## Facts

- South Africa’s interim Constitution authorized provincial legislatures to adopt provincial constitutions by a two-thirds majority, subject to Constitutional Court certification that no provision conflicted with the interim Constitution or its Constitutional Principles.
- The KwaZulu-Natal Provincial Legislature unanimously adopted a provincial constitution on 15 March 1996 after political negotiations.
- The Speaker submitted the provincial constitution for certification, accompanied by proof of the required legislative majority.
- The African National Congress and the Government of National Unity filed objections, arguing that several provisions were inconsistent with the interim Constitution and Constitutional Principles.
- The provincial leadership contended that the text fell within permitted provincial design choices, including provisions for the role and status of a traditional monarch.
- The Court considered written objections from the King’s Council but treated them as not determinative for the certification inquiry.

## Issues

1. Whether all provisions of the KwaZulu-Natal provincial constitution were consistent with the interim Constitution and the Constitutional Principles, as required for certification.
2. Whether the provincial constitution could declare KwaZulu-Natal a self-governing entity and allocate powers beyond those conferred by the interim Constitution.
3. Whether the provincial constitution could create institutions and structures (including a provincial constitutional court) or confer exclusive powers that encroached on national authority.
4. Whether a provincial bill of rights was permissible, and whether specific rights provisions exceeded provincial competence or conflicted with the national Bill of Rights.
5. Whether “saving,” suspension, or “notwithstanding” drafting devices could cure substantive inconsistencies for purposes of certification.

## Decision

- The Constitutional Court refused to certify the provincial constitution and dismissed the certification application.
- The Court held that key provisions asserted provincial status and powers beyond those authorized by the interim Constitution, creating direct conflicts.
- Provisions establishing a provincial constitutional court and allocating exclusive legislative/executive powers were inconsistent because they attempted to displace or appropriate national powers.
- The Court accepted that a province may include a bill of rights only within provincial competence and without conflict with the national Bill of Rights; several KwaZulu-Natal rights clauses failed this standard.
- General “saving” or defect-remedying clauses could not convert an inconsistent text into a compliant one because certification requires that no provisions be inconsistent.
- Objections concerning the detailed treatment of the traditional monarch did not provide a basis to refuse certification within the confines of the certification test.

## Legal Principles

- A province is not sovereign; it has no original legislative or executive powers and may exercise only authority conferred by the national constitutional framework.
- Certification is a strict precondition to legal force: a provincial constitution must contain no provisions inconsistent with the interim Constitution or the Constitutional Principles.
- Permissible provincial innovation is limited to legislative and executive structures and procedures within the space expressly allowed by the interim Constitution; provinces may not redesign the national–provincial relationship or reallocate reserved national functions.
- A provincial bill of rights may exist only to the extent it regulates matters within provincial legislative and executive competence and does not conflict with the national Bill of Rights.
- Saving, suspension, or “notwithstanding” clauses cannot cure substantive constitutional incompatibilities for certification; the text must be compliant on its face and in substance.

## Conclusion

The Court denied certification because the proposed provincial constitution claimed autonomous status and powers exceeding what the interim Constitution permitted, included institutional and rights provisions beyond provincial competence or conflicting with national protections, and could not be salvaged by general saving clauses.


Certification of the Constitution of the Province of KwaZulu-Natal, 1996 (4) SA 1098 (S. Afr. Const. Ct. 1996)