South Africa has disallowed capital punishment for more than a decade, yet violent crime there remains newsworthy even internationally. The crime rate is among the highest in the world. In 2000, a man broke into South African President Thabo Mbeki's house, despite heavy security, and made himself comfortable drinking brandy for several days while Mbeki was out of the country. During my year in South Africa as a Fulbright scholar in 2000, I was told about a man who began a walk across the country to bring national media attention to the high crime rate. Robbers supposedly mugged him on the first day.

Despite evidence that many South Africans favored the death penalty, the new South African Constitutional Court in 1995 ruled the death penalty unconstitutional in State v. Makwanyane & Another (Makwanyane). The Court's president, Arthur Chaskalson, authored the unanimous opinion, though all of the other Justices wrote separate concurrences. The national government supported the challengers because the government was made up of former apartheid opponents who had risked execution. An attorney general (AG) from one of South Africa's provinces defended the law. The decision contrasts sharply with the U.S. Supreme Court's 1976 landmark ruling in Gregg v. Georgia upholding the death penalty's constitutionality.

In 1966, Senator Robert Kennedy travelled to the University of Cape Town in South Africa at the invitation of an anti-apartheid student group. He delivered a speech containing this famous passage:

Senator Kennedy's various South African speeches inspired his audiences because he addressed their subordination. Kennedy even alluded to South Africa one day teaching the world about social progress.

This book has compared one product of the post-apartheid era to which Senator Kennedy alluded, the South African Constitutional Court, with the U.S. Supreme Court. This chapter draws some conclusions regarding the South African cases, predicts what the future holds for the Constitutional Court, and briefly assesses recent U.S. Supreme Court developments.

SOUTH AFRICAN JURISPRUDENCE

The South African Constitutional Court's rulings regarding the death penalty, gay rights, and socioeconomic rights have been transformative.

The Court's gender discrimination and freedom of expression decisions are positive but not as significant. The religion and affirmative action cases have been disappointing.

South Africa is internationally known for its bizarre official position on AIDS. Apparently, former President Thabo Mbeki relied on Internet sites to conclude that HIV did not cause AIDS even though this view conflicts with the world's reputable scientific community. Moreover, his Minister of Health, Dr. Manto Tshabalala-Msimang, arrived at a prestigious 2006 international AIDS conference in Toronto promoting lemon and garlic as an AIDS remedy. These stories would be humorous if the government's slow response to the AIDS crisis had not led to so many deaths.

Among those at risk were the unborn babies of HIV-infected pregnant women. Fortunately, the Treatment Action Campaign (TAC), an AIDS advocacy organization, successfully brought suit claiming that the government must distribute the drug, nevirapine, to these women to block transmission of the virus. TAC relied on the South African Constitution's right to health care.

By contrast, the U.S. Supreme Court has rejected arguments favoring socioeconomic rights though it has read others into the U.S. Constitution, including a right to privacy, marriage, and abortion. The Supreme Court has questioned the feasibility of judicial enforcement of positive obligations and raised separation of powers concerns.

The South African Constitutional Court's approach is generally consistent with the International Covenant on Economic, Social, and Cultural Rights (ICESCR), as well as the approaches taken by a few nations like India. The ICESCR requires governments to affirmatively provide socioeconomic necessities on the theory that liberty presumes subsistence.

Affirmative action based on race is highly controversial both in South Africa and the United States. Moreover the South African Constitutional Court, as shown by its ruling in Hugo (see Chapter 4), analyzes affirmative action differently than does the U.S. Supreme Court. This chapter compares leading racial affirmative action cases from these countries to learn more about their approaches and to assess whether the decisions facilitate social progress.

There are important national differences. For example, South Africa's apartheid ended more recently than American slavery or American segregation, and South African blacks are a political majority. South Africa's recent history of oppression therefore makes it surprising that the country's courts have been tough on affirmative action, requiring that those burdened receive procedural and other protections. The U.S. Supreme Court's decisions in this area are also surprising in that acceptable American plans must support First Amendment values, not equalization. The Supreme Court's recent rejection of public school racial assignments highlights this limitation. Thus, the strong differences in social context do not result in precisely the distinctions in constitutional doctrine that one might expect.

SOUTH AFRICAN JURISPRUDENCE

The Bill of Rights affirmative action provision, section 9(2), reads as follows: