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

This case is the first of its kind.

Never before has the Head of an Institution that has been established in terms of Chapter 9 of the Constitution of the Republic of South Africa, 1996, “to strengthen constitutional democracy in the Republic”, been ordered by any Court to pay personally, and from her own pocket, the costs of litigation initiated by another institution also established in terms of the Constitution primarily “to protect the value of the currency”, in circumstances where the latter institution prevailed in the setting aside a decision of that Chapter 9 Institution.

In a majority decision, the Constitutional Court of South Africa confirmed a decision of the Pretoria High Court in ordering the Public Protector personally and on a punitive scale to pay 15% of the costs of the South African central bank in a case where the central bank had successfully challenged the Public Protector’s decision in which she had directed that it recover a debt of over a Billion Rand of public money that it had granted to a bank before the dawn of constitutional democracy in South Africa, and which debt had been found by two judges, acting independently of each other in two separate investigations, to have been unlawful.

The High Court decision for this far-reaching order was anchored in the finding that the Public Protector had persisted in opposing the SA Reserve Bank’s application (and two others seeking to set aside her remedial action or ruling) to the end and in the manner in which the Public Protector allegedly conducted the litigation in the high court.

The majority in the Constitutional Court seems to found its decision on what it terms generally “falsehoods” and “bad faith” by the Public Protector in the high court. It said

“The Public Protector’s conduct in the High Court warranted a de bonis propriis (personal) costs order against her because she acted in bad faith and in a grossly unreasonable manner.”

Like the high court, the majority refused to entertain the SA Reserve Bank’s cross-appeal to declare that the Public Protector had abused her powers in her investigation of the Bankorp lifeboat loan. It took the view that the Public Protector had not been afforded an opportunity to deal with this issue in the high court.

Read Full Judgment here 

Related Documents

High Court Judgment

Respondent’s Head of Argument

Respondent’s Practice Note

Applicant’s Heads of Argument

Applicant’s Practice Note

Applicant’s Notice of Motion

Public Protector’s Founding Affidavit

SA Reserve Bank’s Answering Affidavit

SA Reserve Bank’s Conditional Cross-Appeal

SA Reserve Bank’s Founding Affidavit in Conditional Cross-Appeal

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

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

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

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