Top judges to gather in SA

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  Constitutional Court judges deliberating
constitutional issues amongst each other.
(Image: nextbook.org)

Khanyi Magubane

Over 260 senior judges from 93 countries will descend on South African shores for a high level conference focusing on constitutional court judges.

The World Conference on Constitutional Justice Conference will take place on 23 and 24 January in Cape Town, and will see judges not only from constitutional courts, but also equivalent institutions and their representatives coming together for the first time.

South Africa’s constitution is respected across the world, not only for its inclusiveness for all South Africans, but also for some groundbreaking judgements that have been handed down by the constitutional court.

Constitutional court chief justice Pius Langa told journalists on 19 January that the conference would enable judges to share and exchange ideas on constitutional matters and jurisprudence.

Langa said the conference would also help in promoting cooperation between courts engaged in constitutional review, in addition to advancing global human rights principles.

“This conference will provide both developed and evolving democracies an opportunity to examine and compare the effectiveness of systems and strategies in different jurisdictions for the achievement of accepted goals.”

The keynote address will be made by South African President Kgalema Motlanthe on the opening day of conference.

The historic event will be hosted in conjunction with the Venice Commission of the Council of Europe, which is an advisory body to the Council of Europe on constitutional issues.

Constitution influencing society

The theme for the inaugural conference is: “Influential Constitutional Justice – its influence on society and on the development of a global jurisprudence on human rights.”

Langa said the theme would pave the way for the issues that justices will deliberate on, including the all-important one of independence and accountability of the judiciary.

Other issues to be thrashed out include interference and the exertion of improper pressure from public representatives, including the media.

This is especially true for South Africa, as Langa also took the opportunity during the media conference to lambaste politicians who publicly criticised the judiciary.

Langa said attacks on judges had the potential to weaken South Africa’s democracy.

Judges have recently come under duress from the ruling ANC party and its alliance partners, mainly as a result of rulings which have been unfavourable to the its leader Jacob Zuma who is trying to avert being tried on corruption charges.

In 2008 the attacks worsened when ANC Secretary-General Gwede Mantashe accused Constitutional Court judges of being “counter- revolutionaries” when they ruled on Zuma in a matter he had brought before the court, relating to the criminal charges brought before him.

Mantashe responded to the reports that he labelled the judges “counter-revolutionaries” saying that he was quoted out of context.

Langa said that while the judiciary was not against the public remarking on rulings made, the criticism should be fair, “What we would not want is criticism which goes to the integrity of the person. A ‘drunk’ or ‘counter- revolutionary’ or whatever.

“I mean those are things we don’t expect to hear from the general public because it does not tell us that they have read the judgments that we have given,” he added.

The chief justice also noted that judges respect the publics’ right to freedom of expression, but that it should not extend to being insulting to judges.

Upholding the rights of SA citizens

The work of the Constitutional Court is rooted in deliberating cases brought before it for evaluation against the country’s constitution.

As the highest court in the land, the Constitutional Court has the final say on matters relating to the interpretation, protection and enforcement of the constitution.

It deals only with constitutional matters – some cases raise concerns about the application or interpretation of the constitution.

Outside of the Constitutional Court, The Supreme Court of Appeal in Bloemfontein in the Free State, is the highest court in the country as far as other law issues are concerned.

Although the Constitutional Court only hears constitutional matters, all courts in South Africa have to apply the constitution and the law “without fear, favour or prejudice” (According to section 165) of the constitution.

There are various ways in which a case can reach the highest court.

The constitutional court will see a case if it is:

  • The result of an appeal from a judgment of the High Court or the Supreme Court of Appeal;
  • A direct application to the Court, asking it to sit as a court of first and last instance because of the urgency of the matter;
  • The result of the court below declaring a piece of legislation invalid, which requires confirmation by the Constitutional Court; or
  • A Bill parliament asks the Court to review.

The judges of the Constitutional Court always deliberate as a unit before handing down a ruling.

In a case where judges decide to grant leave to appeal, or if it is unsure and wishes to hear an argument on whether leave to appeal should be granted, a case date is set and parties involved are invited to present their arguments before the court.

The Constitutional Court doesn’t hear evidence or question any witnesses.

Each party will hand in written submissions before the court date to allow judges to familiarise themselves with their arguments and the different position taken by each party.

If there are other parties outside of those directly involved in the case who also wish to make written submissions, they are also invited to do so as amicus curiae (friends of the court).

This is usually the case with advocacy groups like anti-abuse, or anti-gender discrimination groups.

If favoured, the friends of the court are sometimes allowed to make oral arguments during the case.

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