Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996

Under the interim Constitution (IC), the Constitutional Assembly (CA) was required to draft a new constitutional text that complied with 34 Constitutional Principles (CPs) set out in Schedule 4 of the IC. The Constitutional Court had previously declined to certify the New Text (NT) adopted in May 1996, identifying specific non-compliances with the CPs. The CA reconvened and passed an Amended Text (AT) on 11 October 1996, addressing the grounds for non-certification and making numerous other changes. The AT was transmitted to the Constitutional Court for certification. Objections were raised by the Democratic Party (DP), Inkatha Freedom Party (IFP), KwaZulu-Natal Province (KZN), and various private individuals and interest groups, primarily concerning the Bill of Rights, amendment procedures, local government provisions, provincial powers, and various state institutions.

• Whether the AT complies with CP II regarding entrenchment of fundamental rights
• Whether the AT complies with CP XV regarding special procedures and majorities for constitutional amendments
• Whether the AT complies with CP XXIV regarding a framework for local government structures
• Whether the AT complies with CP XXIX regarding independence of the Public Service Commission
• Whether the AT complies with CP XVIII.2 regarding provincial powers and functions being substantially less than or inferior to those in the IC
• Whether various provisions concerning states of emergency, national defence, intervention powers, traditional monarchs, and other matters comply with relevant CPs
• Whether the right to occupational choice should extend to non-citizens under CP II
• Whether the table of non-derogable rights during emergencies complies with CP II

The Constitutional Court certified that all provisions of the Amended Text of the Constitution of the Republic of South Africa, 1996, passed by the Constitutional Assembly on 11 October 1996, comply with the Constitutional Principles contained in Schedule 4 to the Constitution of the Republic of South Africa Act 200 of 1993.

The binding legal principles established include: (1) CP XV requires special majorities that are higher than ordinary legislative majorities (simple majority of quorum), not necessarily higher than all special majorities for any legislation; (2) CP II requires entrenchment of the Bill of Rights beyond ordinary constitutional provisions, satisfied by requiring both two-thirds NA support and six provinces in NCOP, which cannot be amended without the latter; (3) CP XVIII.2 requires provincial powers not be substantially less than or substantially inferior to those in the IC, requiring a holistic comparison considering all relevant provisions in context; (4) The test for national override of provincial legislation under section 146 must be objectively justiciable, with courts giving only due regard (not presumptive weight) to NCOP approval; (5) A framework for local government structures under CP XXIV requires identification of categories of municipalities, how executives are appointed, how decisions are made, and formal legislative procedures, but not detailed specification of all municipal types; (6) Transitional provisions that temporarily preserve existing legislation while allowing orderly transition to a new constitutional order do not violate constitutional supremacy if the preserved legislation remains subject to constitutional review and consistency requirements; (7) International human rights instruments do not establish a universal right to occupational choice for non-citizens that must be included under CP II; (8) The independence of institutions under CP XXIX must be assessed according to their specific functions, with different protections appropriate for different institutions.

The Court made several non-binding observations: (1) It would have been desirable for the provision requiring six provinces' consent for Bill of Rights amendments to be even more securely entrenched, though this was not necessary for compliance; (2) The table of non-derogable rights during emergencies, while meeting CP requirements, could have been compiled more rationally and thoughtfully, with certain exclusions lacking clear justification; (3) The shift from provincial service commissions to a single Public Service Commission with provincial representation involves trade-offs that are difficult to measure precisely; (4) The nature and extent of powers that provincial commissioners may exercise under section 196(13) remains unclear and dependent on future legislation; (5) Courts will have the duty to ensure full protection of rights during any state of emergency, and no hierarchical distinction should be drawn between rights based on their inclusion or exclusion from the non-derogable list outside emergency contexts; (6) The express requirement to have "due regard" to NCOP decisions in section 146(4) may simply codify what courts would have considered anyway; (7) The CA conscientiously addressed the shortcomings identified in the first certification judgment and made a concerted effort to rectify them; (8) Whether courts can review findings by legislative committees regarding grounds for removing commissioners is left undecided.

This judgment completed the historic constitution-making process initiated by the negotiated transition to democracy in South Africa. It represents the birth of South Africa's final Constitution, which came into force on 4 February 1997 (except for certain provisions). The judgment is significant for: (1) Establishing the methodology for certification of constitutional texts against foundational principles; (2) Defining the scope of provincial autonomy and the federal-unitary balance in the South African constitutional order; (3) Interpreting key constitutional principles that shaped the final Constitution; (4) Demonstrating the Constitutional Court's role as guardian of the constitution-making process; (5) Resolving fundamental questions about amendment procedures, entrenchment, institutional independence, and intergovernmental relations. The judgment reflects the careful balance struck between national unity and provincial autonomy, between flexibility and entrenchment, and between different conceptions of South Africa's constitutional future. It validated the inclusive, negotiated process that produced South Africa's transformative Constitution.