The law, a powerful force for social justice and human dignity

Since 2009, the dates closest to the death anniversary of Archbishop Denis Hurley (13 Feb 2004) have been marked as a 'Hurley Weekend'.

On Saturday, at the annual stakeholders meeting held at the Denis Hurley centre, patron Constitutional Court Judge Leona Theron, reflected on how effectively the law protects the most vulnerable in modern-day South Africa.

This is an extract from Judge Theron’s speech

The South African Constitution holds immense importance in our country as it serves as the supreme law and the foundation of the nation’s governance, rights and values. The 1996 Constitution, adopted post-apartheid, laid the groundwork for a democratic society founded on principles of equality, human dignity, and freedom. It contains a Bill of Rights aimed at protecting the inherent dignity and worth of every person, regardless of their background, race, gender, religion, sexual orientation or social status. The Constitution is a landmark document that acts as a bridge between a tumultuous past and a hopeful future. It is a symbol of the nation’s commitment to building a united and inclusive society based on our founding values of dignity, equality and freedom. It is a transformative document, providing a conduit for the continued and ongoing project of democracy and equality in South Africa. The Constitution is a living, breathing testament to the aspirations of our diverse and vibrant nation.

The Enduring Strength of the Constitution: Nearly 30 Years On

Our Constitution has been described as a bridge from an authoritarian past to a democratic future. At one level, our Constitution aims at undoing the multifaceted injustices imposed by four centuries of colonial and apartheid rule. And, on another level, our Constitution aims at building a new and better society for the future of South Africa.

It is one of the first constitutions in the world to enshrine socio-economic rights. Our Constitution acknowledges that without food, water, shelter, health care, education and social security, a human being’s dignity, equality and freedom are compromised. They are therefore unable to participate as equals in our new democracy.

The framework for constitutional democracy in South Africa assigns to the courts a pivotal role in ensuring effective protection and translation of socio-economic rights into material entitlements. This has enabled the courts in some instances to exercise considerable authority in holding the government to account, in order to ensure that socio-economic rights are fully realised.

The South African Constitution has achieved significant successes in promoting human rights, equality, and justice. It has established a robust framework for the protection of individual rights and freedoms, leading to a more inclusive society. Landmark cases, such as S v Makwanyane (1995), which abolished the death penalty, and Minister of Health and Others v Treatment Action Campaign (2002), which reinforced the right to healthcare, exemplify the Constitution's role in advancing social justice and holding the state accountable. These successes illustrate the Constitution's vital role in shaping a democratic society grounded in the rule of law.

Fulfilling the Promise of Equality Before the Law for All in South Africa

The First Decade of South Africa’s constitutional democracy was a phase of foundations of justice and transformation. The period from 1994 to 2004 was a defining era in South Africa’s transition from apartheid to constitutional democracy. This decade laid the foundation for a new legal order rooted in human rights, equality, and the rule of law. Central to this transformation was the Constitutional Court, established as the ultimate guardian of the Constitution, tasked with shaping jurisprudence and ensuring the protection of fundamental rights.

Through landmark rulings such as S v Makwanyane (abolishing the death penalty), Soobramoney (defining the scope of socio-economic rights), Treatment Action Campaign (affirming the state’s duty to provide life-saving HIV/AIDS treatment), National Coalition for Gay and Lesbian Equality (advancing LGBTQ+ rights), and S v Zuma (upholding fair trial rights), the Court reinforced constitutional principles and addressed critical socio-political issues. These cases not only provided legal clarity but also affirmed the judiciary’s role in dismantling apartheid-era injustices and advancing social justice.

Beyond individual rulings, the first decade of democracy established key constitutional doctrines that continue to shape South African law. The judiciary grappled with complex questions around socio-economic rights, the limits of executive power, and the principles of equality and dignity. By rigorously interpreting the Constitution, the Court set a precedent for an independent and activist judiciary—one that would remain a crucial check on state power in the years to come. As the nation entered its second decade of democracy (2004–2014), new challenges emerged, including economic inequality, rising corruption, and growing public dissatisfaction with governance. The Constitutional Court continued to play a central role, delivering judgments that reinforced accountability and social justice. However, its expanding influence also sparked debates about judicial overreach, particularly in cases like Glenister, where the Court’s firm stance on anti-corruption measures was perceived as a challenge to the executive.

