The Court's Decision
6 September 1996
Justice Kriegler, President Chaskalson and Justice Sachs in the Constitutional Court. Gallo Images / Robbie Schneider
The Court’s judgment held that although the overwhelming majority of the clauses complied with the Constitutional Principles, there were nine instances where this was not the case. These ranged from failure of the Constitution to sufficiently spell out local government powers to the failure of the text to comply with the provisions that shield an ordinary state from constitutional review. The Court held that the ‘judge-proof’ clauses relating to the Labour Amendment Act defied the principle that the Court was the supreme law of the land. They objected to procedures for the appointment and removal of the Public Protector, the Auditor-General and the Public Service Commission. The Court was also dissatisfied with the majorities required for amending the Constitution and certain sections of the Bill of Rights as well as with the emergency provisions.
The most contentious issue of all related to a provision introduced at the last minute into the Interim Constitution to bring the Inkatha Freedom Party into the 1994 election. It provided that the final Constitution should not substantially reduce the powers given to the provinces by the Interim Constitution. About 175 paragraphs of 484 paragraphs were devoted to it. The Court concluded that provincial powers had been substantially reduced in the text of the final 1996 Constitution on the matters of provincial police powers, tertiary education, local government and traditional leadership. It deemed however, that these were no sufficient grounds to refuse certification. But the judges found that the “override” clause – which allowed national legislation to prevail over provincial legislation – than was possible under the Interim Constitution infringed Constitutional Principle XVIII.2.
A crucial and politically very sensitive issue was around the Constitutional Principle 18 which said that the powers of the provinces should not be less in the final Constitution than they are in the Interim Constitution, a broad, vague statement the content of which is perfectly clear but how you apply it is very, very difficult because there are many provisions relating to provincial powers and national powers and the interaction between them.
We ultimately came to the conclusion that you cannot compare each item of power in each of the two documents, in the Interim Constitution and the final Constitution. We used the image of a basket to demonstrate how to do it – this is the basket under the interim Constitution of provincial powers, this is the basket under the final Constitution, is this final basket commensurate with or larger than the one under the Interim Constitution. We came to a conclusion that the powers were indeed less and that the Constitutional Assembly in reality had listened more to the ANC than to the IFP.
Justice Johann Kriegler
The judgment was set out in well composed, detailed but for some, quite bland legalese. There were two points in which the judgment was seen to depart from this tone. The first was in a section that strongly scolded the state of emergency provisions even though this was not directly related to their task at hand. It was the only time the judgment was seen to have resorted to emotive language. The other was in relation to the prickly question of provincial powers.
These issues of non-compliance that were identified were of sufficient importance for the text to be sent back to the Constitutional Assembly.
We are unable to and therefore do not certify that all of the provisions of the Constitution of the Republic of South Africa, 1996 comply with the Constitutional Principles contained in schedule 4 to the Constitution of the Republic of South Africa Act 200 of 1993.
One must focus on the wood, not the trees. The new text represents a monumental achievement. Constitution making is a difficult task. Drafting a Constitution for SA, with its many unique features, is all the more difficult. Having in addition to measure up to a set of predetermined requirements greatly complicates the exercise. Yet in general and in respect of the overwhelming majority of its provisions, the Constitutional Assembly has attained that goal.
We wish to conclude this judgment with two observations. The first is to reiterate that the CA has drafted a constitutional text which complies with the overwhelming majority of the requirements of the CPs. The second is that the instances of non-compliance which we have listed in the preceding paragraph, although singly and collectively important, should present no significant obstacle to the formulation of a text which complies fully with those requirements.
From the Certification Judgment, 1996
Responses
The Constitutional Court’s decision not to certify the Constitution in this first round was heralded as a very important milestone in the country’s development as a constitutional democracy.
Constitutional adjudication was established as an effective partner in the transformation envisioned by the Constitution in our new democracy.
Justice Arthur Chaskalson
then President of the Constitutional Court
We issued a two-hundred-page judgment and because were we unanimous we decided it was important for the people of South Africa to know that this was a unanimous judgment. So we said we would issue it in the name of the court and not in the name of Chaskalson, Goldstone or Ackerman or anybody else but it should go in the name of the court to indicate the unanimity.
Justice Richard Goldstone
For me, I felt totally vindicated, because we didn’t achieve a 50% pass rate or even 60 or 70%. We actually achieved a 95% pass rate. I’m an eternal optimist. They said, ‘These are the issues that you go and re-do’ … and even as we went back to the Constitutional Assembly, we were walking on air. Like, you know, ‘Guys, we’ve done extremely well. This is all that we need to do and finalise’ and bingo! We knew it would be 100%.
Cyril Ramaphosa
then Chair of the Constitutional Assembly
It would have actually been a miracle if we had managed to negotiate a Constitution with something like 250 sections which had to comply with 34 vaguely worded Constitutional Principles first time round to get it through. A lot of those principles did not have any fixed objective meanings. It was not as if you could read it and then just check the Constitution for compliance because it also depended on what the Court made of those Principles, of what meaning it gave to those Principles. In the bigger scheme of things, it was remarkable. The Court could also isolate the defects to make it reasonably doable for the Constitutional Assembly to fix the problems.
Constitutional Assembly’s legal team
A strong theme emerges – that the judges will defend the values of constitutionalism and the mechanisms intended to safeguard them, against invasion from any quarter. And, as they did in the case of the ‘invidious and arbitrary’ emergency provisions, they will speak up even if to do so goes beyond the task at hand.
Carmel Rickard
journalist
My lasting impressions are how remarkably smoothly this process had run. This was a culmination of a process that started in the late 1980s, through to the negotiations that worked, the elections that worked, the inauguration that worked and the rugby that worked. There was that kind of feeling that everyone was part of a collective trying to get a job done. There were differences of opinion, differences of approach but my prevailing impression was, ‘Hell, this is going well’.
