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GENERAL INDEX
CHAPTER I. INTRODUCTION 1
A. HISTORICAL AND POLITICAL CONTEXT 3
B. LEGAL CONTEXT AND TERMINOLOGY 10
C. ADOPTION OF THE NEW TEXT BY THE CONSTITUTIONAL ASSEMBLY 13
D. PROCEDURE ADOPTED BY THE COURT 15
Directions 15
Objections 16
Oral Argument 17
E. THE NATURE OF THE COURT’S CERTIFICATION FUNCTION 18
F. OVERVIEW OF THE CERTIFICATION DECISION 20
CHAPTER II. INTERPRETATION OF THE CONSTITUTIONAL PRINCIPLES
21
A. GENERAL APPROACH 21
B. STRUCTURAL COMPLIANCE 24
CHAPTER III. BILL OF RIGHTS 29
A. NT 8(2): HORIZONTAL APPLICATION 32
B. NT 8(4): JURISTIC PERSONS 35
C. NT 12(2): RIGHT TO BODILY INTEGRITY 36
D. NT 23: LABOUR RELATIONS 38
Lockout 39
The Right of Individual Employers to Bargain Collectively 42
E. NT 25: PROPERTY 43
Intellectual Property 48
F. NT 26 to 29: SOCIO-ECONOMIC RIGHTS 49
G. NT 29: EDUCATION IN THE LANGUAGE OF CHOICE 50
H. NT 32 READ WITH NT SCH 6 S 23(2)(a): ACCESS TO INFORMATION 52
I. NT 35(1)(f): BAIL 55
J. NT 36(1): LIMITATIONS OF RIGHTS 56
K. NT 37: STATES OF EMERGENCY 58
L. MARRIAGE AND FAMILY RIGHTS 61
M. MISCELLANEOUS POINTS 64
CHAPTER IV. CENTRAL GOVERNMENT ISSUES 65
A. SEPARATION OF POWERS BETWEEN THE LEGISLATURE AND THE EXECUTIVE 66
B. THE POWER OF THE PRESIDENT TO ISSUE PARDONS 70
C. COURTS AND THE ADMINISTRATION OF JUSTICE 72
Judicial Service Commission 73
Acting Judges 76
Independence of the Magistracy 80
The Prosecuting Authority 83
Participation of Lay Persons in Court Decisions 85
D. IMMUNISING LEGISLATION FROM CONSTITUTIONAL SCRUTINY
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
NT 241(1) 86
NT sch 6 s 22(1) 87
E. AMENDING THE CONSTITUTION 88
Amendment of Constitutional Provisions: NT 74 88
Entrenchment of the Bill of Rights 91
F. INDEPENDENT INSTITUTIONS 92
Public Protector 93
Auditor-General 95
Reserve Bank 96
Public Service Commission 98
Electoral Commission 103
Human Rights Commission, Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities and Commission for Gender Equality 104
G. ELECTION MATTERS 105
H. TRADITIONAL LEADERSHIP 110
Institution of Traditional Leadership 110
Traditional Courts 115
Undermining Traditional Leadership by Horizontal Application of the Bill of Rights 116
I. MISCELLANEOUS MATTERS 118
Preamble 118
Seal of the Republic 119
Languages 120
Self-Determination 123
CP XIV: Participation in the Political Process by Minority Parties 127
CHAPTER V. PROVINCIAL GOVERNMENT ISSUES (OTHER THAN CP XVIII.2) 130
A. ASSESSMENT OF THE CONSTITUTIONAL PRINCIPLES 131
CP XVIII.1 131
CP XVIII.3 132
CP XVIII.4 132
CP XVIII.5 133
CP XIX 133
CP XX 134
CP XXI.1 134
CP XXI.2 135
CP XXI.3 135
CP XXI.4 136
CP XXI.5 136
CP XXI.6 137
CP XXI.7 137
CP XXI.8 138
CP XXII 138
CP XXIII 139
CP XXV 139
CP XXVI 139
CP XXVII 140
B. LEGITIMATE PROVINCIAL AUTONOMY 140
CP XXI 141
CP XIX 142
CP XX 145
NT 44(2) 146
NT 100 147
NT 125(3) 148
NT 146 149
NT 147(1) 150
NT ch 10 152
NT ch 13 155
Cooperative Government 159
Framework 162
“Oversight” 164
Other Objections 165
CHAPTER VI. LOCAL GOVERNMENT ISSUES 165
CHAPTER VII. PROVINCIAL POWERS (CP XVIII.2) 168
A. THE INTERPRETATION AND APPLICATION OF CP XVIII.2 168
B. THE NATIONAL COUNCIL OF PROVINCES 174
C. LEGISLATIVE POWERS: NT SCHS 4 AND 5 COMPARED WITH IC SCH 6 184
D. CONSTITUTION-MAKING POWERS 190
E. POWERS WITH RESPECT TO LOCAL GOVERNMENT 194
CP XVIII.2: Diminution of Powers 194
Local Government Transition Act 209 of 1993 195
Relevant Provisions of the Interim Constitution and the New Text 197
The Comparison under CP XVIII.2 202
The Source and Ambit of Provincial Legislative Powers and Functions
202
Direct Provincial Legislative Competence in Respect of Local Government Matters 208
Executive Powers of the Provinces 210
Exclusive or Regulatory Powers of the National Legislature and Executive
211
F. PROVINCIAL SERVICE COMMISSIONS 212
Relevant Provisions of the Interim Constitution 212
Relevant Provisions of the New Text 214
Comparison for Purposes of CP XVIII.2 216
G. POLICING POWERS 216
H. POWERS WITH REGARD TO TRADITIONAL LEADERSHIP 223
Traditional Leadership 223
Customary Law 226
I. FISCAL POWERS 227
General Legislative Provisions 227
Allocations of Revenue 229
NT 214: The Provinces’ Equitable Shares of Revenue 233
Budgetary Controls 238
Treasury Controls and Procurement 238
Remuneration 239
Financial and Fiscal Commission 240
Residual Funding 240
Taxing Powers 241
J. THE WEIGHING OF THE BASKETS 245
The Institutional Instrument Through Which Provincial Powers and Functions are Expressed at the National Level 246
South African Police Service 247
The Power to Make Provincial Constitutions 247
Financial and Fiscal Powers and Functions 247
Provincial Public Protectors 248
Public Service Commissions 249
Abstract Powers of Review 250
Traditional Leadership 250
The Powers of Provincial Competence (Excluding Those Specifically Discussed) 251
Provincial Executive Powers 251
Local Government 253
Miscellaneous Matters 254
The Power of the National Government to Intervene in or to Override the Exercise of Provincial Powers 255
The Power of a Province to Resist National Legislation which Specifically Affects a Particular Province or Provinces 256
Cooperative Government 257
Conclusion Regarding CP XVIII.2 258
CHAPTER VIII. CONCLUSION AND ORDER 262
A. CONCLUSION 262
B. ORDER 265
ANNEXURE 1: APPEARANCES 267
ANNEXURE 2: CONSTITUTIONAL PRINCIPLES 271
ANNEXURE 3: SUMMARY OF OBJECTIONS AND SUBMISSIONS 278
ANNEXURE 4: ABBREVIATIONS IN THE JUDGMENT 288
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 23/96
CERTIFICATION OF THE CONSTITUTION
OF THE REPUBLIC OF SOUTH AFRICA,
1996
Heard on: 1-5 and 8-11 July 1996
Decided on: 6
September 1996
JUDGMENT
THE
COURT:[1]
CHAPTER
I. INTRODUCTION
[1] The formal purpose of this judgment is to
pronounce whether or not the Court certifies that all the provisions of South
Africa’s
proposed new constitution comply with certain principles
contained in the country’s current constitution. But its underlying
purpose and scope are much wider. Judicial “certification” of a
constitution is unprecedented and the very nature of
the undertaking has to be
explained. To do that, one must place the undertaking in its proper historical,
political and legal context;
and, in doing so, the essence of the
country’s constitutional transition, the respective roles of the political
entities involved
and the applicable legal principles and terminology must be
identified and described. It is also necessary to explain the scope
of the
Court’s certification task and the effect of this judgment, not only the
extent and significance of the Court’s
powers, but also their limitations.
Only then can one really come to grips with the certification itself.
[2] That is in itself a complex and wide-ranging exercise, dealing with
a large number and variety of issues, some interrelated but
many not. Virtually
all of those issues were raised in written submissions and oral representations
received from political parties,
special interest groups and members of the
public at large. But, as will be shown shortly, the certification task extends
beyond
considering complaints specifically drawn to the Court’s attention.
We certainly derived great benefit from such contributions
and wish to express
our appreciation to counsel for the Constitutional Assembly and the political
parties, to the representatives
of other bodies and to the persons who submitted
written submissions or oral argument. The thoroughness of their research and
the
cogency of their arguments greatly eased our task. Ultimately, however, it
was our duty to measure 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.
In what follows we intend not only to record our conclusions regarding that
exercise, but
to make plain our reasons for each such conclusion.
[3] We may however be called upon in future and in the context of a
concrete dispute to deal with constitutional provisions we have
had to construe
in the abstract for the purposes of the certification process. In order to
avoid pre-empting decisions in such cases,
we have endeavoured, where possible,
to be brief and to provide reasons for our decisions without saying more than is
necessary.
[4] In order to contain this judgment within manageable
proportions, use has been made of
annexures.[2] The multiplicity of
issues involved has also necessitated dividing the judgment into separate
Chapters, each dealing in the main
with a specific topic. Questions dealt with
in different Chapters are sometimes interrelated, however, and different aspects
thereof
may be touched on in more than one Chapter. As this may make it
difficult to follow the thread of the discussion of a particular
subject, we
have also included an index. Extensive use has been made of abbreviations.
These have been identified in the text,
but a schedule of abbreviations has been
provided to facilitate reading of only parts of the
judgment.
A. HISTORICAL AND POLITICAL CONTEXT
[5] South
Africa’s past has been aptly described as that of “a deeply divided
society characterised by strife, conflict,
untold suffering and
injustice” which “generated gross violations of human rights, the
transgression of humanitarian
principles in violent conflicts and a legacy of
hatred, fear, guilt and
revenge”.[3] From the outset
the country maintained a colonial heritage of racial discrimination: in most of
the country the franchise was reserved
for white
males[4] and a rigid system of
economic and social segregation was enforced. The administration of African
tribal territories through vassal
“traditional authorities” passed
smoothly from British colonial rule to the new government, which continued its
predecessor’s
policy.
[6] At the same time the Montesquieuan
principle of a threefold separation of state power - often but an aspirational
ideal - did
not flourish in a South Africa which, under the banner of adherence
to the Westminster system of government, actively promoted parliamentary
supremacy and domination by the executive. Multi-party democracy had always
been the preserve of the white minority but even there
it had languished since
1948. The rallying call of apartheid proved irresistible for a white electorate
embattled by the spectre
of decolonisation in Africa to the north.
[7] From time to time various forms of limited participation in
government were devised by the minority for the majority, most notably
the
“homeland policy” which was central to the apartheid system.
Fundamental to that system was a denial of socio-political
and economic rights
to the majority in the bulk of the country, which was identified as “white
South Africa”, coupled
with a Balkanisation of tribal territories in which
Africans would theoretically become entitled to enjoy all
rights.[5] Race was the basic,
all-pervading and inescapable criterion for participation by a person in all
aspects of political, economic
and social life.
[8] As the apartheid
system gathered momentum during the 1950s and came to be enforced with
increasing rigour, resistance from the
disenfranchised - and increasingly
disadvantaged - majority intensified. Many (and eventually most) of them
demanded non-discriminatory
and wholly representative government in a non-racial
unitary state, tenets diametrically opposed to those of apartheid. Although
there were reappraisals and adaptations on both sides as time passed, the
ideological chasm remained apparently unbridgeable until
relatively
recently.
[9] The clash of ideologies not only resulted in strife and
conflict but, as the confrontation intensified, the South African government
of
the day - and some of the self-governing and “independent”
territories spawned by apartheid - became more and more
repressive. More
particularly from 1976[6] onwards
increasingly harsh security measures gravely eroded civil liberties. The
administration of urban black residential areas
and most “homeland”
administrations fell into disarray during the following decade. The South
African government, backed
by a powerful security apparatus operating with
sweeping emergency powers, assumed strongly centralised and authoritarian
control
of the
country.[7]
[10] Then,
remarkably and in the course of but a few years, the country’s political
leaders managed to avoid a cataclysm by
negotiating a largely peaceful
transition from the rigidly controlled minority regime to a wholly democratic
constitutional dispensation.
After a long history of “deep conflict
between a minority which reserved for itself all control over the political
instruments
of the state and a majority who sought to resist that
domination”, the overwhelming majority of South Africans across the
political
divide realised that the country had to be urgently rescued from
imminent disaster by a negotiated commitment to a fundamentally
new
constitutional order premised upon open and democratic government and the
universal enjoyment of fundamental human
rights.[8] That commitment is
expressed in the preamble to the Interim Constitution by an acknowledgement of
the
“... need to create a new order in which all South Africans will be entitled to a common South African citizenship in a sovereign and democratic constitutional state in which there is equality between men and women and people of all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms”.
With this end in view
the IC
“... provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.”[9]
[11] Following
upon exploratory and confidential talks across the divide, the transitional
process was formally inaugurated in February
1990, when the then government of
the Republic of South Africa announced its willingness to engage in negotiations
with the liberation
movements. Negotiations duly ensued and persevered, despite
many apparent deadlocks. Some of the “independent homeland”
governments gave their support to the negotiation process. Others did not but
were overtaken by the momentum of the ensuing political
developments and became
part of the overall transition, unwillingly or by default.
[12] One of
the deadlocks, a crucial one on which the negotiations all but foundered,
related to the formulation of a new constitution
for the country. All were
agreed that such an instrument was necessary and would have to contain certain
basic provisions. Those
who negotiated this commitment were confronted,
however, with two problems. The first arose from the fact that they were not
elected
to their positions in consequence of any free and verifiable elections
and that it was therefore necessary to have this commitment
articulated in a
final constitution adopted by a credible body properly mandated to do so in
consequence of free and fair elections
based on universal adult suffrage. The
second problem was the fear in some quarters that the constitution eventually
favoured by
such a body of elected representatives might not sufficiently
address the anxieties and the insecurities of such constituencies and
might
therefore subvert the objectives of a negotiated settlement. The government and
other minority groups were prepared to relinquish
power to the majority but were
determined to have a hand in drawing the framework for the future governance of
the country. The
liberation movements on the opposition side were equally
adamant that only democratically elected representatives of the people
could
legitimately engage in forging a constitution: neither they, and certainly not
the government of the day, had any claim to
the requisite mandate from the
electorate.
[13] The impasse was resolved by a compromise which
enabled both sides to attain their basic goals without sacrificing principle.
What was no less important in the political climate of the time was that it
enabled them to keep faith with their respective constituencies:
those who
feared engulfment by a black majority and those who were determined to eradicate
apartheid once and for all. In essence
the settlement was quite simple.
Instead of an outright transmission of power from the old order to the new,
there would be a programmed
two-stage transition. An interim government,
established and functioning under an interim constitution agreed to by the
negotiating
parties, would govern the country on a coalition basis while a final
constitution was being drafted. A national legislature, elected
(directly and
indirectly) by universal adult suffrage, would double as the
constitution-making body and would draft the new constitution
within a given
time. But - and herein lies the key to the resolution of the deadlock - that
text would have to comply with certain
guidelines agreed upon in advance by the
negotiating parties. What is more, an independent arbiter would have to
ascertain and declare
whether the new constitution indeed complied with the
guidelines before it could come into
force.1[0]
B. LEGAL
CONTEXT AND TERMINOLOGY
[14] The settlement was ultimately concluded by
the negotiating parties in November 1993. Shortly thereafter and pursuant
thereto
the South African Parliament duly adopted the Interim Constitution.
Although the formal date of commencement of the IC was 27 April
1994 (a date
agreed upon in advance by the negotiating parties), its provisions relating to
the election of the transitional national
legislature came into operation
earlier.1[1]
[15] The
importance of the deadlock-breaking agreement is highlighted by the preamble to
the IC which, in its second paragraph, characterises
the Constitutional
Principles as “a solemn pact” in the following terms:
“AND WHEREAS in order to secure the achievement of this goal, elected representatives of all the people of South Africa should be mandated to adopt a new Constitution in accordance with a solemn pact recorded as Constitutional Principles”.
It is also clear from the
language that the Constitutional Principles constitute the formal record of the
“solemn pact”.
They are contained in IC sch 4, which is
incorporated by a reference under IC 71(1)(a). Although they are
numbered from I to XXXIV1[2] and are
often referred to as the 34 Constitutional Principles, they list many more
requirements than that. Henceforth they will
be referred to collectively as
the “CPs” and individually as “CP I” and so on. The
wording and interpretation
of the CPs will be discussed later; what is of
importance at this stage is to note that they are acknowledged by the preamble
to
be foundational to the new constitution. As will be shown shortly, they are
also crucial to the certification task with which the
Court has been
entrusted.
[16] IC ch 5, headed “The Adoption of the New
Constitution”, fixes the basic framework and rules for the
drafting exercise. First, in IC 68(1), it provides as follows:
“The National Assembly and the Senate, sitting jointly for the purposes of this Chapter, shall be the Constitutional Assembly.”
The body thus created, the Constitutional
Assembly, will hereafter be referred to as the “CA”. In terms of
IC 68(2),
read with IC 68(3) and IC 73(1), the CA had to commence its task
within seven days from the first sitting of the Senate and draft
and adopt a new
constitutional text within two years of the first sitting of the National
Assembly (the “NA”). For
such adoption IC 73(2) required a
majority of at least two-thirds of all the members of the CA. The succeeding
subsections of IC
73 make detailed provision for what transpires if the
requisite majority is not obtained. In the event, such majority was indeed
obtained and no more need be said about the alternative mechanisms. The
constitution which the CA adopted is formally titled the
“Constitution of
the Republic of South Africa, 1996” and will hereafter be referred to as
the “New Text”
or the “NT”. Its individual provisions
will be identified by the prefix “NT”.
[17] IC ch 5 then
addresses the issue of certification. It will be recalled that the
“solemn pact” envisaged independent
determination of the question
whether the new constitutional text complies with the
CPs.1[3][17] Accordingly IC 71(2)
reads as follows:
“The new constitutional text passed by the Constitutional Assembly, or any provision thereof, shall not be of any force and effect unless the Constitutional Court has certified that all the provisions of such text comply with the Constitutional Principles referred to in subsection (1)(a).”
It should be emphasised that the subsection
requires that “all” the provisions be certified as complying with
the CPs.
Precisely what that entails will be dealt with later. Suffice it at
this stage to make two points. First, that this Court’s
duty - and hence
its power - is confined to such certification. Second, certification means a
good deal more than merely checking
off each individual provision of the NT
against the several CPs.
[18] The provisions of IC 71(3), although not
directly prescribed by the “solemn pact”, form a logical additional
safeguard,
and warrant quotation:
“A decision of the Constitutional Court in terms of subsection (2) certifying that the provisions of the new constitutional text comply with the Constitutional Principles, shall be final and binding, and no court of law shall have jurisdiction to enquire into or pronounce upon the validity of such text or any provision thereof.”
Once this Court has certified a
text in terms of IC 71(2) that is the end of the matter and compliance or
non-compliance thereof with
the CPs can never be raised again in any court of
law, including this Court. That casts an increased burden on us in deciding on
certification. Should we subsequently decide that we erred in certifying we
would be powerless to correct the mistake, however manifest.
[19] One
then turns to IC ch 7 to complete the survey of the constitutional provisions
which give effect to the “solemn pact”.
That chapter deals with
the judicial authority in the Republic. Among other things, it established two
new organs of state, namely
this
Court1[4] and the Judicial Service
Commission.1[5] For present
purposes it is sufficient to observe that the appointment and dismissal
mechanisms and the composition and powers of
those two bodies constitute an
attempt to create a sufficient safeguard that the decision regarding compliance
of the NT with the
CPs would be impartial.
C. ADOPTION OF THE NEW TEXT
BY THE CONSTITUTIONAL ASSEMBLY
[20] The CA duly commenced its
deliberations and all but one of the political parties represented in Parliament
participated throughout.1[6]
Numerous public and private sessions were held and a wide variety of experts on
specific topics were consulted on an ongoing basis.
In response to an intensive
country-wide information campaign, including public meetings and open
invitations to the general public,
the CA also received numerous
representations, both oral and written. Although the final text concerning some
contentious issues
was drafted only shortly before adoption of the NT, the CA
had throughout its deliberations issued interim reports containing progressive
drafts of the text and of alternative proposals on outstanding provisions. In
the result political parties and other interested
bodies or persons were kept up
to date and had ample time to consider possible grounds for objecting to
certification.
[21] On 8 May 1996 the CA adopted the NT by a majority
of some 86 percent of its
members.1[7] Two days later the
Chairperson of the CA, acting in accordance with rule 15 of the Rules of the
Constitutional Court,1[8]
transmitted the draft to this Court, certifying (i) that it had been adopted by
the requisite majority,1[9] and (ii)
that it complied with the CPs. At the same time he requested the Court to
perform its certification functions in terms
of IC 71(2).
D. PROCEDURE
ADOPTED BY THE COURT
Directions
[22] The President of the
Court, considering it to be in the national interest to deal with the matter as
thoroughly yet expeditiously
as possible, determined that both written and oral
representations would be received and fixed 1 July 1996 as the date for the
commencement
of oral argument. On Monday 13 May 1996 he issued detailed
directions, including a timetable, for its disposal. The directions
included
provision for written argument on behalf of the CA to be lodged with the Court
and invited the political parties represented
in the CA that wished to submit
oral argument to notify the Court and to lodge their written grounds of
objection. Although there
was no legal provision for anyone else to make
representations, because of the importance and unique nature of the matter, the
directions
also invited any other body or person wishing to object to the
certification of the NT to submit a written
objection.2[0] The directions
required objectors to specify their grounds of objection and to indicate the CP
allegedly contravened by the NT.
The Court, through the good offices of the CA,
also published notices (in all official languages) inviting objections and
explaining
the procedure to be followed by prospective objectors. Each written
objection was studied and, if it raised an issue germane to
the certification
exercise which had not yet been raised, detailed written argument was
invited.
[23] Thereafter the President issued further directions from
time to time for the orderly conduct of the proceedings. In particular
a
detailed timetable was issued, allocating specific times on particular days for
oral submissions. Because of the relatively tight
timetable and the importance
of the issues at stake, the Court condoned non-compliance by members of the
public with the dates fixed
in the directions and considered all relevant
representations, however belatedly lodged.
Objections
[24] In the event, notices of objection, written representations and
oral argument were submitted on behalf of five political
parties.2[1] Objections were also
lodged by or on behalf of a further 84 private parties. The political parties
and the CA as well as 27 of
the other bodies or persons were afforded a right of
audience. In deciding whom to invite to present oral argument, we were guided
by the nature, novelty, cogency and importance of the points raised in the
written submissions. Interest groups and individuals
propounding a particular
contention were permitted to submit argument jointly notwithstanding the absence
of a formal link between
them. The underlying principle was to hear the widest
possible spectrum of potentially relevant views. A schedule of objections
lodged by non-political parties, indicating the name of the objector and the
gist of the objection, is
annexed.2[2] In respect of all
issues of substance the representatives of the CA and of the DP, the IFP and the
NP timeously lodged and exchanged
detailed written submissions. Most other
public bodies and several individuals did likewise. The written objections and
supporting
submissions ultimately ran to some 2 500 pages, excluding the
extracts from judgments, textbooks and other publications which were
annexed.
In the result the Court was enabled to identify the issues, conduct research and
focus the oral argument.
Oral Argument
[25] Hearings
commenced on Monday 1 July 1996 and continued until Thursday 11 July 1996.
Individual objectors were heard in person;
otherwise representation was
permitted through persons ordinarily entitled to appear before the Court or
through a duly authorised
member of the organisation
concerned.2[3] The objections were
divided into broadly associated topics and in respect of each, counsel for the
CA were afforded the right to
open the debate; each objection was then heard and
the CA replied. On the last day, after all the objections had been traversed,
the Court heard argument on behalf of the CA and of the DP, the IFP and the NP
on issues which the Court itself required to be traversed.
At the same time
everyone who had submitted oral argument and wished to make further submissions
was afforded an opportunity to
do so. In the process all relevant issues were
fully canvassed in argument.
E. THE NATURE OF THE COURT’S
CERTIFICATION FUNCTION
[26] Notwithstanding publication of the
directions by the President, in which the issues were identified, there remained
considerable
misunderstanding about the Court’s functions and powers in
relation to certification of the NT. As a result many objections
- and even
some of the oral arguments - were misdirected. Apparently, therefore, there is
a risk that the tenor and import of this
judgment may be misunderstood by some
readers unless the more egregious misapprehensions are
resolved.
[27] First and foremost it must be emphasised that the Court
has a judicial and not a political mandate. Its function is clearly
spelt out
in IC 71(2): to certify whether all the provisions of the NT comply with the
CPs. That is a judicial function, a legal
exercise. Admittedly a constitution,
by its very nature, deals with the extent, limitations and exercise of political
power as also
with the relationship between political entities and with the
relationship between the state and persons. But this Court has no
power, no
mandate and no right to express any view on the political choices made by the CA
in drafting the NT, save to the extent
that such choices may be relevant either
to compliance or non-compliance with the CPs. Subject to that qualification,
the wisdom
or otherwise of any provision of the NT is not this Court’s
business.
[28] Nor do we have any power to comment upon the methodology
adopted by the CA, unless and to the extent that it may amount to
a breach of
IC ch 5. No such infringement has been alleged, the objections being confined
to complaints that submissions to it
were ignored by the CA, that its
deliberations at times lacked transparency, and the like. Even if such
complaints were to be well-founded,
which we are manifestly neither legally
empowered nor practically able to determine, they would remain irrelevant to our
task.
[29] There was also considerable confusion about the comparison
the Court had to conduct in the performance of its duty under IC
71(2). That
subsection is in itself quite unequivocal; and read in the context discussed
above, there can be no doubt at all that
the comparison we have to make is
between the NT and the CPs. In general, and subject to an important proviso
relating to CP XVIII.2,
which is discussed in detail
later,2[4] differences between the
NT and the IC are not germane to the certification exercise the Court has to
perform. It may be that reference
to the IC is of assistance in trying to
ascertain the meaning of a word or phrase in either the NT or the CPs, but it is
generally
of no consequence that some or other provision in the IC has been
omitted from the NT, or has been reproduced in a different form.
Provided it
remained within the boundaries set by the CPs, the CA was fully entitled to do
what it wished with any precedent in
the IC. That is not only clear from the
provisions of IC ch 5, but is inherent in the “solemn pact”. The
IC was
expressly intended to provide “a historic bridge between the past
of a deeply divided society ... and a future founded on the
recognition of human
rights ...”2[5] and to
facilitate the “continued governance of South Africa while an elected
Constitutional Assembly draws up a final
Constitution”.2[6] Compiled
as it was by the un-mandated negotiating parties, it has no claim to lasting
legitimacy or exemplary status. The CA, composed
of the duly mandated
representatives of the electorate, was entrusted with the onerous duty of
devising a new constitution for the
country, unfettered by the provisions of the
IC other than those contained in the CPs.
[30] It should also be
emphasised that, provided there is due compliance with the prescripts of the
CPs, this Court is not called
upon to express an opinion on any gaps in the NT,
whether perceived by an objector or real. More specifically, there can be no
valid
objection if the NT contains a provision which in principle complies with
the requirements of the CPs, or a particular CP, but does
not spell out the
details, leaving them to the legislature to flesh out appropriately later.
Provided the criteria demanded by the
CPs are expressed in the NT, it is quite
in order to adopt such a course. The subsequent legislation will be justiciable
and any
of its provisions that do not come up to the constitutionally enshrined
criteria will be liable to invalidation. Here it is important
to note that the
CPs are principles, not detailed prescripts.
F. OVERVIEW OF THE
CERTIFICATION DECISION
[31] Before becoming involved in the detailed
analysis of the objections to the certification of the NT, it is necessary to
make
a general observation. It is true we ultimately come to the conclusion
that the NT cannot be certified as it stands because there
are several respects
in which there has been non-compliance with the
CPs.2[7] But one must focus on the
wood, not the trees. The NT represents a monumental achievement. Constitution
making is a difficult
task. Drafting a constitution for South Africa, with its
many unique features, is all the more difficult. Having in addition to
measure
up to a set of predetermined requirements greatly complicates the exercise.
Yet, in general and in respect of the overwhelming
majority of its provisions,
the CA has attained that
goal.2[8]
CHAPTER
II. INTERPRETATION OF THE CONSTITUTIONAL PRINCIPLES A. GENERAL
APPROACH
[32] It is necessary to underscore again that the basic
certification exercise involves measuring the NT against the CPs. The latter
contain the fundamental guidelines, the prescribed boundaries, according to
which and within which the CA was obliged to perform
its drafting function.
Because of that pivotal role of the CPs their interpretation forms the logical
starting point for the certification
exercise.
[33] In the light of the
background described and in the context discussed above, the CPs have to be
applied and interpreted along
the following lines.
[34] The CPs must be
applied purposively and teleologically to give expression to the commitment
“to create a new order”
based on “a sovereign and democratic
constitutional state” in which “all citizens” are “able
to enjoy
and exercise their fundamental rights and
freedoms”.2[9]
[35] The
CPs must therefore be interpreted in a manner which is conducive to that
objective. Any interpretation of any CP which
might impede the realisation of
this objective must be avoided.
[36] The CPs must not be interpreted
with technical rigidity. They are broad constitutional strokes on the canvas of
constitution
making in the future.
[37] All 34 CPs must be read
holistically with an integrated approach. No CP must be read in isolation from
the other CPs which
give it meaning and context.
[38] It accordingly
follows that no CP should be interpreted in a manner which involves conflict
with another. The lawmaker intended
each of the CPs to live together with the
others so as to give them life and form and nuance.
[39] There is a
distinction to be made between what the NT may contain and what it may not. It
may not transgress the fundamental
discipline of the CPs; but within the space
created by those CPs, interpreted purposively, the issue as to which of several
permissible
models should be adopted is not an issue for adjudication by this
Court. That is a matter for the political judgment of the CA,
and therefore
properly falling within its discretion. The wisdom or correctness of that
judgment is not a matter for decision by
the Constitutional Court. The Court
is concerned exclusively with whether the choices made by the CA comply with the
CPs, and not
with the merits of those choices.
[40] What follows
logically from this is that it is quite unnecessary for the CA to repeat the
same constitutional structures and
protections which are contained in the IC.
Variations and alternatives, additions and even omissions are legitimate as long
as the
discipline enjoined by the CPs is respected.
[41] The test to be
applied is whether the provisions of the NT comply with the CPs. That means
that the provisions of the NT may
not be inconsistent with any CP and must give
effect to each and all of them.
[42] When testing a particular
provision or provisions of the NT against the provisions of the CPs it is
necessary to give to the
provision or provisions of the NT a meaning. More than
one permissible meaning may sometimes reasonably be supported. On one
construction
the text concerned does not comply with the CPs, but on another it
does. In such situations it is proper to adopt the interpretation
that gives to
the NT a construction that would make it consistent with the
CPs.
[43] Such an approach has one important consequence. Certification
based on a particular interpretation carries with it the implication
that if the
alternative construction were correct the certification by the Court in terms of
IC 71 might have been withheld. In
the result, a future court should approach
the meaning of the relevant provision of the NT on the basis that the meaning
assigned
to it by the Constitutional Court in the certification process is its
correct interpretation and should not be departed from save
in the most
compelling circumstances. If it were otherwise, an anomalous and unintended
consequence would follow. A court of competent
jurisdiction might in the future
give a meaning to the relevant part of the NT which would have made that part of
the NT not certifiable
in terms of IC 71 at the time of the certification
process, but there would have been no further opportunity in the interim to
refuse
a certification of the NT on that ground. This kind of anomaly must be
avoided - and will be - if courts accept the approach which
we have suggested in
this paragraph.
B. STRUCTURAL COMPLIANCE
[44] If the CPs are
approached in the way we have indicated in the preceding paragraphs of this
judgment, two questions arise. First,
are the basic structures and premises of
the NT in accordance with those contemplated by the CPs? If such basic
structures and premises
do not comply with what the CPs contemplate in respect
of a new constitution, certification by this Court would have to be withheld.
If the basic structures and premises of the NT do indeed comply with the CPs
then, and then only, does the second question arise.
Do the details of the NT
comply with all the CPs? If the answer to the second question is in the
negative, certification by the
Constitutional Court must fail because the NT
cannot properly be said to comply with the CPs.
[45] In order to answer
the first question it is necessary to identify what are indeed the basic
structures and premises of a new
constitutional text contemplated by the CPs.
