Case Hall

Facts. Two men convicted of murder were sentenced to death under the pre-constitutional Criminal Procedure Act. The new Constitutional Court was asked to decide whether the death penalty was consistent with the new Constitution before it formally took effect.

Legal question. Is the death penalty consistent with the rights to life and dignity and the prohibition on cruel, inhuman or degrading punishment under the interim Constitution?

Judgment. The Constitutional Court unanimously struck down the death penalty as unconstitutional. Chaskalson P wrote the leading judgment, with all eleven judges writing separate concurrences. The Court interpreted the Constitution generously and purposively, drawing on comparative and international law.

Significance. The first major judgment of the Constitutional Court. Establishes the purposive and value-based method of constitutional interpretation. Introduces ubuntu as a constitutional value. Confirms the supremacy of the Constitution and the Court's power to strike down legislation inconsistent with it.

Exam tip. Use for: constitutional interpretation methodology, ubuntu, the right to life (s 11), dignity (s 10), and the prohibition on cruel punishment. Remember: Chaskalson P wrote for the Court; all 11 judges wrote separately. The case signals the break from the apartheid legal order.

Facts. The President signed a proclamation bringing the Medicines and Related Substances Control Amendment Act into operation. The pharmaceutical manufacturers challenged this on the ground that the President had failed to comply with the procedural requirements of the Medicines Act. The manufacturers argued the proclamation was irrational.

Legal question. Is the exercise of public power subject to a constitutional requirement of rationality, and if so, what does this require?

Judgment. The Constitutional Court held that a proclamation that is irrational or procedurally defective is inconsistent with the Constitution and invalid. The rule of law requires that all exercises of public power be rational and procedurally proper. Courts can review executive action for irrationality.

Significance. The leading case on rationality review of executive action under the rule of law principle (s 1(c)). Establishes that administrative and executive action must pass the rationality test. The rule of law, as a founding value, empowers courts to review all public power — not just administrative action under PAJA.

Exam tip. Use for: rule of law (s 1(c)), rationality review, executive action, constitutional review of public power. Remember: rationality is a lower threshold than reasonableness (PAJA) — but it is not toothless. A decision with no rational connection to a legitimate purpose is invalid.

Facts. Mrs Grootboom and hundreds of others lived in intolerable conditions in an informal settlement in Oostenberg. They moved onto private land earmarked for low-cost housing and were evicted, their shelters demolished. They sought emergency housing from the government under the constitutional right of access to housing.

Legal question. Does the right of access to housing (s 26 of the Constitution) impose an obligation on the state to provide emergency housing to those in desperate need?

Judgment. The Constitutional Court held unanimously that the existing government housing programme was unreasonable because it made no provision for emergency relief for people in desperate need. The Court ordered the state to devise and implement a programme to meet the immediate needs of people in crisis.

Significance. The leading case on socio-economic rights. Establishes the reasonableness standard for evaluating state compliance with s 26 (housing) and related rights. Confirms that socio-economic rights are enforceable — not merely aspirational. The reasonable measures test requires attention to those most vulnerable.

Exam tip. Use for: socio-economic rights, s 26 housing, reasonableness standard, progressive realisation, available resources. The key question is: does the state's programme make reasonable provision? A programme that ignores desperate need fails this test. Pair with TAC for health rights.

Facts. The Treatment Action Campaign challenged government policy that restricted the drug Nevirapine (which prevents mother-to-child transmission of HIV) to a limited number of pilot sites. Pregnant women at non-pilot sites could not access the drug. The TAC argued this violated the right of access to health care (s 27) and children's rights (s 28).

Legal question. Was the government's policy of restricting Nevirapine to pilot sites consistent with its constitutional obligations under the right of access to health care and children's rights?

Judgment. The Constitutional Court ordered the government to make Nevirapine available at public hospitals and clinics beyond the pilot sites and to develop a comprehensive programme for the prevention of mother-to-child transmission. The Court rejected the separation of powers argument that courts could not tell government how to set health policy.

Significance. Extends Grootboom to the right of access to health care (s 27). Confirms that courts can and should enforce socio-economic rights against government. Clarifies the relationship between judicial remedies and separation of powers — courts can order structural relief that requires government action. A landmark victory for health rights litigation.

Exam tip. Use for: s 27 health rights, children's rights (s 28(1)(c)), separation of powers in rights enforcement, structural remedies, reasonableness test applied to health policy. Remember: the reasonableness standard is context-sensitive — what is reasonable in a rich country may differ from what is reasonable in a resource-constrained one.

