and operation, were to ensure that all South African citizens enjoyed equal opportunity and equal protection under the law. These institutions—the so-called Chapter 9 institutions – are those of the Public Protector, the Human Rights Commission, the Commission on Gender Equality, the Commission on the Restitution of Land Rights, the Truth and Reconciliation Commission, and, of course, the Constitutional Court itself (Dickson, 1997: 533). The final constitution, of 1996, marked another major watershed for South African society and history; the constitution provided a further significant indication of how far the country had changed in terms of its underlying mores, including the values on which the new society was founded in 1994, namely human dignity, equality of opportunity, freedom, non-sexism, and non-racialism (Andrews, 2004: 1166).

The Constitutional Court owes part of its legacy to this critical democratic moment, which showed the country at a high point of historical achievement, namely in the last decade of the twentieth century, more specifically in the year 1993, when the country adopted its first democratic constitution. The one important contribution made by the Court to this new democratic revolution comes under the label of living constitution jurisprudence, discussed earlier, which is premised mostly on historical and progressive concerns. Bound up with this jurisprudence was the Court’s substantive rights jurisprudence, which stands for something far more than the expression of formal equality. I will discuss the Court’s substantive rights jurisprudence first and then the Court’s living constitution jurisprudence in a subsequent section, when I examine the death penalty case of Makwanyane, the first case in South African legal history to follow the abolitionist pattern, bringing to an end the lengthy saga surrounding the future of one of the country’s most controversial and notorious systems of criminal punishment. Just to add to this point, another practical occasion for the operation of the Court’s new jurisprudence can be found in its ruling (March 2016) on the former South African President, Jacob Zuma’s, private residence in Nkandla, KwaZulu-Natal. Using this case (Nkandla), I will argue that the Court’s ruling, read together with the ruling by the North Gauteng High Court (December 2017) on the report by the former Public Protector, Thuli Madonsela, on state capture, is one area where the Court could be seen to have been more activist in its approach to constitutional interpretation.

The Constitutional Court’s approach to substantive equality

Let us first note the point Parshall (2007: 65) makes in another context, namely that embracing living constitution jurisprudence requires more than the recognition of changed historical circumstances and conditions when interpreting the meaning of the constitution. Embracing living constitution jurisprudence, he argues, is also associated with interrogating the basic assumptions of legal positivism and uncovering their weaknesses (Parshall, 2007: 65), one of which, according to Kostiner (2003: 13), is that groups on the margins of society can use the law to promote social reform. The main problem with this positivist argument is that it ignores the fact that the constitution and its protections, despite their inherent universalism in application, are more a resource for mobilisation and struggle, and not simply there to be given at will (Kostiner, 2003: 13), meaning that they do not necessarily or automatically lead to equality of opportunity. Here we are alerted to an important concept in sociology, namely human agency – or individual voluntarism. The overarching core argument underpinning the point made by Kostiner is this: the law is far more than the expression of abstract legal norms and principles, and democratic participation is enhanced when people, as social actors, become actively involved in organised movements for social change and reform and pursue their interests through collective solidarity. Within this framework the law is seen not as determining and constraining, but as being capable of being shaped to particular ends, in other words as emerging from the actions of people in particular contexts and carrying out a mission in the world beyond the simple pursuit of abstract ideals and principles.

The progressive tradition of social justice just described here, which stakes out a terrain of engagement with the law by an active citizenry, applies particularly to the point made by the former Chief Justice, Arthur Chaskalson (2004–2005: 505), in 2004 that the Constitutional Court has, and should always have, more regard for the substance of the law than its form, allowing sensitivity to the past (history) to inform the application of constitutional rights. Insofar as this argument is a criticism of the traditional theory of the law as value-free, fair and neutral, it also implies an inevitable movement away from the theoretical assertion of equality just cited here, which stands for formal equality, towards a more substantive approach to equality, reframed by the former Chief Justice in one of his academic writings as ‘Dignity and justice for all’ (Chaskalson, 2004–2005: 507). A strong example of the new South African jurisprudence as a constituent part of the Court’s approach to substantive equality can be seen in the Court’s support for positive rights called socio-economic rights, listed under Chapter 3 of the interim constitution titled ‘Fundamental Rights’ (see section 30(c) and section 32(a)) and Chapter 2 of the final constitution titled ‘Bill of Rights’). ‘Everyone has the right to have access to adequate housing [and the] state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right’, so declared the framers of the (final) constitution in 1996 (see section 26), and they added that

