Constitutional Court 1995 – 2012: How did the Cases reach the Court, Why did the Court refuse to consider Some of Them, and How Often did the Court Invalidate Laws and Actions?

Abstract

The purpose of this article is to contribute data for the purposes of debates on how effectively the Constitutional Court performed its functions between 1995 and 2012. The cut-off date of 31 December 2012 has no other significance than that it was the last date before the beginning of the year in which this article was written. However, it is envisaged that the Constitution Seventeenth Amendment Act of 2012, which expressly provides that the Constitutional Court will after its commencement have jurisdiction to hear applications on non-constitutional matters. The figures contained in this article could at a later stage be used to determine what effect this amendment might have had on the functioning of the Court. it is envisaged that the Constitution Seventeenth Amendment Act of 2012, which expressly provides that the Constitutional Court will after its commencement have jurisdiction to hear applications on non-constitutional matters, will commence in the course of the second half of 2013. The figures contained in this article could at a later stage also be used to determine what effect this amendment might have had on the functioning of the Court.

Between 1995 and the end of 2012, the Constitutional Court considered 464 applications for review.

The ways in which these 464 applications reached the Court were as follows:

• 35 referrals in terms of the interim Constitution;
• 21 applications and referrals on matters within the exclusive jurisdiction of the Court;
• 78 applications for confirmations of parliamentary or provincial laws and actions of the President;
• 45 applications for direct access to the Constitutional Court;
• 101 applications for leave to appeal against judgments of the Supreme Court of Appeal;
• 150 applications for leave to appeal against judgments of other Courts;
• 34 applications concerning previous judgments of the Court and other matters.

The Constitutional Court refused to consider applications in 103 instances and considered the merits of applications in 361 instances. The number of refusals per category is as follows:

• 7 refusals in respect of 35 referrals in terms of the interim Constitution;
• no refusals in respect of 21 applications and referrals on matters within the exclusive jurisdiction of the Court;
• 7 refusals in respect of 78 applications for confirmations of parliamentary of provincial laws and actions of the President;
• 34 refusals in respect of 45 applications for direct access to the Constitutional Court;
• 21 refusals in respect of 101 applications for leave to appeal against judgments of the Supreme Court of Appeal;
• 34 refusals in respect of 150 applications for leave to appeal against judgments of other Courts;
• 34 applications concerning previous judgments of the Court and other matters.

The Constitutional Court invalidated in 192 instances legal rules and actions of organs of state and individuals. These invalidations were done in respect of 464 applications for review in all the categories and they were done in respect of 361 instances in which the Court reviewed the merits of applications. 41.39% of the 464 applications received were invalidated. 53.18% of the applications of the merits were considered, was invalidated.

The invalidations in the different categories rules and action were as follows. In respects of:

• Draft constitutional texts – 3 refusals to certify out of 5 texts considered (60%);
• Constitutional amendments – 1 invalidation out of 6 considered (16.66%);
• Acts of Parliament – 85 invalidations out of 165 considered (51.51%);
• Bills of Parliament – 0 invalidations out of 2 considered (0%);
• Acts of Provinces – 6 invalidations out of 11 considered (54.54%);
• Bills of Provinces – 1 invalidations out of 2 considered (50%);
• Local government legislative measures – 2 invalidations out of 5 considered (40%);
• Common law and customary law – 8 invalidations out of 11 considered (72.72%);
• Administrative and executive action – 45 invalidations out of 71 considered (63,38%);
• Court discretionary action – 14 out of 35 considered (40%);
• Action in respect of delict and contract – 7 invalidations out of 14 considered (50%).