Facts. Sodomy was a common-law crime criminalising consensual sexual acts between adult men in private. Alongside it stood s 20A of the Sexual Offences Act 23 of 1957 (the "men at a party" provision) and consequential statutory listings — sodomy's inclusion in Schedule 1 of the Criminal Procedure Act 51 of 1977 and in the Security Officers Act. The National Coalition challenged the common-law crime and these provisions under the equality, dignity and privacy clauses of the Constitution.

Legal question. Do the common law and statutory sodomy provisions infringe the rights to equality, dignity, and privacy of gay men?

Judgment. The Constitutional Court unanimously declared the common-law crime of sodomy, s 20A of the Sexual Offences Act 23 of 1957 and the consequential statutory listings unconstitutional and invalid. Ackermann J wrote the main judgment, holding that they violated equality, dignity and privacy; Sachs J wrote a concurrence. The Court rejected the argument that majority moral views could justify the criminalisation.

Significance. The first case where the Constitutional Court directly addressed sexual orientation discrimination. Establishes the principle that the listed grounds of non-discrimination (including sexual orientation) carry a strong presumption of unconstitutionality. Dignity, equality, and privacy protect private consensual conduct of adults.

Exam tip. Use for: equality (s 9), dignity (s 10), privacy (s 14), sexual orientation as listed ground, the relationship between majority morality and constitutional rights. Remember: the Constitution protects minorities against majority moral views enforced through criminal law. Pair with Fourie for marriage equality.

Facts. Two same-sex couples challenged the common law definition of marriage (which restricted marriage to a man and a woman) as inconsistent with the constitutional rights to equality and dignity. The High Court had declared the common law definition invalid.

Legal question. Does the common law definition of marriage, which excludes same-sex couples, unjustifiably limit the rights to equality and dignity of gay and lesbian persons?

Judgment. The Constitutional Court confirmed the invalidity of the common law definition of marriage. Albie Sachs J wrote for the Court. The reading-in remedy was suspended for one year to allow Parliament to remedy the defect — leading to the Civil Union Act 17 of 2006.

Significance. The culmination of equality and dignity jurisprudence for LGBTQ+ rights in SA. Demonstrates the Court's role in giving effect to the constitutional commitment to non-discrimination. The suspended declaration of invalidity with a legislative remedy shows the Court's balancing of judicial and parliamentary roles in constitutional democracy.

Exam tip. Use for: equality (s 9), dignity (s 10), unfair discrimination, reading-in as a remedy, suspended declarations of invalidity. Note the Court's separation of powers sensitivity — the suspension gave Parliament a chance to fix the law. Pair with NCGLE (sodomy) as the progression from criminalisation to marriage.

Facts. Mrs Bhe's partner died intestate. Under the customary rule of male primogeniture (inheritance only through the male line), his estate would pass to a male relative rather than to his daughters. Mrs Bhe challenged the rule as discriminatory against women and children.

Legal question. Is the customary rule of male primogeniture in intestate succession consistent with the constitutional rights to equality and dignity?

Judgment. The Constitutional Court declared the rule of male primogeniture unconstitutional insofar as it applied to intestate succession. The Intestate Succession Act was extended to apply to all persons. The Court developed the customary law in accordance with the Constitution.

Significance. A landmark case on the relationship between customary law and the Constitution. Confirms that customary law must comply with the Bill of Rights and can be developed by courts under s 39(2). Gender discrimination in customary succession cannot be protected by appeals to cultural tradition. The Constitution takes precedence.

Exam tip. Use for: customary law (s 211), development of customary law (s 39(2)), equality (s 9), gender discrimination, the tension between tradition and constitutional rights. Remember: the Constitution requires that customary law be tested against the Bill of Rights, not sheltered from it.

Facts. The Valoyi traditional community traditionally excluded women from becoming chief (hosi). The Valoyi royal family, recognising the Constitution's equality requirement, appointed Ms Shilubana (a woman) as hosi. The male claimant Nwamitwa challenged this as contrary to customary law.

Legal question. Can a traditional community develop its own customary law — in this case by appointing a woman as hosi — in a manner consistent with the Constitution, and should courts recognise this development?

Judgment. The Constitutional Court upheld Ms Shilubana's appointment as hosi. The community had validly developed its own customary law in a constitutionally compliant direction. Courts should defer to such community-initiated development rather than freeze customary law at a historical snapshot.

Significance. The leading case on "living customary law" — customary law as actually practised, not frozen in colonial-era records. Affirms the dynamic and evolving nature of customary law. Communities themselves can develop customary law; courts should recognise this. Pair with Bhe as the two pillars of the customary law/Constitution relationship.

Exam tip. Use for: living customary law, s 211 (customary law), s 39(2) (development of customary law), traditional leadership, gender equality in customary contexts. The key distinction: living customary law ≠ official/frozen customary law. Courts should look to actual community practice, not old records.