[e]veryone has the right to access to – (a) health care services, including reproductive health care; (b) sufficient food and water; and (c) social security [. . .] The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. [. . .] No one may be refused emergency medical treatment. [section 27] [. . .] Every child has the right [. . .] to basic nutrition, shelter, basic health care services and social services [section 28]. ³

According to the Court, positive rights are enforceable under the Constitution; they give effect to the right to dignity which the constitutional law protects (Chaskalson, 2009: 28). In a further unprecedented step, the Court perceived its responsibility as one of enforcing these fundamental human rights. How to enforce substantive/positive rights in a given situation and develop the criteria for determining what approach should best guide their adjudication is an issue that the Court believed must be left to its justices to decide (Chaskalson, 2009: 32). Understanding this point – the Court’s plenary (unlimited) power over the enforcement of socio-economic rights – requires that we view the Court as an activist judicial court with overwhelming constitutional authority. The Court’s plenary discretion over the adjudication of positive rights is very important, in my view, for the insight it brings to what I see here as the Weberian legacy of the Court, which makes it something of an innovation and unique in South African history, creating legal environments as a space to foster various forms of inclusion of people from marginalised groups in society. Many cases related to the Court’s jurisprudence on socio-economic rights have been chronicled, spanning many years since its first sitting in 1994. There are too many of them to cite here, but four of them readily come to mind, namely Grootboom and Others v Government of the Republic of South Africa, ⁴ Alexkor v Richtersveld Community, ⁵ Treatment Action Campaign v Minister of Health, ⁶ and Khosa and Others v Minister of Social Development. ⁷ In what follows, I provide another example of the form that such an approach (a historical approach) to constitutional adjudication can take, by looking at, first, the Court’s decision in Makwanyane on the death penalty, and then later discussing the Court’s decision on the findings of the former Public Protector, Thuli Madonsela (March 2016), concerning the former President, Jacob Zuma’s, private residence in Nkandla, KwaZulu-Natal. As I will show in my discussion, the Court’s ruling on Nkandla in 2016 was central to the decision made by the North Gauteng High Court in 2017 on the report by the former Public Protector on state capture. My main focus, however, will be on Makwanyane, and I will only discuss the other two cases (Nkandla and state capture) briefly, for reasons of space and given the extent of the issues that they raise.

The Constitutional Court’s decision-making in Makwanyane and Nkandla

On a strictly legal level, Makwanyane is about the crime of violence – murder and armed robbery – committed by two men, Themba Makwanyane and Mvuso Mchunu. The two defendants were found guilty and were sentenced to death by the Witwatersrand Local Division of the Supreme Court under section 277(1)(a) of the national statute the Criminal Procedure Act 51 of 1977, which sanctions capital punishment as an appropriate and competent form of punishment and sentencing for murder. The passage below provides a general background on the circumstances of the criminal acts in question, and the punishments that the two defendants received, which carried long terms of imprisonment:

[The defendants] were convicted [. . .] on four counts of murder, one count of attempted murder and one count of robbery with aggravating circumstances. They were sentenced to death on each of the counts of murder and to long terms of imprisonment on the other counts. [The murder charges were for the killing of two police officers and two employees of a bank.] [Counsel for the accused] appealed [. . .] against the convictions and sentences. [Regarding the sentences of death that the defendants received, Counsel argued that the provision of the Criminal Procedure Act of 1977 violated sections 9 and 11 of the Constitution.] The Appellate Division dismissed the appeals against the sentences on the counts of attempted murder and robbery, but postponed the further hearing of the appeals against the death sentence until the constitutional issues [were] decided by [the Constitutional Court]. ⁸

