South Africa Constitutional Court Flashcards
(27 cards)
Why do you want to join the South African Constitutional Court?
- Fascinating history having transformed relatively recently from a colonial and apartheid state into a liberal democracy - what is particularly exciting about working at the CC is that is played such a central role in this transition
- Comparative perspective with the UK system; particularly the human rights angle as the South African bill of rights appears to me to be far more expansive than the European Convention on Human Rights - in particular in providing for justiciable social and economic rights, and the right to a healthy environment. it would be fascinating to see how this works in practice, particularly because I want to practice in human rights law in the future. My interest is not limited to cases with a human rights element - I am interested in solving all kinds of legal problems.
- Ethos of the court really interesting - focus on transformative constitutionalism and the significant powers of the court for example to watch over a public body remaking a decision after a judgment; very different to the ECHR where judges, by virtue of being appointed by their country’s government, are naturally conservative and there is a strong motivation not to intervene in domestic affairs.
Why are you interested in South Africa particularly?
- Fascinating history having transformed relatively recently from a colonial and apartheid state into a liberal democracy - what is particularly exciting about working at the CC is that it played such a central role in this transition
- Ethos of the court really interesting - focus on transformative constitutionalism and the significant powers of the court for example to watch over a public body remaking a decision after a judgment; very different to the ECHR where judges, by virtue of being appointed by their country’s government, are naturally conservative and there is a strong motivation not to intervene in domestic affairs.
- Tour with Justice Albie Sachs, court is steeped in history and symbolism (e.g., feet window; bricks from old prison it is built on) - looks like an amazing place to work, also found the way he spoke about South Africa’s history really inspiring, that we should not forget the past and we don’t need to ‘move on’ from the past, but we should recognise it and the ongoing effects it has, and understand that society can change and that this change has to come from within.
- Meeting people from all round the world with different life experiences to my own
What do you know about the history of the South African Constitutional Court?
The Constitutional Court was established through the interim constitution of 1993 to assist in the transition from apartheid to liberal democracy. It was created as the highest court in the land for constitutional matters, aimed at ensuring the supremacy of the Constitution and protecting human rights. One of the court’s main aims was to ensure that the court was representative of the South African population - previously, judges were almost exclusively white and male, whereas now the judiciary is much more diverse and reflective of the society it serves. This is important because it means that the judiciary is better able to understand the communities about which it is making decisions. It also improves the quality of the judiciary - if judges are only drawn from the white minority in south africa, much of the country’s talent will be missed.
Are you familiar with any of the cases of the South African Constitutional Court?
S v Makwanyane - question of whether the death penalty is compatible with the right to life within the Bill of Rights, the court found that it was not and thereby abolished the death penalty
Socio economic rights - Soobramoney v Minister of Health - right to healthcare (limits due to budgetary contraints); Grootboom (the state was obliged to take action to meet the needs of those living in extreme conditions of poverty, homelessness, or intolerable housing.)
Are you familiar with any of my judgments?
Can you tell me about your experiences which you think will make you well suited to this role?
ECHR - describe; Leigh Day (teamwork, working to tight deadlines, drafting)
What did you gain from clerking at the ECHR and what do you think you will gain from this that would be different?
Gained:
- Insight into the judicial decision making process - I found the procedure as interesting as the substance, getting to observe how judges reached their decisions and deliberated with one another
- Deepened my substantive knowledge of European human rights law, including concepts like proportionality and legitimate aims
Will gain:
- Comparative perspective (written constitution, different powers of the court e.g., to strike down legislation, different rights e.g., social and economic rights, third generation rights)
- Working with judges and clerks with a different legal education to my own, operating in a different culture
- Increased understanding of South Africa’s history and politics
What areas of law are you interested in and why?
Main area of interest is human rights and public law. I am interested in human rights pertain to fundamental elements of all citizens’ lives, and the law provides really crucial safeguards to secure these rights. Also public law concerns the relationshi between the citizens and the state which is interested because I am interested in politics.
What sparked your interest in law?
At school I wanted to do something difficult and people-based. I studied maths and philosophy but found that they were too abstract, and wanted something more people focused. During university, I came into contact with several lawyers who had a big impact on me. The first was Philippa Kauffman, a human rights barrister in England who has worked on some really fascinating cases such as the undercover policing inquiry which looked into the use of undercover police in left wing and environmental groups. The second was Clive Stafford Smith, who spent his career defending prisoners on death row in the US and also in Guantanamo Bay. Both of these individuals really sparked my interest in the law and in human rights law in particular.
Tell me about the Comparative Constitutional Law module you are taking.
I’ve learned about different constitution making processes – including how South Africa’s constitution was created. I’ve learnt about how the executive and the judiciary interact with the constitution, with a particular focus on the role of the courts in interpreting and applying constitutions. I’ve also learnt about the threat to constitutionalism posed by the rise of populism across the globe, and how constitutions function not only as impediments to populism, but also as tools for populists. I’ve also learnt about specific constitutional rights, including reproductive rights, and how they are safeguarded (or not) in different constitutions.
Tell me about the writing sample you submitted.
What do you think this role will involve?
