Constitutional Court Review

ISSN: 2073-6215 (Print)
            2521-5183 (Online)
Publication frequency: 1 issue per year

Accredited with the DHET (SAPSE)

This is a fully Open Access journal that only publishes articles Open Access.

Journal articles are available online at Sabinet.

Aims & Scope

The Constitutional Court Review (CCR) is an international journal of record that tracks the work of the Constitutional Court of South Africa. The long essays, replies, articles and case comments use recent decisions to navigate more general currents in the Court’s jurisprudence. The Journal follows a strict double-blind, peer-reviewed editorial process. The CCR invites contributions from outstanding scholars but also considers unsolicited submissions that fit with the aims and scope of the Journal. It is published annually.

Editors

Editor-in-Chief

Stu Woolman – Professor of Law & Elizabeth Bradley Chair of Ethics, Governance and Sustainable Development, University of the Witwatersrand
email: stuart.woolman@wits.ac.za

Managing Editors

Raisa Cachalia – Senior Lecturer, University of Johannesburg
Michael Bishop – Advocate, Cape Bar, Constitutional Litigation Unit of the Legal Resources Centre Associate Editors

Associate Editors

David Bilchitz – Professor of Law & Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), University of Johannesburg
Jason Brickhill - Advocate, Legal Resources Centre & Researcher, Cambridge University
Elmien du Plessis – Associate Professor, University of the North West
Meghan Finn – Advocate, Johannesburg Bar
Lauren Kohn - Senior Lecturer, University of Cape Town.
Andrew Konstant - Researcher, University of Chicago
Karabo Masenyadiloana – Researcher, University of the Witwatersrand
Khomotso Moshikaro – Associate Professor, University of Cape Town
Mispa Roux – Associate Professor, University of Johannesburg
Salim Nakhjavani – Adjunct Professor, University of the Witwatersrand
Nompumelelo Seme – Senior Lecturer, University of the Witwatersrand
Franziska Sucker – Associate Professor, University of the Witwatersrand

Editorial Advisory Board

Laurie Ackermann – Constitutional Court Justice Emeritus, Constitutional Court of South Africa, South Africa
Mary Arden – Justice, Court of Appeal of England & Wales, UK
Danwood Chirwa – Professor, University of Cape Town, South Africa
Sujit Choudhry – Professor, University of California, Berkeley. USA
Christian Courtis – Human Rights Officer, UN Office of the
High Commissioner for Human Rights, Switzerland
Javier Couso – Professor, Universidad Diego Portales, Chile
Charles Fombad – Professor, University of Pretoria, South Africa
Nicole Fritz – Director, Southern African Litigation Centre, South Africa
Karthy Govender – Professor, University of KwaZulu-Natal, South Africa
Michelo Hansungule – Professor, University of Pretoria, South Africa
Karl Klare – Professor, Northeastern University, USA
Heinz Klug – Professor, University of Wisconsin, USA
Sandy Liebenberg – Professor, Stellenbosch University, South Africa
Frank Michelman – Professor, Harvard Law School, USA
John Mubangizi – Professor, University of KwaZulu-Natal, South Africa
Christina Murray – Professor, University of Cape Town, South Africa
Enyinna Nwauche – Professor, Rivers State University, Nigeria
Catherine O’Regan – Constitutional Court Justice Emeritus, Constitutional Court of South Africa, South Africa
Theunis Roux – Professor, University of New South Wales, Australia
Cheryl Saunders – Professor, University of Melbourne, Australia
Dire Tladi – Professor, University of Pretoria, South Africa

Instructions for Authors

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Author FAQ

 

Instructions for Authors

The Constitutional Court Review (CCR) is an international journal of record that tracks the work of the Constitutional Court of South Africa. The long essays, replies, articles and case comments use recent decisions to navigate more general currents in the Court’s jurisprudence. The Journal follows a strict double-blind, peer-reviewed editorial process. The CCR invites contributions from outstanding scholars but also considers unsolicited submissions that fit with the aims and scope of the Journal. It is published annually.

Articles are published Open Access under a Creative Commons Attribution Licence (CC BY).

