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3 Const. Ct. Rev. 1 (2010)

handle is hein.journals/conrev3 and id is 1 raw text is: FINDING THE CONSTIUTJIONAL COURT'S PLACE IN SOUT.H AFRICA'S DEMOCRACY: THE INTERACTION OF PRINCIPLE AND INSTITI UTIONAL PRAGMATISM IN THE COURT'S DECISION MAKING Heinz Klug* 1 Introduction Ever since its establishment in 1995, the South African Constitutional Court has been called upon to address issues and to face challenges that would be considered extraordinary for any judiciary. From the task of certifying whether the Constitutional Assembly had remained faithful to the constitutional principles in the 1993 interim Constitution to the ruling of a High Court accepting the allegation by the Judge President of the Western Cape High Court that the justices of the Constitutional Court had violated his rights by publicly accusing him of improperly attempting to influence the outcome of a case before them, the Court has been repeatedly buffeted by the strong winds of political conflict. The Court has also faced direct challenges to its legitimacy, as was the case when the newly appointed justices were asked to recuse themselves from a case against President Nelson Mandela on the grounds that he had appointed them.3 At the same time, the Court has received positive global attention for its rights jurisprudence while facing domestic criticism for its unwillingness to * Evjue-Bascom Professor of Law, University of Wisconsin Law School; Senior Honorary Research Fellow, Oliver Schreiner Law School, University of the Witwatersrand. See Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 4 SA 744 (CC); and Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 1997 2 SA 97 (CC). 2 See Mandlakayisa John Hlophe v Constitutional Court of South Africa Et Others, High Court of South Africa (Witwatersrand Local Division) Case 08/22932, 25 September 2008. See President of the Republic of South Africa v South African Rugby Football Union - Judgment on Recusal Application 1999 4 SA 147 (CC). 1

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