It should be noted that when this death penalty case was first engaged by the Court, in February 1995, approximately 400 prisoners were on death row, a moratorium had been placed on executions since 1989, and the death penalty was disallowed for juveniles and the mentally ill (Klug, 1996: 61; see also Bentele, 1998). There were other safeguards as well, for example, the Court had to take into account all aggravating and mitigating factors when deciding a death penalty case, and defendants in a capital trial could exercise their right to appeal their sentences. In a case where an appeal had not been sought and applied for, an appellate court could review the case and reverse it ‘if it [felt] that it would not have imposed such a sentence itself after taking into account the justice system’s goals of deterrence, prevention, reformation, and retribution’ (Kende, 2006: 214). The Court, after taking a long and careful examination of the constitutional issue to be decided in the case – namely whether section 277(1)(a) of the Criminal Procedure Act of 1977, which prescribes the death penalty, was consistent with sections 9 and 11(2) of the Interim Constitution ⁹ – decided to spare the two defendants’ lives. The hallmark of its decision, taken in June 1995, was that apart from whether the Supreme Court (the sentencing court) had a valid factual basis for convicting the defendants, the punishment of death that they received was itself unconstitutional, because ‘the death sentence destroys life, which is protected without reservation under section 9 of our Constitution’. ¹⁰

Writing about this fundamental right, namely the right to life, Chief Justice Chaskalson, known for his progressive views, pointedly stated:

The carrying out of the death penalty would destroy [the right to life] and all other rights that the convicted person has [. . .] Retribution cannot be accorded the same weight under our Constitution as the rights to life and dignity. ¹¹

To say that the Constitutional Court decided to abolish the death penalty in order to uphold the constitutional provision in section 9, which protects the right to life, is true, but it is not the only truth. The other truth is that the Court’s decision also seemed receptive to a broader-based historical argument that reflected a particular style of thinking and writing about the Constitution, namely the idea that the Constitution is a living institution – that it changes depending on historical changes over time and space. For this jurisprudence, namely living constitution jurisprudence, the meaning of the Constitution is historically created, and is largely the result of rapid social change. This jurisprudence instructs us on how the law is intertwined with history; it is keen for increased emphasis to be placed on understanding the connections between legal norms and the social context in which they are made and applied. If there was such a thread of argument running through the Court’s ruling in Makwanyane, namely the living constitution argument that the Constitution is mediated by historical experience, it is perhaps nowhere more evident than in the Court’s decision to stop the carrying out of capital punishment, both in law and in practice, on the grounds that it is inconsistent and inimical with the values of the Constitution protected by sections 10 and 11. As I understand the ruling in Makwanyane, it did not only emphasise the importance of the right to life protected by section 9 of the Constitution, but also the importance of the two fundamental rights cited in sections 10 and 11, which protect the right to dignity and the right not to be subjected to cruel, inhumane and degrading punishments and treatments, respectively. The Court said in this regard:

[The death sentence constitutes inhuman punishment, because it] invades irreversibly the humanity of the offender [. . .] by degrading impermissibly the humanity inherent in his right to dignity [. . .] by the continuing and corrosive denigration of his humanity in the long periods preceding his formal execution; by the inescapable denial of his humanity inherently involved in a sentence which directs his elimination from society. ¹²

The Court’s anti-death penalty sentiment may indeed have been seen as surprising, controversial even, because at the time when the Court made its ruling on the case, there was no constitutional provision that explicitly outlawed the death penalty (Quint, 2009: 43). The framers of the Interim Constitution of 1993 avoided the question of whether or not capital punishment was constitutional, but it should be noted that section 277(1)(a) of the Criminal Procedure Act (1977) did prescribe the death sentence, more specifically for crimes of extreme violence and murder. The framers explicitly left this dilemma in the Constitution – one that protected the right to life, yet at the same time retained a criminal statute that countenanced (sanctioned) the sentencing of people to death – to the Court to decide, and when the Court finally did, in Makwanyane in June 1995, it declared the law invalid and unacceptable, contending, in one of its most-quoted statements, that ‘[although] punishment must to some extent be commensurate with the offence [. . .] there is no requirement that it be equivalent or identical to it’. ¹³ As I have stated earlier, one important issue raised by the view of the law on the death penalty just discussed, one that emphasises the importance of the two fundamental rights protected by sections 10 and 11 of the constitution, is the idea that constitutional values and norms depend on the course of historical developments; they change over time and space in response to the changing needs of society. The following argument by Justice Mahomed seems to me to illustrate this historical approach to constitutional interpretation more clearly:

What the Constitutional Court is required to do in order to resolve an issue, is to examine the relevant provisions of the Constitution [and] factual and historical considerations bearing on the problem [. . .] Adopting that approach, I am satisfied that the death penalty [. . .] violates crucial sections of the Constitution. ¹⁴