Editorial policy

Submission of a manuscript implies that the material has not previously been published, nor is being considered for publication elsewhere. Contributions are accepted on the understanding that the authors have the authority for publication. Contributions must conform to the principles outlined in Ethical considerations in research publication. The journal has a policy of anonymous peer review. Authors’ names are withheld from referees, but it is their responsibility to ensure that any identifying material is removed from the manuscript. The Editor reserves the right to revise the final draft of the manuscript to conform to editorial requirements.

Articles accepted for publication will attract an article processing charge (APC) of ZAR 20 000 (excl. VAT). The Journal has an APC waiver policy for authors whose funding arrangements are inadequate to cover the amount of the APC. The APC waiver-policy and procedures for applying for a waiver can be found at . Applications, which are considered on a case-by-case basis, must be made prior to submission via email to . Note that the journal has an annual quota for APC waivers. It may not be possible to accommodate all APC waiver requests made during the year.

Manuscript presentation and submission

Manuscripts should be in English and prepared in MS-Word format. Manuscripts should be emailed to the Editor-in-Chief, Professor Stu Woolman, at stuart.woolman@wits.ac.za.

Submissions should include a title page (as a separate file) with the following information:

  • Title. This should be short and descriptive, bearing in mind the need for discoverability using standard search terms.
  • Abstract of between 200-300 words
  • Keywords (between 4 and 6). These words can be single words or terms (so more than one word). However, phrases tend to be less helpful as search terms in isolating groups of similar articles because the phrases are often unique (to that particular piece). The keywords facilitate discovery of the article and so should be chosen with care. Keywords should not repeat words/terms that are already in the title, since the title will already be parsed by search engines
  • Author details (name and title, institutional or other affiliations(s) and email address) and any acknowledgements (eg, ‘I would like to thank my editors and anonymous reviewers for their helpful comments on this piece’)

The body of the article should be in a separate document. Please remove names and other identifiers to facilitate anonymous peer review. Prepare the manuscript according to the format and style conventions below. Manuscripts that do not conform to the Journal’s style and format conventions may be returned to the author for remedy without further evaluation. In general authors should strive to present their arguments clearly and should avoid repetition and padding. We ask authors to be ruthless with their own prose.

Contribution format and length

As a general rule, the CCR accepts submissions in the following formats:

  • Lead Essays and Responses: Essay length will vary depending upon the nature of the contribution. We have had lead essays that range from 65 to 80 pages. Thus, these lead essays – commissioned as such -- may run over 30 000 words.  Responses to lead essays – commissioned as such – may range from 10 000 to 25 000 words.
  • Articles: Articles, commissioned as such or received by open call, should fall within a range of 12 000 to 25 000 words.  As with all pieces, exceptions can and will be made.
  • Comments: The distinction between articles and case comments can be somewhat artificial.  Case comments will often have a range and depth that outstrip articles (at which point we often call them articles.) However, for pieces that narrow their focus to a single case and its more limited ramifications, we would expect between 6 000 to 10 000 words.

Where exceptions are required, they will be negotiated between editors and authors. Consult recent copies of the journal at for examples of each type of contribution.

Heading levels

LEVEL ONE HEADING: I, II, III,                  (all capitalised)
LEVEL TWO HEADING: A, B, C, D            (bold, small letters (ie not capitalised) with the ‘A’ italicised)
LEVEL THREE HEADING: 1, 2, 3, 4          (italicised, small letters (ie not capitalised) with the ‘1’ not italicised)
LEVEL FOUR HEADING: aa, bb, cc, dd    (plain)
LEVEL FIVE HEADING: i, ii, iii, iv               (italicised, small letters with the ‘i’ not italicised)

Examples:

I               INTRODUCTION
A             Understanding What the Constitution Requires
1              The Meaning of the Right to Vote
aa           Democracy and the Right to Vote
i               South African Cases

Main text

General

The CCR house font style is Garamond size 12. Indented quotations: quotations of more than five lines or that are two sentences long are to be indented and in size 11 font.

Use UK English such as ‘s’ rather than ‘z’ spellings, eg recognise, nationalise.

Numbers from one to ten are spelt out in words unless they refer to section or schedule numbers in statutes.

