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2 Const. Ct. Rev. 1 (2009)

handle is hein.journals/conrev2 and id is 1 raw text is: 








                                       'HF:  HAD A MANDATE'L
     THE SOUTH AFRICAN CONS TITUTIONAL COURT
              AND THE AFRICAN NATIONAL CONGRESS
                    IN  A DOMINANT PARTY DEMOCRACY*




                                                 Sujit Choudhry**






1      Introduction: the Hiophe affair and the
      African National Congress


We  may  never  learn what  actually happened   when  Justice Hlophe
visited the chambers  of Acting Justice Jafta and Justice Nkabinde at
the  Constitutional Court in April 2008. These  meetings  took  place
after the Constitutional Court had heard  the argument  but before  it
had  rendered judgment   in Zuma and  Thint,l two appeals  arising out
of the  long-running legal-political saga of the arms  deal  that has
dominated   South  African  politics since 1999  and  which  directly
involved   the   criminal   investigation  of  Jacob Zuma.2 The
Constitutional  Court's complaint   against  Hlophe  to  the Judicial
Services Commission  (JSC) alleged that Hlophe  discussed the appeals
with both judges, and  offered his views that Zuma had been  a victim




*   I thank Danie Brand, Theunis Roux and Stu Woolman for honouring me with their
    invitation to write one of the lead essays for this year's Constitutional Court
    Review, and for their patience during the editorial process. Earlier versions of this
    paper were presented at the Constitutional Court Review Annual Conference in
    Johannesburg, the NYU/Cardozo International Journal of Constitutional Law
    Workshop, and the Constitutional Law Workshop at the University of Chicago
    School of Law. Richard Stacey was formally a research assistant, but his principal
    role has been to educate me in the intricacies of South African constitutional law
    and politics. Nicolas Businger provided superb research assistance. For helpful
    comments, questions and discussions, I thank Hugh Corder, Rosalind Dixon, Tom
    Ginsburg, Sam Issacharoff, Jonathan Klaaren, Heinz Klug, Mattias Kumm, Ross
    Kriel, Eric Posner, Gerry Rosenberg, Michel Rosenfeld, Theunis Roux, Mark
    Tushnet, Wojciech Sadurski, Anthony Stein, David Strauss, and Stu Woolman.
**  Faculty of Law Et Department of Political Science, University of Toronto.
    Thint Holdings (Southern Africa) (Pty) Ltd Et Another v National Director of
    Public Prosecutions; Zuma v National Director of Public Prosecutions 2009 1 SA
    141 (CC); 2008 12 BCLR 1197 (CC).
2   A Feinstein After the party (2007) and P Holden The arms deal in your pocket
    (2008).


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