THE Constitutional Court yesterday unanimously declined to ratify South Africa's new constitution, declaring that seven sections and an entire chapter were inconsistent with the constitutional principles enshrined in the interim constitution.
Key clauses which were found to be inconsistent with the 34 principles included those dealing with provincial governance, local government, collective bargaining, civil liberties and the offices of the public protector and auditor-general.
Drafted during negotiations for a settlement to South Africa's protracted conflict, the principles were intended to ensure that the new or final constitution underpinned and protected core democratic values. They were designed to give supremacy to the constitution rather than parliament and to ensure adequate devolution of power to the provincial and local tiers of government, as well as to entrench defence of fundamental human rights.
Passed in May by more than the prerequisite two-thirds majority of South Africa's 490 parliamentarians sitting as the Constituent Assembly, the new constitution is due to come into operation in 1999 when South Africans go to the polls for the first time since the watershed elections of 1994 marked the end of the old racial-oligarchy.
Yesterday's judgment meant that the Constituent Assembly has three months in which to ensure that the relevant clauses are modified to comply with the constitutional principles.
As details of the judgment were published and broadcast, debate started on its significance and to what extent it constituted a setback for the Constituent Assembly and, in particular, Mr Nelson Mandela's ANC and Mr F.W. de Klerk's National Party as the two biggest political parties in the assembly.
The judge president of the Constitutional Court, Mr Arthur Chaskalson, gave his assessment at the end of the 265-page judgment. Noting that the constitutional principles had been complied with in the "overwhelming" number of clauses, he said: "The instances of non-compliance that have been identified should present no significant obstacle to the Constituent Assembly in formulating a text which complies fully."
President Mandela's legal adviser, Mr Nicholas Haysom, took a similar line, noting that of the more than one thousand clauses in the new constitution only a "dozen or so" had been sent back for reappraisal and redrafting.
Presenting an opposite view, Mr Peter Leon, a lawyer who leads the Democratic Party in Gauteng province, argued that the rejected clauses focused on pivotal issues and that the rejection was more than a mere mishap for the two parties which dominated the constitution-making process, the ANC and the NP.
Judge Chaskalson's concluding remark was described by another legal observer as "easing the pain" for the dominant parties, particularly the ANC which, on its own, controls nearly two-thirds of the Constituent Assembly's members.
Whatever politically coloured views were taken on the implications of the judgment, few observers would have disagreed with Mr Bertus de Villiers, of the Human Science Research Council; he saw the judgment as a salutary demonstration by the Constitutional Court of its independence and thus as a positive omen for South Africa.
Footnote: In a separate judgment the Constitutional Court rejected as incompatible with the interim constitution a draft provincial constitution for KwaZulu-Natal, where Chief Mangosuthu Buthelezi's Inkatha Freedom Party is the majority party.