Dates: 1 January 1999, the 1980s and 1990s (not 1990’s).

Use per cent not % (eg, eight per cent or 38 per cent) where possible.

Case Law

Depending on author preference, it is possible to either include the full case name (excluding the citation) in the main body of the text the first time it is referred to eg Occupiers of 51 Olivia Road Berea Township and 197 Main Street Johannesburg v City of Johannesburg & Others (‘Olivia Road’) or to provide the full case name and citation in a footnote and refer only to the abbreviated case name in the main body of the text eg Olivia Road (see section (e) of Part II below for more detail on using abbreviations).

Statutes

The full name of the statute including its number and year needs to appear in the main text. In other words, do not place the number and year of an Act in a footnote. This can be followed by an abbreviation in brackets, eg Promotion of Administrative Justice Act 3 of 2000 (PAJA) Subsequent references are to ‘PAJA’.

Always use ‘s’ or ‘ss’ (plural) instead of ‘section(s)’ unless it is the beginning of a sentence.

Quotations

Quotations should be clearly indicated by single quotation marks. Double quotation marks may be used only for quotes within quotes. Where a quotation is two sentences long or runs to more than five lines, it has to be indented as a separate paragraph, with a line space above and below, and with no quotation marks or leader dots.  Its type size is also smaller: Garamond 11 as opposed to Garamond 12.  Quotations that stand alone must use square brackets around the first word when it is not the actual beginning of the sentence, preceded by either an em dash or colon.

Abbreviations

Abbreviations may be used for case names, eg (Olivia Road). However, the case name must be set out in full with full double-barreled citation the first time it is referred to, followed by an italicised abbreviation in brackets. If a case is abbreviated in a footnote (rather than in the main text), it is preferable for it to appear at the end of the sentence. The abbreviation can then be used throughout the main text and for cross referencing purposes in footnotes, eg the Court in Olivia Road held or the Olivia Road Court held.

Abbreviated references to legislation can also be used in the body of the text (eg, PAJA, PAIA or the Administrative Justice Act, the Information Act).

Council for Conciliation, Mediation and Arbitration (CCMA) can occur within the text itself.

Abbreviated plurals do not have an apostrophe before the ‘s’: thus, 1970s not 1970’s, MPs not MP’s.

The Constitutional Court is always abbreviated as ‘The Court’ . . . with a capital C. All other courts are referred to as ‘the court’.

Latin abbreviations must not use full stops: eg, ie cf.

Avoiding awkward or archaic turns of phrase

Please avoid polite legal cliches and wasted words such as ‘the learned judge’, ‘the learned author’, ‘with respect’, ‘with the greatest respect’, ‘it is submitted’ or ‘the authors humbly submit’.

Judges can be referred to as Judge or Justice, preferably should be referred to as ‘Smith J’ or ‘Smith JA’ or ‘Smith LJ’. Please avoid formulations such as ‘his Lordship’ or ‘the honourable’.

Please eschew archaic uses of the first person. So, ‘it is my view’ or ‘I argue’ is preferable to ‘it is the view of the present author’, ‘it is this writer’s argument’.  We know it’s your well-grounded belief.

Write in the active voice.  In short, ‘is’ can almost always be eliminated by a dynamic verb often found in adjectival form in the same sentence. 

Footnotes

All articles, notes, comments, book reviews and contributions to the current developments section must make use of footnotes. The CCR does not make use of parenthetical references.

Footnotes are in Garamond font style, size 10.

Citing cases in footnotes

South African cases

Case names:

  • in italics
  • v (for versus)
  • use commas rather than semi-colons between various citations (eg, [2008] ZACC 1, 2008 (3) SA 208 (CC)).

We expect double-barrel citations for all South African cases. In most instances this should mean SAFLII’s (ZACC, ZASCA or, if a High Court, something like ZAKZNHC) followed by Juta’s SALRs (eg, 2008 (3) SA 208 (CC))

Example:

Occupiers of 51 Olivia Road Berea Township and 197 Main Street Johannesburg v City of Johannesburg & Others [2008] ZACC 1, 2008 (3) SA 208 (CC)(‘Olivia Road’).

