The cases we are examining in this series have been grouped under the collective title “Cases that Shaped South Africa". Click here to view the series index.

The cases selected are completely within our discretion as to their subject-matter and the extent to which they have indeed shaped South Africa.

In our view all the cases have their own merit.

However, there is one case that has to rank head and shoulders above all the rest. It is to that case (which is actually two cases!)** that we turn our attention. And given that the Constitutional Court recently celebrated its 30th “birthday” the timing of this article is particularly apt.

Prof Iain Currie and Adv Johann De Waal (“The Bill of Rights Handbook”, Juta) describe the background to this case in the following terms: 

The Interim Constitution came into force on 27 April 1994. While only the first step in the construction of post-apartheid state, its effect on the South African legal system can justifiably be described as revolutionary...

The primary purpose of The Interim Constitution, the product of the Conference for a Democratic South Africa (CODESA), an unelected gathering of political parties, was to set the procedures for the negotiating and drafting of the Constitution. Whereas the Interim Constitution was not produced by a democratically elected body, the Constitution passed in 1996 was produced by the Constitutional Assembly which took office after the first fully democratic elections held from 26 to 29 April 1994.

The Constitution was, however, itself subjected to an unprecedented and extraordinary judicial review by the Constitutional Court. 

The Constitutional Assembly was the pinnacle of the country’s new democratic institutions, and yet the certification provisions empowered an unelected Constitutional Court to pronounce on the validity of its efforts with reference to a set of principles formulated by unelected negotiators.

The First Certification judgment was delivered in September 1996.

The unanimous decision of the Court commenced its judgment with the following explanation of the process:

The formal purpose of this judgment is to pronounce whether or not the Court certifies that all the provisions of South Africa’s proposed new constitution comply with certain principles contained in the country’s current constitution. But its underlying purpose and scope are much wider. Judicial ‘certification’ of a constitution is unprecedented and the very nature of the undertaking has to be explained. To do that, one must place the undertaking in its proper historical, political and legal context; and in doing so, the essence of the country’s constitutional transition, the respective roles of the political entities involved and the applicable legal principles and terminology must be identified and described. It is also necessary to explain the scope of the Court’s certification task and the effect of this judgment, not only the extent and significance of the Court’s powers, but also their limitations. Only then can one really come to grips with the certification itself.

That is in itself a complex and wide-ranging exercise, dealing with a large number and variety of issues, some interrelated but many not. Virtually all of those issues were raised in written submissions and oral representations received from political parties, special interest groups and members of the public at large. But, as will be shown shortly, the certification task extends beyond considering complaints specifically drawn to the Court’s attention. We certainly derived great benefit from such contributions and wish to express our appreciation to counsel for the Constitutional Assembly and the political parties, to the representatives of other bodies and to the persons who submitted written submissions or oral argument. The thoroughness of their research and the cogency of their arguments greatly eased our task. Ultimately, however, it was our duty to measure each and every provision of the new constitution, viewed both singly and in conjunction with one another, against the stated Constitutional Principles, irrespective of the attitude of any interested party. In what follows we intend not only to record our conclusions regarding that exercise, but to make plain our reasons for each such conclusion.

The Court however took into account that the Constitutional Court could in the future be required to adjudicate a real, concrete dispute regarding the provisions of the Constitution that they were now considering for the abstract purpose of certification. In order to pre-empt decisions in the future, the court endeavoured, where possible to briefly provide reasons for their decisions without saying more than was necessary.

At the end of the day the Constitutional Court declined to certify the text presented to it. In paragraph 482 the Court listed 9 instances where the Constitution failed to comply with the Constitutional Principles, but in paragraph 483 stated:

We wish to conclude this judgment with two observations. The first is to reiterate that the Constitutional Assembly has drafted a constitutional text which complies with the overwhelming majority of the requirements of the Constitutional Principles. 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.

The Constitutional Assembly reconvened and having passed amendments to comply with the decision of the Constitutional Court, resubmitted the amended text for certification.
 
