Landmark Constitutional Cases that Changed South Africa

Marius van Staden, Roxan Laubscher

Description

On 14 February 1995, the Constitutional Court of South Africa was inaugurated by President Nelson Mandela. In his inaugural speech, President Mandela remarked that the “future of our democracy” hinged on the existence and the work of the newly created Constitutional Court. Furthermore, President Mandela rightly asserted that it is the Constitutional Court’s task “to ensure that the values of freedom and equality which underlie our interim constitution – and which will surely be embodied in our final constitution – are nurtured and protected so that they may endure”. These sentiments are as true now as they were almost thirty years ago. However, whether and how the courts have nurtured and protected these sentiments over the last twenty-eight years is the topic that we want to address. This book serves as the first volume in a series of books that considers selected landmark judgments of the South African Constitutional Court.

Sujets

• Littérature Sud-Africaine
• Littérature sud-africaine
• Afrique du Sud
• Constitution
• Capital punishment
• Human rights
• South Africa
• Sudáfrica

Informations

• Publié par: UJ Press
• Date de parution: 15 octobre 2023
• Nombre de lectures: 1
• EAN13: 9781776460694
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

Landmark Constîtutîonal Cases that Changed South Afrîca

Roxan Laubscher & Marius van Staden

Landmark Constîtutîonal Cases that Changed South Arîca

Publîshed by UJ Press Unîversîty of Johannesburg Lîbrary Auckland Park Kîngsway Campus PO Box 524 Auckland Park 2006 https://ujpress.uj.ac.za/

Compîlatîon © Roxan Laubscher & Marîus van Staden 2023

Chapters © Roxan Laubscher & Marîus van Staden 2023

Publîshed Edîtîon © Roxan Laubscher & Marîus van Staden 2023

Fîrst publîshed 2023

https://doî.org/10.36615/9781776460694

978-1-7764606-8-7 (Paperback)

978-1-7764606-9-4 (PDF)

978-1-7764827-0-2 (EPUB)

978-1-7764827-1-9 (XML)

Thîs publîcatîon had been submîtted to a rîgorous double-blînd peer- revîew process prîor to publîcatîon and all recommendatîons by the revîewers were consîdered and împlemented before publîcatîon.

Cover desîgn: Hester Roets, UJ Graphîc Desîgn Studîo

Typeset în 10/13pt Merrîweather Lîght

Contents

Introductîon .....................................................................................

Chapter 1:The death penalty decision: A triumph for human rights and the value ofubuntu ................................ S v Makwanyane

Chapter 2: Constîtutîonal remedîes: Constîtutîonal damages and “approprîate relîef” ............................................

ose v Mînîster o Saety and Securîty

Chapter 3: Admînîstratîve revîew, the prîncîple of legalîty and “PAJA-avoîdance” .................................................

edsure Lîe Assurance Ltd v Greater Johannesburg Transîtîonal Metropolîtan Councîl

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1

51

81

Chapter 4: Customary law and îts development: legal certaînty versus flexîbîlîty? ......................................................... 105 Bhe v Khayelîtsha Magîstrate; Shîbî v Sîthole; South Arîcan Human Rîghts Commîssîon v Presîdent o the Republîc o South Arîca

Chapter 5: Contractual provîsîons, constîtutîonal values and publîc polîcy: To what extent may courts înterfere în the enforcement of contracts? .............................................. 125 Barkhuîzen v Napîer

Chapter 6: Statutory înterpretatîon: Textual thresholds and the separatîon of powers ..................................................... 155 Arîcan Chrîstîan Democratîc Party v The Electoral Commîssîon

Chapter 7: The rîght to equalîty and the adoptîon of a concrete test for unfaîr dîscrîmînatîon ................................... 185 Harksen v Lane

Chapter 8: The constîtutîonalîsatîon of labour law în South Afrîca ...................................................................................... 215

Natîonal Educatîon Health and Allîed Workers Unîon (NEHAWU) v Unîversîty o Cape Town

Chapter 9: Constîtutîonal promîses and access to housîng (deferred) ......................................................................... 243 Government o the Republîc o South Arîca v Grootboom

Chapter 10:Gay marriage, equality and the need for substantive protectionfor same-sex and new forms of intimate relationships ............................................... 273 Mînîster o Home AFaîrs v ourîe

Introductîon

On 14 February 1995, the Constîtutîonal Court of South Afrîca was înaugurated by Presîdent Nelson Mandela. In hîs înaugural speech, Presîdent Mandela remarked that the “future of our democracy” hînged on the exîstence and the work of the newly 1 created Constîtutîonal Court. Furthermore, Presîdent Mandela rîghtly asserted that ît îs the Constîtutîonal Court’s task “to ensure that the values of freedom and equalîty whîch underlîe our înterîm constîtutîon – and whîch wîll surely be embodîed in our final constitution – are nurtured and protected so that 2 they may endure”. These sentiments are as true now as they were almost thirty years ago. However, whether and how the courts have nurtured and protected these sentiments over the last twenty-eight years is the topic that we want to address. This book serves as the first volume in a series o books that considers selected landmark judgments o the South Arican Constitutional Court. The series aims to analyse how the principles laid down in these cases have been developed in subsequent judgments, while also tracing the impact o these judgments on the South Arican law. The judgments that orm the basis o this volume are discussed in ten separate chapters.

There exists no singular set o criteria to determine i any given judgment is a landmark judgment. However, in our assessment o relevant cases and the determination on which judgments should be included in this volume, we considered the ollowing actors. First, we considered the impact o the judgment on society. Does it have a significant impact on the lives o people in South Arica? Does it resolve a long-standing legal issue or set a new precedent? Second, we considered the novelty o the judgment. Does it break new ground in the law? Does it ofer a new interpretation o a constitutional provision or statutory law? Third, the clarity o the judgment was an important actor. Is it well-written and easy to understand? Does it provide clear guidance to lower courts? Fourth, the persuasiveness o the judgment was a oundational requirement. Does it ofer sound reasoning and persuasive

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Landmark Constitutional Cases that Changed South Arica

arguments? Does it convince the reader that the court’s decision is correct? Finally, we have also been moved by the longevity o the judgment. Does the judgment continue to be cited and ollowed by lower courts? Does it remain relevant even ater many years?

These criteria are not exhaustive, and ultimately whether or not a judgment is considered to be a landmark judgment is a matter o opinion. However, they provide a useul starting point or assessing the significance o a particular judgment. We hope that, i a particularly important landmark judgment has been omitted, that it will be considered in one o the ollowing volumes.

The reader may note that the ormat ollowed in chapters 1-5, written by Pro Laubscher, difers somewhat rom the ormat ollowed in chapters 6-10, written by Pro Van Staden. The reason or this is twoold. First, some o legal issues discussed in these chapters lend themselves more to one o the two ormats. Second, the chosen cases all within the particular knowledge and expertise o the particular author. We thereore allowed ourselves some leeway in addressing the legal issues in our own way.

Chapter 1 discusses the case,S v Makwanyane, a ground- breaking case by the South Arican Constitutional Court, addressing the rights to lie and dignity which were severely violated during the apartheid era. The decision significantly changed South Arican law and society, abolishing the death penalty and significantly impacting the interpretation and application o constitutional rights by South Arican courts. The significant aspects o the judgment have had a ripple efect on the jurisprudence o the South Arican courts, specifically South Arica’s criminal justice system and constitutional law. The abolition o the death penalty brought about significant changes with regard to the interpretation and application o the rights to lie, dignity, personal reedom, security, limitation o rights, the use o the indigenous value oubuntu, and the role o public opinion in adjudication. This chapter provides a snapshot o the development o the main

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