6
Jurisdiction, Powers
and Procedures of
the Court
Cheryl Loots
Gilbert Marcus
6.1
6.2
6.3
6.4
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Jurisdiction under the interim Constitution . . . . . . . . . . . . . . . .
(a) The Constitutional Court . . . . . . . . . . . . . . . . . . . . . . .
(b) The Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . .
(i) The Appellate Division . . . . . . . . . . . . . . . . . . . . .
(ii) Provincial and local divisions . . . . . . . . . . . . . . . . .
(c) Other courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) Interim relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) Transitional provisions . . . . . . . . . . . . . . . . . . . . . . . .
Powers of the courts . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(a) Validity of legislation . . . . . . . . . . . . . . . . . . . . . . . . .
(b) Constitutionality of executive or administrative act . . . . . . . . .
(c) Constitutionality of a Bill . . . . . . . . . . . . . . . . . . . . . . .
(d) Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Procedure under the interim Constitution . . . . . . . . . . . . . . . . .
(a) Procedure for dealing with issues beyond the jurisdiction of a court
(i) Issues arising in the Supreme Court . . . . . . . . . . . . . .
(aa) A potentially decisive issue . . . . . . . . . . . . . . .
(bb) The exclusive jurisdiction of the Constitutional Court .
(cc) The interests of justice . . . . . . . . . . . . . . . . . .
(ii) Issues arising in lower courts . . . . . . . . . . . . . . . . . .
(b) Procedure in the Supreme Court . . . . . . . . . . . . . . . . . . .
(c) Access to the Constitutional Court . . . . . . . . . . . . . . . . . .
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6.5
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(d) Referral of issues of public importance to the Constitutional Court .
(e) Intervention by government . . . . . . . . . . . . . . . . . . . . .
(f) Appeals from a decision of the Supreme Court . . . . . . . . . . .
(g) Appeals from decisions of other courts . . . . . . . . . . . . . . . .
(h) Review of the decisions of inferior courts . . . . . . . . . . . . . .
Jurisdiction under the final Constitution . . . . . . . . . . . . . . . . .
(a) The Constitutional Court . . . . . . . . . . . . . . . . . . . . . . .
(b) The Supreme Court of Appeal . . . . . . . . . . . . . . . . . . . .
(c) The High Courts . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) The magistrates’ courts and other courts . . . . . . . . . . . . . . .
(e) The Labour Court . . . . . . . . . . . . . . . . . . . . . . . . . . .
Powers of the courts under the final Constitution . . . . . . . . . . . . .
(a) Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) Other powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Procedure under the final Constitution . . . . . . . . . . . . . . . . . .
(a) The inherent power of the Constitutional Court to regulate its own
process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) Procedure for dealing with issues beyond the jurisdiction of a court
(i) Issues arising in the superior courts . . . . . . . . . . . . . .
(ii) Issues arising in the lower courts . . . . . . . . . . . . . . . .
(c) Procedure in the High Court . . . . . . . . . . . . . . . . . . . . .
(d) Direct access to the Consitutional Court . . . . . . . . . . . . . . .
(e) Intervention by government . . . . . . . . . . . . . . . . . . . . .
(f) Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g) Review of decisions of inferior courts . . . . . . . . . . . . . . . .
The application of the interim and final Constitutions to pending
proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(a) Proceedings pending on 4 February 1997 . . . . . . . . . . . . . .
(b) Matters arising after 4 February 1997 . . . . . . . . . . . . . . . .
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6.1
INTRODUCTION
REVISION SERVICE 2, 1998
1The introduction of the Constitution of the Republic of South Africa, Act 200 of 1993 (‘the
interim Constitution’ (IC)) gave rise to a variety of jurisdictional problems. The first
concerned the competence of the courts to deal wih disputes which arose before 27 April
1994.1 The second problem was a function of the exclusive jurisdiction of the Constitutional
Court to declare an Act of Parliament to be unconstitutional.2 It related to the procedural
requirements for submitting a dispute to the Constitutional Court.3 With the coming into
operation of the Constitution of the Republic of South Africa, Act 108 of 1996 (‘the final
Constitution’ (FC)) some of the old jurisdictional problems still persist and new ones have
been created.
Under the final Constitution the courts have been renamed and their jurisdiction altered.
What was formerly known as the Supreme Court is now known as the High Court and what
was formerly known as the Appellate Division of the Supreme Court is now known as the
Supreme Court of Appeal. All the superior courts now enjoy the jurisdiction to declare an
Act of Parliament to be unconstitutional. The final Constitution deals with the transition
from the interim Constitution. Proceedings which were ‘pending’ when the final Constitution took effect on 4 February 1997 must be disposed of ‘as if the new Constitution had not
been enacted, unless the interests of justice require otherwise’. Accordingly the jurisdictional
and procedural requirements which pertained under the interim Constitution will continue
to be operative in relation to pending proceedings. This chapter therefore deals with
jurisdictional and procedural requirements under both the interim Constitution and the
final Constitution.
6.2
JURISDICTION UNDER THE INTERIM CONSTITUTION
(a)
The Constitutional Court
The interim Constitution provides for the establishment of a Constitutional Court consisting
of a President and ten other judges.4 Jurisdiction is conferred upon the Constitutional Court
by IC s 98(2),5 which provides that it shall have jurisdiction in the Republic as the court of
final instance over all matters relating to the interpretation, protection and enforcement
of the provisions of the Constitution, including:
1
Section 241(8) of the interim Constitution was thought to cater for this problem. It was a provision, however,
which gave rise to intense litigation and, in the result, left certain questions unanswered. See below, § 6.2(d).
2
The only exception to the exclusive jurisdiction of the Constitutional Court to declare an Act of Parliament to
be unconstitutional was the procedure created by s 101(6), in terms of which the parties could, by agreement, confer
jurisdiction upon a provincial or local division of the Supreme Court to hear matters falling outside their additional
jurisdiction, including the jurisdiction to declare an Act of Parliament to be unconstitutional.
3
The procedure for referring a dispute concerning the validity of an Act of Parliament from a provincial or local
division of the Supreme Court to the Constitutional Court was contained in s 102(1). It the first two years of its
existence the Constitutional Court devoted more time to this provision than any other. See below, § 6.4(a).
4
Section 98(1). The President of the court is appointed in terms of s 97(2)(a). Section 99 provides for the
composition of the court and the appointment of judges.
5
The jurisdiction of the Constitutional Court derives solely from s 98. It has no inherent jurisdiction. Du Plessis
& others v De Klerk & another 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at para 52.
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(a)
any alleged violation or threatened violation of any fundamental right entrenched in
Chapter 3 of the Constitution;
(b) any dispute over the constitutionality of any executive or administrative act or conduct
or any threatened executive or administrative act or conduct of any organ of state;
(c) any inquiry into the constitutionality of any law, including an Act of Parliament,
irrespective of whether such law was passed or made before or after the commencement
of the Constitution;
(d) any dispute over the constitutionality of any Bill before Parliament or a provincial
legislature;
(e) any dispute of a constitutional nature between organs of state at any level of
government;
(f) the determination of questions as to whether any matter falls within its jurisdiction;
and
(g) the determination of any other matters as may be entrusted to it by the Constitution or
any other law.
2 Section 98(3) provides that the Constitutional Court shall be the only court having
jurisdiction over a matter referred to in s 98(2), save where otherwise provided in ss 101(3)
and (6) and 103(1) and in an Act of Parliament.1 Reference to these sections and the relevant
Acts of Parliament2 reveals that the Constitutional Court has exclusive jurisdiction with
regard to an inquiry into the constitutionality of an Act of Parliament;3 a dispute over the
constitutionality of any Bill before Parliament; and a dispute of a constitutional nature
between organs of state at national level. A decision of the Constitutional Court shall bind
all persons and all legislative, executive and judicial organs of state.4
In Du Plessis v De Klerk5 Kentridge AJ concluded that the Constitutional Court had no
jurisdiction under s 98(2) to apply and to develop the common law and that s 35(3) did not
give it that jurisdiction.6 Thus the Appellate Division remains the court with ultimate
responsibility for the interpretation of statutes and the application and development of the
common law. The powers of the Constitutional Court in this respect are limited to an oversight
function. It must determine what the spirit, purport and objects of Chapter 3 are, and it must
1
Section 101(3) and (6) deal with the Supreme Court’s jurisdiction to hear constitutional issues (see below,
§ 6.2(b)). Section 103(1) provides that the jurisdiction of other courts shall be as prescribed by or under a law.
2
Section 110 of the Magistrates’ Courts Act 32 of 1944 is the only relevant provision at present. See below, § 6.4.
3
In Zantsi v Council of State, Ciskei, & others 1995 (4) SA 615 (CC), 1995 (10) BCLR 1424 (CC) the
Constitutional Court confirmed that its exclusive jurisdiction covered all Acts of the South African Parliament,
irrespective of whether they were passed before or after 27 April 1994. The court a quo had suggested that the Acts
of Parliament contemplated by s 101(3) of the Constitution were only those passed by Parliament constituted in
accordance with the Constitution. On this basis the court had reached the conclusion that the Supreme Court has
jurisdiction to inquire into the validity of Acts passed by the South African Parliament prior to 27 April 1994.
4
Section 98(4).
5
1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at paras 63--4. See also the judgment of Mahomed DP at
paras 85--7.
6
See also Shabalala v AG, Transvaal 1996 (1) SA 725 (CC), 1995 (12) BCLR 1593 (CC), 1995 (2) SACR 761
(CC) at para 9 and Gardener v Whitaker 1996 (4) SA 337 (CC), 1996 (6) BCLR 775 (CC) at para 16. Section 35(3)
provides that ‘in the interpretation of any law and the application and development of the common law, a court shall
have due regard to the spirit, purport and objects of [the Bill of Rights]’. The section is discussed below, Woolman
‘Application’, § 10.3(a)(v) and Kentridge & Spitz Interpretation’ § 11.3(c).
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ensure that in the interpretation of laws and the application and development of the common
law other courts, including the Appellate Division, have taken due regard of the spirit, purport
and objects. The precise extent of this oversight function remains, as yet, uncertain.1 It will
become clear only once the approach of the court to the substantive meaning of s 35(3) has
been established. If, as Kentridge AJ and Mahomed DP stated in Du Plessis v De Klerk,2
there is little difference of substance between direct horizontal application of the Bill of
Rights to the private common law and indirect application through s 35(3), the oversight
function of the court with respect to s 35(3) ought closely to parallel the judicial review
function that it exercises with respect to s 33(2) over legislation. Where legislation unjustifiably limits fundamental rights, the court declares it to be inconsistent with the Constitution,
but cannot rewrite it, for that is the task of Parliament. Similarly, where the common law
determines private rights in a manner which cannot be justified in terms of Chapter 3, it is
submitted that the court should declare it to be inconsistent with the Constitution, but not engage
in the task of reformulating it because that is the task of the Supreme Court. Thus a declaration
that a rule of the common private law is inconsistent with the Constitution should be followed
by the remission of the matter to the Supreme Court for the rule to be redeveloped with due
regard to the spirit, purport and objects of the Bill of Rights. In the course of remitting the
matter the Constitutional Court will give some guidelines to the Supreme Court of the range
within which any redeveloped rule must fall if it is to be consistent with the Constitution.3 If,
however, the rule as ultimately redeveloped by the Supreme Court remains inconsistent with
the Constitution, the process will have to be repeated.4
(b)
The Supreme Court
3 he interim Constitution provides that there shall be a Supreme Court of South Africa,
T
consisting of an Appellate Division and such provincial or local divisions as may be
prescribed by law.5
1
See Du Plessis v De Klerk (supra) at paras 63 and 87 and Gardener v Whitaker (supra) at para 16.
2
Supra at paras 60 and 72--3 respectively.
3
An example of such guidelines is to be found in the order granted by the Constitutional Court in Shabalala v
AG, Transvaal 1996 (1) SA 725 (CC), 1995 (12) BCLR 1593 (CC), 1995 (2) SACR 761 (CC) at para 72. The case
dealt with the constitutionality of the common-law rules of state privilege as set out in R v Steyn 1954 (1) SA 324
(A). Although the case involved the direct application of the Constitution to the common law, Mahomed DP
emphasized at para 9 that it was not the task of the Constitutional Court, but that of the Supreme Court, to develop
new common-law rules of privilege to replace those which the Constitutional Court had declared to be inconsistent
with the Constitution.
4
This might appear cumbersome, but is no more cumbersome than the approach taken to legislation which limits
fundamental rights in a manner which cannot be justified in terms of s 33(1). The court leaves it to Parliament to
rewrite the legislation to remove the violation of the right. If the rewritten legislation does not address the
constitutional problem satisfactorily, the court will once more declare it to be inconsistent with the Constitution. It
will not, however, rewrite the legislation itself.
5
Section 101(1). This section is subject to ss 241 and 242 by virtue of an amendment effected by s 4(a) of the
Constitution of the Republic of South Africa Third Amendment Act 13 of 1994. Section 241 provides for transitional
arrangements with regard to the judiciary. Section 242 requires the rationalization of court structures to be
undertaken as soon as possible after the Constitution comes into operation.
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(i)
The Appellate Division
The Appellate Division is deprived of jurisdiction to hear constitutional issues by s 101(5),
which provides that it shall have no jurisdiction to adjudicate any matter within the
jurisdiction of the Constitutional Court. In Du Plessis v De Klerk,1 however, the Constitutional Court held that s 101(5) did not affect the jurisdiction of the Appellate Division to
interpret laws and to apply and to develop the common law with due regard to the ‘spirit,
purport and objects’ of the Bill of Rights, as required by s 35(3).2 Kentridge AJ reasoned that
‘a court’ in s 35(3) meant any court, including the Appellate Division. Section 101(5) did not
preclude this conclusion because the interpretation of law and the application and development of the common law were not matters which fall within the jurisdiction of the
Constitutional Court in terms of s 98(2).3
4 Section 35(3) requires that binding pre-constitutional Appellate Division decisions may
have to be reconsidered in the light of the spirit, purport and objects of the Bill of Rights.4
There is a compelling argument that s 35(3) would, in appropriate cases, also require the
reconsideration of Appellate Division decisions made after the Constitution came into effect
but before the Constitutional Court judgment in Du Plessis v De Klerk was handed down.
Prior to Du Plessis v De Klerk the Appellate Division appears not to have regarded itself as
having any jurisdiction in terms of s 35(3) and at no stage did it endeavour to exercise such
jurisdiction.5 It would be anomalous if the doctrine of stare decisis meant that the failure of
the Appellate Division to exercise a jurisdiction which it did not know that it possessed should
act as a barrier to its exercise of that jurisdiction once it was clear that this was competent.
(ii)
Provincial and local divisions
The provincial and local divisions of the Supreme Court6 have a constitutional jurisdiction
which extends beyond s 35(3). Section 101(2) declares that:
1
1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) per Kentridge AJ at paras 63--4 and per Mahomed DP at
paras 85--7.
2
The effect of s 35(3) is discussed more fully below, Woolman ‘Application’ § 10.3(a)(v) and Kentridge & Spitz
‘Interpretation’ § 11.3(c).
3
The Constitutional Court retains an oversight function in respect of s 35(3). See § 6.2(a) above.
4
Such reconsideration can be undertaken by provincial and local divisions of the Supreme Court. See, for
example, Gardener v Whitaker 1995 (2) SA 672 (E), 1994 (5) BCLR 19 (E) and Holomisa v Argus Newspapers Ltd
1996 (2) SA 588 (W). In both these cases the court exercised s 35(3) jurisdiction to depart from previously binding
Appellate Division decisions with respect to the common law of defamation.
5
See, for example, B v S 1995 (3) SA 571 (A), a case involving the claim of a father to access to his illegitimate
child. In assessing whether the common law should be developed to afford the father an automatic right of access
the Appellate Division made no mention of s 35(3).
6
There was some difference of judicial opinion as to whether the courts of the former TBVC states (Transkei,
Bophuthatswana, Venda and Ciskei) are to be regarded as provincial and local divisions of the Supreme Court for
the purposes of the Constitution. In S v Majavu 1994 (4) SA 268 (Ck) at 291H--J it was held that the Ciskei General
Division fell within the category of a ‘provincial or local division’ and was therefore endowed with additional
jurisdiction by s 101(3). In Sithole & others v Minister of Defence & another 1995 (1) SA 205 (Tk), 1994 (4) BCLR
68 (Tk), on the other hand, it was held that courts established in the former national states lack the additional
jurisdiction provided for in s 101(3). The issue has now been settled by the Constitution of the Republic of South
Africa Third Amendment Act 13 of 1994, which inserted s 241(1A) and (1B) into the Constitution. The effect of
these subsections is that the Supreme Courts of the former TBVC states and any General Divisions of such courts
are treated as provincial or local divisions of the Supreme Court for the purposes of the Constitution.
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‘Subject to this Constitution, the Supreme Court shall have the jurisdiction, including the inherent
jurisdiction, vested in the Supreme Court immediately before the commencement of this Constitution, and any further jurisdiction conferred upon it by this Constitution or by any law.’