In delivering its judgment on the amended text the Court did point out that it was open to any objector to certification to raise an issue not considered before or to contend that the Constitutional Court erred in certifying a provision which was repeated in the amended text. Indeed that was implicit in the mandate given to the Constitutional Court to measure the Amended Text as a whole against the Constitutional Principles, read both singularly and collectively.

But the Court also pointed out that for a number of reasons, however, the proponent of such a contention had a formidable task, namely:

• the previous certification exercise encompassed very extensive written and oral submissions emanating not only from the political parties represented in the Constitutional Assembly and the Constitutional Assembly itself but also from a broad spectrum of South African society as a whole. Thus, though the Court recognised that despite the comprehensive nature of those submissions some important feature could have been overlooked, the very comprehensive nature of the submissions received, the thoroughness with which they were argued and the Constitutional Court’s earnest endeavour to leave no stone unturned, made such an occurrence unlikely.
• Even if the Court erred in its analysis of an objection and wrongly concluded that a provision of the Constitution to which it was directed did comply with the Constitutional Principles (and admittedly the Court was not infallible) there was a sound jurisprudential basis for the policy that a court should adhere to its previous decisions unless they are shown to be clearly wrong. In addition the virtually identical composition of the Court that considered the same questions barely 3 months previously made that policy even more desirable.
• The Constitutional Assembly had clearly taken account of the judgment of the Constitutional Court in the First Certification case in drafting the Amended Text that was now before the Court;

The Court also re-iterated the statement made at paragraph [27] of the First Certification case:

First and foremost it must be emphasised that the Court has a judicial and not a political mandate. Its function is clearly spelt out in Interim Constitution s 71(2): to certify whether all the provisions of the New Text comply with the Constitutional Principles. That is a judicial function, a legal exercise. Admittedly a constitution, by its very nature, deals with the extent, limitations and exercise of political power as also with the relationship between political entities and with the relationship between the state and persons. But 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, save to the extent that such choices may be relevant either to compliance or non-compliance with the Constitutional Principles. Subject to that qualification, the wisdom or otherwise of any provision of the New Text is not this Court’s business.

So at the second time of asking the Constitutional Court “certified the Constitution” on 4 December 1996.

The Constitution was signed into law by President Nelson Mandela at Sharpeville on 10 December 1996. It came into effect on 4 February 1997.

As foreshadowed above, the Constitutional Court has dealt with a plethora of cases seeking guidance on the application of the Constitution not only in respect of whether legislation enacted by the parliamentary process complies with the Constitution but also in respect of disputes between the citizens and residents of the country (including disputes with authorities).

In the course of this series of articles we intend to highlight some of the more important decisions which the Constitutional Court has handed down, which emphasises even more the manner in which the Certification of the Constitution cases are worthy of the epithet : “Cases that Shaped South Africa”.

**  Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa 1996 (10) BCLR 1253 (CC); 1996 (4) SA 744 (CC); [1996] ZACC 26;  (also known as the “First Certification case”)

and

Certification of the Amended Text of the Constitution of the Republic of South Africa [1996] ZACC 24; 1997(1) BCLR 1; 1997(2) SA 97(CC).

This article forms part of a series on cases that shaped South African law. Click here to view other articles and here to pre-order the book. Should you require any further information or assistance regarding the topics we have covered you can contact us at : legaleagles@srvalley.co.za 

Graeme Fraser (BA LLB LLM HDip Tax) and Veldra Fraser are corporate and commercial law consultants who operate under the Company Law Today brand (www.companylawtoday.co.za). We have a passionate interest in legal writing and in particular the collection of cases from South Africa and other jurisdictions. We have co-authored, self-published and marketed over 23 books since 2010 (and there are more in the pipeline. Graeme also wrote "Summit Vision" an account of the lessons he learned creating co-ordinating and completing the Millennium Big 5 Challenge in the year 2000 : Dusi Canoe Marathon, Midmar Mile Swim, Cape Argus Cycle, Comrades and an ascent to Uhuru Peak on Mt Kilimanjaro.