It seems to us that fundamental to those structures and premises are the
following:
(a) a constitutional democracy based on the supremacy of the Constitution protected by an independent judiciary;3[0]
(b) a democratic system of government founded on openness, accountability and equality, with universal adult suffrage and regular elections;3[1]
(c) a separation of powers between the legislature, executive and judiciary with appropriate checks and balances to ensure accountability, responsiveness and openness;3[2]
(d) the need for other appropriate checks on governmental power;3[3]
(e) enjoyment of all universally accepted fundamental rights, freedoms and civil liberties protected by justiciable provisions in the NT;3[4]
(f) one sovereign state structured at national, provincial and local levels, each of such levels being allocated appropriate and adequate powers to function effectively;3[5]
(g) the recognition and protection of the status, institution and role of traditional leadership;3[6]
(h) a legal system which ensures equality of all persons before the law, which includes laws, programmes or activities that have as their objective the amelioration of the conditions of the disadvantaged, including those disadvantaged on grounds of race, colour or creed;3[7]
(i) representative government embracing multi-party democracy, a common voters’ roll and, in general, proportional representation;3[8]
(j) the protection of the NT against amendment save through special processes;3[9]
(k) adequate provision for fiscal and financial allocations to the provincial and local levels of government from revenue collected nationally;4[0]
(l) the right of employers and employees to engage in collective bargaining and the right of every person to fair labour practices;4[1]
(m) a non-partisan public service broadly representative of the South African community, serving all the members of the public in a fair, unbiased and impartial manner;4[2] and
(n) security forces required to perform their functions in the national interest and prohibited from furthering or prejudicing party political interests.4[3]
[46] An
examination of the NT establishes that it satisfies the basic structures and
premises of the new constitution contemplated
by the applicable
CPs.4[4] (The question whether any
particular detail contained in the NT complies with the relevant CPs is a
separate and different question
which will be discussed in this judgment under
different headings dealing with the application of one or more relevant CPs to
the
corresponding part of the NT.)
[47] Having found that the NT
complies with the structural guidelines drawn by the CPs, we turn to consider
the second question posed
above. Do the details of the NT comply with the CPs?
In that exercise we start with the Bill of Rights, a crucial element of the
CPs
and the NT.
CHAPTER III. BILL OF RIGHTS
[48] It is no
coincidence that the drafters of the CPs, having in CP I established the
principle that the state they contemplated
would be a democracy, immediately
proceeded to describe one of its key attributes in CP II. It reads as
follows:
“Everyone shall enjoy all universally accepted fundamental rights, freedoms and civil liberties, which shall be provided for and protected by entrenched and justiciable provisions in the Constitution, which shall be drafted after having given due consideration to inter alia the fundamental rights contained in Chapter 3 of this Constitution.”
For they were avowedly
determined
“... to create a new order in which all South Africans will be entitled to a common South African citizenship in a sovereign and democratic constitutional state in which there is equality between men and women and people of all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms”.4[5]
In
CP II they therefore stipulated that the NT must provide for a bill of rights,
constitutionally safeguarded and enforceable by
the courts.
[49] The
method the drafters of the CPs adopted to give content to the bill of rights was
to refer to “all universally accepted
fundamental rights, freedoms and
civil liberties”. There are two components to this: “fundamental
rights, freedoms and
civil liberties” and “universally
accepted”.
[50] The phrase “fundamental rights, freedoms
and civil liberties” should not be broken down into separate words and
examined in isolation. Each word does bear a meaning, but the phrase as a whole
conveys a composite idea that is firmly established
in human rights
jurisprudence.4[6] What the
drafters had in mind were those rights and freedoms recognised in open and
democratic societies as being the inalienable
entitlements of human beings.
Viewed in that light one should not read “fundamental”,
“rights”, “freedoms”
and “civil liberties”
disjunctively. There is of course no finite list of such rights and freedoms.
Even among democratic
societies what is recognised as fundamental rights and
freedoms varies in both subject and formulation from country to country, from
constitution to constitution, and from time to time. For that reason, the
drafters qualified the phrase by the words “universally
accepted”.
[51] Although a strict literal interpretation should
not be given to “universal”, for that may result in giving little
content to CP II, it nevertheless establishes a strict test. It is clear that
the drafters intended that only those rights that
have gained a wide measure of
international acceptance as fundamental human rights must necessarily be
included in the NT. Beyond
that prescription, the CA enjoys a discretion. That
this is the case is apparent too from the instruction given in the closing
clause
of CP II which requires the CA to give “due consideration to
inter alia the fundamental rights contained in Chapter 3” of the IC.
The CA was clearly not obliged to duplicate those rights, nor to
match them.
They merely had to be duly
considered.4[7]
[52] The
“universally accepted fundamental rights, freedoms and civil
liberties” required by the CP is a narrower group
of rights than that
entrenched by the IC. We emphasise this point because in several instances
objectors argued that NT ch 2 should
fail certification because the scope of a
particular NT provision falls short of - or goes further than - the
corresponding provision
in the IC. That is not the test. Although it is true
that the drafters of the CPs also drafted IC ch 3 and had its provisions in
mind
in plotting the guidelines for the CA, they expressly did not bind it to draft a
bill of rights identical to that in the IC.
To the extent that the IC afforded
rights which went beyond the “universally accepted” norm, the CA was
entitled to
reduce them to that measure. By like token, the CA was entitled to
formulate rights more generously than would be required by the
“universally accepted” norm, or even to establish new rights. It
should be emphasised that in general the Bill of Rights
drafted by the CA is as
extensive as any to be found in any national constitution. Specific objection
has, however, been taken to
particular provisions, with which we proceed to
deal.
A. NT 8(2): HORIZONTAL APPLICATION
[53] NT 8(2)
provides:
“A provision of the Bill of Rights binds natural and juristic persons if, and to the extent that, it is applicable, taking into account the nature of the right and of any duty imposed by the right.”
Objection
was taken to this provision on the ground that it would impose obligations upon
persons other than organs of state, that
is, it permitted what has been referred
to in South African jurisprudence and academic writing as the “horizontal
application”
of bills of rights. The objection was grounded, first on the
basis that the horizontal application of fundamental rights is not
universally
accepted. That is so, but as stated above, the requirement of universal
acceptance in CP II does not preclude the CA
from including provisions in the NT
which are not universally accepted.
[54] The second ground for the objection
was that in rendering the chapter on fundamental rights binding on private
persons, the
NT is inconsistent with CP VI which requires that there be a
separation of powers between the legislature, the executive and the
judiciary.
The argument was that the effect of horizontality is to permit the courts to
encroach upon the proper terrain of the
legislature, in that it permits the
courts to alter legislation and, in particular, the common law. However, that
argument has two
flaws. First, it fails to acknowledge that courts have always
been the sole arm of government responsible for the development of
the common
law. There can be no separation of powers objection, therefore, to the courts
retaining their power over the common law.
Second, the objectors also fail to
recognise that the courts have no power to “alter” legislation. The
power of the
judiciary in terms of the NT remains the power to determine whether
provisions of legislation are inconsistent with the NT or not,
not to alter them
in ways which it may consider desirable. In any event, even where a bill of
rights does not bind private persons,
it will generally bind a legislature. In
such circumstances all legislation is subject to review. The argument, then,
that a “horizontal”
application of the Bill of Rights will
inevitably involve the courts in the business of the legislature to an extent
that they would
not be involved were the Bill of Rights to operate only
“vertically”, is misconceived.
[55] A further argument
raised by the objectors was that NT 8(2) would bestow upon courts the task of
balancing competing rights
which, they argued, is not a proper judicial role.
This argument once again fails to recognise that even where a bill of rights
binds only organs of state, courts are often required to balance competing
rights. For example, in a case concerning a challenge
to legislation regulating
the publication and distribution of sexually explicit material, the court may
have to balance freedom of
speech with the rights of dignity and equality. It
cannot be gainsaid that this is a difficult task, but it is one fully within
the
competence of courts and within the contemplation of CP II. That the task may
also have to be performed in circumstances where
the bearer of the obligation is
a private individual does not give rise to a conflict with the
CPs.
[56] The objectors also argued that imposing obligations upon
individuals in the Bill of Rights is in breach of CP II which contemplates
that
individuals would be beneficiaries only of universally accepted fundamental
rights and freedoms. They argued that as bearers
of obligations, individuals
would necessarily suffer a diminution of their rights in a manner that is
contrary to the contemplation
of CP II. This argument, too, cannot be accepted.
As long as a bill of rights binds a legislature, legislation which regulates the
relationships between private individuals will be subject to constitutional
scrutiny. In Germany and similar European countries
where there is general
codification of private law and constitutional review, the codes have to comply
with constitutional standards.
And even in the United States, the Bill of
Rights affects private law. As stated in the previous paragraph, such scrutiny
will
often involve a court in balancing competing rights. It is also implicit
in the indirect horizontal application of the rights required
by IC ch 3, to
which the CA had to pay “due
regard”.4[8] CP II implicitly
recognises that even if only the state is bound, rights conferred upon
individuals will justifiably be limited
in order to recognise the rights of
others in certain circumstances. The fact that horizontal application may also
lead to justifiable
limits on the rights of individuals does not mean that CP II
has been breached.
B. NT 8(4): JURISTIC PERSONS
[57] Objection was also taken to NT 8(4), which states that
“[j]uristic persons are entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and of the juristic persons.”
The comparable provision in the IC is 7(3),
which provides that
“[j]uristic persons shall be entitled to the rights contained in this Chapter where, and to the extent that, the nature of the rights permits.”
The objection was based on the language of CP
II, which provides that “everyone shall enjoy all universally accepted
fundamental
rights and freedoms”. It was argued that
“everyone” in CP II refers only to natural persons, and that, by
extending
the rights to juristic persons, the rights of natural persons are
thereby diminished. We cannot accept the premise: many “universally
accepted fundamental rights” will be fully recognised only if afforded to
juristic persons as well as natural persons. For
example, freedom of speech,
to be given proper effect, must be afforded to the media, which are often
owned or controlled by juristic
persons. While it is true that some rights are
not appropriate to enjoyment by juristic persons, the text of NT 8(4)
specifically
recognises this. The text also recognises that the nature of a
juristic person may be taken into account by a court in determining
whether a
particular right is available to such person or not.
[58] The objectors
were also concerned that affording rights to powerful and wealthy corporations
would result in detriment to individual
rights, given that powerful corporations
have greater resources to enforce their rights through litigation. But the same
could be
said of powerful and wealthy individuals. Moreover, the objection
wrongly equates juristic persons with powerful and wealthy corporations.
In
South Africa there are countless small companies and close corporations that
need and deserve protection no less than do natural
persons. The CA was
entitled to retain the provision in IC ch 3 that provides that juristic persons
are entitled to the benefits
of the entrenched fundamental rights. The
objection therefore has no basis in the CPs.
C. NT 12(2): RIGHT TO
BODILY INTEGRITY
[59] NT 12(2) provides that:
“Everyone has the right to bodily and psychological integrity, which includes the right -
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their informed consent.”
Objection
was taken to this provision in the NT on the grounds that it opens the way to
abortion. The objector argued that the proper
interpretation of CP II permits
the CA to increase the rights contained in the IC, but prohibits it from
reformulating rights in
a way that would detract from the protection conferred
by the IC. The objector further argued that there are two provisions in the
NT
which effectively reduce the protection afforded the foetus by the IC. The
first is NT 12(2) and the second is the omission of
a provision equivalent to IC
33(1)(b). IC 33(1)(b) provides that any limitation of a right contained in the
IC “may not negate
the essential content of the right”. The
objector argued that the omission of this right may render it more probable that
abortion will be held to be constitutional.
[60] It should be emphasised
that this Court’s current task is not to determine whether the NT permits
abortion or not but
to decide whether or not the NT complies with the CPs. The
relevant CP in this case is CP II which requires the CA to include within
the NT
all “universally accepted fundamental rights, freedoms and civil
liberties”. Beyond that the CPs give the CA
a wide discretion to
determine which rights should be included in the NT and how they should be
formulated.
