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.”

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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.

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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.

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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.

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