The Constitutional Court of South Africa

Thoughts on its 25-Year-Long Legacy of Judicial Activism

Bibliographic Data

ID2308763
AuthorsLucky Mathebe (University of South Africa, corresponding author)
Year2021
Volume56
Issue1
Pages18-33
Publication date2021-02-01
Open AccessYes
TypeARTICLE
VenueJournal of Asian and African Studies (JOURNAL)
Journal identifiersISSN: 0021-9096 • E-ISSN: 1745-2538
PublisherSAGE Publications Inc (PUBLISHER)
DOI10.1177/0021909620946848
OpenAlexW3126574911
LanguageEN
Citations received2
References cited9

After almost 25 years of what could justifiably be called transformative change in South Africa, a truism is that the country's new legal order, established by the Constitution in 1993 and 1996, provides the critical foundation of peace and security upon which its freedom has been built. The Constitutional Court was one of the most important of the new democratic institutions in the shaping of the country's position as a constitutional democracy, upholding the values for which millions of people, black and white, had fought. This article is a brief reflection on the role of the Court in establishing the meaning of this democracy and giving it effect. The main goal of the article is to understand how the Court's new jurisprudence works in particular contexts, how its work is related to crime and punishment, and what it means for the rights of marginalised groups in society. Using the examples of the Court's decision in Makwanyane on the death penalty, and the Court's decision on the findings of the Public Protector's report on Nkandla, the article finds that the Court's new jurisprudence takes quite a different view of legal developments in South Africa, insofar as the jurisprudence entrusts broad discretion to the Court and emphasises the need for sustained leadership of the Court to advance the battle for fundamental human rights, the rule of law, and democratic accountability

Constitution · Constitutional court · Democracy · Human rights · Jurisprudence · Political science · Politics · Sociology · Human Rights and Development · Judicial and Constitutional Studies · Law · Legal Issues in South Africa

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