5 Section 101(3) confers jurisdiction on the provincial and local divisions of the Supreme
Court in respect of the following constitutional issues:
(a) any alleged violation or threatened violation of any fundamental right entrenched in
Chapter 3 of the Constitution;
(b) any dispute over the constitutionality of any executive or administrative act or conduct
or any threatened executive or administrative act or conduct of any organ of state;
(c) any inquiry into the constitutionality of any law applicable within its area of jurisdiction, other than an Act of Parliament,1 irrespective of whether such law was passed or
made before or after the commencement of the Constitution;
(d) any dispute of a constitutional nature between local governments or between a local
and a provincial government;
(e) any dispute over the constitutionality of any Bill before a provincial legislature;
(f) the determination of questions as to whether any matter falls within its jurisdiction;
and
(g) the determination of any other matters as may be entrusted to it by an Act of Parliament.
Section 101(6) enables parties, by agreement, to confer jurisdiction upon a provincial or
local division to hear a matter falling outside this additional jurisdiction, provided that such
agreement may not confer jurisdiction in respect of an appeal against a decision of a
provincial or local division made in respect of a matter referred to in s 101(3).2 It seems
strange in principle that the parties should be able to confer jurisdiction with regard to
subject-matter upon a court. The Magistrates’ Courts Act3 enables parties to confer increased
value jurisdiction or territorial jurisdiction upon the court by agreement, but not subjectmatter jurisdiction.4 Where the legislature deprives a court of subject-matter jurisdiction it
usually has a good reason for doing so. In the case of the validity of Acts of Parliament, an
obvious reason for reserving jurisdiction to the Constitutional Court is that its pronouncement of invalidity will have effect throughout the country, whereas that of a provincial or
local division would have effect only within its area of territorial jurisdiction, giving rise to
inconsistency in the law.
1
In Zantsi v Council of State, Ciskei, & others 1995 (4) SA 615 (CC), 1995 (10) BCLR 1424 (CC) the
Constitutional Court ruled that Acts of the TBVC legislatures were not Acts of Parliament within the meaning of
s 101(3) and thus fell within the jurisdiction of the Supreme Court.
2
Such appeals lie to the Constitutional Court: s 102(12). In S v Shangase & another 1994 (2) BCLR 42 (D) at
44F it was held that the word ‘parties’ in s 101(6) includes an accused in criminal proceedings, provided that he is
legally represented and has been fully advised of his rights.
3
Act 32 of 1944.
4
See s 45.
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6 The Constitutional Court has repeatedly emphasized that the Supreme Court is obliged
to exercise the constitutional jurisdiction conferred upon it by s 101.1 In S v Zuma & others2
Kentridge AJ stated:
‘Even if a rapid resort to this court were convenient that would not relieve the judge from making
his own decision on a constitutional issue within his jurisdiction. The jurisdiction conferred on
judges of the provincial and local divisions of the Supreme Court under section 101(3) is not an
optional jurisdiction. The jurisdiction was conferred in order to be exercised.’
The Supreme Court under the interim Constitution exercises the jurisdiction vested in the
Supreme Court of South Africa immediately before the commencement of that Constitution.
Because s 241 treats Supreme Courts of the former TBVC territories as provincial divisions
of the Supreme Court for jurisdictional purposes,3 the subject-matter jurisdiction of these
courts is now determined by the Supreme Court Act 59 of 1959 and not by the instruments
in terms of which they were established. Therefore a Full Bench of a TBVC Supreme Court
now has jurisdiction over criminal and civil appeals from superior court decisions within its
area of jurisdiction.4
Subsections (1A) and (1B) of s 241 deal with subject-matter jurisdiction. Section 241
does not affect the reach of the civil and criminal process of the Supreme Court.5 In terms
of s 2296 this continues to be governed by the different statutes applying to the South African
and TBVC Supreme Courts. These statutes did not have extra-territorial force. Thus the civil
and criminal process of the South African courts did not run to the TBVC states7 and the
civil and criminal process of the TBVC courts ran only within their respective areas of
1
See S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC), 1995 (7) BCLR 851 (CC), in which the Constitutional
Court overruled S v Lombard en ’n ander 1994 (3) SA 776 (T), 1994 (2) SACR 104 (T) and S v Vermaas 1994 (4)
BCLR 18 (T), which had held that s 102(2) allows a judge of the Supreme Court to refrain from deciding a matter
within the jurisdiction of the Supreme Court and to refer it to the Constitutional Court. See also S v Mhlungu &
others 1995 (7) BCLR 793 (CC) at para 1 of the judgment of Mahomed J and at paras 55--8 of the judgment of
Kentridge AJ; S v Mbatha 1996 (2) SA 464 (CC), 1996 (3) BCLR 293 (CC), 1996 (1) SACR 371 (CC) at para 28;
Bernstein & others v Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at para 2; Nel v Le
Roux NO & others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) at para 26; Brink v Kitshoff NO 1996 (4) SA
197 (CC), 1996 (6) BCLR 752 (CC) at para 7.
2
1995 (2) SA 642 (CC) at 649D--F (para 10), 1995 (4) BCLR 401 (SA).
3
See s 241(1A)(b) and (1B).
4
See the obiter comments of Comrie J in Steelchrome (Pty) Ltd v Jacobs & others 1995 (8) BCLR 944 (B) at
948A--950B. In terms of s 241(1A)(a) the Appellate Division of the Supreme Court of South Africa also now has
appellate jurisdiction over TBVC superior court decisions. The Appellate Divisions of the TBVC Supreme Courts
were abolished by s 241(1)(a).
5
Any doubt in this regard is removed by s 241(1A)(b), which provides that the jurisdiction of the courts in
question shall be exercised in respect of the area of jurisdiction for which they were established. The point was
raised, but not decided, in Stadsraad van Lichtenburg en ’n ander v Premier van die Noordwes Provinsie en ’n ander
1995 (8) BCLR 971 (B).
6
The section states that ‘all laws which immediately before the commencement of this Constitution were in
force in any area which forms part of the national territory, shall continue in force in such area, subject to any repeal
or amendment of such laws by a competent authority’. In the Western Cape Legislature case the Constitutional
Court said that this section ‘provides a constitutional foundation for the continuation of the ‘‘old laws’’ after the
coming into force of the Constitution’, but pointed out that ‘the continuity given by s 229 is applicable only to the
areas in which such laws were in force prior to the commencement of the Constitution’: Executive Council, Western
Cape Legislature, & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10)
BCLR 1289 (CC) at para 87.
7
See, for example, S v Wellem 1993 (2) SACR 18 (E).
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territorial jurisdiction. No legislation has yet been drafted to rationalize the South African
and TBVC Supreme Court Acts and Criminal Procedure Acts. The anomalous result is that
an order of a division of the Supreme Court in what was previously South Africa cannot be
executed in parts of the national territory which previously formed part of the TBVC states,
and an order of a Supreme Court in what was previously a TBVC state cannot be executed
in any part of the national territory which did not form part of the relevant state. It is clear
that this state of affairs should be rectified by legislation as soon as possible.1
(c)
Other courts
I7C s 103(1) provides that the establishment, jurisdiction, composition and functioning of all
other courts shall, subject to ss 241 and 242,2 be as prescribed by or under a law. The interim
Constitution does not confer any jurisdiction to determine issues of a constitutional nature
upon courts other than the Constitutional Court and the Supreme Court, and it seems clear
that the original drafters of the Constitution did not intend other courts to have such
jurisdiction. In response to criticism of the lack of constitutional jurisdiction on the part of
the magistrates’ courts, the Constitution of the Republic of South Africa Third Amendment
Act 13 of 1994 effected certain amendments which contemplate other courts having jurisdiction to determine constitutional issues.3
Section 103(2), (3) and (4) originally directed ‘other courts’ before which the constitutionality of any law was challenged either to assume the validity of such law or, if the
presiding officer was of the opinion that it was in the interest of justice to do so, to postpone
the proceedings to enable the challenge to be taken on application to the Supreme Court.
Section 103(2) has now been amended, with the effect that the aforesaid two options should
be pursued only where the court does not have the competency to inquire into the validity of
such a law or provision.4 The magistrates’ courts do have the competency to inquire into the
validity of certain subordinate legislation. Section 110 of the Magistrates’ Courts Act 32 of
1944 confers jurisdiction upon magistrates’ courts to pronounce upon the validity of any
1
With respect to matters of criminal procedure in all courts and civil procedure in the magistrates’ courts, the
situation will be regularized by the proclamation of the Justice Laws Rationalization Act 18 of 1996. The Act was
passed on 10 April 1996, but had not been proclaimed at the time of writing (31 August 1996). Section 2(1) of the
Act, read with Schedule I, extends the operation of inter alia the Criminal Procedure Act 56 of 1955, the Criminal
Procedure Act 51 of 1977 and the Magistrates’ Courts Act 32 of 1944 to cover the entire national territory. Section 3,
read with Schedule II, repeals the TBVC criminal procedure legislation and magistrates’ courts legislation which
was hitherto in force. However, the Act does not rationalize the existing laws relating to the Supreme Courts of
South Africa and the TBVC territories. So the limited reach of the civil process of the different divisions of the
Supreme Courts is unaffected by the Act. It appears that a decision was taken to postpone the rationalization of
legislation relating to the Supreme Court pending the investigations of the Hoexter Commission of Inquiry into the
Rationalization of the Provincial and Local Divisions of the Supreme Court (see para 6 of the Memorandum on
the Objects of the Justice Laws Rationalization Bill, 1996, Justice Laws Rationalization Bill, No B2B-96, p 102).
2
The phrase ‘subject to sections 241 and 242’ was inserted by s 4 of the Constitution of the Republic of South
Africa Third Amendment Act 13 of 1994. Section 241 deals with transitional arrangements. Section 242 provides
for the rationalization of court structures.
3
Sections 3 and 5(b) of the Constitution of the Republic of South Africa Third Amendment Act 13 of 1994.
4
Section 103(2) as amended by s 5(b) of the Constitution of the Republic of South Africa Third Amendment
Act 13 of 1994.
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statutory regulation, order or by-law.1 This would qualify as a law conferring jurisdiction
upon a court, as contemplated by s 103(1).
8 In order to enable magistrates’ courts or other courts to assume jurisdiction in respect of
constitutional issues conferred upon them by legislation it was also necessary to amend
IC s 98(3). Previously s 98(3) provided that the Constitutional Court would be the only court
having jurisdiction over constitutional matters except where such jurisdiction was conferred
on the Supreme Court by s 101(3) and (6). The exception has now been amended to include
reference to jurisdiction conferred upon other courts as provided by s 103(1) and in terms of
an Act of Parliament.2 No Act of Parliament has been enacted which expressly empowers
the magistrates’ courts or any ‘other’ court to hear constitutional matters.
In Qozeleni v Minister of Law and Order & another3 it was held that s 103(2) and (3),
which require a magistrate to assume the validity of a law or provision or allow such issue
to be referred to the Supreme Court, apply only to statutory enactments, and do not prevent
a magistrate from applying the provisions of the Constitution in the exercise of his ordinary
substantive jurisdiction. Froneman J, Kroon J concurring, drew a distinction between a claim
for relief which was beyond the jurisdiction of the court and the application by the court of
the law in deciding a matter which was within its jurisdiction. He said:
‘Prior to the commencement of the new Constitution, lower courts, such as the magistrates’ courts,
did not have powers of review in respect of unlawful administrative action. They nevertheless had
to apply the existing law of the land when exercising their normal substantive jurisdiction and, if
this entailed disregarding administrative action found to be unlawful in the course of, for example,
an action for damages, they were entitled and compelled to do so, at least in this Division (Majola
v Ibhayi City Council 1990 (3) SA 540E at 534E--544G).’
The court expressed the view that it would be inconceivable that the provisions of Chapter 3 of
the interim Constitution, which were meant to safeguard the rights of citizens, should not be
applied in the courts where the majority of people would have their initial and only contact.4
In Bate v Regional Magistrate, Randburg, & another5 Stegmann J held that the decision
in the Qozeleni case could not be reconciled with IC s 98(3), the effect of which was that
the magistrates’ courts had no jurisdiction to adjudicate upon any alleged violation or
threatened violation of any fundamental right entrenched in Chapter 3.6 In this case
the applicant, who had been charged with attempted murder in a regional court, applied to
the magistrate for an order that the prosecution be dismissed and/or that the state be refused
the opportunity to proceed with the prosecution. The basis of the application was that the
accused had been denied the right, which he had in terms of IC s 25(3)(a), to a trial within
a reasonable time after having been charged. The magistrate held that he had no jurisdiction
to hear the application. On review, counsel for the applicant and the respondent agreed,
apparently relying on the Qozeleni case,7 that the magistrate had erred in declining to assume
jurisdiction. Stegmann J disagreed, referring to IC s 7(4)(a), which provided that, where an
1
Section 110 provides that a magistrate’s court shall not be competent to pronounce upon the validity of
provincial legislation or a statutory proclamation of the State President.
2
Section 3 of the Constitution of the Republic of South Africa Third Amendment Act 13 of 1994.
3
1994 (3) SA 625 (E) at 635D--638C. See also Da Silva Mendes & another v Kitching & another 1995 (12)
BCLR 1672 (E), 1995 (2) SACR 634 (E); Municipality of the City of Port Elizabeth v Prut NO & another 1996 (3)
BCLR 379 (SE).
4
5
At 637E.
1996 (7) BCLR 974 (W).
6
7
At 986C--E.
At 985C--D.
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infringement of a right was alleged, application could be made to a ‘competent court’ for
relief. He found that, in terms of IC s 98(3) and s 101(3), the Supreme Court was the only
competent court from which such relief could be claimed. It is submitted that the decision
of Stegmann J was correct, but that his criticism of the judgment in the Qozeleni case was
wrong, because he did not take into account that the defendant in that matter did not apply
for relief consequent upon an infringement of a constitutional right, but simply requested the
court to make a procedural ruling in line with his constitutional right.
9 The same mistake was made by a Full Bench of the Eastern Cape Provincial Division in
Port Elizabeth Municipality v Prut NO & another.1 The background facts in this case were
that the applicant municipality had issued a summons against the first and second respondents
in a magistrate’s court claiming payment of amounts owing by them in respect of rates. In
response to an application for summary judgment the respondents raised the defence that, in
breach of their constitutional right to equality, they had been unfairly discriminated against
because the municipality had failed to write off their debt, whereas it had written off similar
debts owed by ratepayers who lived in the formerly black townships. In consequence of this
defence the proceedings were stayed by agreement between the parties pending the outcome
of an application to declare, inter alia, that the municipality’s conduct did not constitute unfair
discrimination. The judge who heard that application held that the granting of relief to the
applicant would, in effect, decide the issues which, in terms of the affidavit filed by the
respondents in the summary judgment application, the magistrate would have to decide in
the action pending in the lower court. He held that relief should not be granted if the
magistrate was competent to decide on the issues involved and, applying the Qozeleni case,
concluded that the magistrate was competent to adjudicate upon the issues raised by the
respondent. In an appeal against that judgment the Full Bench held that the judge should
have dealt with the merits of the application and referred the matter back to him. The Full
Bench was correct in doing this, because a magistrate’s court is not competent to grant an
order declaring that conduct does not constitute an infringement of a constitutional right, but,
unfortunately, in coming to its decision, it held that the judgment of the court in the Qozeleni
case was incorect. This is wrong because in the Qozeleni case no application had been made
for relief consequent upon an alleged infringement of a constitutional right.
It is submitted that Froneman J was indeed correct when, in the Qozeleni case, he held
that the interim Constitution did not prevent a magistrate from applying its provisions in the
exercise of his ordinary substantive jurisdiction. In the Prut case the Full Bench of the Eastern
Cape Provincial Division held that the Qozeleni case was incorrect in so far as it was
inconsistent with its decision that magistrates’ courts are not competent to deal with an
alleged violation or threatened violation of a constitutionally guaranteed right.2 The court
concluded its judgment, however, by holding that the mere fact that a magistrate’s court has
no power to pronounce upon the constitutional matters referred to in IC s 98(2) did not mean
that it did not have power to apply the Constitution. The court held that the contrary is indeed
the case as there is no doubt that it is the duty of magistrates’ courts to ensure that
constitutionally guaranteed rights are observed in the proceedings conducted before them.3
1
1996 (4) SA 318 (E) at 326G--329D.
2
At 328E--H.
3
At 329B--C.
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In the light of this statement it is submitted that there is no inconsistency between the
Qozeleni case and the Prut case. In the Prut case the magistrate would have had jurisdiction
to consider the defence raised in response to the summary judgment application, but once
the plaintiff wanted a declaratory order to the effect that its conduct was not unconstitutional,
the matter had to be determined by the Supreme Court. In the Qozeleni case the magistrate
was simply ensuring that the proceedings before him were being conducted in accordance
with the Constitution. This is entirely in line with the dictum of the Constitutional Court in
S v Zuma & others,1 in which Kentridge AJ said that all courts hearing criminal trials were
to conduct such trials in accordance with the Constitution.
It is important to draw a distinction between matters in which the court is requested
to grant relief consequent upon an alleged infringement or threatened infringement of
constitutionally guaranteed rights, and matters in which it is simply required to apply the
provisions of the Constitution in order to determine a matter before it in respct of which it
has jurisdiction. It is submitted that in the former case a magistrate’s court is not a ‘competent
court’, as referred to in IC s 7(4)(a), but that in the latter case it is competent. On this basis
it is submitted that the decision in Walker v Stadsraad van Pretoria,2 in which it was held
that a magistrate had no jurisdiction to decide a matter in which a defence of unequal and
discriminatory treatment was raised, is wrong. The issue of the jurisdiction of the magistrates’
courts remains unresolved.
