Certification of the Constitution of the Western Cape, 1997

The Western Cape provincial legislature adopted a provincial constitutional text in accordance with section 142 of the Constitution (requiring a two-thirds majority). The Speaker of the Western Cape legislature submitted the text to the Constitutional Court for certification that it complies with section 143 of the Constitution, as required by section 144(2). Supporting representations were received from the Speaker, while the national government and the African National Congress (ANC) opposed certification on various grounds. The Black Sash Trust applied unsuccessfully for a postponement shortly before the hearing. The Court had to examine whether every provision of the Western Cape Constitution (WCC) complied with the requirements of section 143 of the national Constitution (NC), whether challenged or not.

• Whether provinces have the power to enact their own constitutions and the extent of that power under sections 104(1)(a), 142-145 of the Constitution
• The proper interpretation of 'legislative or executive structures and procedures' in section 143(1)(a)
• Whether provincial constitutions may differ from the national Constitution and the limits on permissible difference
• Whether specific provisions of the WCC are inconsistent with the national Constitution
• Whether provinces can: provide for different electoral systems; appoint functionaries not within provincial control; expand provincial cabinets; establish cultural councils; include directive principles of policy
• Whether repetition of national constitutional provisions in a provincial constitution is permissible

The Constitutional Court refused to certify the Constitution of the Western Cape, 1997, on the ground that certain specified provisions (relating to electoral systems, administration of oaths by judicial officers, and definition of 'paid work') were inconsistent with section 143 of the national Constitution. The application for postponement was dismissed with no order as to costs.

The binding legal principles established are: (1) Provincial constitution-making power under section 104(1)(a) read with section 143 is subject to strict limitations - provinces cannot alter their character or relationship with other levels of government established by the national Constitution; (2) 'Legislative or executive structures and procedures' in section 143(1)(a) means the form, composition and organisation of provincial institutions ('structures') and the manner in which they exercise their powers ('procedures'), not the substance of legislative or executive powers themselves, which are exhaustively provided for in the national Constitution; (3) An electoral system is not a 'legislative structure or procedure' within the meaning of section 143(1)(a) - it determines selection of representatives but does not affect the constituent elements of the legislative structure itself; (4) Provinces cannot, through provincial constitutions, impose duties on or remove duties from judicial officers or other functionaries who are not provincial functionaries and are independent; (5) Where the national Constitution establishes uniform standards (such as prohibition on 'paid work' for executive council members), provinces cannot delegate to provincial legislation the power to define or alter those standards; (6) Provincial constitutional provisions that are inchoate and depend on future provincial legislation for their content cannot be certified as they lack the finality required by the certification process; (7) Provinces may provide for matters appropriate to a provincial constitution that do not impinge upon competences of other levels of government and are not inconsistent with the national Constitution, including provincial symbols and honours, directive principles of policy (if non-justiciable), and certain naming conventions; (8) Repetition in provincial constitutions of national constitutional provisions is permissible where those provisions relate directly to governance within the province and are necessary for coherence and comprehension of the provincial constitution; (9) The test for inconsistency is whether provisions 'cannot stand at the same time' - they are not inconsistent when it is possible to obey each without disobeying either; (10) Different 'structures and procedures' must be provided for in the provincial constitution itself and cannot be delegated to ordinary provincial legislation, as they are subject to special voting procedures (two-thirds majority) and certification requirements.

The Court made several non-binding observations: (1) The invocation of deity in the preamble has no operative constitutional effect and constitutes 'ceremonial deism' that could not be used to interpret rights provisions restrictively; (2) It would be undesirable but not unconstitutional if provincial constitutional provisions were considered 'misleading' - the certification test is compliance with section 144(2), not optimal drafting; (3) There is no universal model of separation of powers, and the doctrine permits both interdependence and strict independence between executive and legislature; (4) The presence of two unelected members in a 14-member provincial cabinet does not violate democratic governance principles in section 1(d); (5) Provincial legislation providing for provincial symbols would need to comply with relevant national legislation such as the Heraldry Act 18 of 1962; (6) Similar non-justiciable directive principles of state policy are found in the constitutions of India, Ireland and Namibia; (7) If a justiciable provincial bill of rights is in principle permissible (subject to consistency with the national Bill of Rights), then non-enforceable directive principles are even more clearly within provincial competence; (8) The phrase 'subject to' in constitutional contexts establishes dominance and subordination - what follows prevails in case of conflict; (9) Municipal authorities have long conferred civic honours under provincial ordinances, suggesting this is an appropriate provincial function; (10) In certification proceedings concerning provincial constitutions, while political parties represented in the provincial legislature have a right of audience and others may be invited, applications for postponement brought at the eleventh hour without substance or proper authority will be dismissed, though without costs if brought in good faith on matters of importance.

This judgment is the first successful certification of a provincial constitution attempted under the 1996 Constitution, though certification was withheld. It established crucial precedents regarding: (1) the scope and limits of provincial constitution-making powers under sections 104(1)(a) and 143; (2) the meaning of 'legislative or executive structures and procedures' - defining 'structures' as relating to form and composition, and 'procedures' as relating to functioning; (3) the principle that provinces remain 'creatures of the Constitution' and cannot alter their fundamental relationship with other spheres of government; (4) that electoral systems are not 'structures or procedures' and therefore cannot be altered by provincial constitutions; (5) that provinces cannot impose duties on judicial officers or other functionaries outside provincial control; (6) the certification process requires finality - inchoate provisions dependent on future provincial legislation cannot be certified; and (7) permissible areas of provincial differentiation including: naming conventions, expanded cabinets, directive principles, cultural institutions, and certain procedural matters. The judgment provides essential guidance for the three-sphere system of cooperative government established by the Constitution and clarifies the balance between provincial autonomy and national uniformity.