In the absence of an SALR citation, it is acceptable to use a Butterworths citation:

Example:

Governing Body of the Juma Musjid Primary School & Others v Ahmed Asruff Essay NO & Others [2011] ZACC 13, 2011 (8) BCLR 761 (CC).

However, triple-barrel citations are fine.

Example:

Occupiers of 51 Olivia Road Berea Township and 197Main Street Johannesburg v City of Johannesburg & Others [2008] ZACC 1, 2008 (3) SA 208 (CC), 2008 (5) BCLR 475 (CC).

Cross referencing cases:

  • Olivia Road (note 8 above) at para 45. (Where the case is NOT cited in the immediately preceding footnote).
  • Use Ibid. (Where the case and the paragraph reference (or the page reference in the case of a book or a journal) is the same as that in the immediately preceding footnote).
  • Use Ibid at para 45. (Where the case cited is identical, but the paragraph is not.)

Use paragraphs rather than page references wherever possible. This should always be possible for South African cases in roughly the last decade. All South African Constitutional Court decisions and most Supreme Court of Appeal, Land Claims Court and High Court decisions follow this practice.

Foreign cases

  • Please use US citations rather than S Ct or another citation form.
  • Again, double-barrelled citations are welcome.
  • Try to avoid: Romer v Evans 116 S Ct 1620, 1627 (1996). Please look up the US citation. It is always available online.
  • Avoid using abbreviated names of litigants, ie use Regents of the University of California not Regents of the Univ. of Cal.

Examples:

Eldridge v British Columbia (1997) 151 DLR (4th) 577, 631.

Brandenburg v Ohio 395 US 444, 451 (1969).

Bracketing

We encourage the use of brief parenthetical explanations of case holdings and quotations.

Examples:

S v Makwanyane [1995] ZACC 3, 1995 (3) SA 391 (CC)(Court holds that death penalty constitutes a violation of rights to life and human dignity.)

Wisconsin v Yoder 406 US 205, 123 SCt 456 (1972)(Supreme Court finds that compulsory school attendance for children of Amish religious community impairs right to free exercise of religion under 1st Amendment.)

If you are quoting from a text, then provide both the page number and use quotation marks where appropriate.

Example:

E Mureinik ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 South African Journal of Human Rights 31 (Mureinik argues that: ‘The drafters designed the Bill of Rights, and the Constitution as a whole, to foster a culture of law based upon justification, and no longer on mere authority and coercion.’)

Please use the upper case for the first word inside a bracket (Court holds …) or (Dworkin contends …)

Do not use spaces in between brackets.

Example:

S v Makwanyane [1995] ZACC 3, 1995 (3) SA 391 (CC)[No Space](Court holds that death penalty constitutes a violation of rights to life and human dignity.)

Journal articles

Author’s initial and name, full title in quotation marks, year in parenthesis, volume number, abbreviated name of journal (italicised), first page of article, page referred to. Avoid use of ‘at’ between first page and page referred, ie use 315, 325 not 315 at 325.

Please use the full name of journals and ensure that they have been italicised. The SAJHR should be cited as South African Journal on Human Rights. The Columbia LR should be cited as Columbia Law Review.

Examples:

H Corder ‘Administrative Justice: A Cornerstone of South Africa’s Democracy’ (1998) 14 South African Journal of Human Rights 38, 41.

C Albertyn ‘Women and the Transition to Democracy in South Africa’ 1994 Acta Juridica 39, 45.

C Sunstein ‘Rights and Their Critics’ (1995) 70 Notre Dame Law Review 727.

Books

When citing books give author’s first initial and name, full title (italicised), edition, year, page reference. There is no need to state the place of publication and publisher.

Page numbers should not be preceded by ‘p’ or ‘pp’.

Co-authors must be joined by an ampersand (&) rather than ‘and’.

Example:

DT Zeffertt, A Paises & A Skeen The South African Law of Evidence (4th Ed, 1988) 121.

For subsequent references to this work in a footnote use: Zeffertt, Paises & Skeen (note 8 above) at 125.

Translations should be indicated thus: K Marx Das Capital (1867)(trans J Mander, 1976) 121.

