Glossary of Constitutional Law Terms

Introduction

This glossary provides definitions of key constitutional law terms used in South African legal practice. These terms are essential for understanding constitutional litigation, the Bill of Rights, and the structures of government established by the Constitution.

Key Terms

Justiciability: The capacity of a matter to be decided by a court. A matter is justiciable if it raises a legal dispute capable of judicial resolution. The Constitutional Court has held that most constitutional questions are justiciable, including questions about the exercise of executive power and the progressive realisation of socio-economic rights.

Standing (Locus Standi): The right to appear before a court. Section 38 of the Constitution provides generous standing in constitutional matters, allowing anyone acting in their own interest, on behalf of others, as a member of a class, in the public interest, or as an association to approach a court.

Amicus Curiae: A “friend of the court” who is permitted to make submissions on a legal matter. The Constitutional Court regularly accepts amicus briefs from interested organisations and experts, particularly in cases involving significant public interest.

Constitutional Validity: The question of whether a law or conduct is consistent with the Constitution. A court may declare legislation invalid if it is inconsistent with the Constitution. The declaration may be suspended to allow legislative correction.

Proportionality: The test for determining whether a limitation on a fundamental right is justifiable under section 36. Proportionality requires that the limitation be proportionate to its purpose, considering factors including the nature of the right, the importance of the purpose, and the availability of less restrictive means.

Ripeness: The requirement that a constitutional dispute be sufficiently developed to warrant judicial intervention. Courts may decline to hear matters that are premature or hypothetical.

Mootness: A matter becomes moot when the dispute between the parties has been resolved or no longer exists. Courts may decline to hear moot matters, but the Constitutional Court may hear a moot matter if it raises an important constitutional issue.

Severance: The process by which a court declares only part of a provision invalid while preserving the remainder. Section 172(1)(b) provides that a court may declare invalid “to the extent of the inconsistency.”

Reading In: A remedy where a court reads words into legislation to cure a constitutional defect. This remedy is used sparingly and only where the court can determine with sufficient certainty how Parliament would have remedied the defect.