Brief Summary

Constitutional Law — Amendment of the Constitution — Validity of amendments — Premier of KwaZulu-Natal challenged the constitutionality of amendments to the Constitution of the Republic of South Africa, specifically section 149(10) as amended by the 1995 Constitutional Amendment — Applicants argued that the amendment infringed upon legislative competence and required provincial consent under section 62(2) — Court held that the amendment did not alter the legislative or executive competence of the province and thus did not require the consent of the provincial legislature, affirming the validity of the amendment.

Comprehensive Summary

Summary of Judgment

Introduction

These proceedings were an application to the Constitutional Court for an order declaring unconstitutional (and therefore invalid) a series of constitutional amendments purportedly effected by the Constitution of the Republic of South Africa Second Amendment Act 44 of 1995. The matter came before the Court by way of direct access.

The applicants were the Premier of KwaZulu-Natal (first applicant) together with several Members of the Executive Council in KwaZulu-Natal and the Executive Council of the Province of KwaZulu-Natal. The respondents were the President of the Republic of South Africa, the Government of the Republic of South Africa, and the Minister for Provincial Affairs and Constitutional Development.

Procedurally, the matter was initiated as an application for direct access under rule 17 of the Constitutional Court Rules, read with section 100(2) of the interim Constitution (the Constitution of the Republic of South Africa, Act 200 of 1993). Direct access was granted. The applicants initially also attacked certain amendments to the Local Government Transition Act 209 of 1993, but those challenges were abandoned during oral argument, leaving only the constitutional amendments in issue.

The dispute concerned the constitutional validity of amendments to sections 149(10), 182, 184, and 245 of the interim Constitution. At its core, the litigation raised questions about the procedural and substantive limits (if any) on Parliament’s power to amend the Constitution, and in particular the proper reach of the special amendment procedure and provincial consent mechanism in section 62(2).

Material Facts

The facts material to the outcome were largely common cause and arose from the text of the constitutional amendments and the manner of their enactment.

Parliament passed the 1995 constitutional amendment at a joint sitting of the National Assembly and the Senate by a two-thirds majority of the total number of members of both Houses, thereby complying with the general amendment procedure in section 62(1). It was also common cause that, if the special procedure in section 62(2) (including the consent of a relevant provincial legislature) was applicable, that procedure had not been followed.

The amendments challenged were, in substance, the following.

First, section 149(10) was altered so that the remuneration and allowances payable from a Provincial Revenue Fund to a Premier and members of an Executive Council would be determined by the President, rather than being prescribed by or determined under a law of the provincial legislature, subject in both versions to section 207(2).

Second, section 182 (concerning traditional leaders and local government) was amended by introducing wording that required a traditional leader, to become an ex officio member of an elected local government, to have been identified in a manner and according to guidelines prescribed by the President by proclamation in the Gazette, after consultation with the Council of Traditional Leaders (or relevant Houses of Traditional Leaders).

Third, section 184(5) (dealing with referral of certain parliamentary Bills to the Council of Traditional Leaders) was amended to introduce conditions linked to whether the Council had been elected, commenced functioning, and was able to function, and further to provide that if the Council was not in existence by 28 February 1996 then referral would instead be to the Houses contemplated in section 183. The amendment was also deemed to have come into operation on 1 May 1994, creating a retrospective commencement date.

Fourth, sections 245(1) and 245(2) (transitional arrangements for local government restructuring) were amended by replacing a trigger linked to the holding of elections under the Local Government Transition Act with a fixed cut-off date of 31 March 1996. The effect was that, until that date, local government could not be restructured otherwise than under the Transition Act, and only after that date could restructuring occur under legislation enacted by a competent authority in accordance with Chapter 10 and the Constitution as a whole.

A further relevant, but not contested, factual feature was that KwaZulu-Natal had enacted the KwaZulu-Natal Legislature Remuneration Act 2 of 1994, which regulated salaries and allowances for the Premier and Executive Council members before the impugned amendment to section 149(10). Additionally, KwaZulu-Natal local government elections were (as acknowledged in argument) scheduled for 27 March 1996, meaning the amended section 245 cut-off date would delay restructuring outside the Transition Act by only a few days in that province.

Legal Issues

The central legal questions were questions of constitutional law and constitutional interpretation, coupled with the application of those interpretive conclusions to the challenged amendments.