(d)
Interim relief
10 interim Constitution initially did not expressly empower the Supreme Court to grant
The
interim relief pending determination by the Constitutional Court of an issue which is beyond
the jurisdiction of the Supreme Court.3 This gave rise to problems during the period after the
Constitution had come into operation but before the Constitutional Court had been
established. In a number of matters parties who wished to challenge the validity of an Act
of Parliament applied to the Supreme Court for interim relief pending a determination of
the validity issue by the Constitutional Court. The question which arose in these cases
was whether the Supreme Court had jurisdiction to grant such relief. The Cape4 and
1
1995 (2) SA 642 (CC) at 625D.
2
1997 (4) SA 189 (T), 1997 (3) BCLR 416 (T). In S v Lawrence; S v Negal; S v Solberg 1997 (4) SA 1176 (CC),
1997 (10) BCLR 1348 (CC) the Constitutional Court gave consideration to the question of the appropriate court to
receive evidence on the constitutionality of a statutory provision. In the course of this discussion Chaskalson P
referred with approval to Walker v Stadsraad van Pretoria (at para 15n19) but in the context of the receipt of evidence
in the magistrate’s court on a constitutional issue beyond the jurisdiction of the magistrate’s court. Save for this
reference, no consideration was given to the question of whether or not the magistrate’s court ought to have exercised
jurisdiction on the merits of the matter before it.
3
Section 101(7) now addresses this issue.
4
Wehmeyer v Lane NO & others 1994 (4) SA 441 (C) at 448H; S v Sixaxeni 1994 (3) SA 733 (C) at 736F--738A;
but see contra Japaco Investments (Pty) Ltd & others v The Minister of Justice & others 1995 (1) BCLR 113 (C),
in which Wehmeyer v Lane NO & others was held to have been wrongly decided and was overruled. In Stevens v
Jonker & another 1994 (3) SA 806 (C) interim relief was granted without the issue as to whether the court had
jurisdiction to grant such relief being raised.
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Eastern Cape courts1 and a Full Bench of the Witwatersrand Local Division2 held that the fact
that the Constitution deprives the Supreme Court of jurisdiction to inquire into the validity
of an Act of Parliament does not derogate from the Supreme Court’s inherent jurisdiction to
grant interim relief to prevent the infringement of a fundamental right guaranteed in terms
of IC Chapter 3. The Transvaal,3 Northern Cape4 and Natal5 courts decided that they did not
have such jurisdiction. The basis of these decisions was that it was not possible to grant such
relief without considering and inquiring into the constitutionality of the statute and that the
Supreme Court had no jurisdiction to embark upon such an inquiry since the Constitutional
Court has exclusive jurisdiction with regard to any inquiry into the validity of an Act of
Parliament.6
11 The matter was resolved by the insertion of IC s 101(7),7 which grants provincial and
local divisions of the Supreme Court ‘jurisdiction to grant an interim interdict or similar
relief, pending the determination by the [Constitutional] Court of any matter referred to in
section 98(2) of the Constitution, notwithstanding the fact that such interdict or relief might
have the effect of suspending or otherwise interfering with the application of the provisions
of an Act of Parliament.’
It seems that there will be very limited direct access to the Constitutional Court since
the rules8 provide for such access only in exceptional circumstances. Where a challenge
to the validity of legislation is the only issue in a matter it will, in the ordinary course, be
necessary to bring an application to the Supreme Court as a first step, requesting that court
to refer the matter to the Constitutional Court in terms of s 101(2).9 It is inevitable that the
requirement of a preliminary application will give rise to the need for interim relief in many
cases. IC s 101(7) gives the Supreme Court the power to grant such interim relief.
1
Matiso v Commanding Officer, Port Elizabeth Prison, & another 1994 (3) SA 899 (E) at 902J--903B.
2
Ferreira v Levin NO & others 1995 (2) SA 813 (W), overruling Rudolph & another v Commissioner for Inland
Revenue & others NNO 1994 (3) SA 771 (W). In Ferreira v Levin NO & others the court recognized a new test to
be applied in applications for interim interdicts involving constitutional issues. Heher J, relying on American
Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 (HL), 2 WLR 316, AC 396, held that in such applications interim
relief should be granted where an applicant can show that there is ‘a serious question to be tried’ in respect of the
validity of the legislation. See below, Klaaren ‘Judicial Remedies’ § 9.3(i).
3
De Kock & another v Prokeur-Generaal, Transvaal 1994 (3) SA 785 (T); Podlas v Cohen NO & others 1994
(4) SA 662 (T) at 671G--672F.
4
Schoeman v Die Balju vir die Landdroshof, Vryburg, en andere 1995 (2) BCLR 192 (NC).
5
Bux v Officer Commanding, Pietermaritzburg Prison, & others 1994 (4) SA 562 (N).
6
Bux v Officer Commanding, Pietermaritzburg Prison, & others (supra) at 565G.
7
Section 101(7) was inserted into the Constitution by s 3 of the Constitution of the Republic of South Africa
Second Amendment Act 44 of 1995. Prior to Act 44 of 1995 the provisions of s 101(7) had been contained within
s 16 of the Constitutional Court Complementary Act 13 of 1995, which was enacted to solve the problem of interim
relief.
8
Rule 17(1) of the Rules of the Constitutional Court published in GN R5 GG 16204 of 6 January 1995 (Reg Gaz
5450). See the discussion of rule 17(1) below, Chaskalson & Loots ‘Court Rules and Practice Directives’ § 7.3(b).
9
It is obviously envisaged that there may be proceedings in which the only issue arising is within the exclusive
jurisdiction of the Constitutional Court because s 102(17) provides that in such circumstances a refusal on the part
of the provincial or local division to refer such issue to the Constitutional Court shall be appealable to the
Constitutional Court. See Brink v Kitshoff NO 1996 (4) SA 197 (CC), 1996 (6) BCLR 752 (CC) at para 6.
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(e)
Transitional provisions
Section 241 of the interim Constitution contains provisions concerning the transitional
arrangements with regard to courts, the judiciary and Attorneys-General. The courts existing
before the commencement of the Constitution are deemed to have been constituted in terms
of the Constitution, or the laws in force after its commencement, and continue to function in
accordance with the applicable laws until changed by a competent authority.1 Judicial officers
and Attorneys-General continue in office subject to the terms and conditions which applied
to their service prior to the commencement of the Constitution until changed by a competent
authority.2 The laws and other measures which immediately before the commencement of
the Constitution regulated the jurisdiction of courts of law, court procedures, the power and
authority of judicial officers, and all other matters pertaining to the establishment and
functioning of courts of law shall continue in force subject to any amendment or repeal
thereof by a competent authority.3
12 A provision which gave rise to some interpretation difficulties was s 241(8).4 The section
states:
‘All proceedings which before the commencement of this Constitution were pending before any
court of law, including any tribunal or reviewing authority established by or under any law,
exercising jurisdiction in accordance with the law then in force, shall be dealt with as if this
Constitution had not been passed: Provided that if an appeal in such proceedings is noted or review
proceedings with regard thereto are instituted after such commencement such proceedings shall be
brought before the court having jurisdiction under this Constitution.’
It was argued in a number of Supreme Court cases that the effect of this provision is that
the interim Constitution has no application to any cases which were pending at the time of
its commencement. The Appellate Division, when faced with this argument, held that the
section was capable of more than one interpretation, but declined to express an opinion on
the correct interpretation, leaving it to the Constitutional Court to decide the issue.5 Some courts
accepted the argument,6 but others held that the intention of the drafters of the subsection
was simply to make provision for the continued territorial jurisdiction of the courts in pending
proceedings.7 A third interpretation was that the subsection limits the application of
procedural rights but not of substantive rights,8 while a fourth interpretation held that the
1
Section 241(1).
2
Section 241(2)--(6).
3
Section 241(10).
4
When the interpretation of s 241(8) finally came before the Constitutional Court in S v Mhlungu & others 1995
(3) SA 867 (CC), 1995 (7) BCLR 793 (CC), Kriegler J observed at para 86 that this issue had been considered by
many courts and commented that it ‘would hardly be an exaggeration to say that the cases produced as many answers
as there were judgments’.
5
S v Makwanyane en ’n ander 1994 (3) SA 868 (A) at 873D.
6
S v Lombard en ’n ander 1994 (3) SA 776 (T) at 782H--783F; S v Vermaas 1994 (4) BCLR 18 (T) at 62C--64D;
S v Coetzee & others 1994 (4) BCLR 58 (W); Mulaudzi & others v Chairman, Implementation Committee, & others
1994 (4) BCLR 97 (V). In S v Saib 1994 (4) SA 554 (D) at 560F--J the court accepted this interpretation, which was
accepted as a correct assumption in S v Ndima & others 1994 (4) SA 626 (D) at 631J.
7
Qozeleni v Minister of Law and Order & another 1994 (3) SA 625 (E) at 638D--640A, 1994 (1) BCLR 75 (E);
S v Sixaxeni 1994 (3) SA 733 (C) at 736F--737E; S v Smith & another 1994 (3) SA 887 (E) at 892D--F; S v Majavu
1994 (4) SA 268 (Ck) at 292E; S v Shuma & another 1994 (4) SA 583 (E) at 589G--590A.
8
S v Williams and Five Similar Cases 1994 (4) SA 126 (C) at 136F--138G, 1994 (2) BCLR 135 (D).
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section applied only to the particular proceedings within a case which were pending
immediately before the Constitution came into effect.1
When the meaning of IC s 241(8) came before the Constitutional Court in S v Mhlungu
& others2 the court divided. A minority held that the wording of s 241(8) unambiguously
demanded that the interim Constitution could have no application to cases which were
pending when it came into effect.3 The majority disagreed. All of the majority judges sought
to avoid an interpetation of s 241(8) which denied persons the protection of constitutional
rights simply because the proceedings in which those rights were invoked had commenced
before 27 April 1994.4 All of the majority judges found that the language of s 241(8) was
flexible enough not to require such an interpretation. Mohamed J, in whose judgment
Langa J, Madala J, Mokgoro J and O’Regan J concurred, held that s 241(8) had no bearing
on the substantive law which was to be applied in proceedings; its function was simply to
preclude an attack on the authority of the courts to continue dealing with proceedings which
were pending before the commencement of the interim Constitution. This function was
necessary because s 241(1) provided for existing courts to exercise jurisdiction in cases
commencing after 27 April 1994, but did not address the authority of courts to continue to
hear cases which were pending when the interim Constitution came into operation.5
Kriegler J agreed that subsec (8) of s 241 did not relate to the law to be applied by a court,
but held that the authority of courts to continue dealing with pending proceedings was
adequately provided for by s 241 in subsecs (1)--(3) and (10). He concluded that s 241(8)
related not to a question of authority but rather to the more mundane question of the forum
in which cases pending on 27 April 1994 would be heard:
13 ‘The subsection is concerned with the administrative channelling, handling and hierarchical
disposition of cases that were on the rolls of courts of the old South Africa . . . In the context,
I suggest, there can be little doubt that the subsection simply and only means that the tribunal having
jurisdiction under the old order has to deal with a pending case.’6
Sachs J held that the plain meaning of s 241(8) related to the substantive law which was
to be applied in pending proceedings. This plain meaning set up a clear tension between
s 241(8) and IC Chapter 3, a tension which should be resolved purposefully by reading s 241(8)
subject to Chapter 3. Such a reading would preserve the functional core of s 241(8), which
was to provide for continuity in the administration of justice whilst causing the minimum
disturbance to fundamental rights enshrined in Chapter 3.7 Thus, while there was no majority
of judges which agreed on a precise meaning of s 241(8), a majority did concur in the
conclusion that s 241(8) does not preclude a litigant from invoking fundamental rights in a
trial which was pending on 27 April 1994, and this can be accepted as a ratio decidendi of
the court in Mhlungu.
1
Shabalala & others v Attorney-General of the Transvaal & others 1995 (1) SA 608 (T), 1994 (6) BCLR 85 (T);
Jurgens v The Editor, Sunday Times Newspaper, & another 1995 (1) BCLR 97 (W).
2
1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC).
3
See the dissenting judgment of Kentridge AJ, in which Chaskalson P, Didcott J and Ackermann J concurred.
4
See, for example, paras 7--9 of the judgment of Mahomed J, paras 91, 92 and 100 of the judgment of Kriegler J,
paras 102 and 134 of the judgment of Sachs J.
5
See in particular paras 21--3 of the judgment of Mahomed J.
6
Judgment of Kriegler J at para 95.
7
See in particular paras 116 and 130 of the judgment of Sachs J.
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A number of important additional issues relating to the temporal reach of the Constitution
were addressed obiter by the majority judges. Mahomed J and Sachs J emphasized that the
interim Constitution did not have any application in respect of decisions taken before it came
into effect. Thus trials which were completed before 27 April 1994 could not be re-opened
for the purposes of raising constitutional points.1 Similarly, even in trials pending at the
commencement of the interim Constitution no constitutional challenge could be made to a
decision which had been taken prior to the commencement of the Constitution.2 Mahomed J
also stated that constitutional issues could not be raised on appeal unless those particular
issues had been decided by the trial court after the commencement of the interim Constitution. This was because an appeal inherently contains the complaint that the court a quo had
erred in terms of the law which was then of application to it and not in terms of a law which
subsequently came into operation.3
14 Several passages in the majority and minority judgments in Mhlungu appeared to conflate
the issue of whether the interim Constitution applied in proceedings which were pending on
27 April 1994 with the related, but different, issue of whether the interim Constitution applied
with retrospective effect.4 As a result, Mhlungu was widely assumed to have decided that
the interim Constitution applied retrospectively.5 In Du Plessis v De Klerk,6 however, the
Constitutional Court clarified that this was not the case. Kentridge AJ declared that
‘the Constitution does not turn conduct which was unlawful before it came into force into
lawful conduct. It does not enact that as at a date prior to its coming into force ‘‘the law shall
be taken to have been that which it was not’’.’7 Mahomed J confirmed that the legal validity
of acts must be determined by the law in force at the time that they were performed and that
the interim Constitution would not, in the usual course of events, affect the legal status of
1
See para 39 of the judgment of Mahomed J and paras 131 and 132 of the judgment of Sachs J.
2
See para 39 of the judgment of Mahomed J and paras 131 and 132 of the judgment of Sachs J. Cf the judgment
of Kriegler J at paras 98 and 99, where it is stated that a litigant in proceedings which were pending on 27 April
1994 has a right to the reconsideration of interlocutory orders made in those proceedings prior to the commencement
of the Constitution. The order given in Mhlungu seems to be more consistent with the judgment of Kriegler J than
with the judgments of Mahomed J and Sachs J. The order ‘invalidates any application of section 217(1)(b)(ii) of
the Criminal Procedure Act, 1977 in any criminal trial, irrespective of whether it commenced before, on or after
27 April 1994, and in which the final verdict was or may be given after 27 April 1994’. The order focuses on the
date of conclusion of criminal trials and not on the date of judicial decisions on the admissibility of confessions. In
so doing it invalidates judicial decisions on the admissibility of confessions which were taken prior to 27 April 1994
where these decisions were taken in a trial in which a final verdict had not been delivered on 27 April 1994. The
logic of the judgments of Mahomed J and Sachs J would suggest that such decisions should not have been affected
by the declaration of invalidity of s 217(1)(b)(ii).
3
Judgment of Mahomed J at para 41. Kriegler J and Sachs J did not address this issue. The minority judges
clearly believed that if s 241(8) did not preclude reliance on the Constitution in pending proceedings, it would not
preclude reliance on the Constitution in appeals from decisions taken prior to 27 April 1994. See para 83 of the
judgment of Kentridge AJ.
4
See, for example, the judgment of Kentridge AJ at para 68 and the judgment of Mahomed J at paras 38 and 46.
It was only the judgment of Kriegler J which distinguished clearly between the two issues (at para 99).
5
See, for example, the judgments of Cameron J and Froneman J respectively in Holomisa v Argus Ltd 1996 (2)
SA 588 (W) at 598G--J and S v Melani 1996 (2) BCLR 174 (E) at 184E--G.
6
1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC). See also Key v Attorney-General & another 1996 (4) SA 187
(CC), 1996 (6) BCLR 788 (CC) at paras 3--6; Rudolph & another v Commissioner for Inland Revenue 1996 (4) SA
552 (CC) at para 15.
7
At para 20.
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acts performed prior to its commencement.1 Thus it is not ordinarily open to a litigant to rely
on the interim Constitution to found a cause of action or a defence in respect of events which
took place prior to 27 April 1994. The Constitutional Court did, however, leave open the
possibility that, where rights vested prior to 27 April 1994 were abhorrent to the values of
the interim Constitution, it might refuse to enforce them. It is clear, however, that it is only
in extreme cases that the court will apply this exception to the principle that the interim
Constitution has no retrospective operation.2
REVISION SERVICE 3, 1998
15 The decision in Du Plessis v De Klerk on the non-retrospectivity of the interim Constitution is limited to cases involving the direct application of the Constitution. The question
remains whether developments of the common law in accordance with IC s 35(3) take place
with retrospective effect. As was pointed out by Kentridge AJ in Du Plessis v De Klerk,3 the
ordinary development of the common law does take place with retrospective effect. Where
a judgment changes a common-law rule as it has hitherto been understood, the law maintains
a fiction that the new rule has not been changed by the court, but has merely been found.
Kentridge AJ raised the possibility that the ordinary rule of retrospective development of the
common law may have to be reconsidered in the context of changes brought about by
the Constitution, which itself does not apply retrospectively.
It is submitted that in cases involving IC s 35(3) there is no reason to depart from the
ordinary common-law rule of retrospective development. The principal objection to retrospective development of the common law is that it impairs existing legal rights. However,
this objection ignores the nature of the rights which are impaired. The common law changes
only to keep in step with legal policy. So any rights which are affected by such changes are
rights which are inimical to prevailing legal policy and thus not deserving of protection. A
right which is detrimentally affected by the development of the common law in accordance
with IC s 35(3) is, by definition, a right which depends on aspects of a discredited old legal
order and one which is incompatible with the new legal order based on fundamental human
rights. It would be most anomalous if the need to protect such rights should, in the face of
the ordinary common-law practice, be privileged over competing claims founded on the
spirit, purport and objects of the Bill of Rights.
6.3
POWERS OF THE COURTS4
The interim Constitution confers certain specific powers on the Constitutional Court with
regard to legislation or administrative acts found to be unconstitutional.5 The same powers
1
At para 68.
2
Kentridge AJ suggested at para 20 that a court might refuse to enforce such rights on the grounds that to do
so would be contrary to public policy. Mahomed J alluded to the possibility of exercising the court’s jurisdiction
under s 98(6) to invalidate something which was not unlawful prior to the commencement of the Constitution.
(Section 98(6) is discussed below, Klaaren ‘Judicial Remedies’ § 9.5.)
3
At paras 65--6. It is for the Supreme Court of Appeal to decide whether IC s 35(3) or FC s 39(2) can be invoked
in cases where the cause of action arose before the Constitutions were in force. See Amod v Multilateral Motor
Vehicle Accidents Fund 1998 (10) BCLR 1207 (CC) at para 23
4
Many of the issues canvassed in this section are discussed in more detail below, Klaaren ‘Judicial
Remedies’ ch 9.
5
Section 98(5), (6), (7), (8), and (9).
[REVISION SERVICE 3, 1998]
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are made applicable to the provincial and local divisions of the Supreme Court.1 There are
no similar provisions in respect of other courts.
(a)
Validity of legislation
With regard to validity of legislation, a court finding that any law or provision thereof is
inconsistent with the Constitution shall declare such law invalid to the extent of its inconsistency.2 A proviso follows to the effect that the court may, in the interest of justice and good
government, require Parliament or any other competent authority, within a period specified
by the court, to correct the defect in the law or provision, which shall then remain in force
pending correction or the expiry of the period so specified.3
16 The effect of a declaration of invalidity differs depending upon whether the relevant
law or provision existed at the commencement of the interim Constitution or was passed after
such commencement.4 The declared invalidity of a law which was in existence when the
interim Constitution commenced will not automatically invalidate anything done or permitted in terms thereof before such declaration became effective.5 Where a law passed after the
commencement of the Constitution is declared invalid, everything done or permitted in terms
thereof is ordinarily invalidated.6 These prescribed effects are subject to any specific order
which a court may make in the interest of justice and good government.7
(b)
Constitutionality of executive or administrative act
In the event of a court declaring an executive or administrative act or conduct of an organ of
state to be unconstitutional, it may order the relevant organ of state to refrain from such act
or conduct or, subject to such conditions and within such time as may be specified by it, to
correct such act or conduct in accordance with the Constitution.8
(c)
Constitutionality of a Bill
A court may exercise its jurisdiction to determine a dispute over the constitutionality of any
Bill before Parliament or a provincial legislature only at the request of the Speaker of the
National Assembly, the President of the Senate, or the Speaker of a provincial legislature,
who shall make such a request to the court upon receipt of a petition by at least one-third of
the members of the relevant legislative body requiring him or her to do so.9
(d)
Costs
With regard to costs, it is provided that the court may make such order as it may deem just
and equitable in the circumstances.10 It accordingly seems that neither the Constitutional
Court nor the Supreme Court, when deciding constitutional issues, is bound by the usual rule
1
2
Section 101(4).
Section 98(5).
3
4
Proviso contained in s 98(5).
Section 98(6).
5
Section 98(6)(a). The section is discussed below, Klaaren ‘Judicial Remedies’ § 9.5.
6
7
Section 98(6)(b).
Section 98(6).
8
Section 98(7).
9
Section 98(9). The section is discussed above, Klaaren & Chaskalson ‘National Government’ § 3.1(d).
10
Section 98(8).
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that costs follow the outcome of the proceedings. This is important because the threat of an
adverse order of costs may serve as a substantial deterrent to many potential litigants. This
would be particularly unfortunate in the early stages of constitutional litigation, where
virtually every case is in the nature of a test case.1
REVISION SERVICE 5, 1999
17 It is instructive to refer to s 17(12)(a) of the Labour Relations Act 28 of 1956, which
empowers the Industrial Court to make an order as to costs ‘according to the requirements
of the law and to fairness’. In National Union of Mineworkers v East Rand Gold and Uranium
Co Ltd 2 the Appellate Division, in enunciating the considerations to be taken into account
when awarding costs in terms of this section, held that the general rule of our law that, in the
absence of special circumstances, costs follow the event is a relevant consideration, but will
yield where considerations of fairness require it. A consideration of fairness which the court
indicated should be taken into account was that parties, particularly individuals, should not
be discouraged from approaching the court and consideration should be given to avoiding
their being so discouraged, especially where there was a genuine dispute and the approach
to the court was not unreasonable.3
The Constitutional Court’s most extensive discussion of the matter of costs came in
Ferreira v Levin NO & others (2), where the parties were ordered to pay their own costs.
According to Ackermann J’s judgment, the flexible approach to costs developed by the
Supreme Court offered a starting point. ‘If the need arises, the rules may have to be
substantially adapted; this should, however, be done on a case by case basis.’4 Ackermann J
formulated the Supreme Court’s approach as follows:
‘[It] proceeds from two basic principles, the first being that the award of costs, unless expressly
otherwise enacted, is in the discretion of the presiding judicial officer and the second that
the successful party should, as a general rule, have his or her costs. Even this second principle is
subject to the first. Without attempting either comprehensiveness or complete analytical accuracy,
depriving successful parties of their costs can depend on circumstances such as, for example, the
conduct of parties, the conduct of their legal representatives, whether a party achieves technical
success only, the nature of the litigants, and the nature of proceedings.’5
In Ferreira the applicants were only partially successful with respect to one of the five
matters referred. This did not meet the threshold of ‘successful in substance’ to award costs
to the applicants, according to Ackermann J. Further factors against awarding the applicants
1
In Ferreira v Levin NO & others (2) 1996 (2) SA 621 (CC), 1996 (4) BCLR 441 (CC) Ackermann J referred
at para 10 to the possible ‘chilling effect’ that an adverse order as to costs would have on private individuals invoking
their constitutional rights as a ‘very important policy issue which deserves anxious consideration’, but left its
consideration ‘to the appropriate case and occasion’. See also Ex parte Gauteng Provincial Legislature: In re
Dispute Concerning the Constitutionality of Certain Provisions of the School Education Bill, 1995 (Gauteng) 1996
(3) SA 165 (CC), 1996 (4) BCLR 537 (CC), where the Constitutional Court held that the usual Supreme Court rule
of the losing party paying costs was not its general rule in petitions concerning the constitutionality of bills brought
to the court under s 98(9). Mahomed DP stated at para 36: ‘A litigant seeking to test the constitutionality of a statute
usually seeks to ventilate an important issue of constitutional principle. Such persons should not be discouraged
from doing so by the risk of having to pay the costs of their adversaries, if the court takes a view which is different
from the view taken by the petitioner.’ Compare, however, Du Plessis & others v De Klerk & another 1996 (3) SA 850
(CC), 1996 (5) BCLR 658 (CC) at para 149, where Kriegler J suggests that constitutional litigants who proceed on
the basis of private interest as opposed to public motive should expect to be mulcted in costs if they are unsuccessful.
2
3
1992 (1) SA 700 (A) at 738F--740A.
At 739B--C.
4
1996 (2) SA 621 (CC), 1996 (4) BCLR 441 (CC) at para 3.
5
Ferreira v Levin NO & others (2) (supra) at para 3.
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costs were that the applicants had not been obliged to come to the Constitutional Court for
the relief requested and that, as the referral had accordingly been improper, the Constitutional
Court had heard the matter only ‘by way of direct access as an indulgence’.1 With respect
to the respondents, the court began from the premise that they were successful in opposing
the applicants’ relief, but noted that the respondents had not opposed the referrals from the
Supreme Court. The court indicated that respondents ‘should oppose inappropriate referrals
at the time when they are sought; they should not sit back and raise their opposition for the
first time in this court after the referral has been made’.2
18 Where counsel appears at the request of the court ‘it is not customary to make an order
for costs against the losing party’. Similarly, ‘the intervention of an amicus curiae does not
ordinarily result in an order for costs either for or against the amicus’.3
Where the issues raised are ‘genuine constitutional questions which raised matters of
broad concern’ and where the litigation was not ‘spurious or frivolous’, lack of success should
not attract an adverse order of costs.4
In constitutional proceedings arising out of a criminal matter, and where it is alleged that
the state breached an accused’s constitutional right to a fair trial, an adverse order of costs
will not ordinarily be appropriate where the complaint is ‘genuine’ and relates to a ‘point of
substance’.5
Where a court of first instance has made a punitive order of costs and where the
Constitutional Court refuses an appeal to set aside that order, it does not follow that a similar
order (of punitive costs) should be made on appeal.6
1
At para 7.
2
At para 9. See also Nel v Le Roux NO & others 1996 (2) SA 562 (CC), 1996 (4) BCLR 592 (CC) at para 26;
Key v Attorney-General & another 1996 (4) SA 187 (CC), 1996 (6) BCLR 788 (CC); Bernstein & others v Bester
& others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at para 124.
3
Minister of Justice v Ntuli 1997 (3) SA 772 (CC), 1997 (6) BCLR 677 (CC) at para 43.
4
African National Congress & another v Minister of Local Government and Housing, KwaZulu, & others 1998
(4) SA 1 (CC), 1998 (4) BCLR 399 (CC) at para 34. See also Oranje Vrystaatse Vereniging van Staatsondersteunde
Skole & another v Premier, Province of the Free State, & others 1998 (3) SA 692 (CC), 1998 (6) BCLR 653 (CC),
where a party who had withdrawn an appeal to the Constitutional Court because the matter had become moot was
not required to pay costs. In President of the Republic of South Africa & others v South African Rugby Football
Union & others 1999 (2) SA 14 (CC), 1999 (2) BCLR 175 (CC) the Constitutional Court emphasized that it adopts
a more flexible approach to costs order than do other courts. This means that ‘frequently an unsuccessful party is
not ordered to pay costs’ (at para 54). This approach does not mean that in appropriate cases the successful party
will not be entitled to costs. See, for example, August & another v Electoral Commission & others 1999 (3) SA 1
(CC), 1999 (4) BCLR 363 (CC) at para 41.
5
Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC), 1997 (12) BCLR 1675 (CC) at para 44.
6
Premier, Mpumalanga, & another v Executive Committee, Association of State-Aided Schools, Eastern
Transvaal 1999 (2) SA 91 (CC), 1999 (2) BCLR 151 (CC) at para 55--6.
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6.4
PROCEDURE UNDER THE INTERIM CONSTITUTION
In Zantsi v Council of State, Ciskei, & others Chaskalson P stated the following:
‘In the United States of America, and as long ago as 1885, Matthews J said:
‘‘Never . . . anticipate a question of constitutional law in advance of the necessity of deciding it
. . . [N]ever formulate a rule of constitutional law broader than is required by the precise facts
to which it is to be applied.’’
. . . This rule allows the law to develop incrementally. In view of the far-reaching implications
attaching to constitutional decisions, it is a rule which should ordinarily be adhered to by this and
all other South African Courts before whom constitutional issues are raised.’1
18A
As pointed out elsewhere in the Zantsi judgment,2 the rule that questions of constitutional
law should not be anticipated underpins IC ss 102 and 103, and it is in the light of this rule
that these procedural provisions are best approached.3
1
1995 (4) SA 614 (CC), 1995 (10) BCLR 1424 (CC) at paras 2--5. See also S v Mhlungu & others 1995 (3) SA
867 (CC), 1995 (7) BCLR 793 (CC) at para 59.
2
At para 3.
3
The rule has been emphasized in several other judgments of the Constitutional Court. See S v Mhlungu & others 1995
(3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para 59; S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC), 1995
(7) BCLR 851 (CC) at para 13; Bernstein & others v Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR
449 (CC) at para 2; Brink v Kitshoff NO 1996 (4) SA 197 (CC), 1996 (6) BCLR 752 (CC) at para 9; Luitingh v
Minister of Defence 1996 (2) SA 909 (CC), 1996 (4) BCLR 581 (CC) at para 11. See also Ynuico Ltd v Minister of
Trade and Industry & others 1995 (11) BCLR 1453 (T) at 1465B--E; S v Eckert 1996 (2) BCLR 208 (SE); S v Melani
& others 1996 (2) BCLR 174 (E) at 180A--H, 1996 (1) SACR 335 (E); Schlinkel v Minister of Justice & another
1996 (6) BCLR 872 (N).
[REVISION SERVICE 5, 1999]
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JURISDICTION, POWERS AND PROCEDURES OF THE COURT
(a)
Procedure for dealing with issues beyond the jurisdiction of a court
(i)
Issues arising in the Supreme Court
REVISION SERVICE 2, 1998
IC s 102(1)--(3) determine how a case should proceed where an issue within the exclusive
19
jurisdiction of the Constitutional Court arises before a provincial or local division of the
Supreme Court. IC s 102(1) states the following:
‘If, in any matter before a provincial or local division of the Supreme Court there is an issue which
may be decisive for the case, and which falls within the exclusive jurisdiction of the Constitutional
Court in terms of section 98(2) and (3), the provincial or local division concerned shall, if it considers
it to be in the interest of justice to do so, refer such matter to the Constitutional Court for its decision
. . ..’
IC s 102(1) applies whenever issues within the exclusive jurisdiction of the Constitutional
Court originate in cases before the superior courts. The procedures of the section are to be
followed even when the issue within the exclusive jurisdiction of the Constitutional Court is
the only issue in the case.1
The wording of IC s 102(1) sets out three requirements for a valid referral of an issue to
the Constitutional Court:2 (1) what is referred must be an issue in the matter which is
potentially decisive for the case; (2) the issue must be within the exclusive jurisdiction of the
Constitutional Court; and (3) the referral of the issue must be in the interests of justice. These
three requirements will be considered in turn.
(aa) A potentially decisive issue
An issue can be referred to the Constitutional Court under IC s 102(1) only if it is one raised
in the matter before the Supreme Court and is potentially decisive of the case. Thus in
Ferreira v Levin NO & others3 the Constitutional Court refused to entertain argument on a
number of issues which had not been issues before the Supreme Court but which the court
had purported to refer to the Constitutional Court under IC s 102(1).4 The requirement that
the issue be potentially decisive of the case was considered by the Constitutional Court in
Luitingh v Minister of Defence.5 Didcott J held that a referral may be competent not only
when the entire case will turn on the issue referred but also when ‘some individual and
1
This is clear from the provisions of ss 102(2) and 102(17). See Brink v Kitshoff NO (supra) at para 6. An
application for direct access in terms of Constitutional Court rule 17 should not be seen as a substitute for the
procedure set out in s 102(1) in these cases. See below, Chaskalson & Loots ‘Court Rules and Practice Directives’
§ 7.3(b).
2
The requirements of s 102(1) have now been considered in many cases. See generally S v Mhlungu & others
1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para 59; Ferreira v Levin NO & others 1996 (1) SA 984 (CC),
1996 (1) BCLR 1 (CC) at paras 6 and 8; Bernstein & others v Bester & others NNO 1996 (2) SA 751 (CC), 1996
(4) BCLR 449 (CC) at para 2; Luitingh v Minister of Defence 1996 (2) SA 909 (CC), 1996 (4) BCLR 581 (CC) at
paras 4 and 6; Brink v Kitshoff NO 1996 (4) SA 197 (CC), 1996 (6) BCLR 752 (CC) at paras 8 and 9; Tsotetsi v
Mutual and Federal Insurance Co Ltd 1997 (1) SA 585 (CC), 1996 (11) BCLR 1439 (CC) at para 4; S v Bequinot
1996 (12) BCLR 1588 (CC).
3
1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at paras 11--13 and 16--18.
4
See also Batista v Commanding Officer, SANAB, SAP, Port Elizabeth 1995 (4) SA 717 (SE), 1995 (8) BCLR
1006 (SE), where the Supreme Court refused to refer the question of the validity of a statute to the Constitutional
Court on the grounds that it was not an issue in the case.
5
1996 (2) SA 909 (CC), 1996 (4) BCLR 581 (CC).
