Rights
A transformative constitution with justiciable socio-economic rights
The 1996 Constitution is the supreme law and is widely regarded as one of the most far-reaching in the world. The Constitutional Court enforces a Bill of Rights that includes housing, health care, water and education as justiciable entitlements, not aspirations. Section 39(2) obliges every court to promote the spirit of the Bill of Rights when developing the common law or customary law, which is why constitutional reasoning reaches deep into private law.
Key rules
- Jurisdiction — The Constitutional Court is the highest court in all matters since 2013; the Supreme Court of Appeal and the High Court also exercise constitutional jurisdiction, but only the Constitutional Court may confirm an order invalidating an Act of Parliament.
- Deadline — PAJA judicial review: institute without unreasonable delay and no later than 180 days after internal remedies are exhausted
- Deadline — Direct access to the Constitutional Court: exceptional only; leave to appeal is the normal route
Governing law
- Constitution of the Republic of South Africa, 1996 — s 2 supremacy, ch 2 Bill of Rights, s 36 limitations
- Promotion of Administrative Justice Act 3 of 2000 — codifies the right to lawful, reasonable and procedurally fair administrative action
- Promotion of Access to Information Act 2 of 2000
- Superior Courts Act 10 of 2013 — structure and jurisdiction of the Constitutional Court, Supreme Court of Appeal and High Court
In practice
South African constitutionalism replaced parliamentary sovereignty in 1994 and is deliberately 'transformative': the text is read as mandating the reconstruction of an unequal society rather than merely restraining the state. Grootboom and Treatment Action Campaign settled the mechanism — courts test whether a government programme is reasonable rather than ordering a specific budget line, which preserves the separation of powers while still making the social rights enforceable. Chapter 9 institutions, notably the Public Protector and the Auditor-General, are constitutionally independent supports for that order.