Testing the
Constitution in Court
According to the Interim Constitution, the new Constitution would not be “of any force and effect unless the Constitutional Court has certified that all the provisions of such text comply with the Constitutional Principles.” It was now up to this new Court – which had only been sitting for just over a year – to decide if the draft did indeed comply with the 34 Principles that had been hammered out by the political parties in the heat of the negotiations and set out in the Interim Constitution of 1993. The Court emphasised from the outset that it had a judicial and not a political mandate in the certification case. Even though a constitution by its very nature, dealt with political power, this was a legal exercise as the judgment outlines:
This Court has no power, no mandate, and no right to express any view on the political choices made by the Constitutional Assembly in drafting the new text (NT) … the wisdom or otherwise of any provision of the NT is not this Court’s business … Nor do we have any power to comment upon the methodology of the Constitutional Assembly.
From the Certification Judgment
October 1996
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A Difficult Mandate
Although the Court’s mandate was clear, the case was still a difficult one. The judges described the Principles as ‘broad constitutional strokes’ that could not be interpreted with ‘technical rigidity’. Given that each principle was capable of being complied with in more than one way, how was the Court going to respond to competing interpretations that all complied with the Constitutional Principles?
Judicial certification of a constitution is unprecedented. It is a totally unique undertaking. I don’t know of any other court in the world that has ever undertaken the task to determine if a constitution was constitutional.
Justice Arthur Chaskalson
then President of the Constitutional Court
The question was not whether a particular provision would be desirable or effective. This was the key question for the Constitutional Assembly. It was whether the provision complied with the 34 Constitutional Principles … Judicial adjudication is different from politics – the process is different, the considerations at play often differ and crucially a judge must give reasons for his or her decision. One of the challenges for the judiciary is to demonstrate to citizens that the judicial process is not the same as the political process and build confidence in the judicial process through example.
Justice Kate O’Regan
The Constitutional Principles are the lights of the runway within which you operate the plane. You can choose the speed and the angle, but it must be between its lights.
Justice Ismael Mahomed
then Deputy President of the Constitutional Court
The stakes were high. There were many decisions to be made. What would happen if the unelected body of judges overturned the decisions of the elected representatives of the people who wrote the Constitution? Would the Court be accused of being ‘counter majoritarian’ and would this lead to public rejection of the judgment? Would the highest Court in the land lose its legitimacy as an institution at the very outset of its life? Would all the hard work and delicate negotiations be derailed if South Africa’s first democratic Constitution wasn’t certified? What would happen if the CA, or other individual parties chose to ignore the Court’s decision? By this time, the National Party (NP) had in fact left the Government of National Unity to establish itself as the opposition party. If the NP now reneged on agreements as a result of the new parliamentary landscape, could it bring South Africa’s miraculous peaceful settlement to a premature demise? Would this in turn spark a constitutional crisis in the country?
It was extremely tense because all of these decisions, such as … ‘How difficult should amending the Constitution be? Do we allow the majority in Parliament next year or the year after when they feel like it to change the Constitution? How difficult must we make it? How deeply must you entrench some provisions or all provisions? Should some be more sacrosanct than others?’ If you make it too difficult to amend the Constitution you run the risk that the Constitution will be broken if it can’t bend, if it can’t be amended it will be chucked out, a political reality that you have to bear in mind in an emergent democracy, in any emergent democracy let alone one built on such bloodied ground as ours.
Justice Johann Kriegler
Most importantly, once the Court had certified the text, the matter of compliance or non-compliance with the Constitutional Principles could never be raised again in any court of law, including the Constitutional Court. This cast an increased burden on the Court in deciding on certification. “Should we subsequently decide that we erred in certifying we would be powerless to correct the mistake, however manifest,” declared the Court.
The certification case was by far the most difficult case of them all because we were literally laying the foundation for all generations to come. If we made a mistake, there was no way it could be corrected later. What we said about the Constitutional Principles would be buried and they would have never ever be revived. So it was speaking once and speaking only once and for eternity was a very, very difficult and very onerous and ominous job.
Justice Johann Kriegler
In trying to grapple with these questions, the Court had to acknowledge that it was itself a brand-new institution. It was still in the process of establishing its own legitimacy and credibility while also having to ensure the Constitution’s credibility. The judges should not be seen to align themselves with the ruling party in any way. It had to be the people’s Constitution, supported by the ANC but not the ANC’s Constitution. It had to create a methodology to deal with a multitude of legal questions, many raising profound philosophical and jurisprudential issues, and do so decisively and convincingly in a short period of time. In effect, it had to establish an encyclopedia of constitutional law applied to South African circumstances. For the members of the Constitutional Assembly who had spent two years drafting the Constitution, the moment of handing the draft text to the Court was equally charged.
For those of us who were involved, this was the endorsement that I think we yearned for. After certification, no one could ever turn around and say, ‘They wrote the Constitution and that was their own doing’. I wanted an independent source to say, ‘We declare that you are healthy and it’s a great Constitution. Let it be released to the people of this country’.
You can’t write your own birth certificate. Somebody had to sign it. For me, that was the moment.
Cyril Ramaphosa
then Chair of the Constitutional Assembly
The Certification Process
The case was set to last for ten days, longer than any other matter that would come before the Court. The hearing had to traverse a wide range of issues from provisions in the Bill of Rights, to language rights, the allocation of power between national and provincial governments and the rights of traditional leaders.