Acting Justice Kentridge echoed this point in the very same landmark case (Makwanyane), questioning the death penalty law on the historical merits:

there is ample objective evidence that evolving standards of civilisation demonstrate the unacceptability of the death penalty in countries which are or aspire to be free and democratic societies. [. . .] the imposition of the death penalty has been found to be unacceptably cruel, inhuman and degrading, not only to those subjected to it but also to the society which inflicts it. ¹⁵

The following judgment by Justice Langa is another example of how useful and effective a historical perspective can sometimes be when it comes to defending the values of the constitution – its fundamental rights:

The emphasis I place on the right to life is, in part, influenced by the [. . .] history of the past decades [which] has been such that the value of life and human dignity have been demeaned. [. . .] The State has been part of this degeneration, not only because of its role in the conflicts of the past, but also by retaining punishments which did not testify to a high regard for the dignity of the person [. . .] The primacy of the right to life and its relationship to punishment needs to be emphasized also in view of our constitutional history. ¹⁶

Beyond the Court judgment’s use as a rhetorical ‘no’ against the use of cruel, dehumanising, and degrading punishments and treatments, another potential use of the judgment is as an official statement and expression of the Court’s jurisprudence related to substantive equality. An example of the form that such a form of jurisprudence can take has already been provided, when the Court’s jurisprudence on socio-economic rights was examined. The main purpose here was to show that the Court’s jurisprudence (socio-economic rights jurisprudence) prefigures the Court’s substantive approach to equality in its preoccupation with the rights of people on the margins of society, people to whom equality of opportunity has previously been denied, because of the historical vulnerability they have had. What I have not yet said is that the Court in Makwanyane also gave the new South African democracy a transformative jurisprudence, the very same judicially led reformist project which seeks due recognition for the rights of marginalised groups in society, so that they too can be equally protected and equally valued in official policy. This jurisprudence is more clearly reflected in the argument by Justice Langa that

[the] test of our commitment to a culture of rights lies in our ability to respect the rights not only of the weakest, but also of the worst among us. [. . .] The protection afforded by the Constitution is applicable to every person. That includes the weak, the poor and the vulnerable [and] criminals and all those who have placed themselves on the wrong side of the law. ¹⁷

The direct influence of Makwanyane on substantive rights jurisprudence also becomes clear when one looks at the following argument by Justice Didcott:

The wanton killing must stop before it makes a mockery of the civilised, humane and compassionate society to which the nation aspires and has constitutionally pledged itself. And the state must set the example by demonstrating the priceless value it places on the lives of all its subjects, even the worst. ¹⁸

The importance of the new jurisprudence (premised on historical and progressive concerns) to the Court’s decision-making is also clearly demonstrated in the Court’s interpretation of the constitutional law concerning the findings made by the former Public Protector, Thuli Madonsela, in her report on the former President, Jacob Zuma’s, private residence in Nkandla. The Nkandla debacle really began in 2011, when the office of the Public Protector received complaints involving the former President, alluding to him having been involved in corruption and wrongdoing regarding the improvements of security-related facilities on his private property. The former President was accused of abusing state resources to benefit his private interests; his critics argued that there was no legal basis for the security upgrades on his property, and that ‘even if such authority existed, [the upgrades were] excessive and constituted unacceptable expenditure’ (Tsele, 2016: 200; see also Mbaku, 2018: 812). In her detailed report, released in March 2014, the former Public Protector raised similar moral and legal concerns about the former President’s residence. Her report concluded that public money should not have been used for the improvements on his private property, especially since some of the improvements had nothing to do with security, such as the cattle kraal, the chicken run, the swimming pool, the visitor centre and the amphitheatre. ¹⁹ The former Public Protector made her worry about the ANC leader’s conduct perfectly clear, and using the power granted to her by sections 181 and 182(5) of the Constitution (1996), she ordered him to pay back a certain percentage of the money spent on the residence to the state and to reprimand the ministers who had authorised the security upgrades (Tsele, 2016: 200). When in 2015 Parliament exonerated the former President of any wrongdoing and absolved him from compliance with the remedial action taken against him by the former Public Protector (Tsele, 2016: 208), pushing back on her argument that binding decisions are within her power to make, the leader of the Economic Freedom Fighters, Julius Malema – later joined by the leader of the Democratic Alliance (DA), Mmusi Maimane – went to the Constitutional Court to ask for an order affirming her right to make binding decisions – and to ask the Court to find the former President guilty of violating sections 83, 96, 181 and 182 ²⁰ of the Constitution (1996) by refusing to comply with her remedial action. The Court, in its final judgment, delivered by Chief Justice Mogoeng in March 2016, ruled in favour of the two members of the opposition. The Court held that the former Public Protector was lawfully entitled to make binding decisions, and found the former President in breach of the Constitution by refusing to implement her recommended remedial action. ²¹