Despite these tensions, the judiciary remained a pillar of democratic governance, navigating political pressures while ensuring that constitutional values remained at the heart of South Africa’s evolving democracy. The Court’s commitment to human rights and justice, particularly in its approach to socio-economic rights and access to justice, has reinforced its legitimacy as an institution that safeguards both the Constitution and the rights of the most vulnerable. As South Africa continues to confront complex social and political challenges, the Constitutional Court’s role remains indispensable in shaping the nation’s democratic trajectory. The first decade of democracy was not merely a period of legal transformation, it was the bedrock upon which South Africa’s constitutional future was built.

During the second decade of democracy (2004–2014), the Constitutional Court also reinforced equality and non-discrimination in cases involving race, gender, and culture. In Pillay v MEC for Education, KZN, a public school prohibited Sunali Pillay from wearing a nose stud, an expression of her cultural and religious identity. Her mother challenged the rule, arguing it unfairly discriminated against her daughter. The Court ruled that the school’s failure to provide reasonable accommodation violated cultural and religious rights. It held that schools must balance discipline with respect for individual identity, ensuring that cultural expression is protected without disrupting educational objectives. This judgment established a crucial precedent for reasonable accommodation in South African law, reinforcing the protection of dignity, diversity, and freedom of expression.

These landmark rulings underscore the Constitutional Court’s pivotal role in shaping a more just and inclusive South Africa. By striking down discriminatory practices and affirming the rights to equality, dignity, and cultural expression, the Court has reinforced the Constitution’s promise of a society where no one is excluded based on gender, culture, or belief. However, legal victories alone are not enough, true transformation requires ongoing commitment from communities, institutions, and individuals to uphold these principles in everyday life. As South Africa continues to evolve, these cases serve as a reminder that the law is not just a tool for governance but a powerful force for social justice and human dignity.

The Koevoet Trial and Paddy’s Detention: A Pursuit of Justice

The Koevoet trial against Denis Hurley was a dramatic and controversial case that ultimately collapsed when the State dropped its charges at the last minute. Archbishop Denis Hurley, a towering figure in the anti-apartheid struggle, had been accused of defamation for exposing the brutal atrocities committed by Koevoet, the apartheid regime’s notorious paramilitary unit operating in Namibia. Koevoet was infamous for its ruthless counterinsurgency tactics, including extrajudicial killings, torture, and widespread human rights abuses.

The trial was set to be a high-stakes confrontation between state power and moral truth, with Hurley refusing to be silenced in his condemnation of the regime’s brutality. However, as the case gained international attention and the evidence against Koevoet's operations mounted, the State abruptly withdrew the charges, an implicit admission that prosecuting Hurley would only further expose the regime’s crimes. The case’s collapse was more than just a legal victory for Hurley; it was a moral indictment of a system desperate to suppress the truth, proving that justice, even when delayed, cannot be erased.

Paddy Kearney’s detention was a chilling reminder of the apartheid regime’s ruthless grip on those who dared to stand for justice. A close ally of Archbishop Denis Hurley and a committed activist, Kearney was a relentless advocate for the oppressed, using his voice to expose the brutality of the state. His detention, carried out under apartheid’s draconian security laws, was an attempt to silence him, to break the spirit of a man who refused to look away from the suffering inflicted by a system built on injustice.

Yet, instead of crushing his resolve, his imprisonment only strengthened the cause he fought for. Kearney’s detention became a symbol of the regime’s desperation, proving that even in its final years, apartheid feared the power of truth. His resilience, and the outcry that followed his arrest, was a testament to the unbreakable will of those who believed in a South Africa where justice would one day prevail.

The post-apartheid legal order, embodied in the Constitution of the Republic of South Africa, 1996, is founded on the very principles that Hurley and Kearney championed human dignity, equality, and freedom. Section 16 of the Constitution guarantees the right to freedom of expression, including the right to receive and impart information, ensuring that no government can again suppress the truth through legal persecution. Similarly, Section 12 protects individuals from arbitrary detention, reflecting the rejection of apartheid-era security laws that were used to detain activists without trial.

These constitutional safeguards represent a decisive break from the past, ensuring that state power is subject to the rule of law and fundamental human rights. The commitment to transparency and accountability, reinforced by institutions such as the South African Human Rights Commission and the judiciary, is a direct repudiation of the secrecy and impunity that defined the apartheid state. The failures of the Koevoet trial and the wrongful imprisonment of activists like Kearney serve as historical reminders of why the Bill of Rights remains a cornerstone of democracy in South Africa. By protecting freedoms once criminalized under apartheid, the Constitution not only honors the sacrifices of Hurley, Kearney, and countless others but also guarantees that no citizen will ever again face persecution for speaking truth to power.

SUNDAY TRIBUNE