Certification of the Constitution of the Province of KwaZulu-Natal, 1996

On 15 March 1996, the Legislature of the province of KwaZulu-Natal (KZN) unanimously adopted a Constitution for that province. The Speaker of the KZN Legislature submitted the provincial Constitution to the Constitutional Court for certification in terms of section 160(4) of the interim Constitution. The African National Congress (ANC) and the Government of National Unity (GNU) objected to certification, contending that the provincial Constitution was inconsistent with the interim Constitution and Constitutional Principles. The Speaker and Premier of KZN argued that the provincial Constitution complied with the requirements and should be certified.

• Whether the provincial Constitution was inconsistent with the interim Constitution and Constitutional Principles
• Whether a provincial legislature can usurp powers and functions of Parliament and the national Government
• Whether a province can incorporate a bill of rights in its constitution and the permissible scope thereof
• Whether a province can establish its own constitutional court
• Whether 'consistency clauses' in a provincial constitution can immunise it from the certification process
• Whether suspensive conditions in a provincial constitution render it inchoate and not ripe for certification
• The proper interpretation and application of section 160 of the interim Constitution

The Constitutional Court declined to certify that the text of the Constitution of the Province of KwaZulu-Natal, 1996 was not inconsistent with the provisions of the Constitution of the Republic of South Africa, Act 200 of 1993 and the Constitutional Principles in Schedule 4.

The binding legal principles established are: (1) Provinces are not sovereign states but are created by the Constitution and have only those powers specifically conferred on them by the Constitution. (2) A provincial constitution cannot be inconsistent with any provision of the interim Constitution, including the Constitutional Principles. (3) A province cannot confer on itself legislative or executive powers greater than those granted by the interim Constitution. (4) While a provincial legislature may incorporate a bill of rights in its constitution, such bill of rights: (a) cannot operate in respect of matters falling outside the province's legislative or executive powers; (b) cannot be inconsistent with Chapter 3 of the interim Constitution; (c) may place greater limitations on the province's powers or confer greater rights than the interim Constitution in respect of matters within provincial competence, provided these are not inconsistent with the interim Constitution. (5) A province cannot establish its own constitutional court as the interim Constitution does not confer such power. (6) 'Consistency clauses' that purport to render provisions of no force or effect if inconsistent with the interim Constitution are devices to avoid the certification process and are themselves inconsistent with section 160. (7) Suspensive conditions that defer the operation of substantial portions of a provincial constitution until after the interim Constitution ceases to be in force, or make them contingent on future decisions not yet taken, render the constitution inchoate and not ripe for certification. (8) Section 160 contemplates certification of a constitutional text that has been adopted, not one that might be adopted or repudiated dependent on decisions still to be taken.

The Court made several non-binding observations: (1) It may be possible to certify provisions subject to suspension to a future certain time or event, as suspended provisions can linguistically form the object of comparison for inconsistency, though this question was left open. (2) The Court noted that drafting a provincial bill of rights that scrupulously avoids exceeding provincial powers could present extremely difficult and complex drafting problems, and in such circumstances a general limiting provision (similar to section 35(1) of the interim Constitution) would be appropriate and permissible as an interpretative device. (3) The Court acknowledged it was not determining whether a general principle similar to Australia's 'covering the field' doctrine should be applied in South Africa. (4) The Court observed that given the comprehensive nature of Chapter 3 of the interim Constitution, the ambit of a provincial bill of rights may be very limited, though it declined to express a definitive view. (5) The Court emphasized it had not attempted to detail all offending provisions and that its discussion should not be seen as definitive or all-embracing, encouraging the KZN Legislature to take account of all detailed objections lodged if it decides to adopt a new or amended provincial constitution. (6) The Court noted that the provincial Constitution represented the culmination of lengthy political negotiation and was adopted unanimously, though this could not influence the Court's constitutional duty under section 160(4).

This case is a landmark decision on the limits of provincial constitution-making power in South Africa. It established fundamental principles regarding the relationship between national and provincial government, clarifying that provinces are not sovereign entities but creatures of the Constitution with only those powers specifically conferred on them. The judgment provides crucial guidance on the certification process under section 160 of the interim Constitution, the permissible scope of provincial bills of rights, and the impermissibility of devices designed to circumvent the certification process. It affirmed the principle that provinces cannot confer upon themselves powers not granted by the interim Constitution and clarified the concurrent nature of provincial legislative competence. The decision has ongoing relevance for understanding the constitutional framework of cooperative government and the limits of provincial autonomy in South Africa's constitutional democracy.