## Facts

- South Africa operated under an interim constitutional framework that bound the drafting of a final constitution to 34 enumerated Constitutional Principles.
- The elected Constitutional Assembly adopted a proposed final constitutional text by the required supermajority.
- The Chairperson of the Constitutional Assembly referred the adopted text to the Constitutional Court for mandatory certification before it could take legal force.
- The Court invited objections and submissions from political parties and the public, and held extended oral hearings.
- The proceeding was nonadversarial and sui generis: the Court’s task was limited to determining compliance with the Constitutional Principles, not judging the wisdom of constitutional policy choices.

## Issues

1. Whether the adopted 1996 constitutional text complied with all Constitutional Principles in the interim constitutional framework such that it could be certified and take legal effect.
2. Whether the Bill of Rights provisions (including limitations, emergency powers, property, labour, and socio-economic rights) satisfied the Constitutional Principles.
3. Whether the text’s separation-of-powers arrangements and safeguards for judicial independence met the Constitutional Principles.
4. Whether the distribution of power among national, provincial, and local spheres secured the provincial status and autonomy required by the Constitutional Principles.
5. Whether provisions on traditional leadership and independent constitutional institutions provided the recognition, protection, and independence required by the Constitutional Principles.

## Decision

- The Court refused to certify the adopted constitutional text because it did not fully comply with all Constitutional Principles.
- The Court remitted the text to the Constitutional Assembly for reconsideration and amendment.
- The Court treated many challenged features as permissible choices within the Constitutional Principles, but found decisive noncompliance in specified areas, including the design of provincial powers and autonomy.
- Because certification was denied, the proposed constitution did not take legal force at that stage.

## Legal Principles

- A proposed final constitution had no legal force unless certified by the Constitutional Court as compliant with all enumerated Constitutional Principles.
- The certification function is confined to legal compliance with the Principles; it is not a general merits review or an opportunity for the Court to draft constitutional policy.
- The Constitutional Principles must be interpreted holistically and contextually, with attention to the overall structural design of the constitutional text, not clause-by-clause literalism.
- The Constitutional Assembly retains broad discretion to choose among constitutional models, but only within the limits set by the Constitutional Principles; the Court is the final arbiter of compliance.
- Entrenched provincial status and effective powers required by the Principles must be secured against undue national override through the text’s allocation of competences and conflict rules.

## Conclusion

The Court held that the adopted 1996 constitutional text could not be certified because it failed to satisfy all binding Constitutional Principles—most notably in the structure protecting provincial powers and autonomy—and remitted the text for amendment as a prerequisite to it taking legal effect.


In re Certification of the Constitution of the Republic of South Africa, 1996, 1996 (4) SA 744 (S. Afr. Const. Ct. 1996)