[61] In response to the objection made against NT 12(2),
certain institutions filed argument in support of the NT. They argued that
the
right to bodily integrity contained in NT 12(2) is a universally accepted
fundamental right and that therefore the CA was obliged
to include it in the NT.
They also argued that a woman’s right to make informed decisions about
reproduction needs to be recognised
in order to achieve gender
equality.
[62] In our view the objection to NT 12(2) cannot be sustained
because it is based on an incorrect interpretation of CP II. As we
have said
above,4[9] CP II does not require
the CA to repeat the provisions contained in IC ch 3. It merely requires the CA
to include in the NT all
“universally accepted fundamental rights”.
The objector did not suggest that in not including a provision such as that
contained in IC 33(1)(b), the CA had breached this requirement. In the light of
our conclusion, it is not necessary to decide whether
the objector’s
argument that the NT does detract from the protection provided in the IC is
correct, nor is it necessary for
us to consider further the arguments raised by
those institutions defending the NT.
D. NT 23: LABOUR RELATIONS
[63] There were two objections to NT
23.5[0] The first was that the
omission of the right of employers to lock out workers is in breach of CPs II
and XXVIII. The second ground
of objection was that NT 23 fails to
“recognise and protect” the right of individual employers to engage
in collective
bargaining as required by CP XXVIII.
Lockout
[64] The first and major ground for this objection was based on CP
XXVIII which provides that:
“Notwithstanding the provisions of Principle XII, the right of employers and employees to join and form employer organisations and trade unions and to engage in collective bargaining shall be recognised and protected. Provision shall be made that every person shall have the right to fair labour practices.”
The objectors argued that in order to
engage effectively in collective bargaining, bargaining parties must have the
right to exercise
economic power against each other. Accordingly, went the
argument, the right to lock out should be expressly recognised in the NT.
It is
correct that collective bargaining implies a right on the part of those who
engage in collective bargaining to exercise economic
power against their
adversaries. However, CP XXVIII does not require that the NT expressly
recognise any particular mechanism for
the exercise of economic power on behalf
of workers or employers: it suffices that the right to bargain collectively is
specifically
protected. Once a right to bargain collectively is recognised,
implicit within it will be the right to exercise some economic power
against
partners in collective bargaining. The nature and extent of that right need not
be determined now.
[65] The objectors also argued that, by including the
right to strike but omitting the right to lock out, the employers’ right
to engage in collective bargaining is accorded less status than the right of
workers to engage in collective bargaining. However,
the effect of including
the right to strike does not diminish the right of employers to engage in
bargaining, nor does it weaken
their right to exercise economic power against
workers. Their right to bargain collectively is expressly recognised by the
text.5[1]
[66] A related
argument was that the principle of equality requires that, if the right to
strike is included in the NT, so should
the right to lock out be included. This
argument is based on the proposition that the right of employers to lock out is
the necessary
equivalent of the right of workers to strike and that therefore,
in order to treat workers and employers equally, both should be
recognised in
the NT. That proposition cannot be accepted. Collective bargaining is based on
the recognition of the fact that employers
enjoy greater social and economic
power than individual workers. Workers therefore need to act in concert to
provide them collectively
with sufficient power to bargain effectively with
employers. Workers exercise collective power primarily through the mechanism of
strike action. In theory, employers, on the other hand, may exercise power
against workers through a range of weapons, such as dismissal,
the employment of
alternative or replacement labour, the unilateral implementation of new terms
and conditions of employment, and
the exclusion of workers from the workplace
(the last of these being generally called a
lockout).5[2] The importance of the
right to strike for workers has led to it being far more frequently entrenched
in constitutions as a fundamental
right than is the right to lock out. The
argument that it is necessary in order to maintain equality to entrench the
right to lock
out once the right to strike has been included, cannot be
sustained, because the right to strike and the right to lock out are not
always
and necessarily equivalent.
[67] It was also argued that the inclusion
of the right to strike necessarily implies that legislation protecting the right
to lock
out, such as the LRA, would be unconstitutional. The objectors argued
that such a result would be in breach of CP XXVIII. The
argument is based on a
false premise. The fact that the NT expressly protects the right to strike does
not mean that a legislative
provision permitting a lockout is necessarily
unconstitutional, or indeed that the provisions of the LRA permitting lockouts
are
unconstitutional. The effect of NT 23 will be that the right of employers
to use economic sanctions against workers will be regulated
by legislation
within a constitutional framework. The primary development of this law will, in
all probability, take place in labour
courts in the light of labour legislation.
That legislation will always be subject to constitutional scrutiny to ensure
that the
rights of workers and employers as entrenched in NT 23 are
honoured.5[3]
[68] The
second ground for this objection was that, in failing expressly to protect an
employer’s right to lock out, the NT
does not comply with CP II which
requires that “all universally accepted fundamental rights, freedoms and
civil liberties”
shall be provided for and protected in the new
Constitution, “due consideration [having been given] to, inter
alia, the fundamental rights” contained in the IC. The objector
argued that, in drafting the Bill of Rights in the NT, the CA
was required to
give due consideration to all the rights entrenched in the IC, which meant that
rights contained in the IC should
be omitted only if there were good reasons for
so doing. Although it is true that the CA was required to give due
consideration
to the provisions in the IC, there is nothing in CP II which
restrains it from departing from those provisions once it has done so,
unless it
is shown that the provisions fall within the class of “universally
accepted fundamental rights and freedoms”.
The objectors did not suggest
that the CA had not paid due consideration to the provisions of the IC. It also
cannot be said that
the right of employers to lock out workers is a universally
accepted fundamental right as contemplated by CP II. The right to lock
out is
recognised in only a handful of national constitutions and is not entrenched in
any of the major international conventions
concerned with labour relations. It
cannot be said, therefore, that the omission from NT 23 of a right to lock out
is in conflict
with CP II.
The Right of Individual Employers to
Bargain Collectively
[69] The second objection levelled at NT 23 is
based on the failure to entrench the right of individual employers to engage in
collective
bargaining. The objection was based on CP XXVIII which provides
that “the right of employers ... to engage in collective
bargaining shall
be recognised and protected.” The objectors pointed out that NT 23
specifically entrenches only the rights
of employers’ associations to
engage in collective bargaining, and does not specifically entrench the right of
individual employers
to engage in collective bargaining. It is true that NT 23
does not protect the right of individual workers to bargain, but individual
workers cannot bargain collectively except in concert. As stated above,
collective bargaining is based on the need for individual
workers to act in
combination to provide them collectively with sufficient power to bargain
effectively with employers. Individual
employers, on the other hand, can engage
in collective bargaining with their workers and often do so. The failure by the
text to
protect such a right represents a failure to comply with the language of
CP XXVIII which specifically states that the right of employers
to bargain
collectively shall be recognised and protected. This objection therefore
succeeds.
E. NT 25: PROPERTY
[70] NT 25 provides as
follows:
“(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application -
(a) for public purposes or in the public interest; and
(b) subject to compensation, the amount, timing, and manner of payment of which, must be agreed or decided or approved by a court;
(3) The amount, timing, and manner of payment of compensation must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant factors, including -
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
(e) the purpose of the expropriation.
(4) For the purposes of this section -
(a) the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and
(b) property is not limited to land.
(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.
(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure, or to comparable redress.
(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
(8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).
(9) Parliament must enact the legislation referred to in subsection (6).”
Two major objections were levelled
against this provision. The first was that the section does not expressly
protect the right to
acquire, hold and dispose of property as did IC 28(1). The
second objection was that the provisions governing expropriation and
the payment
of compensation are inadequate.
[71] The first objection raises the
question whether the formulation of the right to property adopted by the CA
complies with the
test of “universally accepted fundamental rights”
set by CP II. If one looks to international conventions and foreign
constitutions, one is immediately struck by the wide variety of formulations
adopted to protect the right to property, as well as
by the fact that
significant conventions and constitutions contain no protection of property at
all. Although article 17 of the
UDHR provides that “[e]veryone has the
right to own property” and that “[n]o-one shall be arbitrarily
deprived”
of property, neither the ICESCR nor the ICCPR contains any
general protection for property.
[72] Several recognised democracies
provide no express protection of property in their constitutions or bills of
rights.5[4] For the remainder, a
wide variety of formulations of the right to property exists. Some
constitutions formulate the right to property
simply in a negative way,
restraining state interference with property
rights.5[5] Other constitutions
express the right in a positive way, entrenching the right to acquire and
dispose of property.5[6] A further
formulation frequently used is to state that “private property is
inviolable” subject to expropriation in
certain
circumstances.5[7] This survey
suggests that no universally recognised formulation of the right to property
exists. The provision contained in the
NT, which is a negative formulation,
appears to be widely accepted as an appropriate formulation of the right to
property. Protection
for the holding of property is implicit in NT 25. We
cannot uphold the argument that, because the formulation adopted is expressed
in
a negative and not a positive form and because it does not contain an express
recognition of the right to acquire and dispose
of property, it fails to meet
the prescription of CP II.
[73] The second objection was that the
provisions governing expropriation, and in particular for the payment of
compensation, also
fall short of what is universally accepted as contemplated by
CP II. The argument was that the NT should stipulate that the compensation
should be calculated on the basis of market value and that expropriation should
take place only where the use to which the expropriated
land would be put is in
the interests of a broad section of the public. The objectors also argued that
expropriation for purposes
of land, water or related reform contemplated by NT
25(8) fell short of the “universally accepted” understanding of the
right to property. Once again, and for the reasons given in the previous
paragraph, we cannot accept these arguments. An examination
of international
conventions and foreign constitutions suggests that a wide range of criteria for
expropriation and the payment of
compensation exists. Often the criteria for
determining the amount of compensation are not mentioned in the constitutions at
all.5[8] Where the nature of the
compensation is mentioned, a variety of adjectives is used including
“fair”,5[9]
“adequate”,6[0]
“full”,6[1]
“equitable and
appropriate”6[2] and
“just”.6[3] Another
approach adopted is to provide that the amount of compensation should seek to
obtain an equitable balance between the public
interest and the interests of
those affected.6[4] Some
constitutions, too, prescribe that the compensation must be prompt or made prior
to the expropriation.6[5] Similarly
there is no consistency with regard to the criteria for expropriation itself.
The approach taken in NT 25 cannot be said
to flout any universally accepted
approach to the question.
[74] A further objection was that the NT
contains no express recognition of mineral rights. Once again this objection
finds no basis
in CP II. Our examination of international conventions and
foreign constitutions shows that it is extremely rare for there to be
any
mention of mineral rights within a property clause. It certainly could not be
said to be a “universally accepted fundamental
right”.
Intellectual Property
[75] A further objection
lodged was that the NT fails to recognise a right to intellectual property.
Once again the objection was
based on the proposition that the right advocated
is a “universally accepted fundamental right, freedom and civil
liberty”.
Although it is true that many international conventions
recognise a right to intellectual
property,6[6] it is much more rarely
recognised in regional conventions protecting human
rights6[7] and in the constitutions
of acknowledged democracies.6[8]
It is also true that some of the more recent constitutions, particularly in
Eastern Europe,6[9] do contain
express provisions protecting intellectual property, but this is probably due to
the particular history of those countries
and cannot be characterised as a trend
which is universally accepted. In the circumstances, the objection cannot be
sustained.