The principal issue was whether any of the impugned amendments required compliance with the special procedure in section 62(2) of the interim Constitution, particularly the proviso that “the boundaries and the legislative and executive competences of a province shall not be amended without the consent of a relevant provincial legislature.” This in turn required the Court to determine the meaning and reach of the proviso: whether it operated only as a qualification to amendments of sections 126 and 144, or whether it operated independently, and (in either case) what “consent of a relevant provincial legislature” required in circumstances where an amendment applied generally across all provinces.

A secondary set of issues concerned attempted challenges framed as conflicts between the amended provisions and other parts of the Constitution, including whether a constitutional amendment could be invalidated for inconsistency with another constitutional provision, and whether reliance on Constitutional Principle XVIII(2) (in Schedule 4) could ground invalidity of amendments to the interim Constitution.

Additional issues arose regarding whether section 184(5) imposed procedural preconditions on the validity of a constitutional amendment to that very section, whether retrospective constitutional amendments were permissible, and whether amendments indirectly affecting provincial powers could be impugned as contrary to the “spirit” of the Constitution.

Court’s Reasoning

The Court approached the dispute by analysing each challenged amendment separately, while repeatedly returning to the structure of the Constitution’s amendment mechanisms and to the interpretive question posed by section 62(2).

In relation to the initial submission that the amended section 149(10) conflicted with other constitutional provisions (including section 135(4), section 155, and section 207(2)), the Court considered that such an attack could not succeed as a matter of principle. It stated that, provided an amendment is adopted in compliance with the Constitution’s prescribed procedures, an amendment that is inconsistent with an earlier provision would operate as a pro tanto amendment or implied repeal of that earlier provision. On this basis, the Court recorded that counsel wisely abandoned the conflict-based challenge during oral argument.

The Court also rejected reliance on Constitutional Principle XVIII(2) as a basis to invalidate the amendment to section 149(10). It reasoned that the Constitutional Principles in Schedule 4 were directed at the future Constitution and its certification, not at constraining Parliament’s power to amend the interim Constitution. The Court placed weight on section 71 (as reflecting the status and purpose of the Principles) and on the fact that the Constitution itself set out what could and could not be amended, and the procedures for amendment. In the Court’s view, the Constitution did not insulate section 149(10) from amendment, nor impose special procedures for its amendment. The Court therefore held that the “Constitutional Principles” argument was misconceived in the present context. While noting (without deciding) that there might hypothetically be limits if an “amendment” destroyed essential constitutional features, the Court held that the amendment to section 149(10) was not of that character.

The main argument on section 149(10) was procedural: the applicants contended that shifting the determination of remuneration from a provincial law to the President amended provincial legislative or executive competence and thus required compliance with the section 62(2) proviso, including provincial consent. The Court described the opposing interpretive positions. The respondents argued that the proviso qualified only the substantive part of section 62(2), which deals expressly with amendments to sections 126 and 144; the applicants argued that the proviso had independent force and applied whenever provincial boundaries or competences were amended, even where sections 126 and 144 were not directly amended.

The Court engaged with interpretive principles on provisos, referring to authority that a proviso ordinarily qualifies the preceding enactment, while also accepting that context can show that a proviso may operate more widely. The Court ultimately found it unnecessary to decide the debate in the abstract. It held that even if the applicants’ broader interpretation were assumed in their favour, they still had to show that the proviso was triggered on its own terms. The Court interpreted the proviso as contemplating legislation targeted at one or more provinces, not legislation of equal application to all provinces. Because the amendment to section 149(10) applied generally to all provinces and did not purport to single out any province, the Court concluded that no provincial consent was required, removing the foundation of the procedural challenge.

A similar reasoning structure was applied to the amendment to section 182. The applicants initially suggested the amendment offended the division of powers in section 126 read with Schedule 6, but this was not pursued because it rested on an incorrect premise that provincial competence in the listed functional areas was exclusive. The Court pointed out that section 126(2A) expressly contemplated that Parliament also has legislative power in these areas. The applicants also suggested that the amendment interfered with a prior assignment of administration of a provincial statute concerning traditional leadership. The Court held that such prior assignment did not prevent Parliament from legislating (or amending the Constitution) on the identification of traditional leaders for purposes of local government membership, and that any impact on an administrative assignment did not itself establish invalidity.

