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Constitutional Court Review 2020 © The Author
Volume 10, iii-iv Open Access article distributed in terms of the
https://doi.org/10.2989/CCR.2020.0001 Creative Commons Attribution License [CC BY 4.0]
Editorial
Constitutional Court Review Beyond the Global Pandemic
This issue of Constitutional Court Review (CCR) was born at a time when 'social distancing'
was a technical term with currency only among specialists in public health circles. In August
2019, our annual conference was held over two days in which a fascinating array of papers was
discussed and honed - face-to-face - by participants united in the common enterprise of
engaging in-depth with the work of the Constitutional Court of South Africa. Backward looking
in one sense, this journal reflects on recent jurisprudence of the Court and its development over
time. In so doing, scholars play a critical role in the constitutional schema that holds the Court
to account for its reasoning and decisions. In another sense, the journal is forward-looking,
revealing alternate paths not taken or engaging with issues that inevitably will come before
the Court. While the interplay of past, present and future is perhaps characteristic of the legal
enterprise as a whole, it is of particular value to the constitutional project that aims to transform
South African society fundamentally.
There is nothing like a health pandemic to highlight societal and institutional deficiencies.
Many bad habits, reminiscent of a past against which the constitutional order is a firm counter-
point, resurfaced during this time. Mureinik's bridge to a culture of justification became shaky
as latent authoritarian tendencies re-emerged. Security forces dealt violently with people
struggling to comply with lockdown regulations; South African citizens and non-citizens alike
struggled to access social assistance with migrants and refugees facing additional burdens; and
Ministers imposed a raft of regulations restricting individual rights, a number of which were
nonsensical (such as banning exercise outdoors - essential for mental health and with low
risk of viral transmission - and specifying which clothes could be bought in retail stores).
It became evident that there are significant differences between measures required to address
public health emergencies and those required for conflict- or public order-related emergencies.
Derogation clauses in constitutions such as ours are better suited to the latter. The executive did
not employ this framework with its in-built safeguards, but instead used disaster legislation to
issue a raft of regulations with very limited parliamentary oversight. These, and other matters,
are working their way through the courts and no doubt will provide the basis for much analysis
in future editions of this journal. This period highlights the importance of deepening our
commitment to constitutionalism which becomes ever-more important when societal systems
are under strain. Sadly, this is likely to continue into the foreseeable future as the economic
impacts of COVID-19 continue to bite.
CCR is not the project of a singular individual but rather of a group of dedicated, autonomous
people working towards a collective aim. Starting with this issue, four editors were appointed
to a volume-specific editorial committee (VSEC), each responsible for shepherding a batch
of articles to publication. I am deeply grateful to them for their hard-work: Jason Brickhill,
Khomotso Moshikaro and Franziska Sucker - a very sincere and deep thank you!
Constitutional Court Review is published by NISC (Pry) Ltd.](ViewImageLocal?handle=hein.journals/conrev10&div=1&collection=&method=preview&ext=.png&size=3)
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