Case no CCT 23/96
1 July 1996
I call the case of the Certification of the Constitution of the Republic of South Africa.
With these words spoken by Justice O’Regan’s law clerk, Yasmin Carrim, at precisely 10 a.m. in the temporary Court chamber in Braamfontein, the certification hearings began.
The courtroom had been packed since early in the morning with leaders of political parties, ministers, MPs, community leaders and members of the public. The judges, arranged in a semicircle with the President in the middle and the other ten judges randomly seated on either side, cut a striking image.
This case was so completely different. It was a sort of super-constitution writing exercise. We were going over what the Constitutional Assembly had done and we were really founding fathers in a certain sense.
Indeed, the issues raised in the first hours of the hearing were to resurface throughout the case, particularly the question of how the Court was going to carry out its work and how to treat the ambiguous nature of the Constitutional Principles with which the new Constitution was to conform. Chaskalson openly acknowledged the difficulties and the lack of any helpful precedent.
In the end it is a value judgment. There is no legal yardstick or previous case.
In the end, it was Advocate Bizos’s oft-repeated plea that resonated most strongly in the courtroom: “There is a country waiting for a constitution.”
The First Day Continues
1 July 1996
Not surprisingly, it was mostly the contentious issues that had emerged during the drafting of the Constitution that were subsequently heard in the court chamber. The majority of the time on the first day was set aside for one of the most contentious issues of all – that of provincial powers.
One of the Constitutional Principles which had been inserted at the demand of the federalists, stated that provincial powers in the final Constitution should ‘not be substantially less than, or substantially inferior to’ the powers given to the provinces in the Interim Constitution. The National Party (NP), Democratic Party (DP) and the Inkatha Freedom Party (IFP) all believed that the final text diminished provincial powers and fell short of their hopes for building a decentralised system of government in the provinces. The NP and DP stood up to argue for political autonomy and greater legislative and executive powers for the provinces. The IFP who just days before, had endured a scathing rejection in the same Court during their attempt to certify their own provincial constitution, nonetheless clung to their moment to finally have their views heard in public.
Bizos intervened to remind the Court that, “The powers of the provinces had been deliberately limited in the draft text to avoid the possibility that one or other province might seek a level of autonomy bordering on independence … A substantial part of the negotiating parties insisted on a unitary state; it was part of the pact that they entered. This is why, poignant as the call [by the NP’s advocate] is, for the minority to have their rights respected, we must remember after all, the majority also have rights.” Later NP Advocate Heunis was to implore the Justices: “The Constitutional Principles were arduously formed to serve the rainbow nation. May you too, Justices, serve the rainbow nation well.”
The judges’ inquiries throughout the day revealed their strong rejection of attempts by parties to give themselves powers that undermined the concept of ‘one sovereign state’. At the same time, the judges’ questions also acknowledged that significant provincial powers lay at the heart of the “solemn pact” that had brought all the parties to the negotiating table. It was hard to know which of the arguments around provincial powers the Court would accept. The Constitutional Assembly’s legal team were left ‘with a growing suspicion that we might not succeed this time round. We advised Ramaphosa and his team, but they seemed less worried than we were about the consequences of a rejection,’ reflected Bizos about his feelings at the end of this important debate.