Book Feature: Landmark Constitutional Cases that Changed South Africa (Roxan Laubscher and Marthinus van Staden)
Editors note: The ALM team interviewed Roxan Laubscher and Martinus van Staden to discuss their recent book publication. As the title suggests, the book examines significant landmark legal cases in South Africa’s constitutional history, delving into their impact on the country's legal and social landscape. The book offers a comprehensive analysis of key court rulings and explores their broader implications for justice and governance in South Africa.
1. What inspired you to write Landmark Constitutional Cases that Changed South Africa?
The inspiration behind writing the book stemmed from a profound desire to illuminate the transformative power of constitutional law in shaping South African society. By meticulously examining the ten selected landmark cases, we aimed to craft a compelling narrative illustrating how the Constitutional Court has breathed life into the values enshrined in the post-apartheid Constitution. The book seeks not only to analyze legal principles but also to trace the ripple effects of these judgments on the fabric of South African life.
In addition, we aimed to illuminate how the principles established in the early Constitutional Court judgments were further interpreted, developed, and expanded in subsequent rulings by the Constitutional Court and other courts.
2. Can you explain the criteria you used to select the cases included in the book for those who haven't read the book?
The selection criteria for the cases balanced the legal significance of each judgment with its broader societal impact. By considering factors such as the novelty of legal reasoning, the clarity of the Court’s articulation, and the enduring influence of each decision, we hope we curated a collection that truly represents the pillars of South African constitutional jurisprudence. Furthermore, we hope we weaved together cases that not only set new legal precedents but also resonate deeply with public consciousness.
3. What was your approach in writing about the legal complexities of these cases in a way that is accessible to a broader audience?
By providing historical context, explaining legal principles in relatable terms and highlighting the real-world implications of each judgment, we hope to open up the often-opaque world of constitutional law to the general reader. The structure in analyzing each case - from its facts to its long-term significance - provides a helpful framework for understanding these landmark decisions.
4. Are there any areas of constitutional law in South Africa that you think require more attention or reform?
After three decades of democracy in South Africa, it is natural to reflect on areas of constitutional law that may require further attention or reform. The ongoing challenge of realizing socio-economic rights, the need to refine approaches to equality and unfair discrimination, and emerging issues like data privacy rights all seem ripe for further exploration. It would be fascinating to hear other scholars’ thoughts on areas they believe are most pressing for the Court to address. As such, we have invited other scholars specializing in mercantile law and private law to contribute to a second edition of the book. By including perspectives from various legal disciplines, we hope to emphasise the far-reaching effects of the South African Constitution on the country’s law and society at large. New themes that will be explored in the next edition of our book include freedom of religion and aspects of corporate and private law.
5. As South Africa celebrates 30 years of democracy, how do you envision the role of the Constitutional Court evolving in the next decade? What key challenges and opportunities do you foresee for the Court in upholding and advancing constitutional values?
Looking ahead to the next decade, the role of the Constitutional Court is likely to evolve in response to emerging challenges and opportunities. Maintaining its legitimacy and independence in an increasingly polarized political landscape will be crucial. The Court may need to navigate the delicate balance between judicial restraint and its transformative mandate, particularly when addressing systemic inequality and socio-economic rights. Additionally, the Constitutional Court will most likely continue to play a pivotal role in addressing issues such as corruption, state capture, the rise of Artificial Intelligence (AI), and environmental sustainability. At the same time, there's an exciting opportunity for the Court to continue developing South Africa's unique constitutional jurisprudence, potentially influencing legal thought globally.
6. The Court delivered several judgments that have profoundly impacted South African law, some of which you addressed under various themes in your book. Are there any important themes that you feel were not included, and if so, which landmark case(s) would fall under these themes?
While our book covers a range of themes, there are always new areas emerging in constitutional law. Issues such as environmental rights in the face of climate change, the intersection of customary law with constitutional principles, religious freedoms, and the balance between cultural practices and equality rights could provide rich material for further exploration. It is however our hope that these themes will be considered in subsequent volumes of our series of books.
7. Should we look forward to a second edition of the book and if so, are there any recent cases that you think will be classified as "landmark" cases in the future? (Give us one or two cases).
The prospect of a second edition is intriguing. In recent years, several cases have emerged that could potentially be classified as landmark decisions in the future. It would be fascinating to see how we might incorporate these newer judgments into our analysis. With the benefit of time, some recent cases have the potential of becoming landmark judgments in future. For example, the case of Mahlangu and Another v Minister of Labour and Others 2021 (2) SA 54 (CC) is particularly noteworthy, especially regarding the principle of intersectionality in the context of various types of discrimination.