Critically, the Court held that the section 182 amendment did not purport to amend sections 126 or 144, and therefore the special procedure in section 62(2) was not engaged; the general procedure in section 62(1), which had been followed, sufficed. The Court further noted that even if a conflict between national and provincial legislation were to arise, section 126(3) governed such conflicts, and it observed that there was a substantial argument that objective guidelines for identification of traditional leaders could fall within section 126(3)(b). However, it regarded this as unnecessary to decide given its procedural conclusions. The Court again rejected reliance on the section 62(2) proviso on the basis that the amendment applied to all provinces and did not target a specific province.

Turning to section 184(5), the Court rejected a conflict-based attack for the same reasons as before. The applicants’ primary argument became procedural: that the Bill amending section 184(5) did not comply with the referral requirements contained in section 184(5) in its unamended form (because it was allegedly not referred to the Council of Traditional Leaders). The Court held this argument unsound because the referral requirement in section 184(5) applied to “parliamentary Bills” of the specified kind as ordinary legislation, and section 184(5) was not self-entrenching so as to impose special procedural requirements for its own amendment beyond the Constitution’s general amendment procedure. The relevant procedural requirement for amending the Constitution was section 62(1), and the applicants’ attack was not grounded on non-compliance with that section.

The Court also addressed the argument that the section 184(5) amendment was unconstitutional because it was retrospective (deemed to operate from 1 May 1994). It held there was nothing in the Constitution precluding a retrospective constitutional amendment, and counsel could point to no authority establishing such a prohibition. The Court further regarded as irrelevant, for purposes of the amendment’s validity, the suggestion that the retrospective commencement was intended to validate a pending Bill (the Remuneration of Traditional Leaders Bill). In the Court’s analysis, that allegation might potentially be relevant to a future challenge to the Bill if it became law, but it did not bear on the constitutionality of the amendment itself.

Finally, on sections 245(1) and (2), the applicants contended that fixing the cut-off date at 31 March 1996 indirectly interfered with provincial legislative competence in relation to local government, and thus constituted an extension of national authority into provincial competence without satisfying section 126(3). The Court expressed difficulty with this framing, noting that national regulation of the initial local government elections was arguably justifiable and, in any event, that the complaint again tended to collapse into reliance on section 62(2).

The Court held that the amendment to section 245 did not purport to amend section 126, and it did not alter the provinces’ legislative competence in Schedule 6; rather, it adjusted a transitional constitutional mechanism by setting a date for the continued operation of restructuring under the Transition Act. The Court also expressed reservations about the assumption that an amendment compliant with the Constitution’s own amendment procedures could be invalid merely because it had indirect practical consequences for when provincial legislatures could act in a particular field. The Court emphasised that the Constitution expressly identified provisions immune from amendment and those requiring special procedures; it did not confer such protection on section 245.

In response to the applicants’ submission that even a short delay in provincial capacity set a principle that could be extended dramatically, and that amendments must conform to the “spirit” of the Constitution, the Court rejected the “spirit” argument as misconceived in the circumstances. It stated that where the Constitution prescribes an amendment procedure, proper compliance makes an amendment “constitutionally unassailable.” It then noted, as a theoretical matter and without deciding it for South African law, jurisprudence (especially from India) suggesting that a purported “amendment” that destroys a constitution’s basic structure might not truly be an “amendment.” The Court held that none of the impugned amendments came close to that category.

Outcome and Relief

The Constitutional Court granted the applicants direct access (prayer 1 of the notice of motion). All remaining prayers seeking declarations that the impugned constitutional amendments were unconstitutional and invalid were dismissed.

The judgment as provided records no separate or express costs order in its concluding order.

Cases Cited

Freeman v Union Government 1926 TPD 638.

The Executive Council of the Western Cape Legislature and Others v The President of the Republic of South Africa and Others 1995 (10) BCLR 1289 (CC).

R v Dibdin (1910) P 57.

S v Mhlungu and Others [1995] ZACC 4; 1995 (7) BCLR 793 (CC); 1995 (3) SA 867 (CC).

Government of the Republic of Namibia v Cultura 2000 1994 (1) SA 407 (NmSC).

