Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution

The Constitutional Court refused to certify the newly drafted 1996 Constitution because certain provisions failed to comply with the 34 Constitutional Principles agreed upon during negotiations and entrenched in the Interim Constitution. The Court identified specific shortcomings relating to provincial powers, labour rights, and other matters, requiring the Constitutional Assembly to remedy these defects before certification.

The Constitutional Assembly adopted a new constitutional text in 1996 and submitted it to the Constitutional Court for certification as required by the Interim Constitution. The Court was tasked with assessing whether the new text complied with the 34 Constitutional Principles entrenched in Schedule 4 of the Interim Constitution, which represented the negotiated political settlement. The certification process was an unprecedented judicial exercise of reviewing a constitution against predetermined foundational principles.

Whether the 1996 Constitution as drafted complied in all respects with the Constitutional Principles set out in the Interim Constitution.

The Constitutional Court refused to certify the Constitution, finding that it did not comply with the Constitutional Principles in several material respects. The Court identified deficiencies including inadequate protection of provincial powers, insufficient entrenchment of labour rights, and other provisions that fell short of the Constitutional Principles, and remitted the text to the Constitutional Assembly for amendment.

A new constitution adopted through a negotiated transition must comply with all foundational Constitutional Principles agreed upon by the parties to that negotiation, and a court charged with certification must rigorously assess compliance and refuse certification where material non-compliance exists.

The Court conducted a detailed, principle-by-principle analysis comparing the text of the new Constitution against each Constitutional Principle. It emphasized that its role was not political but legal: to ensure faithful adherence to the agreed framework. The Court found that while the new Constitution complied with most principles, several provisions—particularly those affecting provincial autonomy and the protection of workers' rights—failed to meet the negotiated standards and required revision.

The Court acknowledged the difficulty and political sensitivity of its task but emphasized that constitutional legitimacy in a negotiated transition depends on fidelity to agreed principles, and that judicial certification was an essential safeguard of the multi-party constitutional compact.

This landmark judgment is foundational to South African constitutional law, demonstrating judicial independence, the binding nature of negotiated constitutional settlements, and the Court's role as guardian of the constitutional order. It is studied as the first and defining exercise of constitutional review in the new democracy and established the legitimacy of both the Constitutional Court and the final 1996 Constitution.

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution 1996 (4) SA 744 (CC) [1996] ZACC 26