Chasing Rainbows: 2005–2020

Abstract

This chapter highlights how the Constitutional Court of South Africa has engaged with the memory of apartheid since 2005. It shows how many of the patterns of earlier years persisted—aggressive invocations of apartheid in cases of criminal law or criminal procedure, or when the political stakes were low, but more reticence when confronting the government or applying socio-economic rights provisions. But there was a definite sea change as the Court increasingly confronted the clientelism, cronyism, and corruption that had become endemic to uninterrupted single-party rule. In 2016, the Court dramatically invoked the memory of apartheid to underwrite its decision requiring President Jacob Zuma and his abettors to repay the millions spent from the public treasury on a “security upgrade” to the president’s private residence in Nkandla. The chapter concludes by noting the problematic relationship between constitutional justice and collective memory, and describing how the Court, although it recognizes the problem, nonetheless remains committed to adjudicating in the present by the light of the past.