A year later, in the case concerning the pattern of wholesale state capture and impropriety, which was also linked with the former President (Huq, 2019: 36), the Court was confronted by another classic accountability problem. Here private interests were also found to have rendered the powers of the executive branch of government ineffectual, preventing the spread of accountability ideas among leaders at the highest levels of society. The case against the former President began in March 2016, when former Deputy Minister of Finance Mcebisi Jonas alleged in a television interview that he was offered a position in government as Minister of Finance by close friends of the former President and business partners of the former President’s son in return for favours, which included him getting rid of ‘several Treasury officials who were thought to be an obstacle to the maximisation of [their] business objectives in government [. . .] and other state institutions and parastatals such as Denel, Eskom and Telkom’ (Mbaku, 2018: 812). When the former Public Protector received and investigated these and other similar complaints about the former President (from the DA and the Dominican Order), she found ‘strong evidence of significant wrongdoing and corruption’ arising in the context of the relationship between him and his friends and the business partners of his son (Mbaku, 2018: 810); in another dramatic move, she ordered the former President to appoint a commission of inquiry headed by a judge chosen by the Chief Justice of the Constitutional Court within 30 days to further investigate the allegations and report to the Chief Justice within 180 days. When on 12 December 2017 the former President applied to the North Gauteng High Court to have her report (the so-called state capture report) reviewed and set aside by a judge, his application was summarily dismissed. The presiding judge, Dunstan Mlambo, appeared to agree with the decision by the Constitutional Court in Nkandla that the former Public Protector was lawfully entitled to make binding decisions. According to the judge, her remedial action (that the former President must appoint a commission of inquiry) was ‘wise, necessary, rational and appropriate’, and the former President’s actions were ‘completely unreasonable’ and ‘grossly remiss’ (Chabalala and Mitchley, 2017: 6).

Seen from this perspective, the two court decisions just discussed here – the Constitutional Court’s decision on Nkandla and the High Court’s decision on state capture – are strikingly similar: what the ruling by Judge President Mlambo (on state capture) amounted to was a restatement of the ruling by Chief Justice Mogoeng (on Nkandla) that the remedial action taken by the former Public Protector against the former President has legal consequences. The main reason I have chosen to discuss these court decisions here is that they are some of the most significant cases in South African legal history when it comes to defending the values of the Constitution and ‘keeping the country’s constitutional democracy strong and vibrant’ ²² (to borrow the words used by Chief Justice Mogoeng in Nkandla); the other reason I have chosen to discuss them is that they reflect the way in which and the extent to which the Constitution changes to meet changed historical circumstances and conditions. This last point is so important, because it informs my analysis here: what these two court decisions point to is the change in the judicial approach as the country moved from a parliamentary system of democracy towards a constitutional democracy based on human rights, the rule of law, and democratic accountability. One way to understand this change in the judicial function is to look at what the Court said on pages 33 and 34 of the Nkandla ruling about the role and function of the office of the Public Protector, where it relied, I presume, on the precedent it set in 1997 in Fose v Minister of Security and Safety that ‘an appropriate remedy for breach must be an effective remedy’. ²³ The Court said:

The office of the Public Protector was created to strengthen constitutional democracy in the Republic [. . .] and the obligation to protect and assist [it in this mission] so as to ensure [its] dignity and effectiveness is relevant to the enforcement of [its] remedial action [. . .] and for this action to be effective in addressing the investigated complaint, it often has to be binding. ²⁴

