Address by Mr Justice Dikgang Moseneke of the South African Constitutional Court
Wednesday 30th June 2004 in the Reading Room, South African High Commission, London

	Malusi Mahlulo (First Secretary to the High Commission), Mr Justice Moseneke, Seamus Smyth and Iqbal Meer

Mr Justice Moseneke was welcomed by BSALA after a brief introduction by the Chairman who emphasised that in view of the Judge's career, involvement in drafting the interim constitution, and membership presently of the Constitutional Court, there was no-one better placed to address BSALA in connection with the achievements of the Constitutional Court in the last ten years than Judge Moseneke.

The Judge said that the approach to the new constitution in South Africa created a once in a lifetime opportunity to begin with a totally clean sheet. The interim constitution was put in place in order to replace the apartheid regime. A set of principles was tabulated at the outset, against which it was intended that the constitution might and should be tested. 

The Constitutional Court's first task was to vet the constitution against those principles, which included inter alia the requirements that the new South Africa be a non-racial, non-sexist society to replace the patriarchal society that had gone before, with universal adult suffrage, regular elections, a multi-party system and accountability. It was fundamental that all law contrary to the constitution would be regarded as invalid whether it was common law or customary law, and in that sense the exercise constituted a constitutional revolution.

The new court in South Africa had carte blanche in its approach to the constitution and constitutional issues. Unlike the United Kingdom, there would be no parliamentary sovereignty. 

In order to deal with this new job, new tools would be required in the form of new courts including the Constitutional Court. Although in the early days it had been intended that only the Constitutional Court would have constitutional jurisdiction, that was altered and now all High Courts and the Supreme Court of Appeal have constitutional jurisdiction in addition to the Constitutional Court itself. The Constitutional Court has declined to deal with matters which in its view could just as well have been dealt with by the High Court or the Supreme Court of Appeal. With a few exceptions (such as the automatic review of decisions by lower courts striking down legislation) the Constitutional Court has complete control over its own workload and to that extent is able to ensure that the caseload of the Constitutional Court does not become excessive but can also ensure that the court is not overwhelmed by litigation which does not properly belong in the Constitutional Court.

One new principle that applies in the Constitutional Court is that an applicant need not demonstrate that he himself has suffered personal damage or loss in order to gain access to the Constitutional Court: he can assert a matter of public interest or even the interest of another person or class of persons.

The yardstick by which the constitutionality of legislation is measured is whether that statute is justified in an open and civilised society.

A further feature which distinguishes the constitutional jurisdiction in South Africa from that of certain other countries is that "second generation" rights such as the right to housing or health care can and are converted into justiciable issues and in order to deal with what might be otherwise immediate claims to housing by every possible applicant in the country, the court has developed "progressive realisation" as a qualifying factor. Many second generation rights have been converted into justiciable issues subject only to progress realisation.

Fundamental to the composition of the Constitutional Court is what Chief Justice Arthur Chaskalson emphasised as the "representativity" of the Constitutional Court to reflect society as a whole and to reflect the demographic makeup of South Africa as distinct from the judiciary before 1994 when the bench consisted almost entirely of white male judges who brought to their office inevitably a set of institutional principles, which made it very difficult for any advocate or client who did not belong to that particular section of society. Whereas in 1994 there had been only one black judge and only one female judge, more than a third of the judges are now black and about a quarter are female, which demonstrates the progress towards a representative bench.

The Judge concluded with the comment that there will always be a need for executive power to be the subject of judicial scrutiny and for the executive excesses to be controlled by the courts but he observed that the mere existence of a Constitutional Court, and the knowledge amongst the executive that the Constitutional Court would in appropriate circumstances exercise that control and/or strike down legislation created a form of self-regulation in the executive and in the legislature, to the extent that it is not unknown for draft legislation to be submitted to the Constitutional Court for the court's view in advance about the constitutionality of a proposed bill.

After taking a range of questions from the floor, Judge Moseneke was thanked on behalf of BSALA by Dr Kimon De Ridder, the Treasurer, for his thoughtful and insightful address, and (although the Judge had to leave at about 7.30pm for another engagement) the debate continued informally over canapés and drinks.

Seamus Smyth
1st June 2004