Certification of the Amended Text of the Constitution of The Republic Of South Africa, 1996 (CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (4 December 1996)

F or anyone (whether a South African or a visitor, lawyer or not) who wants to understand the foundation of South Africa’s constitutional project, a reading and understanding of the Certification Judgments is an indispensable pursuit. In these two cases, the Constitutional Court convened to consider whether each of the provisions the Constitution complied with all 34 constitutional principles that had been debated and finally agreed at the Constitutional Assembly comprising all political formations in the country. The task was an onerous one. It entailed the court measuring each and every provision of the new Constitution, viewed both singly and in conjunction with one another, against the stated Constitutional Principles, irrespective of the attitude of any interested party, and then not only recording its conclusions regarding that exercise, but also making plain its reasons for each such conclusion.

In the first judgment, the Constitutional Court declined to certify the Constitution as complying with all 34 constitutional principles. It was in the second judgment that it did.

Dubbed “the solemn pact”, the 34 Constitutional Principles, which are still relevant today in the interpretation of the Constitution and development of SA’s relatively nascent constitutional jurisprudence, are listed in this document.

Of significance is the fact that everyone was invited to provide any objection s/he may have to the certification of the new Constitution and the basis for that objection. In the result, the court heard oral argument over a period of 12 days in July and November 1996. This was a particularly thorough process.

Read Certification here:

Related Documents

Certification 1

34 Constitutional Principles

President of the RSA v Office of the Public Protector and Others (91139/2016) [2017] ZAGPPHC 747; 2018 (2) SA 100 (GP) ; [2018] 1 All SA 800 (GP); 2018 (5) BCLR 609 (GP) (13 December 2017)

This is the case by which the State Capture Commission of Inquiry was established. The President sought to review the Public Protector’s remedial action by which she recommended that the Chief Justice appoint a Judge to act as Chairperson of the Commission on State Capture as the President was, according to her, conflicted. she said her office lacked sufficient resources to embark upon an investigation on State Capture.

The President argued, among other things, that the Public Protector had overreached herself in purporting to usurp the President’s constitutional function of appointing Commissions of Inquiry. The High Court disagreed and made an order that the President appoints a Commission of Inquiry but that the Chief Justice appoints the Judge who would chair it.

Full Judgment here

Notice of Motion & Founding Affidavit

Answering Affidavit

Replying Affidavit

Heads of Argument

Economic Freedom Fighters and Others v Speaker of the National Assembly and Another (CCT76/17) [2017] ZACC 47; 2018 (3) BCLR 259 (CC); 2018 (2) SA 571 (CC) (29 December 2017)

T his case is about Accountability of public representatives. In this instance it concerns the accountability of members of the National Assembly, especially in relation to holding the Executive (in this case the President) accountable. The lesson is that enjoying the majority in parliament cannot lawfully shield the majority party from holding its leader accountable for his or her conduct. The court found that the National Assembly failed to hold the President accountable for his failure to implement the Public Protector’s remedial action as contained in her “Secure in Comfort” report.

It directed that the National Assembly does so, including making rules regulating the removal of the President in terms of the Constitution.”

Read Full Judgement here

Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996)

F or anyone (whether a South African or a visitor, lawyer or not) who wants to understand the foundation of South Africa’s constitutional project, a reading and understanding of the Certification Judgments is an indispensable pursuit. In these two cases, the Constitutional Court convened to consider whether each of the provisions the Constitution complied with all 34 constitutional principles that had been debated and finally agreed at the Constitutional Assembly comprising all political formations in the country. The task was an onerous one. It entailed the court measuring each and every provision of the new Constitution, viewed both singly and in conjunction with one another, against the stated Constitutional Principles, irrespective of the attitude of any interested party, and then not only recording its conclusions regarding that exercise, but also making plain its reasons for each such conclusion.

In the first judgment, the Constitutional Court declined to certify the Constitution as complying with all 34 constitutional principles. It was in the second judgment that it did.

Dubbed “the solemn pact”, the 34 Constitutional Principles, which are still relevant today in the interpretation of the Constitution and development of SA’s relatively nascent constitutional jurisprudence, are listed in this document.

Of significance is the fact that everyone was invited to provide any objection s/he may have to the certification of the new Constitution and the basis for that objection. In the result, the court heard oral argument over a period of 12 days in July and November 1996. This was a particularly thorough process.