F. NT 26 to 29: SOCIO-ECONOMIC RIGHTS
[76] Sections 26, 27 and 29 in the NT provide rights of access to
housing, health care, sufficient food and water, social security
and basic
education. NT 28, among other things, provides such rights specifically to
children. These rights were loosely referred
to by the objectors as
socio-economic rights. The first objection to the inclusion of these provisions
was that they are not universally
accepted fundamental rights. As stated, such
an objection cannot be sustained because CP II permits the CA to supplement the
universally
accepted fundamental rights with other rights not universally
accepted.
[77] The second objection was that the inclusion of these
rights in the NT is inconsistent with the separation of powers required
by CP VI
because the judiciary would have to encroach upon the proper terrain of the
legislature and executive. In particular the
objectors argued it would result
in the courts dictating to the government how the budget should be allocated.
It is true that the
inclusion of socio-economic rights may result in courts
making orders which have direct implications for budgetary matters. However,
even when a court enforces civil and political rights such as equality, freedom
of speech and the right to a fair trial, the order
it makes will often have such
implications. A court may require the provision of legal aid, or the extension
of state benefits to
a class of people who formerly were not beneficiaries of
such benefits. In our view it cannot be said that by including socio-economic
rights within a bill of rights, a task is conferred upon the courts so different
from that ordinarily conferred upon them by a bill
of rights that it results in
a breach of the separation of powers.
[78] The objectors argued further that
socio-economic rights are not justiciable, in particular because of the
budgetary issues their
enforcement may raise. They based this argument on CP II
which provides that all universally accepted fundamental rights shall be
protected by “entrenched and justiciable provisions in the
Constitution”. It is clear, as we have stated above, that
the
socio-economic rights entrenched in NT 26 to 29 are not universally accepted
fundamental rights. For that reason, therefore,
it cannot be said that their
“justiciability” is required by CP II. Nevertheless, we are of the
view that these rights
are, at least to some extent, justiciable. As we have
stated in the previous paragraph, many of the civil and political rights
entrenched
in the NT will give rise to similar budgetary implications without
compromising their justiciability. The fact that socio-economic
rights will
almost inevitably give rise to such implications does not seem to us to be a bar
to their justiciability. At the very
minimum, socio-economic rights can be
negatively protected from improper invasion. In the light of these
considerations, it is our
view that the inclusion of socio-economic rights in
the NT does not result in a breach of the CPs.
G. NT 29: EDUCATION IN
THE LANGUAGE OF CHOICE
[79] In this regard two identical objections
were levelled against the certification of NT
29.7[0] In both instances the
objection furnishes no indication as to which CP has allegedly been violated.
It appears that the objection
is based on the contention that whereas IC 32(b)
provides for a right to be educated in the language of choice, if it is
reasonably
practicable, under NT 29(2) that right is subject to a balancing, in
which equity, practicability and the need to redress past racially
discriminatory law and practice are taken into account.
[80] With regard to the right to establish private schools, the
objection is that the right provided by IC 32(c) is impoverished
in NT 29, in
that such right is now subject to state registration and arbitrary
administrative decisions.
[81] But, as we have noted before, this
Court’s task of certifying the NT mandates that NT 29 be measured against
a relevant
CP, not against the IC. The objectors were unable to point to any
CP that is alleged to have been breached. In any event, the
various factors set
out in NT 29(2)(a) to (c) are the basis on which the state is directed to take
positive action to implement the
right to receive education in the official
language or languages of choice; they impose a positive duty on the state which
does not
exist under the IC. And under the NT it would clearly never be open
to the state, as the objectors fear, arbitrarily to refuse
to register a private
school. Such action would be challengeable at least under NT 29 itself.
Moreover, an obligation to register
is a reasonable and justifiable condition
which would be permissible under IC 33.
H. NT 32 READ WITH NT SCH 6 S
23(2)(a): ACCESS TO INFORMATION
[82] CP IX requires the NT to make
provision for “freedom of information so that there can be open and
accountable administration
at all levels of government”. Read alone, NT
32(1) complies with this requirement by according to everyone “the right
of access to (a) any information held by the state; and (b) any information that
is held by another person and that is required for
the exercise or protection of
any rights”. The objection, however, is directed at the mechanism
introduced by NT sch 6 s 23
which suspends the operation of NT 32(1) until
Parliament has enacted legislation, which must happen “within three years
of
the date on which the new Constitution took effect”. Such legislation,
under NT 32(2), may include “reasonable measures
to alleviate the
administrative and financial burden on the state”. Until then, under NT
sch 6 s 23(2)(a), the right that
is available to every person is that of
“access to all information held by the state or any of its organs in any
sphere of
government in so far as that information is required for the exercise
or protection of any of their rights”.
[83] The transitional measure
is obviously a means of affording Parliament time to provide the necessary
legislative framework for
the implementation of the right to information.
Freedom of information legislation usually involves detailed and complex
provisions
defining the nature and limits of the right and the requisite
conditions for its enforcement.7[1]
The effect of the provision, as we interpret it, is that if the contemplated
legislation is not enacted timeously, the transitional
arrangement in NT sch 6
as well as the provisions of NT 32(2) fall away and the suspended NT 32(1)
automatically comes into operation.
The interim right given in NT sch 6 s
23(2)(a) does not comply with the requirements of CP IX, however. What is
envisaged by the
CP is not access to information merely for the exercise or
protection of a right, but for a wider purpose, namely, to ensure that
there is
open and accountable administration at all levels of government.
[84] What must therefore be determined is whether the suspension of the
NT 32(1) formulation of the right for three years complies
with CP
IX.
[85] Details governing freedom of information are not ordinarily
found in a constitution, and it is unlikely that the drafters of
the CPs
contemplated that such provisions would be contained in the NT itself. It is
also significant that freedom of information
is not a “universally
accepted fundamental human
right”,7[2] but is directed at
promoting good government. That is why it is dealt with in CP IX, as one of a
series of CPs dealing specifically
with
government.7[3] Had freedom of
information indeed been a fundamental human right or one of the basic structural
requirements for the new dispensation,
its suspension would have been
inconsistent with the character of the state envisaged by the drafters of the
CPs.
[86] But it is not such a right. CP IX requires that
“provision” be made for freedom of information in the NT. That
has
been done in NT 32(1) read with NT sch 6 s 23(2)(a), which clearly delineates
the right and puts the legislature on terms under
the sanction of unqualified
implementation. In the context of CP IX, and of what is reasonably required on
the part of the legislature
if such provision is to be made, that meets the
requirements of the CP. If the legislation is not passed timeously the general
but
undefined right as formulated in NT 32(1) will come into operation. That is
reasonable. The legislature is far better placed than
the courts to lay down
the practical requirements for the enforcement of the right and the definition
of its limits. Although NT
32(1) is capable of being enforced by a court - and
if the necessary legislation is not put in place within the prescribed time it
will have to be - legislative regulation is obviously
preferable.
[87] Although three years from the date of adoption of the
NT seem a long time for the necessary legislation to be put in place,
the
decision as to the time reasonably required to draft the legislation was one to
be made by the CA. We cannot say that it exceeded
its authority in the decision
that it took. In the result, we hold that the provisions of CP IX have been
complied with.
I. NT 35(1)(f): BAIL
[88] NT 35(1)(f)
provides that:
“Everyone who is arrested for allegedly committing an offence has the right-
....
(f) to be released from detention if the interests of justice permit, subject to reasonable conditions.”
The objection to
this section was that it places an onus on an applicant for bail to prove that
his or her release would be in the
interests of justice. The only basis,
however, for such an objection would be that NT 35(1)(f) as formulated fails to
recognise
a “universally accepted fundamental right” and is
therefore in conflict with CP II. But it cannot be said that there
is a
universally accepted formulation of a right to bail. There are various ways in
which pending trial release is dealt with in
constitutions and conventions.
Sometimes bail is not mentioned at all. When it is mentioned, the right to
release is often subject
both to the exercise of judicial discretion to
determine whether bail should be granted and to the imposition of reasonable
conditions.7[4] In the
circumstances, there is no merit in the objection, and it is not necessary for
us to consider whether the objectors have
rightly interpreted the
clause.
J. NT 36(1): LIMITATIONS OF RIGHTS
[89] It was
contended that limitations to fundamental rights protected in a bill of rights
are acceptable only if such limitations
are “necessary”; NT 36(1),
on the other hand, makes provision for rights to be limited in circumstances
where such limitations
are “reasonable and justifiable”. NT 36(1)
does not repeat the requirement contained in the IC that in a number of
specified
cases the limitation must also be “necessary”. The
result, so it was argued, was that the NT fell short of meeting the
standards of
universally accepted norms which permit limitations only when they are
“necessary”.
[90] It is true that international human rights
instruments indicate that limitations on fundamental rights are permissible only
when they are “necessary” or “necessary in a democratic
society”.7[5] But
“necessity” is by no means universally accepted as the appropriate
norm for limitation in national
constitutions.7[6] The term has,
moreover, been given various interpretations, all of which give central place to
the proportionate relationship
between the right to be protected and the
importance of the objective to be achieved by the
limitation.7[7] The content this
Court gave to the limitations clause in IC 33(1) in S v Makwanyane and
Another conformed to that
interpretation.7[8] Indeed, NT
36(1) is substantially a repetition of what was said in that
judgment.7[9] But what matters for
present purposes is that the conceptual requirement established by international
norms relative to proportionality
or balancing be met. The choice of language
lay with the CA. The criteria set out in NT 36(1) do in fact conform to
internationally
accepted standards, and comply with CP II.
K. NT 37:
STATES OF EMERGENCY
[91] NT 37 envisages national legislation
authorising the temporary and partial curtailment of the Bill of Rights in
limited circumstances
and subject to detailed
conditions.8[0] In principle there
can be no objection to such authorisation. Partial curtailment of a bill of
rights during a genuine national
emergency is not inherently inconsistent with
“universally accepted fundamental human rights, freedoms and civil
liberties”.
Nor can it be said that the safeguards provided by NT 37
against possible legislative or executive abuse of emergency powers are
inadequate. Two subsidiary points relating to the section have, however, been
raised. The first was that NT 37(1) authorises national
legislation governing
the declaration of an emergency without specifying who may be empowered to issue
such a declaration. Although
it is correct that the subsection leaves it to
Parliament to make the designation, that cannot found a valid objection to
certification
of NT 37. CP II does not require constitutional designation of
the entity which is to be empowered to declare an emergency, nor
does
universally accepted human rights jurisprudence. None of the other CPs does so
either. The envisaged legislation will be subject
to constitutional control
and, insofar as the executive branch of government may be vested with the power,
it is significant that
NT 37(2) and (3) involve the legislature and the
judiciary as watchdogs. That amply complies with international
norms.8[1] In the result the
objection must fail.
[92] The second point, which arose in the course of
oral argument, relates to NT 37(4) and (5), which read as follows:
“(4) Any legislation enacted in consequence of a declared state of emergency may derogate from the Bill of Rights only to the extent that -
(a) the derogation is strictly required by the emergency; and
(b) the legislation -
(i) is consistent with the Republic’s obligations under international law applicable to states of emergency;
(ii) conforms to subsection (5); and
(iii) is published in the national Government Gazette as soon as reasonably possible after being enacted.
