6.1 Introduction
The Constitutional Court plays an important part in everybody's lives in South Africa. Some may not even be aware of the part it plays because they have not experienced it directly. As will be seen from the First National Bank case, which is reviewed in Chapter 7, we are now able to look back to a time when there was no protector of individual rights and freedoms. The Constitutional Court is the body which is charged with interpreting and upholding the Constitution and in that way affects us all, directly and indirectly. This chapter gives a brief overview of the structure and workings of the Constitutional Court and the influence that it has on the rights of taxpayers.
6.2 Establishment
The Constitutional Court was established in 1994 by the first democratic constitution in South Africa, the Interim Constitution of 1993. This constitution became effective on 27 April 1994. The Constitutional Court commenced operations in February 1995. The Court comprises eleven judges of which two are women. The judges serve for a term of twelve years and may not be appointed for a further term. They are required to retire at the age of 70.
6.3 The Constitutional Court as the Highest Court in South Africa
The Constitutional Court is the highest Court in the Republic of South Africa.
Section 172(2)(a) of the Constitution provides as follows :
"The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court."
Thus it is clear that although a High Court or the Supreme Court of Appeal may rule on constitutional matters, if it rules that a piece of legislation is inconsistent with the Constitution, the ruling must be referred to the Constitutional Court for confirmation before the ruling will become effective.
Nor is the Constitutional Court a law unto itself. It is obliged, and its primary role is, to uphold the Constitution. It cannot, it may not, make a ruling that is inconsistent with the Constitution that it is charged with upholding. In doing so it may consider the law developed in other democratic countries.
6.4 The 1996 Constitution
After the Interim Constitution had come into effect in April 1994, Parliament, sitting as the Constitutional Assembly, was required by it to produce a constitutional text that would form the new constitution. The Constitutional Court had an important part to play in the writing of the new constitution. It was required to certify that the text, submitted to it by the Constitutional Assembly, reflected the constitutional principles that had been agreed upon in advance by the negotiators of the Interim Constitution. In Ex parte Chairperson of the Constitutional Assembly : in re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC) the Constitutional Court ruled that it could not certify the text as there were parts
of it that did not reflect the agreements reached. The text was therefore referred back to Parliament. Parliament reconvened and made amendments to the text which was then adopted by Parliament in October 1996. In its subsequent judgement the Constitutional Court, certified that the text complied with the agreements reached. This text then became the Constitution of the Republic of South Africa and came into effect in 1997. The Constitutional Court has therefore, aside from the cases that were already coming before it before the new constitution was adopted, had an effect on the rights and freedoms of individuals by certifying the constitutional text.
6.5 Constitutional Court Cases
The method in which cases may be placed before the Constitutional Court is twofold. All cases that end up in the Constitutional Court must first be placed before the High Court. The High Court will then rule on the case and if it is a constitutional issue which requires the invalidating of legislation, the High Court will refer the judgement on to the Constitutional Court for confirmation.
That is the first way that a case can reach the Constitutional Court.
The second way is that if a matter is placed before the High Court and the High Court dismisses the application the appellants may apply directly to the Constitutional Court for leave to appeal. The judges of the Constitutional Court will consider the merits of the case and whether there is any reasonable chance that the application will succeed. Should they feel that there is such a reasonable chance, they will set it down for hearing.
6.6 Cases before the Constitutional Court
The Constitution requires that at least eight judges hear every case that is placed before them. Normally, however, eleven judges hear each case. This can be seen from the case reviews that follow in Chapter 7. Should a judge
not be available for attendance in the Court for a lengthy period, and a good example of this would be when Judge Goldstone was appointed to appear in the International Court in the Hague, the President of South Africa may appoint a judge on a temporary basis.
Decisions in the Court are reached by a majority vote of the judges hearing the case. The judges either agree with the judgement of the judge who delivers the judgement of the Court, or disagree. Each judge must state his reasons for disagreement in a written judgement. The first case that is reviewed in Chapter 7, Ferreira v Levin NO and Others CCT 5/95, is a good example of this. In this case all the judges agreed with Ackermann J in his finding but for different reasons. However, one of the judges disagreed completely with the finding.
The Constitutional Court does not carry out its task in exactly the same manner as the High Court or Supreme Court of Appeal in that it does not, in the main, hear evidence or argument or question witnesses. The parties to each matter, the appellants and the respondents, submit written arguments to the Court and the Court presents its finding thereon. It also does not deal with matters that do not have Constitutional bearing. All matters of this nature are dealt with by the courts previously mentioned.
6.7 Relationship w i t h Parliament and Provincial Assemblies
The Constitutional Court has an important relationship with Parliament and the various provincial assemblies. Where there is a dispute in any of these bodies, regarding the constitutionality of legislation that has been passed and assented to, a third of the members may request the Constitutional Court to give a ruling thereon. In the same way, before assenting to new legislation,
the President of South Africa or any of the Provinciai Premiers may request the Constitutional Court to review the constitutionality of that legislation.
6.8 Conclusion
The Constitutional Court has an important role to play in the rights and freedoms of individuals. This role is dynamic in that, in interpreting the Constitution it is in effect developing the law of our country and how it should be applied. Section 8(3)(a) and (b) of the Constitution specifically encourages the courts to develop common law and common law rules. A good example of this in Chapter 7 is the Rudolph case because as a result of this case a number of revenue acts were amended. X Silke in his article entitled "Light at the end of the constitutional tunnel" writes
" Most taxpayers who have challenged the constitutionality of a whole variety of fiscal provisions in the Income Tax Act and the Customs and Excise Act, have failed. But the recent decision of the Constitutional Court in First National Bank of SA Ltd t/a Wesbank v C:SARS & Another indicates that there is light at the end of the constitutional tunnel.