DATE: 22 April 2025 - 24 April 2025
Deadline for Abstracts: 15 October 2024
About the event:
The Constitutional Court Review journal – which is a partner of African Law Matters - is hosting a special conference next year reflecting on and interrogating 30 years of the South African Constitutional Court’s jurisprudence. Below is the open call for papers:
On 5 April 1995, the Constitutional Court delivered its first judgment: S v Zuma and Others ([1995] ZACC 1). The Zuma Court found a provision of the Criminal Procedure Act (section 217(1)(b)(ii)) inconsistent with the Constitution. The Court held the provision’s requirement that an accused person must prove a confession had not been elicited freely and voluntarily stood in direct conflict with various components of the right to a fair trial: the right to remain silent after arrest, the right not to be compelled to make a confession, and the right not to be a compellable witness against oneself. Shortly thereafter, on 6 June 1995, the Court released its judgment in S v Makwanyane ([1995] ZACC 3) and declared the death penalty to be unconstitutional.
These two early judgments articulated a number of paradigm-shifting commitments for South African law. First, the provisions of the Constitution reigned supreme over other forms of law and various kinds of conduct. Soon after, the Court would establish the proposition that all law draws its legitimacy and its force from the basic law. Secondly, the Court rearranged our understanding of the separation of powers between the coordinate branches of government. Parliament no longer possessed primacy of place. Sovereign power now had to be shared between the various branches of government, and the boundaries of these branches invariably overlapped. Thirdly, while overlap was an ineluctable consequence of the desiderata of a constitutional democracy, the courts had been clearly entrusted to determine whether law promulgated by the legislature or the executive (as well as conduct) breached specific provisions of the Constitution. Those early judgments employed a generous and purposive approach to constitutional interpretation, unbound by stagnant notions of originalism. Fourthly, the courts were tasked with developing all law in light of the spirit, purport and objects of the Bill of Rights and the Founding Provisions of the Constitution: in short, the creation of an open and democratic based upon dignity, equality, freedom. The Court also, importantly, drew on the African value of ubuntu in determining what constituted the spirit, purport and objects of the Bill of Rights. Finally, these judgments reflect a volte face with the politics and the jurisprudence of apartheid South Africa: they indicated that every person must be treated as an end and never solely as a means; and that the polity is committed to the protection of the most vulnerable of its people – no matter the reason for their status.
Over the next 30 years, the Court built a body of jurisprudence that has been widely celebrated across the world. Given the deeply entrenched inequality created over centuries of discrimination, disenfranchisement, and dispossession of the vast majority of South Africans, it is hardly a surprise that the drafters way of saying – ‘never again’ – meant that the first right entrenched in the Constitution is equality and the second is dignity. The Court – employing both rights -- has laid out a detailed rubric for determining whether unfair discrimination has taken place and moved beyond formal equality to embrace a conception of substantive equality based upon the 15 enumerated – as well as other analogous – grounds. It has also developed a particularly rich and ground-breaking body of cases -- on the African continent – by first decriminalizing same-sex sexuality, then according equal benefit entitlements to same-sex couples and, finally , recognizing the right to same-sex marriage. In relation to civil and political rights, the Court has built a jurisprudence that recognizes the value of freedom in a democracy but also places necessary constraints upon its exercise.
With regard to freedom of speech, it has, for instance, staunchly defended the rights of individuals to parody the trademarks of large corporations. At the same time, it has given significant and fairly broad content to acts that fall within the parameters of illegal and unconstitutional hate speech. It has recognized that in a nascent heterogeneous democracy, still divided by race, ethnicity, religion, gender, disability and sexuality (to name but a few distinctions that bedevil South Africa), words, designed to diminish members of ‘other’ groups, do indeed matter.
Given that South Africa still remains deeply divided economically – with 25% of society living in extreme poverty ($2/day), and another 25% living at the upper bound threshold of poverty ($5/day) -- the Court has developed a jurisprudence around socio-economic rights that partially addresses some of the deeply entrenched features of a polity with the highest gini-coefficient in the world. However, the Court has found that the constitutional responsibility with respect to the provision of such basic goods as food, water, housing, social security and education is shared with the legislature and executive. That approach to shared responsibility has meant that the Court has trodden rather lightly when determining whether action by other state actors (and occasionally private actors) was ‘reasonable’ or not.
