Constitutional Court of South Africa

This article records tradition as it has been passed down and reported. Its sources are not yet part of the atlas's verified catalogue.

South Africa's Constitutional Court did not choose a neutral site. Constitution Hill in Johannesburg is built in and around the Old Fort Prison complex, a nineteenth and twentieth century jail whose Number Four section held Black male prisoners under conditions the post-apartheid government's own heritage documentation describes as deliberately degrading, and whose list of former inmates includes both Mahatma Gandhi, jailed there in 1908 for organizing Indian resistance to discriminatory pass laws, and Nelson Mandela, held there before his 1964 transfer to Robben Island. When the new Constitutional Court needed a permanent home in the years after 1994, the choice to build its courtroom on top of the prison's own awaiting-trial block, incorporating original bricks from the demolished structure directly into the new building's walls, was a deliberate architectural argument: that the constitutional order the Court now protected was built literally on the foundation of what it had replaced, rather than erected somewhere it could pretend that history away. The complex today functions as both a working court and a public heritage site, with the old prison cells preserved and open to visitors alongside the Court's own chamber.

This article records tradition as it has been passed down and reported. Its sources are not yet part of the atlas's verified catalogue.

The Constitutional Court of South Africa heard its first major case before it had any precedent of its own to rely on, and used it to abolish capital punishment outright. S v Makwanyane and Another (1995) asked whether the death penalty, still on the books and still being carried out at the start of the decade, survived the interim Constitution's new Bill of Rights. The eleven judge bench, sworn in only months earlier under founding President Arthur Chaskalson, answered unanimously that it did not, reasoning through the right to life and the prohibition on cruel, inhuman or degrading treatment or punishment together rather than treating either clause alone as decisive, and declining to let public opinion, which polling at the time showed favored keeping the death penalty, override a constitutional right the document placed beyond an ordinary parliamentary majority's reach. Justice Albie Sachs, whose own body carried the physical evidence of apartheid-era political violence after a 1988 car bomb cost him an arm and the sight in one eye, wrote separately to stress that a constitutional court's legitimacy could not be borrowed from precedent it did not yet have; it had to be built, case by case, from the document's own text and values. Makwanyane is still cited today, well beyond South Africa, as one of the clearest judicial statements anywhere that a bill of rights exists precisely to bind a government against what a majority might otherwise prefer.