Heinz Klug, Institutional Resilience: Constitutional Confrontation and Institutional Independence in the Constitutional Court’s First Thirty Years, 15 Const. Ct. Rev. 271 (2025).
While the Constitutional Court has been thrust into the center of major political conflicts over the last thirty years, it has, unlike many other apex courts, avoided political capture and continued to promote ‘transformative constitutionalism’ as the motif of South Africa’s constitutional identity. The formal constitutional guarantees of judicial independence are only part of the explanation of how the Court has managed to protect its institutional position in the democratic era, despite repeated political attacks on its role. This article explores how a theory of institutional resilience may help us understand the means through which the Court has managed to secure its institutional role and independence over its first thirty years, despite the dominance of the party of liberation. To do so, I begin by tracing the relationship between the judiciary, government and ruling party over this period as well as exploring the different institutional, political and biographical sources of its institutional resilience. The article concludes by acknowledging the continued challenges to the Constitutional Court as an institution as well as the institutional resources the Court has to weather its next thirty years.
