Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996

• Jurisdiction: South Africa
• Judge: Chaskalson P, Mahomed DP, Didcott J, Goldstone J, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J and Sachs J
• Judgment Date: 06 September 1996
• Citation: 1996 (4) SA 744 (CC)
• Docket Number: CCT 23/96
• Counsel: G Bizos SC (with him W H Trengove SC, M T K Moerane SC, N Goso and K D Moroka) for the Constitutional Assembly. K Worrall-Clare for the African Christian Democratic Party. J J Gauntlett SC (with him A M Breitenbach) for the Democratic Party. P B Hodes SC (with him D N Unterhalter and R F van Rooyen) for the Inkatha Freedom Party and the Government of KwaZulu Natal. J A Coetzee SC for the Conservative Party. J C Heunis for the National Party. D J Brand for the MEC for the Police Service, Western Cape. B Naidoo for the Concerned South African Indian Citizens. Dr M S Motshekga for Prince Madlakadlaka on behalf of Queen Modjadji of the Balobedu Community. Professor H Booysen for the Volkstaatraad. Nkosi M Nonkonyana, Nkosi S P Holomisa and Hosi S C Mhinga for the Congress of Traditional Leaders of South Africa. Professor N J J Olivier (with him S Luthuli) for the Traditional Authorities Research Group. J A van S d'Oliveira SC (with him A de Vries SC) for the Attorney-General, Transvaal. D I Berger (with him D B Tshabalala and Regional Magistrate G N Travers) for the Association of Regional Magistrates of South Africa, the Magistrates' Association of South Africa and the magistrate members of the Legal Staff Association of South Africa. P S G Leon and Prof E Mureinik for the Association of Law Societies of the Republic of South Africa. P A Matthee and A H Gaum for P A Mathee MP. A E Nothnagel on his own behalf. M S M Brassey (with him D B Tshabalala and M Chaskalson) for the Congress of South African Trade Unions. M J D Wallis SC (with him C D A Loxton SC, A E Franklin and K Govender) for Business South Africa. E Bertelsmann SC (with him K T Jordt) for the South African Agricultural Union and the Agricultural Employers' Organisation. J A Coetzee SC for the Transvaal Agricultural Union. G Moore and L Louw for the Free Market Foundation. Dr O H Dean for the Association of Marketers. T van Wyk for the Afrikaanse Handelsinstituut. C D A Loxton SC and Dr A J Jeffery for the South African Institute of Race Relations. D Spitz for P Bond, D Miller and L Zita. A Cockrell for the Legal Resources Centre, Cape Town. Professor P J Visser for Women for Responsible Rights. J D van der Vyver for Pro-Life. M Victor (with him T M Masipa) for the Legal Resources Centre, Centre for Applied Legal Studies and Community Law Centre of the University of the Western Cape. Dr C Albertyn and M O'Sullivan for the Reproductive Rights Alliance.
• Court: Constitutional Court

B The court [1]

Chapter I. Introduction

[1] The formal purpose of this judgment is to pronounce whether or not the Court certifies that all the provisions of South Africa's proposed new Constitution comply C with certain principles contained in the country's current Constitution. But its underlying purpose and scope are much wider. Judicial 'certification' of a constitution is unprecedented and the very nature of the undertaking has to be explained. To do that, one must place the undertaking in its proper historical, political and legal context; and, D in doing so, the essence of the country's constitutional transition, the respective roles of the political entities involved and the applicable legal principles and terminology must be identified and described. It is also necessary to explain the scope of the Court's certification task and the effect of this judgment, not only the extent and significance of E the Court's powers, but also their limitations. Only then can one really come to grips with the certification itself.

[2] That is in itself a complex and wide-ranging exercise, dealing with a large number and variety of issues, some interrelated but many not. Virtually all of those issues were raised in written submissions and oral representations received from political parties, F special interest groups and members of the public at large. But, as will be shown shortly, the certification task extends beyond considering complaints specifically drawn to the Court's attention. We certainly derived great benefit from such contributions and wish to express our appreciation to counsel for the Constitutional Assembly and the G political parties, to the representatives of other bodies and to the persons who submitted written submissions or oral argument. The thoroughness of their research and the cogency of their arguments greatly eased our task. Ultimately, however, it was our duty to measure each and every provision of the new constitution, viewed both singly and in conjunction with one another, against the stated Constitutional Principles, H irrespective of the attitude of

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A any interested party. In what follows we intend not only to record our conclusions regarding that exercise, but to make plain our reasons for each such conclusion.

[3] We may however be called upon in future and in the context of a concrete dispute B to deal with constitutional provisions we have had to construe in the abstract for the purposes of the certification process. In order to avoid pre-empting decisions in such cases, we have endeavoured, where possible, to be brief and to provide reasons for our decisions without saying more than is necessary.