Ex parte Parington (1844) 6 QBD 649.

Re Brocklbank (1889) 23 QBD 461.

Hill v East and West India Dock Company (1884) 9 App Cas 448.

S v Rosenthal 1980 (1) SA 65 (A).

S.A. Textile and Allied Workers Union v Skipper International 1990 (4) SA 842 (A).

Strydom v Die Land- en Landboubank van S.A. 1972 (1) SA 801 (A).

R v Abel 1948 (1) SA 654 (A).

Minister of Finance and Another v Law Society, Transvaal [1991] ZASCA 88; 1991 (4) SA 544 (A).

C. Ltd. v The Commissioner of Taxes 1962 (1) SA 45 (S.R.).

Maphosa v Wilke en Andere 1990 (3) SA 789 (T).

Collins v Minister of the Interior and Another 1957 (1) SA 552 (A).

Mpangeli and Another v Botha and Others (1) 1982 (3) SA 633 (C).

Mpangeli and Another v Botha and Others (2) 1982 (3) SA 638 (C).

I.C. Golak Nath v Punjab (1967) 2 SCR 762.

Kesavananda v The State of Kerala (1973) SC 1461.

Minerva Mills Ltd v The Union of India (1980) SC 1789.

Indira Nehru Gandhi v Raj Narain (1975) SC 2299.

State of Rajasthan v The Union of India (1977) SC 1361.

Gupta v Union of India (1982) SC 149.

Legislation Cited

Constitution of the Republic of South Africa, Act 200 of 1993.

Constitution of the Republic of South Africa Second Amendment Act 44 of 1995.

Local Government Transition Act 209 of 1993.

KwaZulu-Natal Legislature Remuneration Act 2 of 1994.

KwaZulu Amakhosi and Iziphakanyiswa Act 9 of 1990.

Rules of Court Cited

Rule 17 of the Rules of the Constitutional Court.

Held

The Court held that the applicants failed to establish that any of the challenged constitutional amendments were invalid. The general constitutional amendment procedure in section 62(1) had been complied with, and the applicants did not demonstrate that the special procedure in section 62(2) (including provincial consent) applied to the impugned amendments.

In particular, the Court held that reliance on Constitutional Principle XVIII(2) was misplaced because the Constitutional Principles govern the future Constitution rather than constraining amendments to the interim Constitution, and that conflict-based attacks (asserting inconsistency between the amendment and other constitutional provisions) could not succeed where the amendment was properly enacted.

The Court further held that, even on the applicants’ broader reading of the proviso to section 62(2), the proviso did not apply to amendments of general application to all provinces. It also held that section 184(5) did not impose a self-entrenching referral requirement for its own amendment and that no constitutional prohibition on retrospective constitutional amendments was established.

LEGAL PRINCIPLES

A constitutional amendment properly enacted in accordance with the Constitution’s prescribed amendment procedures is not invalid merely because it is inconsistent with another provision of the Constitution; it operates to amend or repeal the earlier provision to the extent of inconsistency.

Constitutional Principles in Schedule 4 of the interim Constitution are directed at the adoption and certification of the future constitutional text and do not, as such, provide a basis for invalidating amendments to the interim Constitution.

The proviso to section 62(2) was treated as concerned with amendments affecting the boundaries or legislative and executive competences of a province in a manner that contemplates a “relevant” provincial legislature’s consent; on the Court’s approach, the proviso was not engaged by constitutional amendments of equal application to all provinces that do not target particular provinces.

Section 184(5) was not treated as self-entrenching in a way that would require compliance with its own referral procedure as a precondition to its constitutional amendment; the controlling procedural requirements for constitutional amendment are those set by section 62.

No prohibition on retrospective constitutional amendments was identified in the text of the interim Constitution, and no authority was accepted as establishing such a prohibition in the context of the impugned amendment.

The Court acknowledged, without deciding, a theoretical possibility that a purported “amendment” could be so radical as to destroy the basic structure of a constitution and thereby fall outside the concept of amendment, but held that none of the amendments challenged in the case approached that category.

Premier of Kwazulu-Natal and Others v President of the Republic of South Africa and Others (CCT36/95) [1995] ZACC 10; 1995 (12) BCLR 1561; 1996 (1) SA 769 (29 November 1995)