One might suppose, from reading this statement, that the Court’s ruling in Nkandla suggests very little limit to the powers of the office of the Public Protector in a changing society, that the ruling gave the office of the Public Protector far-reaching powers of criminal investigation and oversight. I say this because the description of the role of the Public Protector given here by the Court (the idea that the Public Protector, in addressing public complaints about corruption, is herself entitled to make binding decisions), not only includes the power to guide members of society in terms of what is morally appropriate and inappropriate behaviour, but also the power to apply coercive negative sanctions, the power to act as a check upon the actions of public/elected officials, but also the power to enforce their compliance with the law. But insofar as the Court’s ruling demonstrates ‘how intrusive [italics mine] the powers of the Public Protector are, and how deep [italics mine] her remedial powers are expected to cut’ ²⁵ (to borrow the words used by the Court in another context), it also highlights the clear links between the Court’s decision-making and the new progressivism of the activist liberal court discussed earlier, which has moved the law further to the left over the last few decades, by injecting a historical element into the debate about its role in a changing society. Taking my cue from Tsele (2016: 208–209), I want to begin with the observation that the binding standard described here by the Nkandla Court may be perceived as one that has been ‘invented’:

there was no principled reason [to apply the ‘binding standard’, because] the Constitution does not set forth a standard, criterion or threshold in respect of the force and effect of the decisions relating to the Public Protector or indeed any other Chapter 9 institution.

This argument has also become clearer by way of research studies done by other scholars and writers in the field (constitutional law), some currently well known in academic circles. One good example is Huq’s work on state capture and the doctrine of separation of powers:

[The Court’s decision is] better understood as a fluid and contingent response to specific political risks [. . .] [The decision] rested more on a functional analysis of institutional powers than on a close reading of a specific constitutional text [. . .] The key term in Mogoeng CJ’s logic [. . .] concerned the correct recognition that officials fingered for graft by the Public Protector are likely to resist [to comply] or at least slow-walk in the face of the allegations [made against them, but] nothing in the text of the constitution conveys this assumption (Huq, 2019: 36).

Obviously, this is not to deny the positive moral message that I think the Court was trying to send in this case, which was not lost on a country experiencing a massive breakdown in the normal functioning of its institutions of public governance. Viewed more broadly, the ruling seemed to have a double-edged character. On the one hand, the ruling largely reflects how the country’s new jurisprudence, which entrusts broad discretion to the Court, influences the Court to recognise evolving historical trends and developments when it interprets the Constitution. On the other hand, the ruling amounted to nothing more than an unequivocal defence of the principle of constitutional democracy in the new South Africa, conceivably as a way to reassure its citizens that the Court will always advance the battle for human rights, the rule of law, and democratic accountability. This is perhaps the most important story to be told about the ruling: the fact that it can be seen, or the fact that the Court wanted it to be seen, as having been more than correct in terms of trying to deal with the moral dysfunction that afflicts South African society today, grating upon its institutional norms and undermining public confidence in the rule of law. We have already seen this concern with the role of morality, tied to institutional norms, in Makwanyane, when the Court examined the constitutionality of the law on the death penalty. This ethical concern was also apparent in Grootboom, Alexkor, Treatment Action Campaign, and Khosa (see above), which considered the rights that South African citizens can lawfully make upon their government for substantive equality. I should note that what all these court cases have in common are two things in particular. Firstly, they largely reflect how the new South African jurisprudence is intertwined with the country’s emergence, in May 1994, as a constitutional democracy. Secondly, and relatedly, they all together point the way to a new era of constitutional jurisprudence in the country, which will allow the courts to provide a more expansive reading of the Constitution – giving the law and the panoply of rights it confers a broad construction.

Conclusion

The point of the above review has been to argue that the evolution of South African society as a democratic society in May 1994, with all its legal forms and institutions, was essentially the work of the constitutions of 1993 and 1996, which created a climate of political freedom and equality of opportunity which emboldened marginalised groups to fight for their rights of citizenship. The Constitutional Court was one of the most important of the new democratic institutions in the shaping of the country’s position as a constitutional democracy, upholding the values for which millions of people, black and white, had fought. My main interest in studying the Court was more related to understanding (a) the Court as an important institution historically, a great monument on the landscape of South African legal culture and tradition, and (b) how the Court’s new jurisprudence works in particular contexts, how its work is related to crime and punishment, and what it means for the rights of marginalised groups in society. The article finds that the Court’s jurisprudence takes quite a different view of legal developments in South Africa, insofar as the jurisprudence entrusts broad discretion to the Court and emphasises the need for sustained leadership of the Court to advance the battle for fundamental human rights, the rule of law, and democratic accountability. This is how I think its record will be long remembered in the wider context of South African history, and why I think its rulings will continue to have great consequences far beyond their immediate confines.