Chapters in books

Author’s initial and name, full title in quotation marks, initial and name of editor(s), full title (italicised), year, first page of article, and specific page referred to in the text (Avoid ‘at’, comma is preferred ie ‘329, 330’ rather use ‘329 at 330’).

Example:

C Cohen ‘Drafting of the United Nations Convention on the Rights of the Child: Challenges and Achievements’ in E Verhellen (ed) Understanding Children’s Rights (1996) 329, 330.

Subsequent references:

  • Ibid at 9‒12.
  • Cohen (note 1 above) at 9‒10.

Statutes

Examples:

Promotion of Administrative Justice Act 3 of 2000 (PAJA)

Local Government: Municipal Finance Management Act 56 of 2003 (MFMA)

Childrens Act 38 of 2005

Subsequent references:

  • PAJA s 6
  • MFMA s 3
  • Childrens Act s 1

Depending on author preference, it is possible to use abbreviations for names of acts in subsequent references. If referring to a specific section use ‘s(s)’ and only ‘section(s)’ at the beginning of sentences.

The Constitution

Constitution of the Republic of South Africa, 1996 (Constitution).

The Interim Constitution requires a footnote. ‘The Interim Constitution has been repealed.’

Thereafter, ‘Constitution’ or ‘Final Constitution’ and ‘Interim Constitution’ may be used in the text and notes.

Subsequent references:

  • Constitution s 181(1)
  • IC s 50

Law Reform Commission papers

Note: The South African Law Commission changed its name to the South African Law Reform Commission in 2002. Pre-2002 publications should use earlier name.

Examples:

SA Law Commission Issue Paper 3 Customary Marriages (August 1996) 34.

SA Law Commission Discussion Paper 76 Conflicts of Law (April 1998).

SA Law Reform Commission Discussion Paper 108 Stalking (November 2004).

Parliamentary debates

NA Debates col 1472 (29 July 1998).

NCOP Debates col 125 (24 February 1999)

Treaties and international instruments

Give ILM reference where available, failing which give UNTS reference or full UN Doc or OAU Doc reference.

Examples:

United Nations Code of Conduct on Transnational Corporations (1984) 23 ILM 626.

General Agreement on Tariffs and Trade, 30 Oct 1947, Protocol Amending the General Agreement to Introduce Part IV on Trade and Development and to Amend Annex I (8 Feb 1965) 572 UNTS 320.

Resolution on an International Development Strategy for the Third UN Development Decade GA Res 35/56, UN Doc A35/56 (1981).

For most well-known multilateral treaties, there’s no need for a bibliographical reference.

Examples:

Universal Declaration of Human Rights (1948)

International Covenant on Civil and Political Rights (1966)

International Covenant on Economic Social and Cultural Rights (1966)

Convention on the Rights of the Child (1989)

Convention on the Elimination of All Forms of Discrimination Against Women (1980)

Newspapers and Internet sources

Newspaper articles and many internet sources can be treated much like other written sources – Author ‘Article Name’ Newspaper/Internet Source (Date), available at http://www.xxx.  It is not necessary to record the date that the site was last visited.

Examples:

M Beckman ‘We’re Edging Closer To Nuclear War: Experts are Worried about India, Pakistan and North Korea’ FiveThirtyEight (May 15, 2017) available at http//:www.fivethirtyeight.com.

S Kaplan ‘CDC Postpones Session Preparing Us for Nuclear War’ The New York Times (12 January 2018) available at http//:www.nytimes.com/2018/01/12 /health/cdc-nuclear-war

Heads of Argument for Plaintiff in Olivia Road (10 January 2010), available at https://www.concourt.gov.za/courtrecords.php?case_id12017.

MORE GENERAL RULES

Eliminate ‘See’ from the beginning of all footnotes

Exceptions to the use of ‘see’.

  • We allow ‘see’ when they are buried in the beginning a footnote.

Example:

For more on the contention that the idea of self-government should be considered to be the core component of a Constitution, even one with a justiciable Bill of Rights, see F Cachalia ‘Separation of Powers, Active Liberty and the Allocation of Public Resources: The E Tolling Case’ (2005) 132 South African Law Journal 285.

  • We allow ‘See also’ after primary citations. 

