The Importance of Process and Substance

Abstract

The Constitution of the Republic of South Africa, 1996 endeavours to reverse the legacy of apartheid. In the process, the judgments of the Constitutional Court have restored and extended many of the fundamentals of fairness and due process that had been trampled on by the apartheid state. This article highlights the important role that Justice Ngcobo’s judgments have played (and continue to play) in our developing jurisprudence on procedural fairness. As it will be demonstrated, the Constitutional Court has begun to work out a home-grown account of due process that not only marks a stark break with our apartheid past, but which also highlights the contextual challenges and features of our new democratic order—and stresses the sometimes—difficult balancing exercise required by our courts in protecting rights while respecting separation of powers. This article, therefore, pays tribute to Justice Ngcobo’s careful thinking around due process, and his insistence through various important judgments on recognising three cardinal features of fairness, which have now come to resonate in the Constitutional Court’s jurisprudence.