Constitutional Law

• Jurisdiction: South Africa
• Author: Bishop, M.
• Pages: 227-383
• Date: 10 March 2021
• Published date: 10 March 2021
• DOI: https://doi.org/10.47348/YSAL/v1/i1a5
• Citation: 2019/2020 YSAL 227

227

1. INTRODUCTION

The inaugural volume of this publication was a highly significant year for

constitutional law for several reasons. Since the 17th Amendment1 to the

Constitution of the Republic of South Africa, 1996 (Constitution) expanded

the jurisdiction of the Constitutional Court, the court’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 jurisdiction of the Constitutional

Court is not the only reason for an increase in const itutional litigation. The

High Courts have also seen an increase in the number of constitutional

matters decided, without any jurisdictional changes to prompt it. In the

years following the adoption of the Constitut ion, the familiar ity of lawyers

and courts with it has grown, bringing a recognition that the Constitution

applies, directly or indirectly, to all areas of the law. Having written the

chapter on constitutional law for the predecessor 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 massively affected by the COVID-19

pandemic, which raised a number of significant constitutional issues

relating to governance and human rights. It prompted the promulgation of

sweeping regulations and 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: https://orcid.org/0000-0002-

3871-1524.

1Constitution Seventeenth Amendment Act 72 of 2012.

2See 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

© Juta and Company (Pty) Ltd

https://doi.org/10.47348/YSAL/v1/i1a5

YEARBOOK OF SOUTH AFRICAN LAW

228

We begin by discussing the regulations promulgated in response to

COVID-19, focusing on their implications for the separation of powers

and governance, and the restrictions on rights that they imposed. Those

constitutional implications formed the basis of the litigation that followed,

most of it decided at High Court level by way of urgent applications.

In part 2.2, we discuss these cases, beginning with the various general

challenges to the declaration of a state of national disaster and to the

lockdown regulations as a whole. We turn, secondly, to consider the

litigation regarding state grants provided to individuals and businesses

in an attempt to mitigate the economic harm of the pandemic. The courts

tested the criteria governing the business funds for constitutionality and

ordered that the fund for individuals be extended to asylum-seekers and

refugees. Thirdly, we consider the use of force and arrest under lockdown,

which prompted an important systemic intervention in the Kh osa matter.

The fourth area that saw significant COVID-19 litigation was the right

to education, including in relation to the re-opening of schools during

lockdown, school nutrition and the re-opening of private Early Childhood

Development centres. Relatedly, and fifthly, we consider the COVID-19

jurisprudence on children’s rights, in particular the movement of children

between caregivers. Sixth, we discuss the cases relating to the right to fair

labour practices, including two decisions concerning the safety 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 lockdown but nevertheless generated litigation. The

final issue that we discuss is religious gather ings, which raises the issue of

freedom of rel igion.

Quite apart from the constitutional matters arising from COVID-19,

the year saw significant developments in constitutional law on a number

of fronts. We cover these developments under two broad categories:

(i) structures of government (spanning all three branches of government,

all three levels of government and all the independent constitutional

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 indeed government as a whole was the decision requiring

independent candidates to be allowed to run in national and provincial

elections on the basis that a pure party electoral system (as we have had

since 1994) is unconstitutional. Regarding the executive branch, further

3 Performers’ Protection Amendment Bill (2016); Copyright Amendment Bill (2017);

Protection of State Information Bill (2010); Liquor Products Amendment Bill (2016).

© Juta and Company (Pty) Ltd

https://doi.org/10.47348/YSAL/v1/i1a5

CONSTITUTIONAL LAW229

activity was seen in relation to presidential pardons, the reviewability of

cabinet appointments, and the reviewability of commissions of inquiry

(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 concerning the power to dissolve municipalities. The Public

Protector was once again at the centre of several significant constitutional

cases.

In relation to Bill of Rights jurisprudence, there were also major

developments. In respect of the application of the Bill of Rights, a pair of

twin (but arguably 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 dealt with extraterritorial application. The

year also saw significant jurisprudence across most of the rights in the

Bill of Rights. In respect of equality, decisions implicating the common-

purpose doctrine in respect of rape, discrimination in the distribution of

state resources and discrimination on the basis of poverty were handed

down. The right to dignity was at the centre of a case concerning the right

of asylum-seekers and refugees to marry in South Africa. The defence of

reasonable chastisement by parents inflicting corporal punishment on

their children was struck down on the basis of the right to freedom and

security of the person. The right to privacy formed the basis of a challenge

to surveillance leg islation.

It was a busy year for freedom of expression jurisprudence. The courts

considered: the constitutionality of the crime of intimidation; whether the

Equality Act’s definition of hate speech is constitutional; whether the old

South African flag constitutes hate speech; whether speech directed at

an individual because of his membership of a group can constitute hate

speech; and the extent to which cou rts – and the Electoral Commission – ca n

interfere with speech before and during elections. Political rights formed

the basis of the decision mentioned above holding that a party-based

electoral system is unconstitutional and independent candidates must be

allowed. Two important cases were decided regarding constitut ional labour

rights, concerning the exclusion of minority unions from retrenchment

negotiations and whether unions can recruit outside the industrial 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 proceeds of crime. An important children’s

rights case was handed down concerning the anonymity of child victims

and whether it extends after they turn 18 years of age. There were also a

number of important decisions on the right to education, covering issues

© Juta and Company (Pty) Ltd