Established as a central pillar in the nation’s transition to democracy, the Constitutional Court of South Africa was set up in 1994, conducting its first official session in February 1995. This apex court serves as both an appellate court and a court of original jurisdiction. As outlined in Section 167 of South Africa’s Constitution, the Constitutional Court is vested with the power to decide on constitutional matters and is the highest authority on such issues in the country.
The Constitutional Court’s remit includes exclusive authority on disputes between state organs at the national or provincial level, reviewing the constitutionality of legislation, adjudicating on constitutional obligations of Parliament and the president, and certifying provincial constitutions. It has exercised this authority to overturn acts of parliament on several occasions, such as in rulings affecting the Sexual Offences Act and parts of the National Health Act. More details can be found in an insightful discussion with Professor Penelope Andrews.
The court is composed of 11 justices, including the chief justice and deputy chief justice, appointed by a process involving the Judicial Service Commission and the president. Judges serve a non-renewable term of 12 years, or until 70 years of age, whichever comes first. While the Constitutional Court operates on a simple majority for judgments, there is a rich tradition of concurring and dissenting opinions, which has been somewhat reduced in recent years.
High-profile cases include those addressing corruption and state capture during former President Jacob Zuma’s tenure and the controversial failure to arrest Omar al-Bashir. These cases demonstrate the court’s willingness to confront significant national issues. The court’s rulings on topics like primogeniture, capital punishment, and same-sex marriage have sparked debate across South African society.
Unlike the United States Supreme Court, the Constitutional Court does not have a pervasive partisan reputation. Its commitment to representing South Africa’s demographics and constitutional values is seen as a strength. However, despite the court’s respected position, instances of non-compliance with its decisions by public officials do occur.
For further analysis and comparisons of the Constitutional Court with its United States counterpart, you can explore the full discussion on SCOTUSblog.