[4] In order to contain this judgment within manageable proportions, use has been made of annexures. [2] The multiplicity of issues involved has also necessitated dividing C the judgment into separate chapters, each dealing in the main with a specific topic. Questions dealt with in different chapters are sometimes interrelated, however, and different aspects thereof may be touched on in more than one chapter. As this may make it difficult to follow the thread of the discussion of a particular subject, we have D also included an index. Extensive use has been made of abbreviations. These have been identified in the text, but a schedule of abbreviations has been provided to facilitate reading of only parts of the judgment.

E A. Historical and political context

[5] South Africa's past has been aptly described as that of 'a deeply divided society characterised by strife, conflict, untold suffering and injustice' which 'generated gross violations of human rights, the transgression of humanitarian principles in violent F conflicts and a legacy of hatred, fear, guilt and revenge [3] From the outset the country maintained a colonial heritage of racial discrimination: in most of the country the franchise was reserved for white males [4] and a rigid system of economic and social segregation was enforced. The administration of African tribal territories through vassal 'traditional authorities' passed smoothly from British colonial rule to the new government, which continued its predecessor's policy. G

[6] At the same time the Montesquieuan principle of a threefold separation of State power - often but an aspirational ideal - did not flourish in a South Africa which, under the banner of adherence to the Westminster system of government, actively promoted parliamentary supremacy and domination by the executive. Multi-party democracy had H

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A always been the preserve of the white minority but even there it had languished since 1948. The rallying call of apartheid proved irresistible for a white electorate embattled by the spectre of decolonisation in Africa to the north.

[7] From time to time various forms of limited participation in government were B devised by the minority for the majority, most notably the 'homeland policy' which was central to the apartheid system. Fundamental to that system was a denial of socio-political and economic rights to the majority in the bulk of the country, which was identified as 'white South Africa', coupled with a Balkanisation of tribal territories in which Africans would theoretically become entitled to enjoy all rights. [5] Race was C the basic, all-pervading and inescapable criterion for participation by a person in all aspects of political, economic and social life.

[8] As the apartheid system gathered momentum during the 1950s and came to be enforced with increasing rigour, resistance from the disenfranchised - and increasingly D disadvantaged - majority intensified. Many (and eventually most) of them demanded non-discriminatory and wholly representative government in a non-racial unitary State, tenets diametrically opposed to those of apartheid. Although there were reappraisals and adaptations on both sides as time passed, the ideological chasm remained apparently unbridgeable until relatively recently. E

[9] The clash of ideologies not only resulted in strife and conflict but, as the confrontation intensified, the South African government of the day - and some of the self-governing and 'independent' territories spawned by apartheid - became more and more repressive. More particularly from 1976 [6] onwards increasingly harsh security F measures gravely eroded civil liberties. The administration of urban black residential areas and most 'homeland' administrations fell into disarray during the following decade. The South African government, backed by a powerful security apparatus operating with sweeping emergency powers, assumed strongly centralised and authoritarian control of the country. [7] G

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A [10] Then, remarkably and in the course of but a few years, the country's political leaders managed to avoid a cataclysm by negotiating a largely peaceful transition from the rigidly controlled minority regime to a wholly democratic constitutional dispensation. After a long history of 'deep conflict between a minority which reserved B for itself all control over the political instruments of the state and a majority who sought to resist that domination', the overwhelming majority of South Africans across the political divide realised that the country had to be urgently rescued from imminent disaster by a negotiated commitment to a fundamentally new constitutional order premised upon open and democratic government and the universal enjoyment of C fundamental human rights. [8] That commitment is expressed in the preamble to the Interim Constitution by an acknowledgement of the

'. . . need to create a new order in which all South Africans will be entitled to a common South African citizenship in a sovereign and democratic constitutional State in which there is equality between men and women and people of all D races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms'.

With this end in view the IC

'. . . provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future E founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex'. [9]

[11] Following upon exploratory and confidential talks across the divide, the transitional process was formally inaugurated in February 1990, when the then F government of the Republic of South Africa announced its willingness to engage in negotiations with the liberation movements. Negotiations duly ensued and persevered, despite many apparent deadlocks. Some of the 'independent homeland' governments gave their support to the negotiation process. Others did not but were overtaken by G

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A the momentum of the ensuing political developments and became part of the overall transition, unwillingly or by default.

[12] One of the deadlocks, a crucial one on which the negotiations all but foundered, related to the formulation of a new constitution for the country. All were agreed that such an instrument was necessary and would have to contain certain basic provisions. B Those who negotiated this commitment were confronted, however, with two problems. The first arose from the fact that they were not elected to their positions in consequence of any free and verifiable elections and that it was therefore necessary to have this commitment articulated in a final constitution adopted by a credible body properly mandated to do so in consequence...