[REVISION SERVICE 2, 1998]
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CONSTITUTIONAL LAW OF SOUTH AFRICA
self-contained part of the case will be directly affected’.1 However, where the pleadings
disclose a possibility that the referred issue will not even arise on the evidence the issue
cannot be described as one potentially decisive of the case.2 Similarly, where the decisiveness
of the referred issue depends on a finding of common law which has not yet been made by
the referring court the referral is improper.3 Where the sole issue is one which falls within
the exclusive jurisdiction of the Constitutional Court, a referral is competent. In such
circumstances the issue and the matter before the provincial or local division of the Supreme
Court are co-extensive. The question arose in a case concerning the constitutionality of the
Publications Act.4 The applicants were the publishers and distributors of magazines, issues
of which had been banned and copies of which had been seized in raids by the police. They
sought to have the constitutional validity of the Act referred to the Constitutional Court for
adjudication. The application was refused by the Supreme Court on the basis that there was
no case before the court involving the question of the validity of the Act. This approach
was held to be wrong. Didcott J, on behalf of a unanimous court, observed:
20 ‘In the light of section 7(4) it seems hardly imaginable that the framers of the Constitution intended,
when they provided for referrals, to differentiate between cases in which the questions calling for
our consideration were the sole ones raised and those where others that did not concern us
accompanied them, excluding the former from the process and confining it to the latter. No sound
reason for such a distinction occurs to me in principle or in pursuit of some policy.’5
The competence of a referral requires an analysis of the ‘issue’ before the Supreme Court.
Even where the Supreme Court has disposed of a matter on a non-constitutional basis there
may still be an ‘issue’ before it which falls within the exclusive jurisdiction of the Constitutional Court. In Fraser v Children’s Court, Pretoria North, & others6 the appellant had
successfully obtained an order reviewing and setting aside the adoption of his son. The basis
of the relief was that the appellant had not received a proper hearing.7 Although the original
application succeeded on the basis of the common law, the appellant in his original notice of
motion had sought an order declaring s 18(4)(d) of the Child Care Act8 to be unconstitutional.
1
At para 9. See also Brink v Kitshoff NO 1996 (4) SA 197 (CC), 1996 (4) SA 197 (CC), 1996 (6) BCLR 752
(CC) at para 10.
2
Luitingh v Minister of Defence (supra) at para 9. S v Mbatha 1996 (2) SA 464 (CC), 1996 (3) BCLR 293 (CC),
1996 (1) SACR 371 (CC) involved the presumption of possession in s 40(1) of the Arms and Ammunition Act 75
of 1969. At para 29 Langa J observed that it was not clear whether the conviction of Mbatha depended upon the
presumption. Accordingly, the issue was not one which was decisive of the case and the referral was improper. See
also S v Eckert 1996 (2) BCLR 208 (SE) at 210F--211G, where the court refused to refer the constitutionality of a
statutory presumption at a stage when it was unclear whether or not the state intended to rely on the presumption.
3
Brink v Kitshoff NO (supra) at paras 14--15. The case involved the constitutionality of s 44 of the Insurance
Act 27 of 1943, which deals with the rights of creditors of a deceased husband’s estate to the proceeds of life
insurance policies taken out by the deceased in favour of his wife. It is not clear at common law whether the operation
of s 27 takes place on the death of the deceased or on the date of concursus creditorum. The deceased had died prior
to 27 April 1994, while the concursus creditorum took place only after the Constitution had come into effect. Thus
clarity on the common-law rule was necessary to establish whether it was even possible to apply the Constitution
to the facts of the case.
4
Act 42 of 1974.
5
JT Publishing (Pty) Ltd & another v Minister of Safety and Security & others (1996) 12 BCLR 1599 (CC)
at para 9.
6
1997 (2) SA 261 (CC), 1997 (2) BCLR 153 (CC).
7
See Fraser v Children’s Court, Pretoria North, & others 1997 (2) SA 218 (T).
8
Act 74 of 1983.
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At issue in the Constitutional Court, therefore, was whether or not there was an issue which
may be decisive for the case. The Constitutional Court held that there was. Mahomed DP, on
behalf of a unanimous court, held that the appellant ‘had a separate and substantive interest’
in obtaining an order concerning the constitutionality of the section. Setting aside the
adoption order without dealing with the constitutionality of the provision in terms of which
it was granted would have given the appellant a new opportunity of being properly heard,
but ‘would not have given to him the advantage of a veto on the adoption’.1
21 An unusual situation arose in South African Tea, Coffee and Chicory Association & others
v Ynuico Ltd & others.2 The appellant had sought to have the question of the constitutional
validity of s 2(1)(b) of the Import and Export Control Act3 referred to the Constitutional
Court. It was argued that this section contravened IC s 26. Magid J was unpersuaded by this
argument. He added, however, that even if the point were arguable, there was ‘an absolute
bar’ to granting the order for referral. The issue of the constitutional validity of the section
had already been dealt with by the Constitutional Court in Ynuico Ltd v Minister of Trade
and Industry & others.4 When the matter came before the Constitutional Court counsel (who
appeared in both cases) expressly and unequivocally disavowed reliance upon IC s 26 as a
ground for invalidity.5 Although Magid J recognized that the abandonment by counsel of a legal
point which arises on the papers is not a bar to raising the same legal point on appeal, the
present situation was ‘totally different’. He considered that it was not in the interests of justice
‘for a litigant, which has had a constitutional point referred to the Constitutional Court and
has expressly abandoned it there, to be afforded a further opportunity to advance the
abandoned point in that Court’.6
(bb) The exclusive jurisdiction of the Constitutional Court
The second requirement for a valid referral is that the issue referred be one within the
exclusive jurisdiction of the Constitutional Court. The Constitutional Court has stressed that
the provincial and local divisions of the Supreme Court must decide constitutional issues
which are within their jurisdiction.7 This is necessary to ensure that the Constitution
permeates the entire legal system. It is also necessary for the proper development of our
constitutional law, which will be impeded if the Constitutional Court always finds itself
sitting as a court of first instance.8 Thus the Constitutional Court has refused to consider
referrals which involve issues which are not within its exclusive jurisdiction.9
1
At para 17.
3
Act 45 of 1963.
5
At para 3.
7
2
1997 (8) BCLR 1101 (N).
4
1996 (3) SA 989 (CC), 1996 (6) BCLR 798 (CC).
6
At 1112F--H.
See, for example, S v Zuma & another 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (SA) at para 10; S v Mbatha
(supra) at para 28; Bernstein & others v Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at
para 2; Nel v Le Roux & others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) at para 26; Brink v Kitshoff NO
(supra) at para 7.
8
Bernstein & others v Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at para 2.
9
S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC), 1995 (7) BCLR 851 (CC); Ferreira v Levin NO & others
1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at paras 11--13 and 16--18.
[REVISION SERVICE 2, 1998]
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(cc) The interests of justice
22 final requirement for a valid referral under s 102(1) is that the referral must be in the
The
interests of justice.1 The Constitutional Court has held that this requires at least that there
must be a reasonable prospect that the law or provision referred is unconstitutional and
invalid.2 A consideration of the prospects of success requires the referring court to ‘anticipate
the type of success’ likely to be achieved, including whether or not the Constitutional Court
will make an order of retrospectivity.3 In Bernstein v Bester NO4 Ackermann J stated that
counsel requesting a referral from the Supreme Court should be called upon to justify why
the law to be referred is unconstitutional. This would enable the Supreme Court to furnish
comprehensive reasons for a referral, which would assist the Constitutional Court to develop
our constitutional jurisprudence.5
Even where there is a reasonable prospect that the law will be held to be invalid it will often
not be in the interest of justice for a trial to be interrupted so that the Constitutional Court can
consider the validity of the law. In S v Mhlungu & others6 Kentridge AJ stated the following:
‘The reasonable prospect of success is, of course, to be understood as a sine qua non of a referral, not
as in itself a sufficient ground. It is not always in the interest of justice to make a reference as soon as the
relevant issue has been raised. Where the case is not likely to be of long duration it may be in the
interest of justice to hear all the evidence or as much of it as possible before considering a referral.
Interrupting and delaying a trial, and above all a criminal trial, is in itself undesirable, especially if
it means that witnesses have to be brought back after a break of several months. Moreover, once
the evidence in the case is heard it may turn out that the constitutional issue is not after all decisive.
I would lay it down as a general principle that where it is possible to decide any case, civil or
criminal, without reaching a constitutional issue, that is the course which should be followed.’
1
Although the section appears to confer upon the Supreme Court a discretionary power to assess the interests
of justice, the Constitutional Court has made clear that it has an overriding power to determine whether or not a
referral will be in the interests of justice. Luitingh v Minister of Defence 1996 (2) SA 909 (CC), 1996 (4) BCLR
581 (CC) at para 12.
2
S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para 59. See also Fereirra v Levin NO
(supra) at para 7; Brink v Kitshoff NO 1996 (4) SA 197 (CC), 1996 (6) BCLR 752 (CC) at para 9 and Luitingh v
Minister of Defence (supra) at para 6. This conclusion was first reached in S v Williams and Five Similar Cases
1994 (4) SA 126 (C) at 139F, 1994 (2) BCLR 135 (D). See also S v Sonday & another 1995 (1) SA 497 (C) at
506D--H, 1994 (2) SACR 810 (C).
In Prinsloo v Van der Linde & another 1997 (3) SA 1012 (CC), 1997 (6) BCLR 759(CC) the court was concerned
with the presumption of negligence in s 84 of the Forest Act 122 of 1984. An order referring the validity of this
section to the Constitutional Court was made by Van der Walt DJP at the commencement of the trial and before any
evidence had been led. He considered that the referral was in the interests of justice, inter alia because it would
determine the issue of the onus and the duty to begin. A different conclusion had been reached by Wright J in Stevens
v Stevens 1996 (3) BCLR 384 (O), who concluded that a referral of the section at the outset of a trial was not in the
interests of justice since either of the parties would be able, without the assistance of the presumption, to prove or
disprove the negligence of the defendant. The Constitutional Court nevertheless entertained the dispute on the basis
that full argument had been heard on the issue and the court was in a position to deal with it definitely and finally
(at para 8). It is submitted that this was a somewhat more lenient attitude to referral than had been evidenced in
other cases.
3
O’Meara NO v Padayachi & others; O’Meara NO & another v Govender & others 1997 (2) BCLR 258 (D) at
265J--266F.
4
1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at para 2.
5
See also Nel v Le Roux NO & others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) at para 26 and Luitingh
v Minister of Defence (supra) at paras 5--6. The requirement to furnish reasons for a referral is imposed by rule 22(2)
of the Rules of the Constitutional Court.
6
1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para 59.
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The Constitutional Court has confirmed that it is ordinarily not in the interests of justice for
matters to be heard piecemeal and that cases should be decided without referrals of
constitutional issues wherever possible.1 In order to discourage the improper referral of issues
it has developed a practice of refusing to award costs where bad referrals are struck off its
roll unless the party claiming costs also opposed the referral in the Supreme Court.2 The
Constitutional Court has also held that ‘a litigant cannot, by refusing to pursue a nonconstitutional remedy, compel a referral; allowing such a device to succeed would not be in
the interests of justice’.3 Even where a court is satisfied that an impugned law will be declared
unconstitutional, but the law is subject to amendment ‘in the foreseeable future’, it has been
held not to be in the interests of justice for a referral to be made to the Constitutional Court.4
REVISION SERVICE 3, 1998
23 In S v Lawrence; S v Negal; S v Solberg the Constitutional Court stated that it will not, as
a rule, permit disputes of fact or expert evidence to be raised for the first time on appeal.5
Accordingly, evidence relevant to the determination of a constitutional issue ought to be
heard by either the magistrate’s court or the High Court. The Constitutional Court emphasized that ‘it cannot be expected that 11 judges should sit to hear disputed evidence’.6 The
court discussed a variety of possibilities for the hearing of disputed evidence before the matter
reaches the Constitutional Court. In some cases there will be no need for any evidence to
decide the referred constitutional issue. The justification of a limitation of fundamental rights,
however, will frequently require evidence to be led.7 So too will the inquiry into the interests
of justice and good government for the purposes of IC s 98(5) and (6), which will affect any
order made by the Constitutional Court.8 In Brink v Kitshoff NO9 Chaskalson P emphasized
that a party wishing to place any evidence on record for the purposes of deciding a referred
issue must do so at the referral phase and not after the referral has been made.
IC s 102(2) provides that if the Supreme Court refers an issue to the Constitutional
Court in terms of IC s 102(1), it must suspend further proceedings in the matter until the
Constitutional Court has decided the referred issue. If the Supreme Court refuses to refer an
1
S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC), 1995 (7) BCLR 851 (CC) at para 13; Bernstein & others
v Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at para 2; Brink v Kitshoff NO (supra) at
para 9; Luitingh v Minister of Defence (supra) at para 11. See also Stevens v Stevens 1996 (3) BCLR 384 (O);
Schlinkel v Minister of Justice & another 1996 (6) BCLR 872 (N). This is not a rigid rule. The interests of justice
may well justify a referral in the midst of legal proceedings. Thus in S v Mbatha 1996 (2) SA 464 (CC), 1996 (3)
BCLR 293 (CC), 1996 (1) SACR 371 (CC) the Supreme Court referred certain issues concerning reverse onus
provisions after the state had closed its case but before the accused were put on their defence. The referral at that
point in the trial was justified because the incidence of the onus was crucial to the decision whether the accused
should testify or not. A similar approach was adopted in S v Coetzee & others 1997 (3) SA 527 (CC), 1997 (4)
BCLR 437 (CC).
2
Ferreira v Levin NO & others (2) 1996 (2) SA 621 (CC), 1996 (4) BCLR 441 (CC) at para 9; Nel v Le Roux
NO & others (supra) at para 26; Key v Attorney-General & another 1996 (4) SA 187 (CC), 1996 (6) BCLR 788
(CC) at para 17.
3
Motsepe v Commissioner for Inland Revenue 1997 (2) SA 898 (CC), 1997 (6) BCLR 692 (CC) at para 23.
4
Raloso v Wilson & others 1998 (1) BCLR 26 (NC). 5 1997 (4) SA 1176 (CC), 1997 (10) BCLR 1348 (CC).
6
7
At para 20.
See below, Chaskalson ‘Evidence’ § 26.1(c).
8
Section 98(5) gives the court a discretion to sustain an unconstitutional statute in force for a period of time in
which the legislature is given an opportunity to amend or replace it. Section 98(6) gives the court a discretion to
determine whether a declaration of invalidity of a statute has prospective or retrospective effect on the validity of
acts performed under that statute. In both case the discretion must be exercised in the interests of justice and good
government. The provisions are discussed in more detail below, Klaaren ‘Judicial Remedies’ §§ 9.3(e), 9.4(d) and 9.5.
9
1996 (4) SA 197 (CC), 1996 (6) BCLR 752 (CC) at para 12.
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issue in terms of IC s 102(1), it must decide whatever issues are within its jurisdiction and make
findings of fact relevant to the adjudication of the issue within the exclusive jurisdiction of the
Constitutional Court which it has chosen not to refer.1 If a decision on that issue remains
necessary to dispose of the case, it will be considered by the Constitutional Court on appeal,
after the Appellate Division has disposed of any appeal on the non-constitutional issues in
the case.2
(ii)
Issues arising in lower courts
24 procedure to be followed where the validity of a law or provision is challenged before
The
a court other than a Supreme Court on the ground that it is unconstitutional is regulated by
IC s 103. If the court before which the matter is being heard does not have the power to
enquire into the validity of such law or provision, it may either decide the matter on the
assumption that the law or provision is valid3 or, if the presiding officer believes that it is in
the interest of justice to do so, postpone the proceedings to enable the party who has raised the
issue to apply to a provincial or local division of the Supreme Court for relief.4 On hearing
such an application the provincial or local division may decide the issue, if it is within its
jurisdiction, or refer it to the Constitutional Court if it is an issue in respect of which that
court has exclusive jurisdiction.5 Such relief should be granted only if the provincial or local
division to which the application is made is of the opinion that the decision regarding the
validity of the law or provision is material to the adjudication of the matter before the court
from which it was referred, that there is a reasonable prospect that the relevant law or
provision will be held to be invalid, and that it is in the interest of justice to do so.6 If
the provincial or local division does decide to grant the relief applied for, it should suspend the
proceedings before the court which referred the matter to it.7 If it decides not to grant such
relief, the matter will presumably proceed in the court of first instance on the assumption
that the law or provision is valid (there is no provision to this effect). In Scagell & others v
Attorney-General, Western Cape, & others8 the court gave consideration to the requirement
in IC s 103(4) that a decision regarding the validity of a law is material to the adjudication of the
matter. In that case the accused had been charged with contravening certain sections of the
Gambling Act 51 of 1965. At the commencement of the trial the applicants feared that, in
order to facilitate the proof of the charges, the prosecution would rely upon various reverse
onus clauses contained in the Act. They accordingly applied to the magistrate to postpone
criminal proceedings against them in terms of s 103(3) so that they could apply to the
Supreme Court for an order in terms of s 103(4). O’Regan J, on behalf of a unanimous court,
stated that the charge sheet suggested that the prosecution intended relying on the evidentiary
provisions in question. Each of the challenged provisions, with one exception, could assist
the prosecution in establishing the offence with which the accused were charged. Hence
the referral was held to be competent.9
1
3
5
7
9
IC s 102(3).
Section 103(2).
Section 103(4)(a).
Section 103(4)(b).
