‘Constitutional democracies are under stress’

“Today, we speak about judicial leadership in a constitutional democracy – not merely as an academic exercise, but as a matter of practical, national consequence.”

This was the running thread when the chief justice of South Africa’s Constitutional Court, Mandisa Maya, addressed attendees at the 2026 Public Law Conference. The conference was hosted by the University of Cape Town’s (UCT) Faculty of Law, under the theme, “Public Law and the Future of Constitutional Democracy”.

Although she was not physically in the room, Chief Justice Maya’s voice reverberated in the lecture hall as she delivered her address titled “Judicial Leadership in a Constitutional Democracy” – touching on issues like judicial independence and public trust in institutions.

“It is generally expected that there will be moments in the life of a nation when it becomes necessary to pause, take stock, ask and answer honestly whether it is still walking in the direction of its founding values and ideals and if its institutions, including those entrusted with the administration of justice, are performing their function with the fidelity, courage, and the transformative force demanded by its Constitution,” said Maya.

Before her address, speakers reflected on the strength of democratic institutions, the resilience of the rule of law and the role of courts and other public bodies. “There seems to be global pushback based on populism and unilateralism against constitutionalism in many parts of the world,” said Justice Steven Majiedt of the Constitutional Court.

In his welcome address, the dean of the Faculty of Law, Professor Mohamed Paleker, explained the value and thinking behind the country’s Constitution. “The Constitution that emerged was never intended to be merely a legal document; it was conceived as an aspirational project; a commitment to building a society founded on dignity and equality. Thirty years later, our constitutional story has been a complex one; there’s much of which we can be proud of … but there have also been some profound disappointments.”

He made the example of landing at Cape Town International Airport and travelling against the backdrop of both wealth and inequality.

This is not a failure of constitutionalism, he said. “The Constitution established a framework for democratic governance and entrusted the legislature, executive and judiciary distinct responsibilities. When progress has fallen short, it is often people’s institutions and individuals that fail to live up to those responsibilities.”

UCT Vice-Chancellor Professor Mosa Moshabela urged attendees to safeguard laws that protect people in democracies. “When things don’t go wrong, we start taking them for granted until they start going wrong; then we ask why we’ve taken them for granted. We cannot allow our democratic institutions to erode because we will look back, with the generations coming after us, and they will be disappointed in us. My hope is that our democratic institutions grow stronger and [do] not weaken.”

“The tension between judicial independence and accountability is one of the defining challenges of judicial governance in any constitutional democracy.”

Maya added: “The vision we carry for the judicial system of this country, the standards to which we hold ourselves and the choices we make to realise it will determine whether the constitutional project succeeds or falters in our generation. South Africa is a constitutional democracy founded on the recognition that democracy, the rule of law and the respect for human rights and fundamental freedoms are interdependent and mutually reinforcing and the exercise of all public power – legislative, executive, and judicial – is constrained and directed by a supreme constitution.”

Constitutional democracy

She continued: “Section 1 of the Constitution declares that South Africa is founded on, among other values, human dignity, the achievement of equality and the advancement of human rights, non-racialism and non-sexism, the supremacy of the Constitution and the rule of law. These are not mere aspirational sentiments – they are actionable mandates that animate every aspect of the judicial function.”

The judiciary is the institution that gives meaning to the constitutional text and serves as the ultimate guardian of the rule of law. That is what places it at the core of the constitutional democracy.

“The tension between judicial independence and accountability is one of the defining challenges of judicial governance in any constitutional democracy. When a majority of citizens lack confidence in the courts, the constitutional promise of justice cannot be fully redeemed. Public trust is the source of judicial legitimacy. Without legitimacy, judicial authority is ultimately hollow,” Maya said.

“Across the world, constitutional democracies are under stress. The institutions of liberal democracy – free courts, independent media, democratic elections, separation of powers – are all being challenged in ways that would have seemed implausible a generation ago. South Africa is not immune to these global currents. Her own democratic landscape has been shaped and reshaped by the corrosive effects of state capture, by the weakening of legislative oversight, by the abuse of executive power, and by the persistent failure to deliver on the constitutional promises of equality and dignity for all.”

The chief justice concluded: “Democratic resilience – the capacity of a constitutional democracy to withstand and recover from institutional stress – depends, in significant measure, on the quality of judicial leadership.

“I wish to set before you a vision of the judiciary that the Constitution demands, that society deserves, and that we, as judicial leaders, are obliged to foster.

That is a judiciary:

• that is truly independent
• that is accountable
• that reflects the nation it serves
• that is accessible
• that is sensitive to the developments in the society it serves and is efficient
• that is courageous.

“We have to be worthy of the trust that has been placed upon us, lead with intellectual rigour, moral integrity and an unwavering commitment to the constitutional vision of a society in which every person – regardless of race, gender, class, or circumstance – can find justice and foster the judiciary that the Constitution demands and our fellow countrymen and women deserve.”

On the opening night, the audience also heard from Emeritus Professor Hugh Corder, former Constitutional Court Justice Albie Sachs, as well as Deputy Chief Justice Dunstan Mlambo, who participated in the closing session on Saturday, 4 July.