Constitutional Court: SA's last line of defence

Several Constitutional Court judgments have gone a long way towards strengthening South Africa's democracy.
Several Constitutional Court judgments have gone a long way towards strengthening South Africa's democracy.
Image: JAMES OATWAY

The Constitutional Court has been at the heart of strengthening democracy and helping the executive have a clearer understanding of its role.

It has also affirmed the rights of citizens as enshrined the constitution.

The first landmark judgment by the Constitutional Court related to the death sentence.

Before the landmark decision, former president FW de Klerk placed a moratorium on death penalties in 1990 after the unbanning of liberation movements.

Constitutional Court judges unanimously outlawed the death penalty in June 1995 in the state versus Makwanyane and Mchunu case.

Makwanyane and Mchunu were sentenced to death in terms of the Criminal Procedure Act of 1977 on four counts of murder.

The provisions of the 1977 act and any other legislation sanctioning capital punishment were found to be "inconsistent" with the constitution and "invalid".

The state was accordingly "forbidden to execute any person already sentenced to death" under any of the laws now declared to be invalid.

The last man to be hanged by the apartheid government was Solomon Ngobeni in November 1989.

According to the Institute of Race Relations, 2,740 people were executed between 1910 and 1975. Another 1,100 were hanged between 1981 and 1989.

After the moratorium, judges still imposed the death sentence but it could not be carried out until it was halted by the Constitutional Court.

Hundreds were believed to be on death row at the time the death penalty was ended.

Another major decision that shaped South Africa's future was the recognition of same-sex marriages in 2005.

The Constitutional Court extended the common law definition of marriage to include same-sex spouses as the constitution guaranteed equal protection before the law regardless of sexual orientation.

In the matter between home affairs minister vs Fourie, the court gave parliament a year to rectify inequality in the marriage act.

The National Assembly passed a law legalising same-sex unions in November 2006. South Africa became the first African country to recognise same-sex unions.

Another major judgment was one on Nkandla, which ordered then president Jacob Zuma to pay for the non-security upgrades at his KwaZulu-Natal homestead.

The court found that the National Assembly failed in its duties by not ensuring that Zuma complied with the remedial actions by then public protector Thuli Madonsela.

Constitutional Court chief justice Mogoeng Mogoeng.
Constitutional Court chief justice Mogoeng Mogoeng.
Image: LEBOHANG MASHILOANE

"Neither the president nor the National Assembly was entitled to respond to the binding remedial action taken by the public protector as if it is of no force or effect or has been set aside through a proper judicial process," said chief justice Mogoeng Mogoeng in the judgment.

The court also found that Zuma "failed to uphold, defend and respect the constitution as the supreme law of the land" by not implementing Madonsela's remedial actions.

The Constitutional Court also delivered a landmark ruling on the use of dagga in September 2018.

Deputy chief justice Raymond Zondo declared it legal for people to smoke and cultivate cannabis in the privacy of their homes without fear of prosecution.

The judgment upheld the 2017 Western Cape high court ruling. However, the public use and sale of cannabis remains illegal. 

- Additional reporting by Zoë Mahopo

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