At para 4.
6--24
2
See IC s 102(4)--(6), discussed below, § 6.4(f).
4
Section 103(3).
6
Section 103(4).
8
1997 (2) SA 368 (CC), 1996 (11) BCLR 1446 (CC).
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JURISDICTION, POWERS AND PROCEDURES OF THE COURT
(b)
Procedure in the Supreme Court
The general rule that questions of constitutional law should not be anticipated1 is not confined
to those within the exclusive jurisdiction of the Constitutional Court. Thus where the
Supreme Court considers a case in which there are constitutional issues which it can decide,
it should decide those issues only if the case cannot be disposed of on non-constitutional
grounds.
REVISION SERVICE 2, 1998
25 It has been held that constitutional issues which are to be raised in motion proceedings
before the Supreme Court should be canvassed in the papers. In Prokureursorde van
Transvaal v K 2 it was held that it is undesirable that constitutional points should be raised
in motion proceedings without their having been raised and pertinently canvassed in the
papers. In AK Entertainment CC v Minister of Safety and Security & others3 the court
refused to refer an issue to the Constitutional Court where it had not been properly canvassed
on the papers.
(c)
Access to the Constitutional Court
The routes of access to the Constitutional Court in respect of constitutional issues arising in
matters before another court are described above.4 Section 100(2) of the interim Constitution
provides that the Rules of the Constitutional Court may make provision for direct access to
the court where it is in the interest of justice to do so in respect of any matter over which it
has jurisdiction. The rules5 provide that the court shall allow direct access in exceptional
circumstances only, which will ordinarily exist only where the matter is of such urgency, or
otherwise of such public importance, that the delay necessitated by the use of the ordinary
procedures would prejudice the public interest or prejudice the ends of justice and good
government. The implication of this provision is that, in the ordinary course, where the only
issue in a matter is an issue in respect of which the Constitutional Court has exclusive
jurisdiction, procedure should be by way of an application to the Supreme Court to refer the
matter to the Constitutional Court.6
The interim Constitution itself contains provisions which limit access to the Constitutional
Court in respect of disputes between organs of state at national level regarding the question
whether or not any executive or administrative act or conduct or any threatened executive
or administrative act or conduct of one of those organs is consistent with the Constitution.7
IC s 102(13)--(16) provide that the organ disputing the validity of the act or conduct
may8 apply to a provincial or local division to refer such question of validity to the
1
2
3
4
5
See above, § 6.4.
1994 (4) BCLR 48 (T); Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T).
1994 (4) BCLR 31 (E) at 45I.
See above, § 6.4(a).
Rule 17(1) of the Rules of the Constitutional Court published in GN R5 GG 16204 of 6 January 1995 (Reg Gaz
5450). The issue of direct access is discussed in more detail below, Chaskalson & Loots ‘Court Rules and Practice
Directives’ § 7.3.
6
See Brink v Kitshoff NO 1996 (4) SA 197 (CC), 1996 (6) BCLR 752 (CC) at para 6.
7
This is a matter falling within the court’s exclusive jurisdiction: IC s 98(2)(e) read with s 101(3)(d).
8
Despite the use of the word ‘may’, it is submitted that the intention is that an organ wishing to raise such a
dispute is obliged to bring the preliminary application to the Supreme Court and cannot approach the Constitutional
Court directly.
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Constitutional Court. If the provincial or local division is of the opinion that the act or conduct
may be unconstitutional, it shall refer the matter to the Constitutional Court. Where evidence
is necessary for the purpose of deciding such matter the provincial or local division shall hear
such evidence and make a finding thereon before referring the matter to the Constitutional
Court. A decision not to refer such a matter to the Constitutional Court is appealable to the
Constitutional Court.
(d)
Referral of issues of public importance to the Constitutional Court
26 s 102(8) entitles any division of the Supreme Court which disposes of a matter in which
IC
a constitutional issue has been raised to refer the issue to the Constitutional Court in certain
circumstances. There are three requirements for IC s 102(8) referrals: (1) the issue referred
must be a constitutional issue which was raised in the proceedings; (2) the matter in which
the issue was raised must have been disposed of by the referring court; and (3) the court
referring the issue must be of the opinion that the issue is of sufficient public importance to
warrant a decision by the Constitutional Court.1
The characterization of a constitutional issue for the purposes of the first requirement
posed some difficulties in early referrals under the section. In Shabalala & others v AttorneyGeneral of the Transvaal & another2 the Constitutional Court was asked on referral under
IC s 102(8) to declare what the rules of stare decisis were in constitutional matters and to set
out the common law of police docket privilege under the Constitution. It refused to entertain
the referrals on these terms on the grounds that neither of the referred issues was a
constitutional issue within the meaning of IC s 102(8).3 Another question posed by the first
requirement is whether an issue raised mero motu by the Supreme Court may properly be
the subject of a referral under IC s 102(8). It is submitted that the words ‘in which a
constitutional issue has been raised’ should be held to include any relevant issue raised in the
proceedings mero motu by the court before the matter was disposed of.
In Du Plessis v De Klerk the Constitutional Court considered when an issue can be said
to be ‘disposed of’ for the purposes of IC s 102(8). Kentridge AJ stated the following:
‘I find a useful analogy in the decisions of the Supreme Court on the appealability of judgments
dismissing or upholding exceptions. The test applied is whether the order made has a final and
definitive effect.4 Generally, the dismissal of an exception is not regarded as final, whereas the
upholding of an exception to a pleading on the ground that it is bad in law is regarded as final and
appealable. The reasons given for this distinction are instructive. In Trakman NO v Livshitz & others5
a procedural application had been made in the court below and had been dismissed. The Appellate
Division held that the order dismissing the application was appealable because it ----
1
Zantsi v Council of State, Ciskei, & others 1995 (4) SA 615 (CC), 1995 (10) BCLR 1424 (CC) at para 1;
Shabalala & others v Attorney-General of the Transvaal & another 1996 (1) SA 725 (CC), 1995 (12) BCLR 1593
(CC), 1995 (2) SACR 761 (CC) at para 5.
2
1996 (1) SA 725 (CC), 1995 (12) BCLR 1593 (CC), 1995 (2) SACR 761 (CC) at paras 5--9.
3
The constitutionality of the common law of docket privilege rules as articulated in R v Steyn 1954 (1) SA 324
(A) was a constitutional issue and the referral was narrowed down to address this issue. The precise rules which
should replace those articulated in R v Steyn could not be considered by the court because the development of the
common law was apparently considered not to be a constitutional issue.
4
South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 549--50
(footnote 35 in the original judgment of Kentridge AJ).
5
1995 (1) SA 282 (A) at 289 (footnote 36 in the original judgment of Kentridge AJ).
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‘‘. . . was final and not susceptible of alteration by the court a quo; it was definitive of the parties’
rights in respect of the application for review; and it disposed of all the relief claimed in such
application’’.’1
Thus IC s 102(8) allows issues upon which an order is made with final and definitive effect
to be referred to the Constitutional Court even if the broader proceedings in which that order
was made have not yet been completed.2 IC s 102(8) referrals can take place even if the
relevant issue is not the subject of an appeal and has become moot.3
27 The section provides an exception to the appeal structures provided in the Constitution
and to the general principle that constitutional issues should not be anticipated. It is therefore
premised on the fact that the issue referred is of compelling public importance.4 Although
the section is framed to leave the question of the public importance of the issue within the
discretion of the Supreme Court referring the matter, it seems clear that the Constitutional
Court may choose not to entertain a referral under the section if it believes that the issue is
of insufficient importance to warrant a decision on a moot issue.5
As an issue referred under IC s 102(8) may be moot, the President of the Constitutional
Court may request the Minister of Justice to appoint counsel to argue the issue.6 Provision
is also made for the Registrar of the Constitutional Court to establish whether the parties to
the proceedings in which the issue arose wish to argue it when it is heard by the Constitutional
Court.7
There is no provision equivalent to IC s 102(8) regulating matters decided in other courts.
It is submitted that if a matter were to come before the Supreme Court on appeal or review
from a lower court or a tribunal, the Supreme Court could exercise its power in terms of
IC s 102(8) to refer a constitutional issue to the Constitutional Court.
(e)
Intervention by government
IC s 102(10) provides that if the validity of a law is in dispute in any matter and a relevant
government is not a party to the proceedings, it shall be entitled to intervene as a party before
the court in question, or shall be entitled to submit written argument to the court. The ‘relevant
government’ contemplated in IC s 102(10) may be the national government or a provincial
government, depending on who is responsible for the law in question.8 The section should
also have provided for the giving of notice to the relevant government. In the absence of such
a provision in the Constitution it will be necessary for the rules of the various courts to require
1
Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at para 27 (emphasis in the judgment of
Kentridge AJ).
2
The earlier decision to the contrary in S v Shuma & another 1994 (4) SA 583 (E) has clearly been overruled
by Du Plessis v De Klerk.
3
For a discussion of mootness as a barrier to constitutional litigation, see below, Loots ‘Access to the Courts and
Justiciability’ § 8.4.
4
Du Plessis v De Klerk (supra) at para 29.
5
See Zantsi v Council of State, Ciskei, & others 1995 (4) SA 615 (CC), 1995 (10) BCLR 1424 (CC) at
paras 6--7. See also the approach of the Constitutional Court in Luitingh v Minister of Defence 1996 (2) SA
909 (CC), 1996 (4) BCLR 581 (CC) at para 12 to the comparable discretion of the Supreme Court as to the ‘interests
of justice’ in terms of s 102(1).
6
7
Section 102(9).
Constitutional Court rule 24(2).
8
See JT Publishing (Pty) Ltd v Directorate of Publications & another (Minister of Home Affairs Intervening)
1995 (1) SA 735 (T) at 738A--E.
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CONSTITUTIONAL LAW OF SOUTH AFRICA
such notice if the right of intervention is to be made practically effective.1 It is important to
note that the fact that the government is entitled to intervene does not mean that it is a
necessary party to litigation concerning the constitutional validity of an Act.2
28 The right of parties other than the state to intervene in proceedings is governed by the
rules of court.3
(f)
Appeals from a decision of the Supreme Court
An appeal from a decision of a provincial or local division on a constitutional issue lies
directly to the Constitutional Court under the interim Constitution. The parties may not agree
that such appeal be heard by a Full Bench.4 The Appellate Division has no jurisdiction to
determine constitutional issues.5 If, in any matter before a provincial or local division, the
only issue raised is a constitutional issue within the exclusive jurisdiction of the Constitutional Court, a refusal to refer such issue to the Constitutional Court shall be appealable to
the Constitutional Court.6
Where both constitutional and non-constitutional issues arise in a matter before a
provincial or local division that court shall, if it does not refer an issue to the Constitutional
Court, hear the matter, make findings of fact which may be relevant to a constitutional issue
within the exclusive jurisdiction of the Constitutional Court, and give a decision on such
issues as are within its jurisdiction.7 An appeal lies, in the first instance, to the Appellate
Division against a decision so made.8 If the Appellate Division is able to dispose of such an
appeal without dealing with any constitutional issue which has been raised, it shall do so.9
Only if it is necessary for the constitutional issue to be decided shall the Appellate Division
refer that issue to the Constitutional Court.10
The Chief Justice and the President of the Constitutional Court are empowered jointly to
make rules to facilitate the procedure for dealing with appeals in which there are both
constitutional and other issues, which rules may provide for the constitutional issues to be
1
Rule 4(8) of the Rules of the Constitutional Court published in GN R5 GG 16204 of 6 January 1995 (Reg
Gaz 5450) requires notice to be given to the relevant executive authority where there is a dispute over the
constitutionality of any executive or administrative act or conduct or an inquiry into the constitutionality of any law.
A similar rule should be included in the uniform rules of the provincial and local divisions of the Supreme Court.
In Canada all provinces have enacted statutes that require notice to be given to the Attorney-General of the province
and/or the Attorney-Geneneral of Canada of any proceedings in which the constitutionality of any statute is in issue to
enable the Attorney-General to intervene: P W Hogg Constitutional Law of Canada 3 ed (1992) sec 56.19.
2
Morgan v Salisbury Municipality 1935 AD 167 at 173; Cresto Machines (Edms) Bpk v Afdeling Speuroffisier,
SA Polisie, Noord-Transvaal 1972 (1) SA 376 (A) at 393C. See also Suid-Afrikaanse Vereniging van Munisipale
Werknemers v Stadsraad van Pietersburg 1986 (4) SA 776 (T), in which it was held that the fact that a Minister
administered an Act and had an interest in the correct interpretation thereof was not sufficient to give him the right
to participate in the proceedings.
3
See Constitutional Court rule 9 and the Uniform Rules for the Provincial and Local Divisions of the Supreme
Court rule 12.
4
5
Section 102(12) and the proviso to s 101(6).
Section 101(5).
6
7
Section 102(17).
Section 102(3).
8
Section 102(4). An appeal to the Constitutional Court before the Appellate Division has disposed of any
grounds of appeal within its jurisdiction is competent only when the exceptional procedures of rule 23(3) apply. In
other circumstances the Constitutional Court may refuse to hear such an appeal. See Gardiner v Whitaker 1996 (4)
SA 337 (CC), 1996 (6) BCLR 775 (CC).
9
10
Section 102(5).
Section 102(6).
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JURISDICTION, POWERS AND PROCEDURES OF THE COURT
referred to the Constitutional Court before or after any such appeal has been heard by the
Appellate Division.1 IC s 102(11) states that appeals to the Appellate Division and
the Constitutional Court shall be regulated by law, including the rules of such courts, which
may provide that leave of the court from which the appeal is brought, or to which the appeal
is noted, shall be required as a condition for such appeal.
(g)
Appeals from decisions of other courts
29 interim Constitution makes no provision with regard to appeals from other courts. It
The
seems clear that a magistrate’s court decision with regard to the validity of subordinate
legislation2 will be appealable to the Supreme Court in the usual way in terms of s 83 of the
Magistrates’ Courts Act.3 What is not clear is whether the Supreme Court can consider on
appeal a constitutional challenge to legislation where the lower court has assumed the validity
thereof in terms of IC s 103(2). The right of appeal from the magistrates’ courts is against
the decision of the court. If the court assumes the validity of the legislation, it makes no
decision thereon and there is therefore no decision on that issue to appeal. The interim
Constitution is not clear on this question, but it is submitted that the intention is that where
a matter in which the magistrate has assumed the validity of legislation is taken on appeal it
is open to the Supreme Court to inquire into the validity of the legislation, if within its
jurisdiction, or to refer that issue to the Constitutional Court.
(h)
Review of the decisions of inferior courts
It has been held that the Supreme Court has the power to review an act or decision of an
inferior court which has the effect of denying a person any fundamental right guaranteed in
terms of IC Chapter 3.4 Such power has been held to be a wide power, not limited by the
provisions of s 24 of the Supreme Court Act,5 which sets out specific circumstances in which
the proceedings of an inferior court may be brought under review before a provincial or local
division.6 In hearing such a review the Supreme Court ‘possesses not only the powers of a
court of review in the legal sense, but it has the functions of a court of appeal with the
additional privileges of being able, after setting aside the decision arrived at by the lower
tribunal, to deal with the whole matter upon fresh evidence as a court of first instance’.7
1
Section 102(7).
2
See s 110 of the Magistrates’ Courts Act 32 of 1944 and IC s 103(2).
3
Act 32 of 1944. The Constitution of the Republic of South Africa Third Amendment Act 13 of 1994 as first
introduced [B4-94] contained a section (4(b)) which purported to give the Supreme Court jurisdiction to determine
any appeal from a court referred to in s 103(1), or review the proceedings of such a court, with regard to a
constitutional matter dealt with by such a court by virtue of jurisdiction conferred on it by or under a law referred
to in the said section. This was deleted in the final Bill [B4D-94], as amended by the National Assembly and the
Senate at a joint sitting, presumably because it was realized that the Supreme Court already had such jurisdiction.
4
Magano & another v District Magistrate, Johannesburg, & others 1994 (4) SA 172 (W).
5
Act 59 of 1959.
6
Magano & another v District Magistrate, Johannesburg, & others (supra) at 177B.
7
Johannesburg Consolidated Investment Company v Johannesburg Town Council 1903 TS 111 at 116, as quoted
in Magano & another v District Magistrate, Johannesburg, & others (supra) at 175--6.
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6.5
JURISDICTION UNDER THE FINAL CONSTITUTION
The Constitution of the Republic of South Africa, Act 108 of 1996 vests the judicial authority
of the Republic in the courts. Section 166 provides that the courts are ---(a) the Constitutional Court;
(b) the Supreme Court of Appeal;
(c) the High Courts, including any High Court of Appeal that may be established by an
Act of Parliament to hear appeals from High Courts;
(d) the magistrates’ courts; and
(e) any other court established or recognized in terms of an Act of Parliament, including
any court of a status similar to either the High Courts or the magistrates’ courts.
30 Item 16 of Schedule 6 of the Constitution makes provision for transitional arrangements
with regard to the courts. Item 16(1) provides that every court, including courts of traditional
leaders, existing when the final Constitution took effect continues to function and to exercise
jurisdiction in terms of the legislation applicable to it. The courts, apart from courts of
traditional leaders, existing when the final Constitution took effect on 4 February 1997 were
the Constitutional Court created by the 1993 Constitution,1 the Supreme Court of South
Africa (including the Appellate Division and the provincial and local divisions),2 the
magistrates’ courts,3 and various specialized courts.4 In terms of item 16(3)(a) the former
Appellate Division is now called the Supreme Court of Appeal and the former provincial and
local divisions of the Supreme Court (including the Supreme Courts and General Divisions
of the independent states)5 have become High Courts.