Just as the Constitution’s 14 Chapters and 243 provisions are not solely devoted to the Bill of Rights (Chapter 2), the Court’s jurisprudence has played an essential role in shaping the contours of the authority of national, provincial and local government as well as the execution of state power. With increasing levels of corruption within state institutions, the Court has developed a robust rule of law jurisprudence and intervened rather formidably and effectively in matters that reflect significant political dysfunction at the highest levels of government. In one matter, the Court held that the evisceration (and thus absence) of an independent anticorruption authority within the state violated its constitutional and international obligations. In another matter, it held that secret voting may be required in order to ensure that a vote of no confidence in the President is meaningful.
Perhaps most strikingly, the Court determined that the Public Protector, a unique fourth branch institution designed to support constitutional democracy, possessed binding remedial powers that could hold a President to account and monetarily liable for manifold breaches of his constitutional duties. Not long thereafter, and following a novel line of accountability judgments, the Court found that then President Zuma’s failure to appear before the State Capture Commission -- after receiving a court order to do so -- constituted contempt of court that warranted a sentence of 15 months in prison. That sentence laid the foundation for a subsequent holding, in April 2024, that Mr Zuma could not run for public office as a member of Parliament in the elections of 2024. By reinforcing the rule of law and standing firm upon the express meaning of various textual provisions of the Constitution, the Court has – within the parameters of its powers – enabled citizens to exercise the franchise in a manner that recognizes that no one, however powerful, is above the law.
In light of this remarkable (if contested) 30 years of jurisprudence, the Constitutional Court Review invites the submission of abstracts for an academic conference on this theme. Papers will be considered for a special edition of the Constitutional Court Review as well as a selfstanding collection of essays by the participants. The conference has been scheduled to fall between the auspicious 30th anniversary of the Zuma judgment and Freedom Day: between 22 and 24 April 2025.
The special edition of the Constitutional Court Review would come out later in 2025, and the book some time thereafter. Despite the cursory coverage of the Constitutional Court’s judgments above, we would not cabin potential authors into engaging with particular themes – be they domestic or foreign scholars. We hope to attract a cohort of scholars who might want to use the conference, the Constitutional Court Review and the stand-alone book to reflect on an aspect of the last 30 years of Constitutional Court jurisprudence.
There is no need to try and cover the full past 30 years in any field – which would be a mammoth task - but rather to focus on a theme or dimension in the jurisprudence which you wish to engage with that has arisen in that period. You may also choose to focus on a particular period of the Court’s jurisprudence or track changes across certain periods.
We invite scholars to ‘think big’ and go deep: you may write about whatever you like about in relation to a chosen topic. Articles should usually be between 12000 and 20,000 words (but, if justified we will consider longer articles) and will be due by 1 April 2025. For purposes of suggesting some themes, we include the following questions which, as we mentioned do not restrict the topics that you may choose to write on:
Has the Constitutional Court’s jurisprudence in the past 30 years evidenced a commitment to substantive reasoning or has it continued to reproduce a formalistic legal culture?
In protecting its institutional legitimacy, has the Constitutional Court forsaken deeper normative principles and outcomes?
What conception of the state has underpinned the Constitutional Court’s jurisprudence? Does the breadth of normative commitments in the Constitution mean that any number of conceptions of the state can co-exist at the same time?
Has the Constitutional Court realized the potential to apply the Bill of Rights horizontally?
Is the interpretive approach adopted by the Constitutional Court fit for the purpose of interpreting a transformative Constitution?
Has the Court adopted a conception of the separation of powers appropriate for South Africa, or simply adopted a model adopted by states in the Global North?
Does the Court’s jurisprudence demonstrate sufficient awareness of the need to decolonise the apartheid-era law?
Has the Court’s usage of foreign case law shown a preference for Global North or Global South countries: if so, why?
Are the doctrines the Court has developed in relation to specific rights defensible? What is the normative basis for these doctrines and how could its jurisprudence be improved in this regard?
Has the change in jurisdiction of the Constitutional Court so as to embrace a more general jurisdiction affected the nature of how it operates as well as the quality of its judgments?
What direction, with respect to any given subject matter, should the Constitutional Court head during the next 30 years?
Indeed, that last question leads to our last request. While looking back on the caselaw, or any other body of law relevant to South Africa’s constitutional democracy, we would ask that contributors look forward: both in terms of ‘open questions’ that have yet to be addressed by the Court, or perhaps in terms of lines of its own caselaw that would appear to conflict with one another and thus require some form of resolution.
The deadline for submission of titles and abstracts is 15 October 2024. Please submit titles and abstracts to ropafadzom@saifac.org.za Notification of acceptance of abstracts will be no later than 07 November 2024. Deadline for submission of papers will be 1 April 2025. Conference will be held on 22-24 April 2025.