Skip to main content Accessibility help
×
Hostname: page-component-7479d7b7d-jwnkl Total loading time: 0 Render date: 2024-07-11T06:26:03.681Z Has data issue: false hasContentIssue false

3 - Constitutional Authority and Judicial Pragmatism

Politics and Law in the Evolution of South Africa's Constitutional Court

Published online by Cambridge University Press:  05 April 2013

Diana Kapiszewski
Affiliation:
University of California, Irvine
Gordon Silverstein
Affiliation:
Yale Law School
Robert A. Kagan
Affiliation:
University of California, Berkeley
Get access

Summary

Judging from comments in judicial opinions and academic journals, South Africa's Constitutional Court is held in high esteem around the world. Although this might seem an unsurprising response to the highest court in a post-apartheid South Africa, this chapter argues that the Court's image as well as its judicial authority are the product of a very particular set of conditions and politics and cannot be taken for granted now or in the future. Implicit in this argument is the idea that the Constitutional Court plays a number of different roles that vary over time. In order to understand the evolution of the Constitutional Court and of its roles in the governance of the country, it is important to explore three dimensions of the Court's history and function, which taken together, provide insight into the way in which the courts and judges have entered into national political life, and what difference their participation has made in the construction of constitutional democracy in South Africa. These three dimensions are: (1) the sources of judicial authority; (2) the practice of the judiciary in exercising this authority; and (3) the challenges faced by the court as political conditions shift, and as it is confronted with increasingly difficult cases rooted in seemingly intractable socioeconomic and political conditions.

Type
Chapter
Information
Consequential Courts
Judicial Roles in Global Perspective
, pp. 93 - 113
Publisher: Cambridge University Press
Print publication year: 2013

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Abel, R. L.Politics by Other Means: Law in the Struggle Against Apartheid, 1980–1994, New York: Routledge (1995).Google Scholar
Bickel, Alexander, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, Indianapolis: Bobbs-Merrill (1962).Google Scholar
Bizos, , , George, No One to Blame?: In Pursuit of Justice in South Africa, Cape Town, Bellville: David Philip, Mayibuye (1998).Google Scholar
Harris, , , Peter, In a Different Time: The Inside Story of the Delmas Four, Roggebaai: Umuzi, Struik Publishers (2008).Google Scholar
Haysom, N. & Kahanovitz, S., “Courts and the State of Emergency,” South African Review 4: 187 (Moss & Obrey, eds., 1987).Google Scholar
Klare, Karl, “Legal Culture and Transformative Constitutionalism,” South African Journal on Human Rights 14: 146 (1998).CrossRefGoogle Scholar
Klug, Heinz, Constituting Democracy: Law, Globalism and South Africa's Political Reconstruction, Cambridge, UK: Cambridge University Press (2000).CrossRefGoogle Scholar
Klug, Heinz, “South Africa: From Constitutional Promise to Social Transformation,” in Interpreting Constitutions: A Comparative Study (Jeffrey, Goldsworthy, ed.) New York: Oxford University Press (2006).Google Scholar
Klug, Heinz, “Finding the Constitutional Court's Place in South Africa's Democracy: The Interaction of Principle and Institutional Pragmatism in the Court's Decision Making,” Constitutional Court Review 3: 1–32 (2011).Google Scholar
Madlala, C., “Final Fitting for the Cloth of Nationhood,” Sunday Times p. 4. col. 2 (Oct. 13, 1996).Google Scholar
Murienik, ,, Etienne, “A Bridge to Where? Introducing the Interim Bill of Rights,” South African Journal on Human Rights 10: 31 (1994).Google Scholar
National Judges Symposium,” reported in The South African Law Journal, 120(4): pp. 647–718 (2003).
Republic of South Africa Constitution Act (hereafter 1993 Const.) 200 of 1993.
Republic of South Africa Constitution Act (hereafter 1996 Const.) 108 of 1996.
Rickard, C., “This Year's Message to Despondent Civil Rights Lawyers: Pack Your Bags,” 3 Weekly Mail No. 51, p. 8, col. 3 (Dec. 24, 1987–Jan. 14, 1988).
Roach, Kent and Budlender, Geoff, “Mandatory Relief and Supervisory Jurisdiction: When is it appropriate, Just and Equitable?South African Law Journal 122(2): 325 (2005).Google Scholar
Sidley, P., “World Jurists Slam S.A. Courts,” 2 Weekly Mail No. 45, p. 2, col. 1 (Nov. 14–20, 1986).
Sparks, Allister. Beyond the Miracle: Inside the New South AfricaJohannesburg, Jeppestown: Jonathan Ball Publishers (2003).Google Scholar
Third Report to the Negotiating Council (hereafter Third Report), Kempton Park, May 28, 1993.
Alexkor Ltd et al v The Richtersveld Community and Others (hereafter Richtersveld), 2004 (5) SA 460 (CC).
Bhe et al v Magistrate, Khayelitsha et al. (hereafter Bhe), 2005 (1) SA 563 (CC).
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa (hereafter First Certification Judgment), 1996 (4) SA 744 (CC).
Executive Council of the Western Cape Legislature v President of the Republic of South Africa (hereafter Executive Council of the Western Cape), 1995 (4) SA 877 (CC).
State v Makwanyane and Another (hereafter Makwanyane), 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
Minister of Health v Treatment Action Campaign (No. 2) (hereafter TAC), 2002 (5) SA 721 (CC).
Van Straaten v President of the Republic of South Africa (hereafter Van Straaten), 2009 3 SA 457 (CC); 2009 5 BCLR 480 (CC).
Xolisile Zondi v Member of the Traditional Council for Traditional and Local Government Affairs et al. (hereafter Zondi]), 2005 (3) SA 589 (CC).

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×