In re: Certification of the Constitution of the Republic of South Africa, 1996

Following South Africa's democratic transition, the Constitutional Assembly (CA) adopted a new Constitution (the "New Text" or "NT") in May 1996 by an 86% majority. This Constitution was drafted in terms of the Interim Constitution of 1993 (IC), which required the new text to comply with 34 Constitutional Principles (CPs) set out in Schedule 4 of the IC. The CPs represented a "solemn pact" agreed to by negotiating parties during the transition period. The IC mandated that the Constitutional Court certify whether all provisions of the NT complied with the CPs before it could come into force. Five political parties and 84 private parties lodged objections covering a wide range of constitutional provisions including the Bill of Rights, provincial powers, local government, traditional leadership, separation of powers, and various institutional arrangements. The Court heard extensive oral arguments over 11 days in July 1996 after receiving approximately 2,500 pages of written submissions.

• Whether all provisions of the New Text comply with the 34 Constitutional Principles contained in the Interim Constitution
• Whether the Bill of Rights adequately protects universally accepted fundamental rights as required by CP II
• Whether there is adequate separation of powers between the legislature, executive and judiciary as required by CP VI
• Whether the powers and functions of provinces are substantially less than or substantially inferior to those in the Interim Constitution as prohibited by CP XVIII.2
• Whether adequate provision is made for local government structures, powers and fiscal arrangements as required by CPs XXIV and XXV
• Whether the independence and impartiality of constitutional institutions (Public Protector, Auditor-General, Public Service Commission, Reserve Bank) are adequately safeguarded as required by CP XXIX
• Whether special procedures involving special majorities for constitutional amendments are provided as required by CP XV
• Whether fundamental rights are adequately entrenched as required by CP II

The Constitutional Court refused to certify the Constitution of the Republic of South Africa, 1996. The Court's order stated: "We are unable to and therefore do not certify that all of the provisions of the Constitution of the Republic of South Africa, 1996 comply with the Constitutional Principles contained in schedule 4 to the Constitution of the Republic of South Africa Act 200 of 1993." The Court identified specific provisions requiring amendment and indicated that the instances of non-compliance, while important, should present no significant obstacle to formulation of a compliant text. Following this judgment, the Constitutional Assembly amended the text to address the Court's concerns, leading to a second certification process.

The binding legal principles established include: 1. Constitutional Principles must be interpreted purposively, teleologically, holistically, and consistently with each other, not with technical rigidity. 2. The test for compliance is whether provisions of the new constitution are inconsistent with any Constitutional Principle and whether they give effect to each and all of them. 3. Where a constitutional provision bears multiple reasonable meanings, one consistent with the Constitutional Principles and one inconsistent, courts must adopt the interpretation that makes it consistent. Such certification-based interpretations should not be departed from "save in the most compelling circumstances." 4. "Universally accepted fundamental rights" (CP II) refers to rights recognized in open and democratic societies as inalienable entitlements of human beings, requiring "wide measure of international acceptance" but not absolute universality. 5. "Entrenched" rights (CP II) require more stringent protection than ordinary constitutional provisions—not merely protection from ordinary legislation but additional safeguards such as special majorities, involvement of both houses, or other reinforcing mechanisms. 6. "Special procedures involving special majorities" (CP XV) requires both procedural safeguards and supermajorities for constitutional amendments, not merely supermajorities alone. 7. Separation of powers (CP VI) does not require absolute separation; some overlap of personnel between legislature and executive is permissible. What matters is functional separation and appropriate checks and balances ensuring accountability, responsiveness, and openness. 8. Independence and impartiality of constitutional institutions (CP XXIX) must be both "provided for and safeguarded"—requiring adequate removal procedures beyond simple legislative majorities for watchdog institutions like the Public Protector and Auditor-General. 9. Under CP XVIII.2, provincial powers and functions are "substantially less than or substantially inferior" when a holistic weighing of all relevant factors (collective provincial power through the second chamber, individual provincial powers, legislative competences, executive authority, fiscal arrangements, and override mechanisms) demonstrates meaningful diminution across multiple areas, even if some individual powers remain unchanged. 10. Constitutional supremacy (CP IV) prohibits ordinary legislation being immunized from constitutional review unless it is incorporated into the constitution itself and made subject to constitutional amendment procedures. 11. Framework requirements (e.g., for local government under CP XXIV) require more than merely listing categories—they demand an "overall structural design or scheme" establishing broad parameters within which detailed implementation occurs.

