Constitutional Court of the Republic of South Africa
The constitutional court of the Republic of South Africa ( English Constitutional Court of South Africa , Afrikaans Konstitusionele Hof van Suid-Afrika , next to nine other official names) with seat in Johannesburg is the highest court in South Africa for the interpretation of the constitution of the country as well as for legal questions which the area of constitutional law. It was created when the transitional constitution came into force in 1993 and began work in February 1995. The eleven judges of the court serve for a period of twelve to 15 years and make their decisions with a simple majority.
history
The South African Constitutional Court came into being after the end of apartheid with the transitional constitution of 1993 and began its work in February 1995. Both through Gerrit Viljoen of the National Party , then Minister for Constitutional Development, and through the ANC with the Bill of Rights discussion paper of its Constitutional Committee , the call for a constitutional court for South Africa arose between 1990 and 1991. It followed the previously existing Supreme Court of the country with its revision department ( Supreme Court and Appellate Division ), which in addition to decisions on constitutional issues also acted as the highest appeal body in other areas of law. Four of the first eleven judges came from the Supreme Court under the terms of the transitional constitution. The tenure of first-line judges, all appointed by then President Nelson Mandela in coordination with Cabinet members and the President of the Supreme Court, was seven years, a departure from current practice. At the end of 1994, all newly appointed judges made a trip to Germany , as the German constitution, along with the constitutions of Canada , India and Namibia, formed an essential basis for the design of the new South African constitution.
The first case the court dealt with from February 1995 onwards was the State v Makwanyane and Mchunu case on the constitutionality of the death penalty . With the court decision on the case in June of the same year, the death penalty was abolished in South Africa. The first judgment was given on April 5, 1995 in the State v Zuma case , which concerned the constitutionality of a criminal procedural provision on the usability of confessions . The corresponding provisions in the South African Code of Criminal Procedure were rejected by the court as unconstitutional because they violated the presumption of innocence . The court played an important role in the adoption of the current constitution, which replaced the 1993 transitional constitution. It had the task of confirming the legality of the new constitution on the basis of 34 constitutional principles, on which the authors of the interim constitution had agreed. When the currently valid constitution of the country came into force in February 1997, the constitutional court remained in its then existing form. Issues that repeatedly played a role in court proceedings and led to a number of decisions of principle included equality , the interpretation of fundamental rights , privacy , criminal procedural law and the powers of the state and its organs. In 2004 the court moved to a newly constructed building in Johannesburg .
Working method
composition
The Constitutional Court of South Africa consists of a presiding judge, his deputy and nine other judges who are appointed by the country's president for a one-off term of office, the duration of which is between twelve and 15 years, depending on the age at the appointment. The basis for the decision on the appointment of new constitutional judges forms a person shortlist, which is drawn up by the Judicial Service Commission . This body includes, among others, the presiding judges of the Constitutional Court and the Supreme Court of Appeal, the Minister of Justice, representatives of the country's practicing lawyers and law professors, as well as representatives of both chambers of the South African Parliament. Even in the event of a vacancy or longer absence of a judge, the President of the Republic is responsible for appointing a provisional deputy judge on the proposal of the Minister of Justice and the presiding judge. The Constitutional Court currently consists of eight men and three women.
Jurisdiction
The Constitutional Court of the Republic of South Africa is the country's highest court for the interpretation of the Constitution as well as legal questions relating to the area of constitutional law. This includes decisions about the constitutionality of laws and constitutional amendments, about the constitutionally defined powers of state organs as well as about the possible non-fulfillment of the constitutional tasks by the state president or parliament. The Supreme Court of Appeal of South Africa acts as the final instance for civil and criminal proceedings, which , like all other organs of the state and the judiciary, is bound by the decisions of the Constitutional Court.
Cases dealt with by the Constitutional Court are usually referred to the Constitutional Court by a higher court or by the Supreme Court of Appeal. The South African Constitution also gives people the opportunity to go directly to the court; in practice, however, this only occurs in exceptional cases. Parliament can also arrange for the constitutionality of a law to be examined directly by the Constitutional Court. The Constitutional Court itself decides on the admissibility of a case or application (and thus the acceptance for a decision). An exception to this is the obligation to review the decision of another court if it has found a law to be unconstitutional.
decisions
In addition to the South African constitution, human rights are an essential legal basis for the decisions of the Constitutional Court ; In addition, the judges can include the legal situation in other democratic countries in their considerations. At least eight judges must attend hearings on a case; in practice, however, almost always all eleven judges are involved in the decisions. A simple majority of the judges involved in a case is necessary for a decision by the court; the reasons for the decision are given in a written statement of reasons for the judgment. The hearings are public.
building
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A new building was inaugurated for the Constitutional Court of the Republic of South Africa in February 2004 in Johannesburg. The location chosen for the building is intended to symbolically express that South Africa, with its new constitution and the abolition of apartheid, has overcome the times of an injustice state. The building was therefore deliberately built on the site of the Johannesburg Fort , right next to the outer prison wall of this building complex.
The Johannesburg Fort (also known as the Old Fort ) was built as a military base in 1893, but was later used as a prison. During the apartheid period, it was primarily used as a pre- trial detention center where numerous prominent people were detained. These included Mahatma Gandhi , Nelson Mandela , Winnie Madikizela-Mandela , Albertina Sisulu and Fatima Meer . The prison was closed in 1987. The grounds of the Johannesburg Fort are located on a hill near the city center, which is now also known as Constitution Hill .
The building also houses a collection of around 200 works of art by major South African artists.
literature
- Levin Holle: The Constitutional Court of the Republic of South Africa: Origin, structure, jurisdiction according to the transitional constitution of April 27, 1994. Nomos, Baden-Baden 1997, ISBN 3-78-904908-5
- Eefje Diana Schmid: The judicature of the constitutional court of the Republic of South Africa. Nomos, Baden-Baden 2000, ISBN 3-78-906565-X
- The Constitutional Court of South Africa: The First Ten Years. Self-published by the court, Pretoria 2004, ISBN 978-0-62-032425-0
- Theunis Roux: The Politics of Principle: The First South African Constitutional Court, 1995-2005. Series: Cambridge Studies in Constitutional Law. Cambridge University Press, Cambridge 2013, ISBN 978-1-10-701364-3
- Drucilla Cornell, Stu Woolman, Sam Fuller: The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials. Fordham University Press, New York 2013, ISBN 978-0-82-325008-0 (two volumes)
Web links
- Constitutional Court of South Africa Official Website
Individual evidence
- ↑ SAIRR : Race Relations Survey 1991/92 . Johannesburg 1992, pp. 79/80
- ^ About the Court, History of the Court. The history of the idea . on www.constitutionalcourt.org.za (English)
Coordinates: 26 ° 11 ′ 19 ″ S , 28 ° 2 ′ 36 ″ E