(5) No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration, may permit or authorise -
(a) indemnifying the state, or any person, in respect of any unlawful act;
(b) any derogation from this section; or
(c) any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of that table.”
[93] The
problem lies in a provision in the table referred to in NT 37(5) rendering
derogable inter alia the right of accused persons,
guaranteed by NT 35(5), to
have evidence obtained in circumstances violative of the Bill of Rights excluded
if its admission “would
render the trial unfair or otherwise be
detrimental to the administration of justice”.
[94] Had
subsection 4 stood alone, paragraph (a) of it might well have sufficed for the
protection of rights during states of emergency,
to the extent commensurate with
such situations of peril. The addition of subsection 5, however, has introduced
a differentiation
between the importance of various rights which seems invidious
and, in some instances at least, so inexplicable as to be arbitrary.
We can
think of no reason why some of the rights that are said to be derogable in
states of emergency should be treated as such.
A clear example is the
derogability of NT 35(5). Derogation from such a right cannot be justified
even in an emergency. Any attempt
at such justification would fail in terms of
NT 37(4). No purpose is therefore served by this attempt to render derogable
what can
in practice never be justified.
[95] Although we accept that
it is in accordance with universally accepted fundamental human rights to draw a
distinction between
those rights which are derogable in a national emergency
and those which are not, this should be done more rationally and thoughtfully
than it is done in NT 37(5).
L. MARRIAGE AND FAMILY RIGHTS
[96] The objectors stated that almost all international human rights
instruments include provisions either recognising the family
as the basic unit
of society or else protecting the right freely to marry and to establish family
life. The constitutions of many
democratic countries also expressly contain
such rights. Accordingly, they argued, the absence of such rights in the NT
violated
CP II.
[97] From a survey of international instruments it is
clear that, in general, states have a duty, in terms of international human
rights law, to protect the rights of persons freely to marry and to raise a
family. The rights involved are expressed in a great
variety of
ways8[2] with different emphases in
the various instruments. Thus the African Charter on Human and Peoples’
Rights expressly protects
the right to family life (article 18), but says
nothing about the right to marriage. Similarly the Convention on the
Elimination
of All Forms of Discrimination against Women departs from many other
international documents by emphasising rights of free choice,
equality and
dignity in all matters relating to marriage and family relations (article 16),
without referring at all to the family
as the basic unit of
society.
[98] A survey of national constitutions in
Asia,8[3]
Europe,8[4] North
America8[5] and
Africa8[6] shows that the duty on
the states to protect marriage and family rights has been interpreted in a
multitude of different ways. There
has by no means been universal acceptance of
the need to recognise the rights to marriage and to family life as being
fundamental
in the sense that they require express constitutional
protection.
[99] The absence of marriage and family rights in many
African and Asian countries reflects the multi-cultural and multi-faith
character
of such societies. Families are constituted, function and are
dissolved in such a variety of ways, and the possible outcomes of
constitutionalising family rights are so uncertain, that constitution-makers
appear frequently to prefer not to regard the right
to marry or to pursue family
life as a fundamental right that is appropriate for definition in
constitutionalised terms. They thereby
avoid disagreements over whether the
family to be protected is a nuclear family or an extended family, or over which
ceremonies,
rites or practices would constitute a marriage deserving of
constitutional protection. Thus, some cultures and faiths recognise
only
monogamous unions while others permit polygamy. These are seen as questions
that relate to the history, culture and special
circumstances of each society,
permitting of no universal solutions.
[100] International experience
accordingly suggests that a wide range of options on the subject would have been
compatible with CP
II. On the one hand, the provisions of the NT would clearly
prohibit any arbitrary state interference with the right to marry or
to
establish and raise a family. NT 7(1) enshrines the values of human dignity,
equality and freedom, while NT 10 states that everyone
has the right to have
their dignity respected and protected. However these words may come to be
interpreted in future, it is evident
that laws or executive action resulting in
enforced marriages, or oppressive prohibitions on marriage or the choice of
spouses, would
not survive constitutional challenge. Furthermore, there can be
no doubt that the NT prohibits the kinds of violations of family
life produced
by the pass laws or the institutionalised migrant labour system, just as it
would not permit the prohibitions on free
choice of marriage partners imposed by
laws such as the Prohibition on Mixed Marriages Act 55 of
1949.8[7]
[101] On the other
hand, various sections in the NT either directly or indirectly support the
institution of marriage and family
life. Thus, NT 35(2)(f)(i)and (ii) guarantee
the right of a detained person to communicate with, and be visited by, his or
her spouse
or partner and next of kin.
[102] There are two further
respects in which the NT deals directly with the issue, and both relate to
family questions of special
concern. The first deals with the rights of the
child, wherein the right to family and parental care or appropriate alternative
care is expressly guaranteed (NT 28(1)(b)). The second responds to the
multi-cultural and multi-faith nature of our country. NT
15(3)(a) authorises
legislation recognising “marriages concluded under any tradition or a
system of religious, personal or
family law”, provided that such
recognition is consistent with the general provisions of the
NT.
[103] In sum, the CA was free to follow either those states that
expressly enshrined protection of marriage and family rights in
their
constitutions, or else those that did not. It took a middle road and, in the
circumstances, the objection cannot be sustained.
M. MISCELLANEOUS
POINTS
[104] There were a variety of other objections to provisions in
and omissions from the Bill of Rights. In respect of each objection,
however,
the basic flaw is that the CPs contain nothing which lends it support. We
repeat that it is not for us but for the CA,
the duly mandated agent of the
electorate, to determine - within the boundaries of the CPs - which provisions
to include in the Bill
of Rights and which not. We can accordingly express no
view on the merits, or otherwise, of the objections which advocated the
following:
(a) the reinstatement of capital punishment;
(b) that abortion should be permitted;
(c) that abortion should be prohibited;
(d) amendments to the sections dealing with education and, in particular, the language medium of education;
(e) amendments to the sections dealing with equality, affirmative action, privacy, the environment, freedom of movement with reference to illegal immigrants, language and culture and the right to present petitions;
(f) the banning of pornography, obscenity and blasphemy;
(g) the constitutional protection of the right to self-defence and to possess firearms;
(h) discrimination against homosexuals; and
(i) the prohibition on restraints on trade.
CHAPTER
IV. CENTRAL GOVERNMENT ISSUES
[105] Having dealt with the provisions
of the NT relating to the relationship between the state and the individual -
and between
individuals - we turn to a consideration of the relationship between
organs of state at the national level. The discussion relates
to a wide variety
of issues and commences with the fundamental relationship between the three
pillars of the South African state.
A. SEPARATION OF POWERS BETWEEN THE
LEGISLATURE AND THE EXECUTIVE
[106] An objection was taken to
various provisions of the
NT8[8][106] that are said to
violate CP VI. This CP reads:
“There shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.”
The
principal objection is directed at the provisions of the NT which provide for
members of executive government also to be members
of legislatures at all three
levels of government. It was further submitted that this failure to effect full
separation of powers
enhances the power of executive government (particularly in
the case of the President and provincial Premier), thereby undercutting
the
representative basis of the democratic order.
[107] The objector does
not suggest that there has not been an adequate separation of the judicial power
from the legislative and
executive power, or that there has not been an adequate
separation of the functions between the legislature, the executive and the
judiciary. His complaint is that members of the Cabinet continue to be members
of the legislature and, by virtue of their positions,
are able to exercise a
powerful influence over the decisions of the legislature. He contends that this
is inconsistent with the
separation of powers and cites as examples to be
followed the United States of America, France, Germany and the
Netherlands.
[108] There is, however, no universal model of separation
of powers, and in democratic systems of government in which checks and
balances
result in the imposition of restraints by one branch of government upon another,
there is no separation that is absolute.
This is apparent from the
objector’s own examples. While in the USA, France and the Netherlands
members of the executive
may not continue to be members of the legislature, this
is not a requirement of the German system of separation of powers. Moreover,
because of the different systems of checks and balances that exist in these
countries, the relationship between the different branches
of government and the
power or influence that one branch of government has over the other, differs
from one country to another.
[109] The principle of separation of
powers, on the one hand, recognises the functional independence of branches of
government.
On the other hand, the principle of checks and balances focuses on
the desirability of ensuring that the constitutional order, as
a totality,
prevents the branches of government from usurping power from one another. In
this sense it anticipates the necessary
or unavoidable intrusion of one branch
on the terrain of another. No constitutional scheme can reflect a complete
separation of
powers: the scheme is always one of partial separation. In
Justice Frankfurter’s words, “[t]he areas are partly interacting,
not wholly
disjointed”.8[9]
[110] NT
43 vests the legislative authority of government in the national sphere in
Parliament and in the provincial sphere in the
provincial legislatures. NT 85
and 125 vest the executive power of the Republic in the President and the
executive power of the
provinces in the Premiers, respectively. NT 165 vests
the judicial authority of the Republic in the courts. This constitutional
separation of powers has important consequences for the way in which and the
institutions by which power can be
exercised.9[0]
[111] As the
separation of powers doctrine is not a fixed or rigid constitutional doctrine,
it is given expression in many different
forms and made subject to checks and
balances of many kinds. It can thus not be said that a failure in the NT to
separate completely
the functionaries of the executive and legislature is
destructive of the doctrine. Indeed, the overlap provides a singularly
important
check and balance on the exercise of executive power. It makes the
executive more directly answerable to the elected legislature.
This is
emphasised by the provisions of NT 92(2), which indicate that members of the
Cabinet are “accountable collectively
and individually to Parliament for
the performance of their functions”. In terms of NT 92(3)(b), Cabinet
members are compelled
to provide Parliament with full and regular reports
concerning matters under their control. And finally, the legislature has the
power to remove the President and indirectly the Cabinet (which is
presidentially appointed) under NT 89.
[112] Within the broad
requirement of separation of powers and appropriate checks and balances, the CA
was afforded a large degree
of latitude in shaping the independence and
interdependence of government branches. The model adopted reflects the
historical circumstances
of our constitutional development. We find in the NT
checks and balances that evidence a concern for both the over-concentration
of
power and the requirement of an energetic and effective, yet answerable,
executive. A strict separation of powers has not always
been
maintained;9[1] but there is nothing
to suggest that the CPs imposed upon the CA an obligation to adopt a particular
form of strict separation, such
as that found in the United States of America,
France or the Netherlands.
[113] What CP VI requires is that there be a
separation of powers between the legislature, executive and judiciary. It does
not
prescribe what form that separation should take. We have previously said
that the CPs must not be interpreted with technical
rigidity.9[2] The language of CP VI
is sufficiently wide to cover the type of separation required by the
NT,9[3] and the objection that CP VI
has not been complied with must accordingly be rejected.
B. THE POWER
OF THE PRESIDENT TO ISSUE PARDONS
[114] The powers and functions of the
President are set out in NT 84(1) and (2). The objection argued on behalf of
the objectors
concerns the power given to the President in terms of NT 84(2)(j).
NT 84 provides in part:
“(1) The President has the powers entrusted by the Constitution and legislation, including those necessary to perform the functions of Head of State and head of the national executive.
(2) The President is responsible for
....
(j) pardoning or reprieving offenders and remitting any fines, penalties or forfeitures”.
