This revisionary perspective on South Africa's celebrated Constitutional Court draws on historical and empirical sources alongside conventional legal analysis to show how support from the African National Congress (ANC) government and other political actors has underpinned the Court's landmark cases, which are often applauded too narrowly as merely judicial achievements. Standard accounts see the Court as overseer of a negotiated constitutional compromise and as the looked-to guardian of that constitution against the rising threat of the ANC. However, in reality South African successes have been built on broader and more admirable constitutional politics to a degree no previous account has described or acknowledged. The Court has responded to this context with a substantially consistent but widely misunderstood pattern of deference and intervention. Although a work in progress, this institutional self-understanding represents a powerful effort by an emerging court, as one constitutionally serious actor among others, to build a constitution.
About the Author
James Fowkes is a former clerk at the South African Constitutional Court and studied law at the University of the Witwatersrand, Johannesburg and Yale Law School, Connecticut. He is currently a senior researcher at the Institute for International and Comparative Law in Africa, University of Pretoria.
Table of Contents1. Introduction; 2. Taking reality (legally) seriously; 3. Voting rights, politics, and trust; 4. The role of the Court: standard conceptions; 5. The role of the Court: constitution-building; 6. LGBTI equality; 7. Democracy; 8. Socio-economic rights; 9. Equality, eviction and engagement.