The final Constitution requires that, as soon as practicable after it comes into operation,
all courts should be rationalized with regard to structure, composition, functioning and
jurisdiction, with a view to establishing a judicial system suited to its requirements.6 The
Minister of Justice is responsible for managing the rationalization, after consultation with
the Judicial Service Commission.7
1
See above.
2
Established in terms of the Supreme Court Act 59 of 1959.
3
Established in terms of the Magistrates’ Courts Act 32 of 1944.
4
These include water courts established in terms of the Water Act 54 of 1956; the Special Court for Hearing
Income Tax Appeals created by the Income Tax 58 of 1962; small claims courts established by the Small Claims
Court Act 61 of 1984; the industrial court established in terms of the Labour Relations Act 28 of 1956, which has
now been replaced by the Labour Court established in terms of the Labour Relations Act 1995; the Land Claims
Court established in terms of the Land Reform (Labour Tenants) Act 3 of 1996.
5
The Constitution of the Republic of South Africa Third Amendment Act 13 of 1994 provided that the Supreme
Courts of the former independent states (Transkei, Bophuthatswana, Venda and Ciskei) and any General Division
of such courts should be treated as provincial or local divisions of the Supreme Court of South Africa for the purposes
of the Constitution.
6
Item 16(6)(a) of Schedule 6.
7
Item 16(6)(b) of Schedule 6.
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(a)
The Constitutional Court
REVISION SERVICE 5, 1999
The Constitutional Court, which was created by the interim Constitution, continues to exist
under the final Constitution. It consists of a President, a Deputy President, and nine other
judges.1 A matter before the Constitutional Court must be heard by at least eight judges.2
The Constitutional Court has jurisdiction over the whole of the Republic as the court of final
instance in respect of all constitutional matters.3 It may decide only constitutional matters,
and issues connected with decisions on constitutional matters.4 The Constitutional Court
makes the final decision where there is uncertainty as to whether a matter is a constitutional
matter or whether an issue is connected with a decision on a constitutional matter.5
Section 167(7) defines a constitutional matter as one which includes any issue involving the
interpretation, protection or enforcement of the Constitution.
31 The dividing line between constitutional and non-constitutional issues may be difficult to
define. In Mphahlele v First National Bank of South Africa Ltd 6 the applicant had petitioned
the Chief Justice for leave to appeal against the dismissal by a provincial division of an
application brought by him. The petition was dismissed by two judges of appeal without
hearing argument and without referring the application to the court for consideration. The
applicant requested reasons for the refusal of the petition and was informed that it was not
the practice of the Supreme Court of Appeal to furnish formal reasons for the refusal of a
petition. The Constitutional Court doubted whether the dismissal of the petition without
furnishing reasons raised a constitutional question.7
In President of the Republic of South Africa & others v South African Rugby Football
Union & others8 the Constitutional Court unanimously held that an application for recusal
directed to members of the Constitutional Court was a ‘constitutional matter’ within the
meaning of s 167(3) of the Constitution. This conclusion was based, inter alia, upon s 34 of
the Constitution, which guarantees the right to have any dispute decided in a fair public
hearing before a court or, where appropriate, another independent and impartial tribunal or
forum. Thus, ‘a judge who sits in a case in which she or he is disqualified from sitting because,
seen objectively, there exists a reasonable apprehension that such judge might be biased, acts
in a manner that is inconsistent with section 34 of the Constitution, and in breach of the
requirements of section 165(2) and the prescribed oath of office’. Hence, an application for
recusal raised a ‘constitutional matter’ and it was the duty of the Constitutional Court ‘to
give collective consideration to the question whether the judges concerned should recuse
themselves’.9
2
Section 167(1).
Section 167(2).
4
Section 167(3)(a).
Section 167(3)(b).
Section 167(3)(c).
1999 (2) SA 667 (CC), 1999 (3) BCLR 253 (CC), 1999 (1) SACR 373 (CC).
At para 7. The court nevertheless approached the matter as if a constitutional issue had been involved, but held
that there was no breach of the Constitution.
8
1999 (7) BCLR 825 (CC).
9
At paras 28--30.
1
3
5
6
7
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CONSTITUTIONAL LAW OF SOUTH AFRICA
In terms of s 167(4) the Constitutional Court has exclusive jurisdiction with regard to the
following matters:
(a) disputes between organs of state in the national or provincial sphere concerning the
constitutional status, powers or functions of any of those organs of state;
(b) the constitutionality of any parliamentary or provincial Bill;1
(c) applications envisaged in s 80 or s 122 of the Constitution;2
(d) the constitutionality of any amendment to the Constitution;
(e) a decision as to whether Parliament or the President has failed to fulfil a constitutional
obligation;
(f) certification of a provincial constitution in terms of s 144 of the Constitution.
32 Where the Supreme Court of Appeal, a High Court, or a court of similar status makes an
order of invalidity in respect of an Act of Parliament, a provincial Act or conduct of the
President, such order must be confirmed by the Constitutional Court.3
(b)
The Supreme Court of Appeal
The Supreme Court of Appeal was previously the Appellate Division of the Supreme Court
of South Africa. It consists of a Chief Justice, a Deputy Chief Justice, and the number of
judges determined by an Act of Parliament.4 A matter before the Court must be decided by
the number of judges determined by an Act of Parliament. The Supreme Court Act5
dictates the number of judges that constitutes a quorum for the hearing of various matters,
but does not determine the number of judges that may be appointed. Where the validity of
an Act of Parliament is in issue the quorum is eleven.6 Since eleven is the largest quorum
required, it stands to reason that there should always be at least eleven judges of the Supreme
Court of Appeal.
Section 168(3) of the Constitution empowers the Supreme Court of Appeal to decide
appeals in any matter and provides that it is the highest court of appeal except in constitutional
matters. It may hear only appeals, issues connected with appeals and any other matter that
may be referred to it in circumstances defined by an Act of Parliament.7 Under the interim
1
Section 167(4)(b) provides that the Court may decide on the constitutionality of a Bill only in the circumstances
anticipated in s 79 or s 121. These sections provide that the President (in respect of a national Bill) or premier of a
province (in respect of a provincial Bill) may refer a Bill to the Constitutional Court if s/he has reservations about
its constitutionality. See above, § 6.3(c) and Chaskalson & Klaaren ‘National Government’ § 3.3(h).
2
Section 80 provides that members of the National Assembly may apply to the Constitutional Court for an order
declaring that all or part of an Act of Parliament is unconstitutional. Such application must be supported by at least
one-third of the members of the National Assembly and must be made within thirty days of the date on which the
President assented to and signed the Act. Section 122 gives members of the provincial legislature the same rights with
regard to provincial Acts, requiring the application to be supported by 20 per cent of the members of the legislature.
3
Section 167(5).
4
Section 168(1). There is at present no legislation which determines the number of judges of appeal.
5
Section 12 of Act 59 of 1959. This section, which determined the constitution of the Appellate Division, now
applies to the Supreme Court of Appeal in terms of item 16(5)(b) of Schedule 6 to the Constitution, which provides
that all references in legislation to the Appellate Division must be construed as a reference to the Supreme Court
of Appeal.
6
Section 12(b) of the Supreme Court Act 59 of 1959.
7
Section 168(3).
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JURISDICTION, POWERS AND PROCEDURES OF THE COURT
Constitution the Appellate Division had no jurisdiction to hear appeals with regard to
constitutional issues. It is clear that in terms of the final Constitution the Supreme Court of
Appeal does have such jurisdiction1 and that, where a constitutional issue is decided by the
Supreme Court of Appeal, there will be a further appeal with regard to that issue to
the Constitutional Court.
(c)
The High Courts
33 South Africa Act of 1909 created the Supreme Court of South Africa and provided that
The
all superior courts which had existed independently before Union were to become divisions
of the Supreme Court. The sections of the South Africa Act dealing with the Supreme Court
were superseded by the Supreme Court Act,2 in terms of which six provincial and three local
divisions of the Supreme Court existed within the Republic of South Africa. Under the
apartheid regime further courts were created at Supreme Court level in the independent states
of Transkei, Bophuthatswana, Venda, and Ciskei. All these courts have now become High
Courts in terms of the final Constitution.3 They will continue to have the same area of
jurisdiction that they previously had until the rationalization of the courts, which is referred
to in item 16(6) of Schedule 6, has taken place.4
Section 169 of the Constitution provides that the High Courts have jurisdiction to decide
any matter, including constitutional matters, save for those which are reserved for the
exclusive jurisdiction of the Constitutional Court5 and those matters assigned to another court
by an Act of Parliament. If a High Court declares an Act of Parliament, a provincial Act, or
conduct of the President invalid as being unconstitutional, the order of invalidity will have
force only if it is confirmed by the Constitutional Court.6 It is submitted that the effect of the
confirmation will be that the declaration of unconstitutionality will apply throughout
the Republic. Without such confirmation the decision of a provincial or local division of the
High Court would be binding only within its own jurisdiction, according to the South African
rules of stare decisis.
In the past the provincial divisions and the Witwatersrand Local Division heard appeals
from the magistrates’ courts, and Full Benches of these courts (three judges) heard
appeals from certain decisions of single judges of the Supreme Court. The High Courts will
presumably continue to have the appellate jurisdiction which they previously enjoyed until
the legislation from which that jurisdiction is derived is amended or repealed.7
1
This is clear from s 167(5), which provides that if the Supreme Court of Appeal declares an Act of Parliament,
a provincial Act, or conduct of the President unconstitutional, any consequent order of invalidity which it makes
must be confirmed by the Constitutional Court.
2
3
Act 59 of 1959.
Item 16(4)(a) of Schedule 6.
4
Item 16(4)(a) of Schedule 6. Item 16(6)(a) requires that, as soon as possible after the comming into effect of
the final Constitution, there must be a rationalization of all courts, including their structure, composition, functioning
and jurisdiction, and all relevant legislation, with a view to establishing a judicial system suited to the requirements
of the final Constitution.
5
6
See s 167(4), discussed above, § 6.5(a).
Section 167(5).
7
See item 16(1) of Schedule 6. This provision is in terms of item 16(1)(b) subject to the exercise of jurisdiction
being consistent with the final Constitution. There may be some inconsistency in that s 166(c) of the Constitution
refers to High Courts of Appeal being established in terms of an Act of Parliament to hear appeals from High
Courts. It was probably intended that the High Courts should retain their previous appellate jurisdiction until
High Courts of Appeal are established by an Act of Parliament.
[REVISION SERVICE 5, 1999]
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CONSTITUTIONAL LAW OF SOUTH AFRICA
(d)
The magistrates’ courts and other courts
34
Under
the interim Constitution there was considerable uncertainty as to whether magistrates’
courts could take account of or decide constitutional issues.1 The final Constitution provides
that magistrates’ courts and all other courts may decide any matter determined by an Act of
Parliament, but prohibits courts of a status lower than a High Court from enquiring into or
ruling on the constitutionality of any legislation or any conduct of the President.2 This does
nothing to resolve the uncertainty about whether these courts have jurisdiction to consider
constitutional issues other than valididity of legislation and conduct of the President. With
regard to magistrates’ courts, it does not help to look to the provisions of the Magistrates’
Courts Act3 because, with one exception, it determines what types of claim those courts may
or may not hear, not what type of issue they may decide.4 For instance, it is clear that a
magistrate’s court would have jurisdiction to hear a claim for payment of money in terms of
a contract. But if the defendant raised the defence that the contract was unenforceable because
it was unconstitutional, would the magistrate be able to decide that issue?
In Qozoleni v Minister of Law and Order & another5 it was held that a magistrate could
apply the provisions of the Constitution in the exercise of his ordinary substantive jurisdiction. Some courts have agreed with this decision, others have held it to be incorrect.6 The
interim Constitution dictated that when a magistrate did not have competency to enquire into
a law or provision s/he should either assume the validity thereof or postpone the matter to
allow the issue to be taken to the Supreme Court on application. In the Qozoleni case the
word ‘law’ was interpreted as referring only to legislation, whereas in the cases which held
it to be incorrect it was assumed that it referred all law. Thus in the Qozoleni case it was held
that it was only constitutional issues which involved validity of legislation that could not be
decided by magistrates’ courts, whereas the courts which disagreed held that no constitutional
issue could be considered.
The position under the final Constitution is different from that under the interim Constitution because there is no doubt that the constitutional issues which are expressly excluded
from the jurisdiction of the magistrates’ courts are those involving validity of legislation and
conduct of the President. It is reasonable to suppose that the drafters intended that other
constitutional issues can be decided by the magistrates’ courts provided that the claim is
within the jurisdiction of the court in terms of the Magistrates’ Courts Act.7 It is important
to note, however, that there are some kinds of claims which are clearly not within
1
See above, § 6.2(c).
2
Section 170.
3
Act 32 of 1944.
4
The only exception is s 46(2)(a), which provides that a magistrate’s court has no jurisdiction in matters in which
the validity or interpretation of a will or other testamentary document is in question. The other provisions of s 46
exclude certain types of claim from the jurisdiction of the magistrates’ courts. Section 29 authorizes magistrates’
courts to hear certain types of claims by way of action. There are also sections, such as 30 and 30bis, which authorize
magistrates’ courts to hear certain types of claim by way of application.
5
1994 (3) SA 625 (E) at 635D--638C.
6
See the cases discussed above, § 6.2(c).
7
Act 32 of 1944. See the submissions made above, § 6.2(c).
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JURISDICTION, POWERS AND PROCEDURES OF THE COURT
the jurisdiction of the magistrates’ courts, although they are not expressly excluded by the
Magistrates’ Courts Act.1 For instance, a magistrate may not make a declaratory order or
review administrative action.2
(e)
The Labour Court
34A Labour Relations Act of 19953 expressly confers constitutional jurisdiction on the
The
Labour Court. In terms of s 151(2) of the Act, the Labour Court is established as a superior
court with the authority, inherent powers and standing in relation to matters under its
jurisdiction equal to that which a court of a provincial division of the Supreme Court has in
relation to the matters under its jurisdiction. As far as constitutional matters are concerned,
s 157(2) of the Act4 provides that the Labour Court has concurrent jurisdiction with the
High Court in respect of any alleged or threatened violation of any fundamental right arising
from ---‘(a) employment and from labour relations;
(b) any dispute over the constitutionality of any executive or administrative act or conduct, or any
threatened executive or administrative act or conduct, by the State in its capacity as an
employer;
(c) the application of any law for the administration of which the Minister is responsible.’5
6.6
POWERS OF THE COURTS UNDER THE FINAL CONSTITUTION
(a)
Costs
Unlike the interim Constitution, the final Constitution makes no express reference to the
power of the superior courts to award costs in constitutional cases. It seems, however, that
the power to award costs is embraced by the general power in terms of s 172(1)(b), which
provides that a court, when deciding a constitutional matter within its power, ‘may make any
order that is just and equitable’. This vests the courts with a broad and equitable jurisdiction.
On this basis, therefore, costs may be awarded or withheld according to the yardstick of
justice and equity. This was precisely the same yardstick which applied under the interim
Constitution. The principles which have evolved concerning the award of costs under the
interim Constitution, therefore, will continue to be of application under the final Constitution.
(b)
Other powers
The other powers of the courts under the final Constitution are discussed in a separate chapter
below.6
1
2
3
4
5
Act 32 of 1944 s 46.
See Qozeleni v Minister of Law and Order & another 1994 (3) SA 625 (E) at 636I--637A.
Act 66 of 1995
As amended by s 14 of the Labour Relations Amendment Act 127 of 1998.
In Carephone (Pty) Ltd v Marcus NO & others 1999 (3) SA 304 (LAC), 1998 (10) BCLR 1326 (LAC) the
Labour Appeal Court held that the Labour Court, when reviewing arbitration awards, was required to apply the
constitutional standard of justifiability in terms of the guarantee of administrative justice.
6
See below, Klaaren ‘Judicial Remedies’ ch 9. With respect to the powers of abstract judicial review of Bills,
see also above, Chaskalson & Klaaren ‘National Government’ § 3.3(h).
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JURISDICTION, POWERS AND PROCEDURES OF THE COURT
6.7
PROCEDURE UNDER THE FINAL CONSTITUTION
REVISION SERVICE 3, 1998
The final Constitution contains no procedural provisions equivalent to those which were to
be found in ss 102 and 103 of the interim Constitution. Instead, it contemplates that matters
of procedure will be governed by national legislation. Section 171 states that all ‘courts
function in terms of national legislation, and their rules and procedures must be provided for
in terms of national legislation’.
