South Africa’s Constitutional Court held its first official session in February 1995, barely a year after the end of apartheid. Young by global standards, it has already shaped the country’s legal landscape in ways both celebrated and fiercely contested, becoming a defining force in how ordinary South Africans understand justice, equality, and the limits of state power.
The court’s reach extends far beyond hearing appeals. Section 167 of the Constitution grants it original jurisdiction over constitutional matters and other cases where it grants leave to appeal on grounds that matters raise “an arguable point of law of general public importance.” More significantly, the court holds exclusive authority to decide disputes between organs of state concerning their constitutional status and powers, to rule on the constitutionality of legislation at provincial or national levels, to determine whether Parliament or the president has failed a constitutional obligation, and to certify the constitutionality of provincial constitutions that have overturned acts of Parliament.
That power to overturn legislation has been exercised repeatedly. In 1999, the court struck down the Sexual Offences Act that criminalized homosexual conduct. It later invalidated the National Health Act that had curbed the activities of certain health professionals. In 2011, the court overturned both the National Prosecuting Authority Amendment Act and the South African Police Service Amendment Bill, finding that neither secured adequate independence for the anti-corruption bodies they established.
The court comprises 11 justices, including the chief justice and deputy chief justice. Selection follows a structured process managed by the Judicial Service Commission, a 23-member body that includes government representatives, judiciary members, legal professionals, and civic society representatives, presided over by the chief justice. When a vacancy opens, the JSC calls for public nominations and conducts public interviews where candidates face questions on their legal track record and suitability. The JSC then submits a list containing three more names than available vacancies to the president, who makes the final appointment after consulting the chief justice and leaders of parties in the National Assembly. Justices serve non-renewable 12-year terms or until reaching mandatory retirement at age 70, whichever comes first.
Cases are decided by simple majority, with the chief justice assigning which justice will draft the primary opinion following initial post-hearing deliberations. The court developed a strong tradition of dissents and concurrences in its earliest years, though the practice of writing lengthy separate opinions has declined since then.
The court’s decisions have frequently stirred controversy. During Jacob Zuma’s presidency, widespread corruption investigations led to several Constitutional Court judgments on state capture. When the court ordered Zuma imprisoned in 2021 after finding him guilty of contempt of court, his supporters mounted considerable pushback. The court’s 2004 Bhe decision struck down the indigenous practice of primogeniture, which had prevented girls and women from inheriting, drawing criticism from influential sectors of indigenous and rural communities. In 1995, the court outlawed capital punishment, a decision that proved contentious given South Africa’s crime prevalence and the informal vigilante killings that followed. Its upholding of the Truth and Reconciliation Commission’s constitutionality generated opposition from many families of victims who disagreed with the amnesty provisions. The court’s recognition of the right to health care and the government’s obligation to provide anti-retroviral medication to HIV-positive individuals proved consequential and contentious, particularly given resistance from the president and Minister of Health at the time. The right of same-sex couples to marry sparked significant controversy in religious and some indigenous communities.
By contrast, the court carries nothing like the partisan reputation of the United States Supreme Court. Most South Africans could not name the court’s judges or identify their political leanings, and the justices lack the celebrity status many American Supreme Court justices enjoy. Some politicians have attacked judges as “activist” and partisan, particularly during Zuma’s presidency. This stands in sharp contrast to President Nelson Mandela, who publicly honored the court’s decisions even when they ruled against him, using them to educate South Africans about the new legal culture of accountability and justification.
The court commands considerable respect within South Africa, arguably more than Parliament or the presidency. Most public officials have complied with its orders publicly, though some have disregarded Constitutional Court decisions through indifference or incompetence, particularly in socio-economic rights areas. The court has recognized its role as a co-equal branch of government while remaining mindful of its institutional capacity relative to the legislature and executive. It declared that all public power in South Africa is subject to constitutional review and has not carved out exceptions to its jurisdiction comparable to the political question doctrine in the United States. South Africa’s Constitution also contains an extremely generous standing provision, making access to the Constitutional Court far greater than access to the American Supreme Court.
On race, the court has addressed the subject in limited fashion, hearing only two major cases, both involving affirmative action challenges. The court upheld affirmative action programs in both instances. This differs markedly from the United States Supreme Court, which has applied strict scrutiny to race-conscious programs. The South African Constitution explicitly permits affirmative action, which may explain why fewer such cases are brought. With Black people comprising 92 percent of South Africa’s population and whites 8 percent, the legal conversation around race operates on fundamentally different terms than in the United States.
Compared to the American Supreme Court, the Constitutional Court demonstrates superior demographic representation. In 1994, of 200 judges in South Africa, all but two were white males. The Constitution requires the judiciary to reflect South Africa’s demographic makeup and constitutional values. After three decades of mandated transformation, the judiciary is now majority Black, though still predominantly male. South African justices also demonstrate a purposive commitment to constitutional values explicitly, while American justices often conceal their ideological commitments. American justices, with exceptions, bring longer judicial careers to the bench, a product of historical circumstances that limited the judicial pipeline for Black and female judges in South Africa. That experience gap reflects the longer developmental path available in the American system, not any difference in competence.
Whether the court can sustain its institutional authority as political pressures intensify remains the open question facing South Africa’s next generation of justices.