Celebrating the South African Constitutional Court

The Constitutional Court, a cultural and architectural achievement, was established in 1994, following South Africa’s first democratic elections and the adoption of the interim Constitution.

The Constitutional Court building on Constitution Hill in the Johannesburg inner city is now 10 years old. (Image: South African History Online)

Brand South Africa reporter 

Waiting for a fitting home, the court spent years in rented accommodation. An international architectural competition was held in 1997 for the design of the new building, and more than 500 applications were judged by an international panel of judges, led by Indian architect Charles Correa. The winning design was submitted by a group of young South Africans – Janina Masojada and Andrew Makin from Durban, and Paul Wygers from Johannesburg, in a partnership between their firms, Urban Solutions and OMM Design Workshop.

It was based on the concept of “justice under a tree”, and embodied the openness called for by the Constitution. Sloping columns in the foyer are like trees in an architectural metaphor of traditional African culture, in which elders sit in the shade and young people come to listen to their teachings, and legal disputes are traditionally resolved.

In 1995, the first justices were appointed to the Constitutional Court, the highest court in the land and the entity charged with developing and upholding the nation’s new constitution. One of the first responsibilities of the justices was to choose a new home for the court and to oversee the construction of a building for it that would reflect the values of the new Constitution and symbolise a total rejection of apartheid definitions of justice. They chose a site steeped in apartheid history – Number Four, the Old Fort prison in Braamfontein, Johannesburg.

The old prison was chosen as the home of the new court precisely because of its history. As judges, they would be making decisions about justice in a democratic South Africa in a space alive with memories of past injustices. And as upholders of the vision of a new South Africa, transforming the infamous Number Four prison into a centre for democracy was a powerfully evocative symbol. In building the court on the site of the Old Fort, Johannesburg’s notorious prison, they underlined the triumph of hope over a troubled past.

The court has won many international awards and is noted for its transparency and succession of beautiful spaces. In contrast to most courts, it is welcoming and accessible. The principal materials of timber, concrete, steel, glass and black slate infuse the building with an African feel. Construction began in October 2001 and was completed in December 2003.

Making an entrance

Four stairwells, remnants of the awaiting trial block of the notorious Number Four prison stand tall on Constitution Hill as a powerful reminder of the history of the site. The Great African Steps that run between the old prison and the court are built out of the reclaimed bricks from the prison that hold the memory of the inmates within them. This pathway forms a bridge that leads one on a journey from a place of past oppression to a free, democratic future.

Written on the building in all 11 South African official languages, the court’s signage is a combination of the letters, signs and symbols found on site: the graffiti on the prison walls, street traders’ hand painted signs and Justice Zak Yacoob’s handwriting. The various fonts are a deliberate move away from the Roman lettering synonymous with official buildings and aims to reflect the spirit and history of the area.

Behind the entablature, high up on the ceiling beams, are written the core constitutional values of dignity, equality and freedom in the different official languages and in the handwriting of the judges who first sat in the new building. Engraved here is the writing of Justice Yacoob, who is blind and has never seen his own handwriting, and Justice Albie Sachs, who learned to write with his left hand after he lost his right arm in a bomb blast orchestrated by the apartheid security police. The etching of these values into the building is a symbolic representation of their foundational nature, not only in the text of the Constitution, but also in the ethos of the court.

Impressive 8m-high timber doors mark the entrance. They are adorned with braille on the handle, and carvings of words and sign language symbols that depict the 27 rights enshrined in the Bill of Rights.

In the foyer

“Justice under a tree”, a traditional African form of dispute resolution, is represented in the court’s logo as well as in the design in the foyer. Slots in the roof allow sunlight to filter through a wire canopy of leaves, causing dappled light to run across the floor, similar to a clearing in a forest. The slanting columns, decorated in mosaic, and known as the “Pius Pillars” after the third Chief Justice, Pius Langa, hold the court under a metaphorical tree, where justice remains open and participatory.

The foyer also incorporates symbolic reminders of South Africa’s journey from oppression to democracy. A stairwell from the old awaiting trial block is embedded in the building. An artwork entitled “The Ladder of Freedom” stands purposefully on the wall next to the stairwell. The foyer is surrounded by glass, typifying the transparency of the court. This is a building that belongs to the people.

At the entrance to the court chamber is the court roll, which sets out the cases that will be heard by the court each term.

The court chamber

The heart of the building was constructed on the site of the awaiting trail block. Again, the theme of “justice under a tree” is evident. The carpet, designed by Durban artist Andrew Verster, depicts sunlight through trees, casting shadows on the ground and reinforcing a connection to the outside.

