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Human Rights and Democracy – A New Global Debate: Reflections on the First Ten Years of South Africa's Constitutional Court

Published online by Cambridge University Press:  28 February 2019

Kate O'Regan
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Extract

It is more than ten years since our new constitutional era dawned, and nearly ten years since the Constitutional Court was established. It is a fitting time then to reflect upon those first ten years: what have been the achievements, and what challenges remain for the future.

Type
Proceedings
Information
International Journal of Legal Information , Volume 32 , Issue 2 , Summer 2004 , pp. 200 - 216
Copyright
Copyright © 2004 by the International Association of Law Libraries. 

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References

1 State of the Nation Address by President Thabo Mbeki, 14 February 2003. The speech can be accessed at: <http://www.pmg.org.za/bills/030214mbeki.htm>..>Google Scholar

2 S v Makwanyane 1995 (3) SA 301 (CC); 1995 (6) BCLR 665 (CC) at para 262.Google Scholar

3 See the Preamble to the Constitution and s1(a).Google Scholar

4 2002 (5) SA 721 (CC); 2002 (10) BCLR 1035 (CC). Section 1(d) of the Constitution.Google Scholar

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6 Section 98(2) of the Interim Constitution.Google Scholar

7 Section 99(5)(d) of the Interim Constitution.Google Scholar

8 Section 178 of the Constitution.Google Scholar

9 Section 174 of the Constitution.Google Scholar

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12 Id.Google Scholar

13 Section 167(3)(a) of the Constitution.Google Scholar

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15 Section 167(4) of the Constitution.Google Scholar

16 Section 71 of the Interim Constitution.Google Scholar

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19 Since this paper was presented, the new court building has been completed and was officially opened by President Thabo Mbeki on 21 March 2004.Google Scholar

20 Section 36 of the Constitution.Google Scholar

21 Section 9 provides:Google Scholar

(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.Google Scholar

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.Google Scholar

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.Google Scholar

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.Google Scholar

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.Google Scholar

22 The test to be applied to determine whether there has been unfair discrimination was developed in Harksen v Lane N.O. and Others 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC).Google Scholar

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28 Since the completion of this paper, a fourth socio-economic rights case has been decided by the Constitutional Court: Khosa and Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development and Others, decided 4 March 2004, CCT 12/03 and 13/03 (unreported).Google Scholar

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