Section 167(3) of the Constitution says the Constitutional Court:
- is the highest court in all constitutional matters;
- may decide only constitutional matters and issues connected with decisions on constitutional matters; and
- makes the final decision whether a matter is a constitutional matter or
- whether an issue is connected with a decision on a constitutional matter.
Section 167(4) goes on to give the Constitutional Court exclusive jurisdiction in deciding disputes about the powers and constitutional status of branches of government. Only the Constitutional Court may:
- decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state;
- decide on the constitutionality of any parliamentary or provincial Bill;
- decide on the constitutionality of any amendment to the Constitution; and
- decide that parliament or the president has failed to fulfil a constitutional obligation.
Of course, the duties that fall to the other courts are borne by the Constitutional Court too. All courts in South Africa have to apply the Constitution and the law “without fear, favour or prejudice” – section 165. And section 39(2) of the Bill of Rights makes special mention of the judiciary’s duty in interpreting and developing the law: it has to promote the spirit, purport and objects of the Bill of Rights.
In fact, the Constitutional Court, in the case of Carmichele v Minister of Safety and Security and another, held that the courts are “under a general duty to develop the common law when it deviates from the objectives of the country’s Bill of Rights”.