Assisting the Justice to fulfill their responsibilities for example through helping prep for hearings, writing judgments, conducting legal research and writing speeches, as well as more administrative tasks to assist the court in its functioning. I think it will be similar at least in some ways to my role at the ECHR
What do you think are the most important qualities for a clerk to have?
- Clear oral and written communication
- Attention to detail, particularly in legal research tasks
- Openness and willingness to learn and be wrong about things
How do you feel you will contribute to life at the court?
- Hope I would provide valuable assistance to the judge, helping them to manage their caseload and offering a second opinion on the legal issues they are dealing with.
- Want to get involved as much as possible
What do you feel you would gain from this experience?
- Comparative perspective
- Insight into what makes a good advocate
- Insight into judicial reasoning and decision making
- Legal research and drafting skills
Do you have funding secured for this clerkship?
UCL; if not then will try to find independent funding.
Tell me about yourself
- Grew up in Cambridge
- Studied law for my undergrad at the university of Bristol
- Studied in Hong Kong and Budapest during my undergrad
- Then completed the Bar course
- Spent the summer in Alabama working on an anti-death penalty project
- Worked as a paralegal at a law firm in London for a year and a half on claims brought by people in other countries against British multinational corporations, mainly in the extractive industries. Most famous case = shell.
- Then did a 5-month clerkship at the ECHR in Strasbourg working for a judge of the court
- This September started my LLM at University College London, focusing on international and environmental law
Why are you interested in becoming a lawyer?
I think that the law is one of the most powerful tools we have at our disposal to make positive change in society. There’s probably no better example of this than the South African case. Politics is all about compromise and meeting in the middle, whereas as a lawyer you can use the law in an adversarial way to really push for a particular outcome. That really appeals to me, both because I want to make a positive impact on society through my work, and because adversarial advocacy seems like a really exciting way to spend your time.
What are your future career plans and how would this opportunity assist with them?
I hope to practice at the Bar of England and Wales in the field of human rights law. This opportunity would assist with that in several main ways. First, it would be really interesting to gain insight into a different human rights regime to the one applicable in England. The South African bill of rights appears to me to be far more expansive than the European Convention on Human Rights - in particular in providing for justiciable social and economic rights, and the right to a healthy environment. Second, the opportunity to observe South African advocates on their feet would help me to develop my own advocacy style. I understand that there are hearings at the court as often as three times a week - at the ECHR cases were heard on the papers so hearings were much more rare. Third, learning about a different legal systems from judges and clerks with different legal educations to my own would encourage me to think more creatively about the law, which is an essential skill for a barrister.
Example of legal research
ECHR; issues spanning the breadth of the Convention; for example in a case about banning religious symbols in schools in Belgium, I had to research the ECHR’s case law on the compatibility of bans on religious symbols with the Article 9 right to freedom of religion. I used the HUDOC database to identify previous judgments dealing with this issue and considered whether they were applicable to the facts of the case at hand or distinguishable.
Example of teamwork
Leigh Day; preparing evidence to oppose a jurisdiction challenge; team of paralegals, solicitors and the partner; divided the witnesses between us; paralegals took the lead on interviewing them and drafting their statements; solicitors reviewed this and gave feedback; I kept track of all of the statements and reported on progress to the partner; resolved problems together; defendant conceded
Example of drafting
Leigh Day; schedules of information setting out the particulars of the allegations of unlawful violence carried out by a mining company’s security guards and the police against members of the community living nearby to the mine; relatively complex factual background section of a letter of claim detailing the facts supporting a claim against a media company for the death of one of their journalists.
What do you know about the kind of cases we hear?
The constitutional court hears cases involving constitutional issues as well as arguable points of law of general public importance. The kinds of constitutional cases which it hears are disputes about the constitutional status, powers or functions of the organs of state; the constitutionality of Bills; amendments to the Constitution; and parliament and the president’s constitutional obligations. The non-constitutional cases could include any important public issue, for example about taxation.
I understand that cases can get to the court in a number of ways – being appealed from the Supreme Court of Appeal or High Court, by direct application in urgent matters, where a lower court has declared legislation invalid and this needs confirmation, and where Parliament asks the court to review a bill.
What did you do at the ECHR?
I primarily worked for one of the court’s judges, assisting her with the chamber and grand chamber cases she was deciding - so the cases being heard by benches of 7 or 17 judges. I mainly helped with analysis of judgments which had been drafted by other members of the court. I analysed the draft judgments by reading them along with both parties submissions; conducting research into the ECHR’s case law on points of law in relation to the claims’ admissibility and merits; and preparing case notes for the judge setting out the facts of the case, the consistency of the draft judgments with the court’s case law; and making proposals for amendments to the draft judgments. I also advised when I disagreed with the decision and believed that she should dissent. I met with the judge to discuss each case note and defend the arguments I had made. I also helped her with speech writing and drafting an article. Then I also worked in the jurisconsult’s directorate, which is the body which oversees the entire court’s work to ensure consistency in the application of the convention. I assisted with drafting summaries of recently decided case law and preparing thematic case law guides. I also wrote two speeches on judicial communication strategies which the deputy jurisconsult delivered at the Superior Courts’ Network Forum 2024.