Read Certification here:

Related Documents

Certification 2

34 Constitutional Principles

Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others (CCT232/15) [2016] ZACC 49; (2017) 38 ILJ 527 (CC); [2017] 3 BLLR 213 (CC); 2017 (4) BCLR 473 (CC); 2018 (1) SA 38 (CC) (15 December 2016)

The issue in this case was whether an award of the CCMA for reinstatement, which had not been made an order of court or certified by the Commissioner in terms of the Labour Relations Act, constitutes a debt which prescribes after 3 years if not enforced by the employee in whose favour it was made.

The Court held that it does not. In doing so the Constitutional Court settled an old question on which there had been conflicting judgments of the Labour Court.

Read Full Judgement here

In Re: Certain Amicus Curiae Applications; Minister of Health and Others v Treatment Action Campaign and Others (CCT8/02) [2002] ZACC 13 (5 July 2002)

An amicus curiae is, literally, a friend of the court. These are Counsel who are usually invited by the court to assist it with presentation of a case (either by way of written argument or oral argument or both) on certain specified questions of law usually not raised (or sufficiently dealt with) by the main parties and which the court considers necessary for the determination of the issue(s) before it. But the most prevalent intervention of amicus curiae is when an application is made to court for intervention as an amicus curiae. This case sets out the requirements for, and expectations of the court from, an amicus curiae. In some applications for intervention as friend of the court applicants have tended to come to court with specific outcomes in mind which favour the one or the other of the main litigants.

It is generally inappropriate to approach the court for intervention as amicus curiae just to support one of the main parties. It is also inappropriate to approach court and raise matter that is irrelevant to the determination of the issues raised by the parties, or to divert attention from the issues before court.

Read Full Judgement here

Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre and Others (867/15) [2016] ZASCA 17; 2016 (4) BCLR 487 (SCA); [2016] 2 All SA 365 (SCA); 2016 (3) SA 317 (SCA) (15 March 2016)

This case concerns South Africa’s obligation under International Law and as a signatory to the Rome Statute. An application had been sought to compel the government to arrest a head of state of another country, who was present in South Africa for a summit, as an arrest warrant which had been issued against him was pending against him at the International Criminal Court. The question was whether the head of state in question enjoyed immunity from arrest by the host country (South Africa), by virtue of the hosting agreement concluded by South Africa with the African Union and by virtue of a ministerial proclamation in terms of SA statute. The SCA decided that the government acted unlawfully in failing to effect the arrest and that its failure was inconsistent with South Africa’s obligations under the Rome Statute.

Full Judgment here

Continental Tyres South Africa (Pty) Ltd and Goodyear South Africa (Pty) Ltd vs Competition Commission, Apollo Tyres South Africa (Pty) Ltd, Bridgestone South Africa (Pty) Ltd, South African Tyre Manufacturers Conference (Pty) Ltd (156/CAC/Nov17 & 157/CAC/Nov17) [2018] ZACAC (12 October 2018)

The first is a judgment of the Competition Appeal Court which deals with the vexed question of litigation privilege and pronounces on what is required in order to sustain a claim to litigation privilege of a document or information. It says it is not enough simply to assert that a document or information was obtained in the course of preparing for litigation that is pending; facts to that effect must also be established.

Full Judgment here

Sun International Limited v South African Commercial Catering and Allied Workers Union (JA45/16) [2017] ZALAC 24; (2017) 38 ILJ 1799 (LAC); [2017] 8 BLLR 776 (LAC) (3 May 2017)

This judgment is also a Labour Appeal Court judgment. In this judgment the LAC missed an opportunity to pronounce upon the proper interpretation of s 176(1) of the Labour Relation Act in respect of a contentious practice by employers of locking our employees as a tactical negotiating tool where there is no strike on the go.

Full Judgment here

Engen Petroleum Limited v Commissioner for Conciliation Mediation and Arbitration and Others (JA12/05) [2007] ZALAC 5; [2007] 8 BLLR 707 (LAC) (4 May 2007)

T his judgment of the Labour Appeal Court held that the so-called reasonable employer test. This judgment was later endorsed by the Constitutional Court in Sidumo v Rustenburg Platinum Mines 2008 (2) SA 24 (CC); [2007] 12 BLLR 1097 (CC).

Full Judgment here