I began with the observation that the adoption of the first democratic constitution, in 1993, based on freedom and equality, was representative of one of the great moments of South African history, a modest prelude, if you will, to the triumphant march of the country, beginning in April 1994, when South Africans held landmark elections, unleashing a wave of human liberty and equality, which had first swept across Southern Africa at the independence of Namibia, four years before. The Constitutional Court is a forum for constitutional interpretation that initially grew out of this process of transition, providing the critical foundation of peace and security upon which the South African freedom of the past 25 years has been built.

The direct influence of the Court on the new South African jurisprudence becomes clear when one looks at its ruling on Nkandla, and at the ruling made by the North Gauteng High Court on state capture. I have chosen to discuss these two court decisions here because I think they both illustrate well the cultural shift that the country’s jurisprudence has undergone over the past 25 years, changing the law in the direction of judicial activism. But long before the story about Nkandla, and long before Mr Zuma’s alleged role in the case about state capture, many in the country had already begun to openly question the wisdom of the government’s decision to retain the law on the death penalty as a form of criminal punishment and treatment, which culminated in a ruling in Makwanyane in June 1995, which attracted huge public interest, yet remains contentious in the country to this day, especially in the media. I have already mentioned the fact that one of the most striking aspects about this case, which made it something of a peculiarity in South African history (at least by the standards of the time), was its overtly historical setting. It seems to me quite clear that the justices in Makwanyane had a distinct sense of the history of South African society, and they brought this to bear in the way they interpreted the Constitution. What the Court’s justices did in this case, to borrow the words used by the former Chief Justice, Arthur Chaskalson (2009: 39), in another context, ‘must be seen in the light of the circumstances of our country and our history’. And this is most clearly demonstrated, as I have said earlier, in the way the Court interpreted the fundamental rights in the Constitution (1993) protected by sections 10 and 11. The death penalty, the Court said in this regard, violates the inherent dignity of persons, because it is a cruel, inhuman and degrading form of punishment and treatment, and ‘what is cruel, inhuman or degrading,’ the Court added, ‘depends to a great degree upon changing societal values and norms’. ²⁶ I should note that the Court’s use of these two sections of the Constitution is very much in line with the living constitution argument that the meaning of a constitution depends upon the course of historical developments: that a constitution changes over time and space as society itself changes and progressively evolves. Certainly, the Court’s ruling reflected changing moral attitudes and beliefs about the law on the death penalty as a method of criminal punishment, but we should note that the ruling also reflected changing views and beliefs about the proper role of the Constitution itself in a changing society. ²⁷ The direct influence of living constitution jurisprudence on the Court’s approach in Makwanyane becomes clear when one looks at the following argument made by Justice Mokgoro, taken from her concurring judgment:

Now that constitutionalism has become central to the new emerging South African jurisprudence, legislative interpretation will be radically different from what it used to be in the past legal order. [. . .] As this constitution evolves to overcome the culture of gross human rights violations of the past, jurisprudence in South Africa will simultaneously develop a culture of respect for and protection of basic human rights. ²⁸

Perhaps another crucial note should be added here: the Court’s decision in Makwanyane is but one of the few instances in which its living constitution jurisprudence was positioned alongside its substantive rights jurisprudence, which stands for fundamental human rights but also deals with issues of central concern, such as human dignity and equality of opportunity. A strong example of Makwanyane as part of the Court’s substantive rights jurisprudence can be found in the argument made by the Court that the rights that the Constitution protects are applicable to all South Africans, that even the poorest and the vilest amongst us are entitled to all the rights of citizenship enshrined in the Constitution, including the rights that are linked to the protection of the right to life and dignity. The Court has been exhaustively analysed on many different levels, and from many standpoints, rooted in several disciplines, such as law, sociology, and history. But I think no study of the Court’s new jurisprudence would be complete without saying something on its views regarding what seems to me here to be the great lesson of Makwanyane and subsequent court cases, which have defined much of its work since 1994, such as Grootboom, Alexkor, Treatment Action Campaign, and Khosa. This great lesson can best be summed up in the statement, famously made by Chief Justice Arthur Chaskalson in June 1995, when he said:

The very reason for establishing the new legal order was to protect the rights of minorities and others who cannot protect their rights through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. [. . .] It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected. ²⁹

In the increasingly divisive and skewed environment of our history, this statement is by no means trivial.