Justice Leona Theron Reflects on 30 Years of Democracy in South Africa at Notre Dame Law School | News | The Law School

Justice Leona Theron gestures while presenting to a classroom audience. A presentation titled "New Nation Movement Care Overview" is partially visible on a screen on the wooden podium. A webcam on a tripod is also attached to the podium, likely recording the presentation. Students sit at desks in the tiered classroom behind the podium.

On January 16, Notre Dame Law School hosted the lecture, "30 Years of Democracy in South Africa," led by Justice Leona Theron of the Constitutional Court of South Africa. Justice Theron reflected on her country’s democratic legacy, exploring key questions inspired by South Africa’s Constitution and asking not only “What has South Africa accomplished?” but also “What has yet to be done?”

An inspiring individual, Justice Theron has served over three decades in the legal discipline, having first begun practicing at the Bar in the Kwazulu-Natal Province of South Africa before gradually transitioning into civil work. She was at the forefront of South Africa’s transition into a post-apartheid state, receiving appointment from President Nelson Mandela himself in 1995 to the Judge White Commission, where she helped prepare the administration of previously-segregated territories to transition into a single, unified South African civil service.

Her formal career as a court judge began in 1999, when she was appointed as Judge to the Kwazulu-Natal Division of the High Court. In addition to being the youngest judge in South Africa at her time of appointment, Justice Theron was the first Black woman to serve as Judge in the Kwazulu-Natal Court. She rose through the courts after that, receiving appointment first to the Supreme Court of Appeal of South Africa in 2010, and then to the Constitutional Court in 2017.

A woman with long, black, loc'd hair pulled back in a ponytail gestures with her hands as she speaks to an audience in a lecture hall. She wears a floral-patterned shirt and clear-framed glasses. Her hands, with dark red nail polish, are expressive as she makes a point. In the foreground, a partially folded laptop, a water bottle, and headphones sit on a table. Blurred in the background, other attendees listen, some with catered lunch bags in front of them.

During her lecture, Justice Theron examined the impact, successes, and shortcomings of South Africa’s Constitution. Her country’s Constitution is widely recognized as one of the most progressive in the world, due to the comprehensive rights and protections it guarantees. The country’s Constitutional Court is also recognized as one of the most comparative globally, in its application of both international and foreign law to interpret people’s rights.

“The Constitution guarantees that we will never go back to apartheid,” said Justice Theron. “The Constitution is the most supreme law in South Africa. It is the highest law. If any law is contrary to the Constitution, then the Constitutional Court has a duty to strike down that law.”

She added, “South Africa’s Constitution has been lauded as one of the best in the world, but a large part of our country still lives in poverty. People bring cases to the Constitutional Court, saying that they are not afforded the right to life and right to medical care. The Constitutional Court says, ‘Yes, you have the right, but the right has to be realized within reasonable resources.’ So, is the policy of the government reasonable? Is the government doing the best it can?”

Justice Theron presented various case studies on a range of rights, including the right to life (S v. Makwanyane), right to cultural expression (Pillay v. MEC for Education), LGBTQIA+ rights (Satchwell v. President of the Republic of South Africa), and the right to equality under the law (Economic Freedom Fighters v. Speaker of the National Assembly). For each case, she explained the facts, Court ruling, and significance, highlighting the challenges raised, lessons learned, and their connection to human dignity and social progress. For example, the challenges that arose in Pillay implicated the issue of the protection of cultural expression in the education system. In Satchwell, the Court ruled that the exclusion of same-sex partners from pension benefits violated equality and dignity rights, thus strengthening LGBTQIA+ rights in South Africa. The case Economic Freedom Fighters concluded that no person, regardless of their position or status, is above the law and that everyone is subject to the same legal standards and accountability, including the president. The case reinforces the constitutional principle of equality before the law and underscores the importance of transparency, accountability, and the rule of law in a democratic society.

“The right to equality is one of the cornerstones of democracy,” said Justice Theron. “The right to equality, the right to freedom, and the right to dignity are fundamental rights in our Constitution. And because they are fundamental, we don’t allow invasion or intrusion of those rights.”

She emphasized the delicate balance between free speech and the need to protect marginalized communities, stating, “The right to equality, right to dignity, and right to free speech can be limited if it is justified and reasonable.”

At the end of her lecture, Justice Theron summarized the past 30 years in South Africa, noting that the first decade was characterized by addressing socioeconomic issues, the second decade focused on curbing government power, and the third decade was marked by heightened cases involving accountability, corruption, fraud, separation of powers, and increased tension between the government and the Court.

“The Court has done its best, but to make any country work, it’s not just the Court. It’s the Court, the people, the Parliament, and the government,” she said. “I think we all need to do better. We have to safeguard the rule of law to continue advancing democracy in South Africa.”

Below are reflections from a few event attendees who found Justice Theron’s lecture insightful and promising.

Professor Christine Venter from South Africa, Director, Legal Writing Program:

“I was struck by the Justice describing the Court's role as one of advancing democracy and forging a break with the past injustices of the apartheid system. To do that, the Court has also had to address socio-economic rights, as well as civil and political ones.

“I was also struck by the fact that the Justice acknowledged the limitations of the Court's role in compelling a government with limited resources to provide health care to people, despite the Constitution guaranteeing the right to health.”

Mbonisi Malinga Ndhlovu from Zimbabwe, LL.M. Student:

“My biggest takeaway from the Judge’s talk was the fact that the freedom of expression is not absolute in South Africa. The Court has the power to limit the freedom of expression if its purpose is to violate the rights of others, especially marginalized groups.”

Tshegofatso Mothapo from South Africa, LL.M. Student:

“As an LL.M. student at Notre Dame who has also clerked at the Constitutional Court, having Justice Theron at Notre Dame is heartwarming. Her lunch-and-learn gave me an opportunity to reminisce on some of the landmark cases of the Constitutional Court. As a Black woman, I am grateful to have had the opportunity to be a part of those building blocks. Justice Theron's talk made me nostalgic!”

Watch her remarks here: