Lets celebrate our Constitutional Court The 21st of March is observed in South Africa as Human Rights Day. This year Human Rights Day comes few days before the 20th anniversary of the 1994 political breakthrough that has brought about massive changes in the political, legal, social and economic order in the country. We can with pride pronounce that South Africa is a country with a stable constitutional democracy based on the rule of law and unmatched human rights culture. There are many institutions and role players in the country that have played a pivotal role in the construction, reconstruction and consolidation of our constitutional democracy. To mention a few, the Independent Electoral Commission, Chapter 9 institutions, Parliament, the Courts, the Executive Council, etc. Reading the Constitutional Court ruling in the case of Motswagae and Others v. Rustenburg Local Municipality prompted me to pen down this article. Judge Yacoob delivered the ruling on the 7th February 2013. This is but one of the many cases that landed in the Constitutional Court and in its adjudication the court reinforced its unwavering commitment to human rights and acted as the defender of the powerless and the maligned in the society. This positive and principled role of the Constitutional Court in the long-haul journey of building constitutional democracy in the country is grossly understated. In the Motswagae case, Section 26 of the constitution, which enshrines the right to housing, was in contention. In this case the municipality authorised construction work, which involved massive excavation in the municipal hostel that was occupied by fifteen single women. They approached the North West High Court for an interdict contending that the construction activities authorised by the municipality are disturbing and interfering with their peaceful possession of their homes. The North West High Court held that the applicants had no clear right to interdict the construction activities. The applicants took the matter to the Constitutional Court, which was presided by the full bench of eleven judges. The court considered the scope and purpose of Section 21(3) of the constitution which prohibits eviction without an order of the court and asked a constitutional question, whether the term eviction in Section 26 (3) of the constitution protects undisturbed and peaceful occupation of ones home. Using an expansive interpretation the court concluded that the term “eviction” also includes undisturbed and peaceful possession of ones home. Consequently, the court ruled in favour of the fifteen single mothers. What stands out for me in the ruling is the articulation by Judge Yacoob, that the municipality is an organ of state and has a duty to protect its citizens in their homes rather than to invade their homes. There are many such rulings, which the Constitutional Court had made in favour of the poor and the most vulnerable, this brings to mind cases like Treatment Action Campaign v. The Minister of Health, The Government of South Africa v. Grootboom, Khosa v. The Minister of Social Development, The Residents of Joe Slovo v. Thubelisha Homes. These were all politically controversial cases and the Constitutional Court made adverse decisions against the ruling party and all those rulings were enforced. The assertion by the Constitutional Court of its institutional role in the national political system in the country has to be commended. It is due to this robustness in defence of human rights that the Constitutional Court received impressive judicial review from comparative constitutional law community. Scholars in the discipline of comparative constitutional law are overwhelmingly impressed and appreciate the strategic political role, which the Constitutional Court plays in advancing the culture of human rights and constitutionalism in the country. The decisions and reasoning of the Constitutional Court on human rights are used as critical reference points and have interpretive value in many courts throughout the world, in both developed and least developed countries. These achievements of the Constitutional Court are principally due to three factors on which the institutional principles of the Constitutional Court are anchored: one, is a shared judicial ethic to decision-making according to law; two, a strong legal-professional attachment to the separation of law and politics, and lastly, a real sense in which case outcomes needed to be justified by principled reasons that are consistent with the text and moral commitment of the constitution. The achievements by the Constitutional Court to assert its constitutionally assigned role in national politics without compromising its institutional independence is a significant course for major celebrations at the turn of the second decade of freedom. The strategic approach with which the Constitutional Court approaches its adjudicatory function and its technical capabilities still define the contours of our democracy and human rights culture. Zamani Saul ANC Provincial Secretary Northern Cape
Posted on: Tue, 18 Mar 2014 08:25:59 +0000
Trending Topics
Recently Viewed Topics
© 2015