The Court made several important non-binding observations: 1. On horizontal application of the Bill of Rights (NT 8(2)): While not universally accepted internationally, horizontal application is permissible under the Constitutional Principles. The qualified language ("if, and to the extent that, it is applicable, taking into account the nature of the right") provides sufficient flexibility. Courts applying Bill of Rights provisions to common law development is not a separation of powers violation as courts have always developed common law. 2. On socio-economic rights (NT 26-29): These rights are justiciable "at least to some extent." They can be "negatively protected from improper invasion" and courts can enforce minimum core obligations. Budgetary implications do not render rights non-justiciable as even civil and political rights have fiscal implications. 3. On traditional leadership and customary law: Constitutional recognition does not require extensive governmental powers for traditional authorities. Recognition of "institution, status and role" is satisfied by constitutional entrenchment making interference subject to judicial review, leaving evolution of specific roles to legislation and social development. 4. On anti-defection clauses: These are not inherently inconsistent with representative democracy under proportional representation systems where voters support parties rather than individuals. They can enhance rather than diminish accountability to the electorate. 5. On the Senate vs. National Council of Provinces: While the NCOP's structure better suits representation of provincial interests (direct provincial representation, voting by province on certain matters), it was "extremely difficult to evaluate the overall impact" and the Court could not conclude there was measurable enhancement of collective provincial power. 6. On lockout rights: The express protection of workers' right to strike without corresponding express protection of employers' right to lockout does not violate equality or collective bargaining principles, as these are not equivalent rights given the power imbalances collective bargaining addresses. 7. On the nature of the certification process: The Court emphasized it had "no power, no mandate and no right to express any view on the political choices made by the Constitutional Assembly... save to the extent that such choices may be relevant either to compliance or non-compliance with the CPs." The wisdom of constitutional provisions was not the Court's concern. 8. On constitutional interpretation post-certification: Courts should interpret the NT on the basis that meanings assigned by the Constitutional Court in certification are correct and should not be departed from except in compelling circumstances, to avoid the anomaly of applying interpretations that would have prevented certification. 9. On provincial executive capacity (NT 125(3)): The provision limiting provincial executive authority to areas where provinces have administrative capacity, with national government obliged to assist capacity development, does not meaningfully detract from legitimate provincial autonomy as provinces unable to fulfill functions could not properly exercise them anyway. These observations provided important guidance for future constitutional interpretation while acknowledging they might be revisited in concrete disputes.

This judgment is of fundamental importance in South African constitutional history and jurisprudence for several reasons: 1. **Unprecedented Judicial Review of Constitution-Making**: This was the first and only time in South African history (and rare internationally) where a court was empowered to review and certify a constitution before its adoption, establishing a unique model of "justiciable constitution-making." 2. **Negotiated Transition and Constitutional Continuity**: The judgment vindicated the ingenious compromise that enabled South Africa's peaceful transition from apartheid - allowing negotiating parties to set binding principles while enabling democratically elected representatives to draft the final constitution. 3. **Interpretive Methodology for Constitutional Principles**: The Court established important approaches for interpreting foundational constitutional requirements: purposive and teleological interpretation; holistic reading; avoiding technical rigidity; reading principles consistently rather than in conflict; and distinguishing between what the Constitution may and may not contain. 4. **Substantive Constitutional Requirements**: The judgment clarified the content of key constitutional principles including: separation of powers (not requiring absolute separation; allowing overlap between executive and legislature); independence of constitutional institutions (requiring adequate removal protections); entrenchment of rights (requiring more than ordinary legislative protection); and the nature of provincial autonomy in a cooperative government system. 5. **Comparative Federalism**: The extensive analysis of provincial powers under CP XVIII.2 provides important jurisprudence on federalism, devolution, and intergovernmental relations in constitutional design, particularly the "weighing of baskets" approach to assessing whether powers have been "substantially" diminished. 6. **Limitation on Constitutional Assembly's Discretion**: While recognizing the CA's democratic mandate and discretion within constitutional boundaries, the judgment demonstrated that constitution-makers are bound by pre-existing principles and subject to judicial review. 7. **Legitimacy and Public Participation**: The extensive consideration of objections from political parties, civil society, and individuals (84 objectors, 2,500 pages of submissions) demonstrated commitment to inclusive constitutional development. 8. **Bill of Rights Jurisprudence**: Important dicta on horizontal application of rights, socio-economic rights, limitations clauses, states of emergency, and the scope of various rights established foundations for subsequent Constitutional Court jurisprudence. The judgment represents a pivotal moment in South Africa's constitutional development, demonstrating that even supreme constitution-making power is subject to law and providing a model for constrained yet democratically legitimate constitutional transformation.