The Premier of KwaZulu-Natal and Others v The President of the Republic of South Africa and Others

The Premier of KwaZulu-Natal and four other KwaZulu-Natal applicants challenged various amendments to the Constitution of the Republic of South Africa Act 200 of 1993 (the interim Constitution) that were purportedly effected by the Constitution of the Republic of South Africa Second Amendment Act 44 of 1995. The application for direct access to the Constitutional Court was granted under rule 17 and section 100(2) of the Constitution. The Applicants challenged amendments to sections 149(10), 182, 184(5), and 245 of the Constitution. During oral argument, the Applicants abandoned attacks on certain amendments to the Local Government Transition Act 209 of 1993. The challenges were primarily based on alleged violations of section 62(2) of the Constitution, which requires special procedures for amending sections 126 and 144 and includes a proviso stating that "the boundaries and legislative and executive competences of a province shall not be amended without the consent of a relevant provincial legislature."

• Whether the amendments to sections 149(10), 182, 184(5), and 245 of the Constitution were unconstitutional
• Whether the proviso to section 62(2) is an independent substantive provision or merely qualifies the substantive part of section 62(2)
• Whether amendments that affect provincial legislative or executive competence require compliance with section 62(2) and the consent of relevant provincial legislatures
• Whether constitutional amendments can be made with retrospective effect
• Whether the 'spirit' of the Constitution limits the power to amend the Constitution
• The proper interpretation of provisos in constitutional provisions

The application for direct access (prayer 1) was granted, but prayers 2, 3, 4, 5, and 6 seeking declarations of unconstitutionality were dismissed. All challenges to the constitutional amendments failed.

The binding legal principles established are: (1) A proviso to a constitutional provision must ordinarily be read as qualifying the substantive part of that provision, though context may justify a wider interpretation. (2) The proviso to section 62(2) requiring provincial consent for amendments to "the boundaries and legislative and executive competences of a province" applies only to amendments targeting specific provinces, not to amendments of general application to all provinces. (3) Constitutional amendments that do not purport to amend sections 126 or 144 need only comply with section 62(1) (two-thirds majority at joint sitting), not the more stringent requirements of section 62(2). (4) A constitutional provision is not self-entrenching unless the Constitution expressly makes it so; non-self-entrenching provisions can be amended without complying with the procedures they themselves prescribe. (5) Constitutional amendments may operate retrospectively unless the Constitution prohibits such retrospectivity. (6) The fact that the Constitution makers expressly identified certain provisions as unamendable or requiring special procedures indicates that other provisions can be amended through ordinary constitutional amendment procedures.

Mahomed DP made significant obiter observations about potential limits on the constitutional amending power, referencing Indian Supreme Court jurisprudence on the "basic structure" doctrine. The Deputy President noted that "a purported amendment to the Constitution, following the formal procedures prescribed by the Constitution, but radically and fundamentally restructuring and re-organizing the fundamental premises of the Constitution, might not qualify as an 'amendment' at all." He cited Indian cases holding that the power to amend does not include the power to destroy or abrogate the basic structure or framework of the Constitution, and that basic features such as the supremacy of the Constitution, rule of law, principle of equality, independence of the judiciary, and judicial review cannot be destroyed through amendment. However, the Court emphasized that it was unnecessary to decide whether such an implied limitation exists in South African constitutional law, as none of the challenged amendments could conceivably fall within this category. The Court also made obiter comments regarding the interpretation of section 126(3)(b) and suggested that national legislation regulating first local government elections could fall within its terms, though this was not essential to the decision.

This case is significant for establishing important principles regarding constitutional interpretation and the amending power in South African constitutional law. It clarified that: (1) provisos to constitutional provisions must generally be read as qualifying the substantive enactment they accompany; (2) amendments of general application to all provinces do not require individual provincial consent even if they affect provincial competences; (3) constitutional amendments can be made with retrospective effect unless expressly prohibited; (4) the Constitution itself prescribes which provisions are protected from amendment and what procedures must be followed; (5) appeals to the "spirit" of the Constitution cannot override compliance with prescribed amendment procedures. The judgment also acknowledged (obiter) the possibility that amendments so fundamental as to destroy the basic structure of the Constitution might not qualify as valid "amendments," referencing Indian Supreme Court jurisprudence on the basic structure doctrine, though the Court found it unnecessary to decide this point. The case reinforces the principle that constitutional amendments must be scrutinized for compliance with prescribed procedures, but courts will not lightly interfere with the amending power where those procedures have been followed.