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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).


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