[115] It is
alleged that this power offends CPs IV, VI and VII. The basis of the objection
is, first, that the exercise of the power
is not constrained by any
constitutional or common law procedures, or any substantive constitutional
criteria or rules, and that
no reasons need be given for its exercise or for any
refusal to exercise the power. It was contended that the power therefore
detracts
from the requirements of CP IV, which proclaims the supremacy of the
Constitution. Second, it was argued that the responsibility
entrusted to the
President is an executive and not a judicial power, yet its exercise encroaches
upon the judicial terrain and in
fact overrules or negates judicial decisions in
violation of both the separation of powers requirement of CP IV and the
provisions
pertaining to judicial functions in CP VII.
[116] The power
of the South African head of state to pardon was originally derived from royal
prerogatives. It does not, however,
follow that the power given in NT 84(2)(j)
is identical in all respects to the ancient royal prerogatives. Regardless of
the historical
origins of the concept, the President derives this power not from
antiquity but from the NT itself. It is that Constitution that
proclaims its
own supremacy.9[4] Should the
exercise of the power in any particular instance be such as to undermine any
provision of the NT, that conduct would
be reviewable.
[117] The
objection based on CPs VI and VII really amounts to a complaint about a
perceived overlap of powers and functions between
the President, as a member of
the executive, on the one hand and the judiciary on the other. It has never
been part of the general
functions of the court to pardon and reprieve offenders
after justice has run its course. The function itself is one that is ordinarily
entrusted to the head of state in many national constitutions, including in
countries where the constitution is
supreme9[5] and where the doctrine
of separation of powers is strictly observed.
C. COURTS AND THE
ADMINISTRATION OF JUSTICE
[118] We now consider the objections levelled
against various provisions contained in NT ch 8 which deal with courts and the
administration
of justice. The CPs which are relevant to this Chapter are CP V,
CP VI, and CP VII.
[119] The main
objections9[6] with regard to this
Chapter are centred on:
(a) the composition and independence of the Judicial Service Commission (the “JSC”);
(b) the independence of the judiciary, with particular reference to the appointment of acting judges;
(c) the position and independence of the magistracy;
(d) the prosecuting authority; and
(e) the participation of lay people in court decisions.
We now proceed to deal with each of
these matters.
Judicial Service Commission
[120] The JSC has a
pivotal role in the appointment and removal of
judges.9[7] It consists of the
Chief Justice, the President of the Constitutional Court, one Judge President,
two practising attorneys, two
practising advocates, one teacher of law, six
members of the NA, four permanent delegates to the National Council of Provinces
(“NCOP”),
four members designated by the President as head of the
national executive, and the Minister of
Justice.9[8] The practising
attorneys and advocates and the teacher of law are to be designated by their
respective professions; the Judge President
is to be designated by all the
Judges President; at least three members of the NA must come from opposition
parties; the four delegates
of the NCOP must be supported by the vote of at
least six of the nine provinces; and the four presidential appointments are to
be
made after consultation with the leaders of all the parties in the
NA.
[121] It was contended that Parliament and the executive are
over-represented on the JSC and that the President, who appoints the
Minister of
Justice, the Chief Justice, the President of the Constitutional Court and four
members of the JSC, and who selects the
Constitutional Court judges from the JSC
list or lists, has been given too dominant a role in the appointment of judges.
The President
also has the power in terms of NT 178(2) to select a
profession’s nominees if there is disagreement within a profession as
to
who its nominees should be. The President is required to do this after
consulting the profession concerned and is also required
to consult the JSC
before appointing the Chief
Justice,9[9] and the JSC and the
leaders of parties represented in the NA before appointing the President of the
Constitutional
Court.10[0]
[122] CP VI
makes provision for a separation of powers between the legislature, executive
and judiciary and CP VII requires the judiciary
to be “appropriately
qualified, independent and impartial”. NT 174(1) requires that a person
appointed to judicial
office be “appropriately qualified” and a
“fit and proper person” for such office. These are objective
criteria
subject to constitutional control by the courts, and meet the
requirements of CP VII in that regard. The CPs do not, however, require
a JSC
to be established and contain no provision dealing specifically with the
appointment of judges.
[123] The requirement of CP VI that there be a
separation of powers between the legislature, executive and judiciary is dealt
with
elsewhere in this
judgment.10[1] An essential part
of the separation of powers is that there be an independent judiciary. The mere
fact, however, that the executive
makes or participates in the appointment of
judges is not inconsistent with the doctrine of separation of powers or with the
judicial
independence required by CP VII. In many countries in which there is
an independent judiciary and a separation of powers, judicial
appointments are
made either by the executive or by Parliament or by
both.10[2] What is crucial to the
separation of powers and the independence of the judiciary is that the judiciary
should enforce the law impartially
and that it should function independently of
the legislature and the executive. NT 165 is directed to this end. It vests
the judicial
authority in the courts and protects the courts against any
interference with that authority. Constitutionally, therefore, all judges
are
independent.
[124] Appointment of judges by the executive or a
combination of the executive and Parliament would not be inconsistent with the
CPs. The JSC contains significant representation from the judiciary, the legal
professions and political parties of the opposition.
It participates in the
appointment of the Chief Justice, the President of the Constitutional Court and
the Constitutional Court
judges, and it selects the judges of all other courts.
As an institution it provides a broadly based selection panel for appointments
to the judiciary and provides a check and balance to the power of the executive
to make such appointments. In the absence of any
obligation to establish such a
body, the fact that it could have been constituted differently, with greater
representation being
given to the legal profession and the judiciary, is
irrelevant. Its composition was a political choice which has been made by the
CA within the framework of the CPs. We cannot interfere with that decision, and
in the circumstances the objection to NT 178 must
be rejected.
Acting
Judges
[125] Objections were raised in respect of the provisions of the
NT dealing with the appointment of acting judges. They were to
the effect
that
(a) the Minister of Justice effectively has a sole discretion to make the appointments of all acting judges, save for the appointment of acting judges to the Constitutional Court;
(b) the principle of separation of powers is compromised since political control over these appointments becomes possible; and
(c) safeguards such as tenure, an open process and involvement of the JSC have been omitted.
[126] The fact that the Minister
has a significant role in the appointment of acting judges is not in itself a
contravention of
CP VI. We have dealt in paragraphs 122-4 of this judgment with
the reasons for this conclusion.
[127] The appointment of acting judges
is a well established feature of the judicial system in South Africa. Such
appointments are
made to fill temporary vacancies which occur between meetings
of the JSC, or when judges go on long leave, are ill or are appointed
to preside
over a commission. These appointments are necessary to ensure that the work of
the courts is not disrupted by temporary
vacancies or the temporary absence or
disability of particular judges.
[128] That acting judges have no
security of tenure, and may therefore be perceived to lack an important
guarantee of the independence
that is a prerequisite for judicial office, is
relevant to the requirements of CP VII. If the appointment of acting and
permanent
judges were to be at the discretion of the Minister there would be
concern on this score. But this is not the case. Acting appointments
are
essentially temporary appointments for temporary purposes. Although judges are
appointed by the President in terms of NT 174(6),
the President has to act on
the advice of the JSC. The JSC is an independent body. If there is a vacancy
in a court the JSC is
under a duty to fill it. It may no doubt delay or defer
an appointment until a suitable candidate is identified, but it should not
be
assumed that it will abdicate its responsibility by allowing permanent vacancies
to be filled indefinitely by acting judges.
Acting appointments provide it with
a valuable opportunity for assessing the qualities of potential judges. The use
of part-time
judges has become a feature of the court system in England, which
is a country always associated with an independent judiciary.
Such appointments
are made there for the same reasons as they are made in South Africa: “to
assist the work of the courts”
and to “give to possible candidates
for full-time appointments the experience of sitting judicially and an
opportunity to establish
their
suitability”.10[3]
[129] Acting appointments often have to be made urgently and unexpectedly.
The JSC is a large body and there are practical reasons
why a meeting of the JSC
cannot be convened whenever the need arises for such an appointment to be made.
It was contended, however,
that NT 175 confers too much power on the Minister
and that the necessary checks and balances on the exercise of such power are
lacking.
[130] Appointment of an acting judge to the Constitutional
Court, which is the court of last instance on all constitutional
matters,10[4] is in a special
category. NT 175(1) requires such appointments to be made by the President on
the recommendation of the Minister
acting with the concurrence of the President
of the Constitutional Court and the Chief Justice. All three are members of the
JSC
and the requirement that there be agreement between them as to the person to
be appointed meets any reasonable concern that the power
of appointing an acting
Constitutional Court judge might be abused.
[131] In terms of NT 175(2),
acting appointments to other courts can be made by the Minister of Justice after
consultation with the
senior judge of the court on which the acting judge will
serve. The constitutional requirement that such consultation take place
is a
formalisation of a constitutional convention followed in many Commonwealth
countries in which the judiciary is regarded as independent.
It leaves the
final decision to the Minister but requires the decision to be taken in good
faith with due regard to the advice given.
An acting judge is obliged by NT sch
2 s 6 to take an oath or to make a solemn affirmation to uphold the Constitution
and “administer
justice to all persons alike without fear, favour or
prejudice, in accordance with the Constitution and the law”. An acting
judge is protected by the provisions of NT 165 and sits only in cases assigned
by the senior judge of the court. The Minister therefore
has no control over
the cases that such person will hear, and is precluded by NT 165 from
interfering in any way with the discharge
by the acting judge of his or her
duties.
[132] In our view there are adequate safeguards in the NT to
meet the requirements of CP VII and the objection taken to NT 175 must
be
rejected.
Independence of the Magistracy
[133] NT 165
states that judicial authority is vested in the courts (which according to NT
166(d) includes the magistrates’
courts) and that the courts are
independent and subject only to the Constitution and the law, which they must
apply impartially without
fear, favour or prejudice.
[134] The
appointment of magistrates is governed by NT 174(7), which provides that
“[o]ther judicial officers must be appointed in terms of an Act of Parliament which must ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against, these judicial officers take place without favour or prejudice.”
There is no equivalent in
the NT to IC 109 which provides for the establishment of a Magistrates
Commission, as follows:
“There shall be a Magistrates Commission established by law to ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against magistrates, take place without favour or prejudice, and that the applicable laws and administrative directives in this regard are applied uniformly and properly, and to ensure that no victimization or improper influencing of magistrates occurs.”
[135] Objection
was made to the NT on the grounds that the independence of the magistracy, as
required by CP VII, was not satisfactorily
secured in the NT. In particular,
the objectors stated that (a) there were no express provisions governing the
appointment, term
of office, remuneration and removal from office of
magistrates; and (b) there was no magistrates’ commission such as that
established
by the IC.
[136] The CPs do not require such matters to be dealt with in
the NT. The independence of all courts is guaranteed by NT 165. NT
174(7)
provides that the appointment of “other judicial officers” will be
provided for in terms of an Act of Parliament.
Such legislation will be subject
to constitutional control, and if it undermines the independence and
impartiality of the courts,
which are specifically protected in terms of NT 165,
it will not be valid. In the circumstances it is our view that the requirements
of CP VII have therefore been met.
[137] A further objection was taken
to NT 170 which excludes from the jurisdiction of the magistrates’ courts
the power to
enquire into or to pronounce on the constitutionality of any
legislation or any conduct of the President. This, it was argued,
contravenes
CP VII, read with CP II and CP V. CP VII requires that the judiciary should
“have the power and jur
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