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

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GENERAL INDEX

CHAPTER I. INTRODUCTION

CHAPTER II. INTERPRETATION OF THE CONSTITUTIONAL PRINCIPLES

CHAPTER III. BILL OF RIGHTS

CHAPTER IV. CENTRAL GOVERNMENT ISSUES

CHAPTER V. PROVINCIAL GOVERNMENT ISSUES (OTHER THAN CP XVIII.2)

CHAPTER VI. LOCAL GOVERNMENT ISSUES

CHAPTER VII. PROVINCIAL POWERS (CP XVIII.2)

CHAPTER VIII. CONCLUSION AND ORDER

ANNEXURE 1: APPEARANCES

ANNEXURE 2: CONSTITUTIONAL PRINCIPLES

ANNEXURE 3: SUMMARY OF OBJECTIONS AND SUBMISSIONS

ANNEXURE 4: ABBREVIATIONS IN THE JUDGMENT

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:

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. 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". From the outset the country maintained a colonial heritage of racial discrimination: in most of the country the franchise was reserved for white males 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. 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 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.

[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. That commitment is expressed in the preamble to the Interim Constitution by an acknowledgement of the

With this end in view the IC

[11] Following upon exploratory andconfidential 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.

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.

[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:

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 XXXIV 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 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. Accordingly IC 71(2) reads as follows:

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:

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 Court and the Judicial Service Commission. 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. 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. Two days later the Chairperson of the CA, acting in accordance with rule 15 of the Rules of the Constitutional Court, transmitted the draft to this Court, certifying (i) that it had been adopted by the requisite majority, 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. 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. 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. 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. 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, 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 ..." and to facilitate the "continued governance of South Africa while an elected Constitutional Assembly draws up a final Constitution". 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. 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.

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".

[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:

[46] An examination of the NT establishes that it satisfies the basic structures and premises of the new constitution contemplated by the applicable CPs. (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:

For they were avowedly determined

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. 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.

[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:

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". 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

The comparable provision in the IC is 7(3), which provides that

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:

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, 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. 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:

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.

[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). 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.

[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:

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. 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. Other constitutions express the right in a positive way, entrenching the right to acquire and dispose of property. A further formulation frequently used is to state that "private property is inviolable" subject to expropriation in certain circumstances. 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. Where the nature of the compensation is mentioned, a variety of adjectives is used including "fair", "adequate", "full", "equitable and appropriate" and "just". 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. Some constitutions, too, prescribe that the compensation must be prompt or made prior to the expropriation. 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, it is much more rarely recognised in regional conventions protecting human rights and in the constitutions of acknowledged democracies. It is also true that some of the more recent constitutions, particularly in Eastern Europe, 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. 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. 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", 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. 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:

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. 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". But "necessity" is by no means universally accepted as the appropriate norm for limitation in national constitutions. 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. The content this Court gave to the limitations clause in IC 33(1) in S v Makwanyane and Another conformed to that interpretation. Indeed, NT 36(1) is substantially a repetition of what was said in that judgment. 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. 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. 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:

[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 ways 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, Europe, North America and Africa 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.

[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:

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 NT that are said to violate CP VI. This CP reads:

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".

[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.

[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; 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. The language of CP VI is sufficiently wide to cover the type of separation required by the NT, 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:

[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. 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 supreme 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 objections with regard to this Chapter are centred on:

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. 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. 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, and the JSC and the leaders of parties represented in the NA before appointing the President of the Constitutional Court.

[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. 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. 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

[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".

[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, 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

There is no equivalent in the NT to IC 109 which provides for the establishment of a Magistrates Commission, as follows:

[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 jurisdiction to safeguard and enforce the Constitution and all fundamental rights", while the requirements of CP II are that the fundamental rights, freedoms and civil liberties be entrenched and justiciable. CP V requires that the legal system ensures the equality of all before the law and an equitable legal process. By preventing the magistrates from enquiring into or ruling on the constitutionality of any legislation, however subordinate, in the course of criminal or civil proceedings otherwise within their jurisdiction, it was argued, the NT precludes the majority of South African courts from safeguarding and enforcing the NT where legislation or the conduct of the President is under scrutiny. The NT, therefore, makes it unnecessarily difficult for litigants and accused persons in the magistrates' courts to invoke and rely upon the Constitution.

[138] Neither do we accept this objection. The mere fact that some, but not all, courts have jurisdiction to decide constitutional issues does not mean that CP VII has not been complied with. Differences between the jurisdictions of "lower" and "higher" courts are not an unusual feature of court systems elsewhere in the world. The CA was entitled to confine jurisdiction over particular matters, including constitutional jurisdiction, to the "higher" courts, as has been done in the IC. The fact that such a decision was taken does not mean that the judiciary lacks the jurisdiction to safeguard and enforce the Constitution and all fundamental rights. It means no more than that litigants who wish to turn to the courts for enforcement of such rights must look to the "higher" and not the "lower" courts.

[139] The independence and impartiality of the judiciary are adequately protected by the involvement of the JSC in appointments of judges to the "higher" courts, and by the constitutional requirement guaranteeing the independence and impartiality of judicial officers in the "lower" courts.

The Prosecuting Authority

[140] Objection was taken to NT 179 which makes provision for a single national prosecuting authority consisting of a National Director of Public Prosecutions, Directors of Public Prosecutions and prosecutors. In terms of NT 179(2), the prosecuting authority has the power to institute criminal proceedings on behalf of the state. NT 179(5) provides that the National Director of Public Prosecutions is vested with powers which include the determination of prosecution policy, the issuing of policy directives which have to be observed in the prosecution process, the power to intervene in the prosecution process when policy directives are not complied with and the ability to review a decision to prosecute or not to prosecute.

[141] It was contended that the provisions of NT 179 do not comply with CP VI, which requires a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness. The objection was based primarily on the fact that, in terms of NT 179(1), the National Director of Public Prosecutions is appointed by the President as head of the national executive. There is no substance in this contention. The prosecuting authority is not part of the judiciary and CP VI has no application to it. In any event, even if it were part of the judiciary, the mere fact that the appointment of the head of the national prosecuting authority is made by the President does not in itself contravene the doctrine of separation of powers.

[142] The decision in Ex parte Attorney-General, Namibia: In Re: The Constitutional Relationship between the Attorney-General and the Prosecutor-General was relied upon in support of the objection. This case stressed the importance of the prosecuting authority in a constitutional state being independent and pointed to the potential danger of empowering political appointees to decide whether or not prosecutions should be instituted.

[143] The dispute in Ex parte Attorney-General arose out of the terms of the Namibian Constitution which provide that there should be an Attorney-General and a Prosecutor-General. The Attorney-General is a political appointment and holds office at the discretion of the President without any security of tenure. The Prosecutor-General is appointed by the President on the recommendation of the Judicial Service Commission and under the Constitution is vested with the power to prosecute in the name of the Republic of Namibia. The Court had to construe the Constitution and determine whether the Prosecutor-General was subject to the instructions of the Attorney-General. It concluded that he was not.

[144] In the course of the judgment reference was made to the lack of uniformity in Commonwealth countries in regard to the status of the prosecuting authority. It was said that

[145] Ex parte Attorney-General was concerned with the application of the particular prosecuting model selected by the Namibian Constitution. The decision as to the model to be adopted for the prosecuting authority in the NT is not prescribed by the CPs and was a decision to be taken by the CA. If that decision complies with the requirements of the CPs we have no power to set it aside. The choice that was made is not inconsistent with CP VII nor with any