255 - Certification of the Kwazulu-Natal Constitution, Case CCT15/96, 6 September 1996

[13] In our opinion there are fundamental respects in which the provincial Constitution is fatally flawed. Those flaws can appropriately be considered under three heads:

We consider each in turn.

Usurpation of National Powers
[14] In a number of provisions, the provincial Constitution purports to usurp powers and functions of Parliament and the national Government. This process begins in Chapter 1 dealing with “Fundamental Principles”. The majority of these principles are those that one would expect to find and would be appropriate in a national constitution. Clause 1(1), for example, provides that:

“The Province of KwaZulu Natal is a self-governing Province within the Republic of South Africa.”

That purports to be an operative provision of the provincial Constitution and not a record of a fact or an aspiration. It is clearly beyond the capacity of a provincial legislature to pass constitutional provisions concerning the status of a province within the Republic. After all, the provinces are the recipients and not the source of power. In The National Education Policy Bill case Chaskalson P, writing for the Court and after emphasising the distinction between the history, structure and language of the United States Constitution which brought several sovereign states together in a federation and that of our interim Constitution, explained the powers of the provinces under the interim Constitution as follows -

“Unlike their counterparts in the United States of America, the provinces in South Africa are not sovereign states. They were created by the Constitution and have only those powers that are specifically conferred on them under the Constitution.”[9]

There is no provision in the interim Constitution which empowers a province to regulate its own status.

[15] This is but one of a number of examples, all of which demonstrate the purported assertion by the KZN Legislature of a power which it manifestly does not have. Such a provision as well as others referred to below, fall outside the constitution making power conferred by section 160, because they are inconsistent with the provisions of the interim Constitution and thus breach the provision in section 160(3) expressly limiting a province’s constitution making power and constituting a condition precedent to certification stipulated in section 160(4). They would appear to have been passed by the KZN Legislature under a misapprehension that it enjoyed a relationship of co-supremacy with the national Legislature and even the Constitutional Assembly. …