Example:

H Bhorat, N Buthelezi, I Chipkin, S Duma, L Mondi, C Peter, N Qobo, M Swilling & H Friedenstein Betrayal of the Promise: How South Africa Is Being Stolen (2017). The analysis in this report bears a striking resemblance to Mike Lofgren’s analysis of elite capture and institutional decay in the United States. M Lofgren The Deep State: The Fall of the Constitution and the Rise of a Shadow Government (2016). See also C Olver How to Steal A City: The Battle for Nelson Mandela Bay: An Inside Account (2017).

Use ‘&’ rather than ‘and’

Example:

F Snyckers & J le Roux ‘Criminal Procedure: Rights of Arrested, Detained and Accused Persons’ in S Woolman & M Bishop (eds) Constitutional Law of South Africa (2nd Edition, 2008) Chapter 51, 51-1 – 51-19.

Titles are in first letter caps,

This rule applies no matter whether they are articles, book, newspaper articles or online documents.

S Woolman ‘A Politics of Accountability: How South Africa’s Judicial Recognition of the Binding Legal Effect of the Public Protector’s Recommendations Had a Catalysing Effect that Brought Down a President’ (2018) 8 Constitutional Court Review 155.

S Woolman A Politics of Accountability: How South Africa’s Judicial Recognition of the Binding Legal Effect of the Public Protector’s Recommendations Had a Catalysing Effect that Brought Down a President (2019).

S Woolman ‘A Politics of Accountability: How South Africa’s Judicial Recognition of the Binding Legal Effect of the Public Protector’s Recommendations Had a Catalysing Effect that Brought Down a President’ Mail & Guardian (31 March 2017) 6. 

Black First Land First ‘Return the Stolen Land – That’s the Only Real Solution! Sankara Policy and Political School Submission to the Portfolio Committee of Public Works on Public Hearing on the Expropriation Bill [2015]’ Wordpress (4 August 2015), available at https://black1stland1st.wordpress.com/2015/08/04/return-the-stolen-land-thats-the-only-real-solution-sankara.

On the use of ‘Section’, ‘section’ or ‘s’ with respect to the Constitution.

Always use Section – with a capital S as in ‘Section 25 of the Constitution protects the right to property -- to begin a sentence.

The lower case section is used in other instances.  In FNB, the Constitutional Court provided its first full length analysis of section 25 of the Constitution.

However, it is not necessary to keep repeating ‘section 25 of the Constitution’ throughout the text.  The idea is to make it clear that we are talking about the Constitution, as opposed to another form of law.  However, to repeat ‘section 25 of the Constitution’ each time that it is used would be truly unwieldy, cumbersome and just plain ol’ bad writing. 

In footnotes, the preferred form is Constitution s 25.

Please don’t forget to use ‘at’. 

Example:

AB CC (note 4 above) at para 197.

Some footnotes are complicated. 

We still try to make each component part as simple as style allows.  Some citations warrant a brief description in a parenthetical.  Some require a number of sentences.  Some require only a prior reference (note xx above) and a page number. 

Example:

55 Gerrand (note 52 above) at 142 (Observes that ‘in terms of ancestral beliefs, family systems have rigid boundaries based on blood ties.’) Gerrand’s view is echoed by the KwaZulu-Natal Commissioner for Traditional Leadership Disputes and Crimes, Professor Jabulani Mphalala, who has stated that ‘it would take years before there was a flexibility of mind about adoption among most South Africans. […] Ancestral spirits look after their relatives and no-one else. In our religion, in our culture, this thing is ring-fenced.’ C Dardagan ‘Red-Tape Slowing down Adoptions’ IOL (21 February 2014), available at https://www.iol.co.za/lifestyle/family/parenting/red-tape-slowing-down-adoptions-1650829. See also Mokomane & Rochat (2010)(note 52 above) at ix; Rochat, Mokomane & Mitchell (note 52 above) at 124 (A study participants remarks: ‘When you are born, there are certain things that ancestors require of us. They know who our child is and where he is. Just imagine if you adopt a Biyela child and join the child to the Mthembus. There will be war between the Biyela and Mthembu ancestors, both ancestors will fight over who owns the child.’)

Instructions for Authors

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