The Constitutional Court is open to the public at all times. Behind the justices’ desks is a narrow line of windows, through which the feet of passers-by are visible. A low-lying ribbon window emphasises the transparency of the court’s proceedings and is a symbolic reminder that this is a democracy and that court decisions cannot be made in secret; that the public is always watching.

The judge’s podium is decorated with Nguni cow hides, the different patterns signifying the diversity of the bench. There is no hierarchy here and the judges sit at eye-level to the lawyers as they present their arguments. The South African flag is the feature artwork in the courtroom. It was made by a group of artisans whose names are embroidered on the surface – it is the only public South African flag that has the artists’ names displayed on it.

This place where citizens’ human rights and dignity were once degraded has been transformed into a custodial house for the rights of the people.

Sitting of the court

A quorum of at least eight judges must hear each case, but all 11 judges usually sit. There are four sessions of court hearings each year, which are open to the public. The court does not hear oral evidence or question witnesses, although in rare circumstances it may do so. It functions largely as a court of appeal, which considers written arguments together with the record of evidence from the courts that previously heard the matter.

The Chief Justice designates one judge to write the judgment in a case. Cases are allocated so that each judge writes from time to time. After the hearing, the judges act collegially and meet often to discuss important and controversial aspects of a case. The writing judge prepares a draft judgment, which is circulated to the other judges. If there are disagreements about the decision or the reasoning, the judges will write concurring or dissenting judgments.

Each judge sitting in a case must indicate his or her decision; the ruling is then determined by a majority vote. The judgments are thoroughly researched and checked by law clerks, and are then handed down, meaning they are released at a public sitting of the court.

Unique characteristics and jurisprudence

Since it was established in 1994, the Constitutional Court has developed an extensive and internationally acknowledged body of jurisprudence. The court’s mandate places it at the centre of not only the legal but also the societal and political transformation of South Africa. Among other things, the court has abolished the death penalty, confirmed prisoners’ rights to vote, required the state to recognise same-sex marriage and declared that women in Muslim and African customary marriages are entitled to inheritance under South African legislation.

South Africa is one of the few countries to give effect to socio-economic rights in its Constitution, including rights to access to food, water, housing, health care, social security and education. The court’s jurisprudence in this area is widely considered ground-breaking. Perhaps the best-known case is Minister of Health v Treatment Action Campaign (2002), in which the court ordered the government to remove restrictions impeding the use of an anti-retroviral drug to combat mother-to-child transmission of HIV.

The Constitutional Court’s adjunctive role is politically sensitive because it exercises judicial review power over the democratically elected organs of state and makes orders that affect state resources. In performing these functions, the court is careful to respect the separation of powers underpinning South Africa’s constitutional democracy.

The art gallery

The building is one big art gallery. The architecture itself is a work of art and the building is filled with more than 200 mixed media artworks chosen by Justice Sachs and Justice Yvonne Mokgoro. Artists in the collection include Gerard Sekoto, William Kentridge, and Cecil Skotnes, as well as influential international artists such as Marc Chagall.

The eclectic collection is valued at many millions of rands, but only R10 000 was originally set aside for the court’s décor. That entire budget was spent on one work, a tapestry by Joseph Ndlovu. The building also houses the largest human rights library in the southern hemisphere.

Eternal flame

On the 15th anniversary of the signing of the Constitution, on 11 December 2011, the Flame of Democracy and beam of light were lit outside the court in the awaiting trial block by Deputy President Kgalema Motlanthe.

The flame had originally been lit in Qunu, in Eastern Cape by Nelson Mandela the day before. It was taken from the candle lit by Mandela and transported about a thousand kilometres to Joburg in a special container. It signifies the commitment of the country to democracy, human rights and constitutionalism.

Today

In coming to terms with its past, South Africa has undertaken various reforms to create a more just and equitable society. In 1995, it set up the Truth and Reconciliation Commission, which aimed to establish an accurate record of the past and work towards rebuilding the once divided nation. The new administration’s commitment to human rights and democracy and the marked break from the apartheid past were enshrined in the rewritten 1996 Constitution.

Constitution Hill was envisioned as the centre of a much larger economic development project aimed at regenerating one of the poorest neighbourhoods in Johannesburg.

The precinct illustrates how South Africa’s apartheid government systematically stripped people of their dignity as a way of maintaining control. It will take years for the wounds to heal, but to ensure this never happens again, human dignity is the first founding value listed in Chapter 1 of the Constitution – listed even before freedom.

Source: South African History Online, Constitution Hill website, Wikipedia

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