Considering the complexity of the case, it was a relative surprise that it took just two months for the judgment to be handed down. Unlike in the death penalty case, the first to be heard in the Court and in which each judge had written a separate judgment, this was a single decision handed down in the name of ‘The Constitutional Court’.
The formal purpose of the judgment, as was described in the introduction, was to “pronounce whether or not the Court certified that all the provisions of South Africa’s proposed new Constitution complies with certain principles contained in the country’s current Constitution.” It was stated, however, that the judgment’s underlying purpose and scope were actually far greater. “Judicial ‘certification’ of a constitution is unprecedented, and the very nature of the undertaking has to be explained.” The detailed preface also served another crucial function as Carmel Rickard clarifies:
It becomes an implicit answer to the dual problem raised on the first day of argument – how the Court should respond to the counter-majoritarian dilemma and what reply it should give those who say the judges ought not to be trespassing on what is essentially a political question … What the Court does in the preface is to provide the historical background to its extraordinary task, and this background then becomes the justification for its radical departure from the normal role of a court.
For the rest, the judges used their special powers to decide whether every particular detail contained in the new text complied or failed to comply with the stated Constitutional Principles ‘irrespective of the attitude of any interested party’. They not only had to record their conclusions but also explain the reasons.
The judgment was a massive challenge. Whatever decisions we made, had implications for the future. We were giving judgment on a multiplicity of cases. Each issue was a matter of law and we had to address each argument. We did not have to consider whether we agreed with the argument or not, but whether it was right or wrong in conforming with the Constitutional Principles.
The judges held conferences for days on end to debate and discuss the issues amongst themselves and to come up with a position. Clusters of judges were then assigned different sections of the judgment to write up. Each draft prepared by the cluster would then be read by all the judges to get agreement on the line of reasoning proposed. Justice Kriegler was then given the task of knitting the different pieces together into a coherent and flowing judgment.
It was a relatively easy judgment to write once we had sorted out the details which were largely technical. Some were more evaluative than simply measuring A against B and seeing if it fitted the template. It was polished and tweaked by every one of us, but my basic job was to sew it together, to stitch the different sections seamlessly to ensure the same basic tone throughout. I am proud of the job we did. It’s a good judgment.
What was amazing is that we got absolute consensus amongst the 11 judges around the judgment. This was not a small achievement.