Constitutional Law

JurisdictionSouth Africa
Published date10 March 2021
AuthorBishop, M.
Date10 March 2021
The inaugural volume of this publicat ion was a highly signif icant year for
constitutional law for several reason s. Since the 17th Amendment1 to the
Constitution of the Republic of South Afr ica, 1996 (Constitution) expanded
the jurisdict ion of the Constitutional Court, the cou rt’s caseload has
continued to expand.2 The Constit utional Court now receives more than 400
new applications a year and hands down in excess of 50 judgme nts per year.
In contrast, in the early 2000s t he court handed down about half that number
of judgments annually. The expanded jurisd iction of the Constitutional
Court is not the only reason for a n increase in const itutional litigation. The
High Courts have also seen a n increase in the nu mber of constitutional
matters decided, without any jurisdict ional changes to prompt it. In the
years following the adoption of the Constitut ion, the familiar ity of lawyers
and courts with it has grow n, bringing a recog nition that the Constitut ion
applies, directly or indirec tly, to all areas of the law. Having written the
chapter on constitutional law for the prede cessor to this work, the Annua l
Survey of South African Law, since 2009, we have witnessed this steady growth
and development of the jurisprudence.
The year under review was also ma ssively affected by the COVID-19
pandemic, which raised a number of sign ificant constit utional issues
relating to governance and huma n rights. It prompted the promulgation of
sweeping regulations a nd a spate of litigation. In this chapter, we consider
the constitutional d imensions of those regulations and case s.
* BA LLB LLM (Pret) LLM (Columbia); Member of the Cape Bar.
LLB (UCT) MSt (Oxon); Member of the Johannesburg Bar; DPhil Candidate and Tutor in
Human Rights Law, University of Oxford; Honorary Research Associate, University of Cape
Town; Research Director, Oxford Human Rights Hub. ORCID:
1 Constitution Seventeenth Amendment Act 72 of 2012.
2 See Chapter 2 ‘Jurisdiction’ in M du Plessis, G Penfold and J Brickhill Constitutional
Litigation (2013).
Constitutional LawConstitutional Law
Michael Bishop* and Jason Brickhill
2019/2020 YSAL 227
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We begin by discussing t he regulations promulgated in respon se to
COVID-19, focusing on their implications for t he separation of powers
and governance, and the restrict ions on rights that they i mposed. Those
constitutional implication s formed the basis of the litigation t hat followed,
most of it decided at High Court level by way of urgent applications.
In part 2.2, we discuss t hese cases, begin ning with the various ge neral
challenges to the decl aration of a state of national disaster and to t he
lockdown regulations as a whole. We turn, second ly, to consider the
litigation regarding state gra nts provided to individuals and business es
in an attempt to mitigate the economic h arm of the pandemic. The court s
tested the criteria governi ng the business fu nds for constitutionality a nd
ordered that the fund for indiv iduals be extended to asylum-seekers and
refugees. Thirdly, we consider the use of force and arre st under lockdown,
which prompted an important system ic intervention in the Kh osa matter.
The fourth area th at saw significant COVID-19 litigation was the right
to education, including in relation to the re -opening of schools dur ing
lockdown, school nutrition and the re- opening of private Early Childhood
Development centres. Relatedly, and fifthly, we consider the COVID-19
jurisprudence on chi ldren’s rights, in particular the movement of children
between caregivers. Sixth, we di scuss the cases r elating to the right to fair
labour practices, including two deci sions concerning the s afety of working
conditions. Seventh, we touch on the contentious issue of the ba n on the sale
of tobacco products during lockdown. The eighth issue was ev ictions, which
were restricted during loc kdown but nevertheless generated litigation. The
final issue th at we discuss is religious gather ings, which raises the issue of
freedom of rel igion.
Quite apart from the const itutional matters ari sing from COVID-19,
the year saw significa nt developments in constitutional law on a number
of fronts. We cover these developments under two broad categories:
(i) structures of government (spanning a ll three branche s of government,
all three levels of government and a ll the independent constitut ional
institutions) and (ii) human rights.
At the interface between the legi slature and the executive, the year saw an
unusually high number of Bil ls being passed by parliament but sent back by
the president on the basis of constitutiona l reservations. The president sent
back four Bills.3 Undoubtedly the most signif icant development affecting the
legislature and indee d government as a whole was the decision requiri ng
independent candidates to be allowed to run i n national and provincia l
elections on the basis t hat a pure party electoral system (as we have had
since 1994) is unconstitutional. Regarding t he executive branch, furt her
3 Performers’ Protection Amendment Bill (2016); Copyright Amendment Bill (2017);
Protection of State Information Bill (2010); Liquor Products Amendment Bill (2016).
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activity was seen in rel ation to presidential pardons, the reviewability of
cabinet appointments, and the reviewabil ity of commissions of inqu iry
(in particular, the Arm s Deal Commission). Regarding the judicia l branch, we
note a decision reviewing the ref usal to consider a candidate for appointment
as a magistrate because of hi s race. In respect of local government, the year
saw two cases concerni ng the power to dissolve municipalities. The Public
Protector was once again at the centre of several sig nificant constit utional
In relation to Bill of Rights jur isprudence, there were also major
developments. In respect of the application of the Bill of Rights, a pair of
twin (but arg uably contradictory) decisions handed down on the same day
and written by the same judge engage the hori zontal application of the Bill
of Rights, while another case dea lt with extraterritorial application. The
year also saw signif icant jurisprudence across most of the r ights in the
Bill of Rights. In respect of e quality, decisions implicating the common-
purpose doctri ne in respect of rape, discr imination in t he distribution of
state resources and disc rimination on t he basis of poverty were handed
down. The right to dignity was at the ce ntre of a case concerni ng the right
of asylum-seekers and refugees to m arry in South Af rica. The defence of
reasonable chastise ment by parents inflict ing corporal puni shment on
their childre n was struck down on the basis of the r ight to freedom and
security of the per son. The right to privacy formed the basis of a ch allenge
to surveillance leg islation.
It was a busy year for freedom of expression jurisprudence. T he courts
considered: the constitutional ity of the crime of inti midation; whether the
Equality Act’s definition of hate speech i s constitutional; whether t he old
South African f lag constitutes hate speech; whether sp eech directed at
an individual because of hi s membership of a group can const itute hate
speech; and the extent to which cou rts – and the Electoral Commission – ca n
interfere with speech b efore and during election s. Political rights formed
the basis of the decision mentioned above holding th at a party-based
electoral system is unconst itutional and independent candidates must be
allowed. Two important cases were decided regarding constitut ional labour
rights, concerning the exclusion of m inority unions f rom retrenchment
negotiations and whether un ions can recruit outside the i ndustrial scope
covered by their constitutions. An i mportant decision on the environmental
right confirmed t hat the right includes animal welfare.
In respect of property, the jurisprudence engaged whet her the definition
of property includes the proceed s of crime. An important c hildren’s
rights case was handed down concer ning the anonymit y of child victim s
and whether it extends after they t urn 18 years of age. There were also a
number of important decision s on the right to education, covering issues
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