The Constitutional Court was established in 1994 by South Africa's first democratic constitution - the interim constitution of 1993. The Court, the key institution of our constitutional democracy, continues to function under the final Constitution of 1996.
The 1993 constitution, agreed upon at multiparty talks, ushered in a legal order based on the concept of constitutional supremacy. From 27 April 1994, the interim constitution became the law's touchstone. And the 11-person court it established became the highest legal authority in the land in all constitutional matters.
Why did South Africa need a Constitutional Court?
In 1994, the judiciary was overwhelmingly white (and male) and therefore limited in its ligitimacy and its capacity to draw on the sense of justice of all communities and both sexes. It was agreed that a new court, more representative of South Africa's diverse population, should be established to protect the Constitution and the fundamental human rights it entrences.
The notion of a bill of rights for South Africa can be traced back to an ANC document in the early 1920s. The Freedom Charter of 1955 carried the idea forward. In the following decades the idea of an entrenched bill of rights received support from liberal academics and judges. The question of who would enforce it, was, however, left open. This issue was debated at a conference organised by the Constitutional Committee of the ANC in 1991. What emerged was a commitment to a Constitutional Court in a hybrid continental form, such as that of Germany: able to hear cases by direct access, as well as by referral and on appeal.
A question that arose in the negotiating process concerned the sort of institution needed to protect a constitution and the rights enshrined in it. Should South Africa create a specialist Constitutional Court, use the existing court structure to act as the guardian, or opt for a hybrid?
In many English-speaking countries, ordinary courts can scrutinise constitutional issues. But these courts needed to be credible and command respect. Could the highest structures of the South African judiciary - the Supreme Court and the Appellate Division - be transformed into such institutions?
The ANC felt that this task would be too difficult and that the new Constitution needed as its protector a new court - one untainted by the past. In this sense, the decision to create a Constitutional Court was a political one. And the process of appointment to the Court - clearly laid down in the interim constitution - was the product of compromise.
The appointment of the judges
In June 1994, Arthur Chaskalson, senior counsel and the national director of the Legal Resources Centre, was appointed as President of the Constitutional Court by President Nelson Mandela, in consultation with the cabinet and the chief justice of the time, Judge Michael Corbett.
Then began the process to select the Court's other 10 members. The appointment process, set out in the interim constitution, required the president - again, in consultation with the cabinet and the chief justice - to appoint four judges from the ranks of the Supreme Court.
The president - again after consultation - was then to choose the remaining six judges from a shortlist of 10, sent to him by the Judicial Service Commission. The commission, the members of which are largely drawn from the legal profession and members of Parliament on the basis of proportional representation, was responsible for whittling down the initial list of 100 to 25.
The commission interviewed those on the short list of 25 over four days in October 1994. The interviews lasted about an hour each.
The list was finally reduced to 10 candidates: Justice Johann Kriegler, Justice John Didcott, Advocate Pius Langa SC, Associate Prof Kate O'Regan, Prof Yvonne Mokgoro, Prof Albie Sachs, Prof CJR Dugard, Prof Charles Dlamini SC, Advocate Bernard Ngoepe and Advocate Thembile Skweyiya SC.
The Court is opened
The members of the Court met for the first time on the last day of October 1994. At the end of that year they undertook a study visit to Germany, a country whose constitution - along with those of Canada, India and Namibia - had had a strong influence on the writers of South Africa's interim constitution.
The Court was formally opened by President Nelson Mandela on the morning of 14 February 1995.
Mandela told the Court: "The last time I appeared in court was to hear whether or not I was going to be sentenced to death. Fortunately for myself and my colleagues we were not. Today I rise not as an accused, but on behalf of the people of South Africa, to inaugurate a court South Africa has never had, a court on which hinges the future of our democracy."
The judges took oaths of office wearing their specially designed green robes in front of the president and the Minister of Justice, Dullah Omar.
The inauguration was completed with the unveiling, in the foyer of the Court, of a commemorative plaque that depicts the Court's logo - a representation of the African concept of justice under a tree.
The first hearing
On 15 February 1995, the 11 judges took their seats to hear the first case. The case, S v Makwanyane, raised the question of the constitutionality of the death penalty
For three days the judges heard arguments. The facts of the case, in which Makwanyane had been sentenced to death, were not directly relevant: the core issue was what bearing the interim Constitution had on the death penalty. Did the death penalty violate sections 9, 10 and 11(2), which guaranteed every individual the right to life, the right to dignity and the right to be free from torture and cruel punishment?
In its judgment, handed down on 6 June 1995, the Court unanimously found that the death penalty was indeed unconstitutional.
The first judgment
The very first judgment the Court handed down related to the second case it heard
The case S v Zuma concerned the constitutionality of section 217 of the Criminal Procedure Act, which put the burden on an accused who claimed that a written confession to a magistrate had been made under duress, to prove that it had been made under duress. The judgment, delivered on 5 April 1995, struck down this provision as a violation of the presumption of innocence.
Certification of the Constitution
The Court played a crucial role in the adoption of the final Constitution of 1996. The Constitutional Court had to certify that the new text, passed by the Constitutional Assembly, complied with the 34 constitutional principles agreed upon by the negotiators of the interim constitution.
Shilubana and Others v Nwamitwa (2008) – development of customary law to bring it in line with the constitutional commitment to gender equality. Appointment by customary institutions of a female chief, contrary to tradition, was permissible
Move to the new building
After a long process to choose a design and construct a new building, the Court moved into its new home. The new Constitutional Court building, the flagship structure of Constitution Hill, was officially opened on 21 March 2004. See the new Constitutional Court building for more.
This Visitors’ Brochure provides additional information about the work of the Constitutional Court, as well as about its building and art collection. If you can't get to the Court in person, then take a virtual tour of the building.