At the time of going to print the only legislation enacted to regulate procedural issues
arising out of the final Constitution was the Constitutional Court Complementary Act
Amendment Act,1 which took effect on 5 December 1997. This Act contains only two
substantive provisions. It inserts a new s 8 into the Constitutional Court Complementary Act2
to regulate the process by which a High Court order of invalidity of an Act of Parliament, a
provincial Act, or conduct of the President is referred to the Constitutional Court for
confirmation. It also inserts a new s 16 into the Constitutional Court Complementary Act to
confer on the President of the Constitutional Court the power to make rules for the court in
consultation with the Chief Justice. New rules of court to govern procedure under the final
Constitution came into force on 29 May 1998.3
(a)
The inherent power of the Constitutional Court to regulate its process
35 absence of any new procedural legislation beyond the Constitutional Court ComplemenThe
tary Act Amendment Act created a range of procedural problems, some of which have now
been remedied by the new rules. To address some of these problems the Constitutional Court
resorted to its ‘inherent power’ under s 173 of the Constitution ‘to protect and regulate’ its
own process. Whilst emphasizing that the s 173 power is one which has to be exercised with
caution,4 the court made it clear that the absence of legislation or rules contemplated by
ss 167(6) and 171 would not be allowed to prevent a person from approaching the Constitutional Court to uphold or protect his or her constitutional rights.
In S v Pennington & another5 the court created a procedure to regulate appeals from the
Supreme Court of Appeal to the Constitutional Court. The court held that it would require
leave for the noting of an appeal before it6 and the procedure to be followed in an application
for leave to appeal was set out.7
1
Act 79 of 1997.
3
2
Act 13 of 1995.
Rules promulgated pursuant to the interim Constitution remained in force under the final Constitution by reason
of item 16(1) of Schedule 6. These rules have now been repealed and replaced by new rules published in GN R757,
Reg Gaz 6199 of 29 May 1998. The new rules are discussed in detail below, Chaskalson & Loots ‘Court Rules and
Practice Directives’ ch 7.
4
S v Pennington & another 1997 (4) SA 1076 (CC), 1997 (10) BCLR 1413 (CC) at para 22.
5
1997 (4) SA 1076 (CC), 1997 (10) BCLR 1413 (CC).
6
This procedure requires a consideration of the merits of the appeal. See para 27.
7
At para 52. The directions given by the Constitutional Court were as follows:
‘(a) Appeals in such matters may only be brought with the leave of this Court.
(b) Applications for leave to appeal must be brought in terms of rule 10 within 14 days of the decision of the
Supreme Court of Appeal and shall set out sufficient information to enable this Court to determine whether
or not the issue is one of substance on which a ruling by this Court is desirable and whether there is a
reasonable prospect that this Court will reverse or materially alter the decision.
(c) If leave to appeal is granted the provisions of rule 19 shall be applied mutatis mutandis to such appeals.
(d) The procedure shall be followed for as long as there is no legislation or rule governing such appeals.’
[REVISION SERVICE 3, 1998]
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CONSTITUTIONAL LAW OF SOUTH AFRICA
In Parbhoo & others v Getz NO & another1 the Constitutional Court was again required
to exercise its inherent powers under s 173. At issue was an order by Southwood J declaring
s 415(3) and part of s 415(5) of the Companies Act 61 of 1973 to be unconstitutional. Having
declared the sections to be unconstitutional, Southwood J directed the Registrar of the High
Court to refer his judgment, together with the entire record of the application, to the
Constitutional Court for confirmation. The Constitutional Court held that the procedure
followed by Southwood J should be sanctioned pending the enactment of legislation and
rules.2
36 These issues are now regulated by the new rules. Nevertheless, a lacuna still remains.
There are still cases which arose under the interim Constitution which have not yet reached
the Constitutional Court. The new rules govern the new constitutional scheme and do not
cater for referrals from the High Court or Supreme Court of Appeal to the Constitutional
Court. In these and other cases not covered by the new rules it is likely that procedural issues
will continue to be dealt with in terms of the inherent powers possessed by superior courts.
(b)
Procedure for dealing with issues beyond the jurisdiction of a court
(i)
Issues arising in the superior courts
The final Constitution extends constitutional jurisdiction to the Supreme Court of Appeal
and empowers both the High Court and the Supreme Court of Appeal to consider disputes
concerning an Act of Parliament. Thus it will no longer be necessary for the High Court or
Supreme Court of Appeal to refer questions of the validity of an Act of Parliament to the
Constitutional Court before making an order relating to the relief claimed in the proceedings
before them. However, there remains a limited range of constitutional issues which fall
beyond the jurisdiction of the superior courts,3 and in respect of which a need for referrals
will arise.4 Some, but not all, such issues are regulated by the new rules. In the absence of
specific rules or legislation the inherent jurisdiction of the High Court and the Constitutional
Court to regulate their own process5 should be sufficient to develop common-law rules
relating to referrals.
It is submitted that in relation to referrals of issues within the exclusive jurisdiction of the
Constitutional Court these rules should follow the rules which were developed in relation to
s 102(1), (5) and (6) of the interim Constitution and which were guided by the general
principle that a constitutional issue should not be anticipated in advance of the necessity of
deciding it.6 A referral should therefore be allowed only where the issue to be referred is
1
1997 (4) SA 1095 (CC), 1997 (10) BCLR 1337 (CC).
2
At para 5. In fact, the procedure has now been enshrined in s 8(1)(a) of the Constitutional Court Complementary
Act 13 of 1995, as amended by s 2 of Act 79 of 1997. See below, § 6.7(b)(i).
3
See the discussion of the exclusive jurisdiction of the Constitutional Court above, § 6.5(a).
4
It is undesirable that there should be direct access to the Constitutional Court in any case where there is an issue
which falls within its exclusive jurisdiction. There will frequently be a need for another court to hear evidence in
such cases. Moreover, the Constitutional Court has stressed that the development of constitutional jurisprudence is
not helped by processes which require it to sit as a court of first instance. See, for example, Bernstein & others v
Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at para 2 and Nel v Le Roux NO & others
1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) at para 26.
5
6
Section 173.
See above, §§ 6.4(a)(i) and 6.4(f).
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potentially decisive of the case and where it is in the interests of justice for the referral to take place.
Where it is not in the interests of justice for a referral to take place and where there are other
issues within the jurisdiction of the superior courts which may be decisive for the case, an appeal
on these issues should proceed from the High Court to the Supreme Court of Appeal before
there is any referral of an issue within the exclusive jurisdiction of the Constitutional Court.1
36A
Although the superior courts have jurisdiction to make orders of constitutional invalidity
relating to an Act of Parliament, a provincial Act, or any conduct of the President, s 172(2)(a)
provides that no such orders have any force unless they are confirmed by the Constitutional
Court. This raises a need for those orders to be brought from the High Court or the Supreme Court
of Appeal to the Constitutional Court for confirmation or variation. Section 8(1)(a) of the
Constitutional Court Complementary Act2 states that ‘whenever the Supreme Court of
Appeal, a High Court or a court of similar status declares an Act of Parliament, a provincial
Act or conduct of the President invalid as contemplated in section 172(2)(a) of the Constitution . . . that court shall, in accordance with the rules, refer the order of constitutional
invalidity to the Court for confirmation’.3 Thus it will not be necessary for parties wanting
confirmation or variation of an order of unconstitutionality of an Act or any conduct of the
President to follow the ordinary route of first appealing to the Supreme Court of Appeal
before reaching the Constitutional Court.
An order by the High Court declaring the provisions of an Act of Parliament to be
unconstitutional is inchoate as the finality of the invalidation is dependent upon the Constitutional Court. Hence it was held in S v Ntsele4 that where in a criminal case the High Court
1
In such cases any referral will therefore be made to the Constitutional Court by the Supreme Court of Appeal
and not by the High Court.
2
Act 13 of 1995, as amended by s 2 of Act 79 of 1997.
3
The procedure for confirmation of an order of constitutional invalidity is now regulated by rule 15.
4
1997 (11) BCLR 1543 (CC).
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JURISDICTION, POWERS AND PROCEDURES OF THE COURT
declares the statutory provision with which the accused is charged to be invalid pending
confirmation by the Constitutional Court, it is not appropriate for the High Court to make
any finding regarding the merits of the conviction until the Constitutional Court has
pronounced upon the matter.1 In terms of s 172(2)(b) of the Constitution a court making an
order of constitutional invalidity has ancillary powers. It may grant a temporary interdict or
other temporary relief to a party pending a decision of the Constitutional Court on the validity
of the Act. In S v Ntsele2 the High Court, having found the statutory provision with which
the accused was charged to be unconstitutional, made an interlocutory order immediately
releasing the accused pending confirmation by the Constitutional Court. The Constitutional
Court endorsed this approach as it was ‘intended to prevent the irreparable harm the accused
was likely to suffer by being kept in prison pursuant to a verdict that was probably going to
be voided’.3
37 Section 172(1) of the Constitution also confers a discretion upon the High Court to make
any order that is ‘just and equitable’, including an order limiting the retrospective effect of
the declaration of invalidity and an order suspending the declaration of invalidity for any
period and on any conditions to allow the competent authority to correct the defect. In S v
Ntsele4 the Constitutional Court considered it an open question whether it is prudent for the
High Court to deal with retrospectivity, prospectivity or suspension of the order of invalidation. The view was expressed that the Constitutional Court ‘is generally better placed to make
an assessment of such issues of policy, especially as an order consequent upon such
assessment would, after confirmation of an invalidation order, affect the entire country’.5 The
court envisaged, however, that it would be competent for the High Court to make an order dealing
with retrospectivity, prospectivity or suspension, but where it does so it is desirable that full
reasons be given for the benefit of the Constitutional Court when it has to consider such
ancillary orders in the confirmation proceedings.6 The court cautioned, however, that
questions of retrospectivity, prospectivity and conditional suspension often present difficult
choices and are dependent upon factors in respect of which evidence is necessary, for example,
regarding the likely impact on the administration of justice or the financial consequences for
third parties. Such evidence should be received and evaluated by the court of first instance.
Moreover, the High Court is required to consider whether notice of the proposed invalidation
should not be given to organs of state and possibly others concerned with the administration
of the provision in question or who are likely to be affected by its demise.7
(ii)
Issues arising in the lower courts
As was pointed out above, the final Constitution contains no equivalent to IC s 103. In this
context the absence of new procedural legislation contemplated by FC s 171 creates particular problems in the lower courts. The lower courts do not have the inherent jurisdiction to
develop their own rules relating to referral of issues beyond their statutory powers. Thus
there is no obvious mechanism for referrals from the lower courts. In the absence of legisla-
1
At para 10.
3
At para 11.
5
At para 12.
7
2
Supra.
4
Supra.
6
At para 11.
At para 13.
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CONSTITUTIONAL LAW OF SOUTH AFRICA
tion making provision for such referrals,1 s 50 of the Magistrates’ Courts Act2 may provide
a partial solution to the problem in civil proceedings. The section allows a defendant in a magistrate’s
court to apply for proceedings to be transferred to the High Court and could be used in cases
where there is a constitutional issue which is beyond the jurisdiction of the court.
38 Section 50, however, does not apply to criminal proceedings, and there is no provision of
the Criminal Procedure Act3 which entitles an accused person to apply for proceedings to be
removed from the magistrate’s court to the High Court. Section 117 of the Criminal
Procedure Act provides that where an accused person pleads not guilty in the magistrate’s
court and a ground of his or her defence is the invalidity of a provincial ordinance or a
proclamation of the State President, the trial of the accused must take place in the High Court.
This provision would be of no assistance to an accused person who wishes to challenge the
constitutionality of an Act of Parliament and probably does not even cover a challenge to the
constitutionality of a provincial Act.4 In such cases an accused could apply to the AttorneyGeneral to exercise his or her discretion in terms of s 75(1)(c) of the Criminal Procedure Act
to move the proceedings to the High Court.5 It may also be open to the accused to apply
directly to the High Court for a declaratory order that the conduct with which he or she is
charged does not disclose an offence because the legislation creating such an offence is
unconstitutional. However, the High Court is generally reluctant to grant declaratory orders
relating to a person’s conduct which may constitute an offence if criminal proceedings in
respect of such conduct have already been initiated.6
(c)
Procedure in the High Court
This topic is discussed above with reference to the interim Constitution.7 The situation
remains unchanged under the final Constitution.
(d)
Direct access to the Constitutional Court
The final Constitution provides that national legislation or the Rules of the Constitutional
Court must allow a person to apply directly to the Constitutional Court when it is in the
1
It is not clear that any such legislation will be enacted in the foreseeable future. Section 1 of the Magistrates’
Courts Amendment Act 80 of 1997 substituted s 110 of the Magistrates’ Courts Act 32 of 1944 to conform with the
provisions of FC s 170. Section 110(1) now restates that lower courts may not pronounce on the validity of any law
or conduct of the President. In proceedings in which there is a challenge to the validity of any law or conduct of the
President, s 110(2) enjoins lower courts to decide the matter on the assumption that the relevant law or conduct is
valid. The section allows the lower courts to admit evidence relevant to the validity of the relevant law or conduct
but does not make provision for referrals to the High Court.
2
3
Act 32 of 1944.
Act 51 of 1977.
4
It may be possible to argue that the words ‘provincial ordinance’ in s 117 include a provincial Act, but this
would be a strained interpretation of the section. A ‘provincial ordinance’ is a law which was passed by the provincial
councils which existed between 1910 and 1986 and not a law enacted by the provincial legislatures under the interim
or final Constitutions.
5
Section 75(1)(c) gives the Attorney-General the power to designate that the trial will be held in a court other
than that at which the accused made his first appearance, provided that the court is one which has jurisdiction. It
would enable the Attorney-General to transfer proceedings from a magistrate’s court with jurisdiction to a High
Court with jurisdiction.
6
For a discussion of the circumstances in which the High Court will grant such declaratory orders, see Johnson
v Attorney-General, Natal 1946 AD 257 at 261--2.
7
See above, § 6.4(b).
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interests of justice.1 Rule 17(1) of the new rules makes provision for direct access to the
court. It is discussed below.2 In general, direct access will be allowed only in exceptional
circumstances.
(e)
Intervention by government
REVISION SERVICE 5, 1999
There is no provision of the final Constitution equivalent to IC s 102(10), which stated that
39
in any proceedings where the validity of a law is in dispute the relevant government is entitled
to be a party. However, in terms of rule 6(2) of the new rules the responsible executive
authority must be given notice of the proceedings by the party challenging the constitutionality of the law. In Parbhoo & others v Getz NO & another3 the Constitutional Court stated
that it was ‘undesirable for any court to make an order under s 172(2)(a) concerning the
invalidity of an Act of Parliament or a provincial act, where a relevant organ of state is not a
party to the proceedings, unless that organ has had an opportunity to intervene in such
proceedings’.4
(f)
Appeals
The extension by the final Constitution of constitutional jurisdiction to the Supreme Court
of Appeal has greatly simplified appeal procedure with respect to constitutional issues.
Constitutional cases now follow the same lines of appeal as do non-constitutional cases from
magistrate’s court to High Court to Supreme Court of Appeal, and from High Court to Full
Bench of High Court5 and/or to Supreme Court of Appeal. The only difference is that whereas
the Supreme Court of Appeal is the court of final appeal with respect to non-constitutional
issues, a decision of the Supreme Court of Appeal on a constitutional issue may be appealed
to the Constitutional Court.
FC s 167(6)(b) provides that national legislation or the rules of the Constitutional Court
must allow a person, in the interests of justice and with leave of the Constitutional Court, to
appeal directly to the Constitutional Court from any other court. The matter is now regulated
by rule 20.
1
Section 175(6)(a). See also s 16(2)(a) of the Constitutional Court Complementary Act 13 of 1995, as amended
by s 3 of Act 79 of 1997. The leave of the Constitutional Court must be obtained for such applications.
2
See below, Chaskalson & Loots ‘Court Rules and Practice Directives’ § 7.3.
3
1997 (4) SA 1095 (CC), 1997 (10) BCLR 1337 (CC). This standpoint was reiterated in Beinash & another v
Ernst & Young & others 1999 (2) SA 116 (CC), 1999 (2) BCLR 125 (CC) at para 27, the rationale being that the
Minister is best placed to advance arguments in justification of the challenged law, and to provide evidence relevant
to the order that might be given in terms of s 172 of the Constitution. See also Jooste v Score Supermarket Trading
(Pty) Ltd (Minister of Justice Intervening) 1999 (2) SA 1 (CC), 1999 (2) BCLR 139 (CC) at paras 7--9, in which
the Constitutional Court suggested, without deciding, that it would consider refusing to confirm an order of invalidity
solely on the ground that notice of the proceedings in the High Court had not been given to the relevant Minister.
4
At para 5.
5
The final Constitution contains no prohibition against the Full Bench of the High Court hearing constitutional
appeals from a decision of a single High Court judge. Cf s 102(12) and the proviso to s 101(6) in the interim
Constitution.
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CONSTITUTIONAL LAW OF SOUTH AFRICA
(g)
Review of decisions of inferior courts
This topic is discussed above with reference to the interim Constitution.1 The situation
remains unchanged under the final Constitution.
6.8
THE APPLICATION OF THE INTERIM AND FINAL CONSTITUTIONS TO
PENDING PROCEEDINGS
(a)
Proceedings pending on 4 February 1997
40 final Constitution came into operation on 4 February 1997. FC s 241 provides that
The
Schedule 6 applies to the transition to the new constitutional order established by this
Constitution, and any matter incidental to that transition. Item 17 of Schedule 6 provides:
‘All proceedings which were pending before a court when the final Constitution took effect, must
be disposed of as if the final Constitution had not been enacted, unless the interests of justice require
otherwise.’
This transitional provision seeks to avoid the interpretational difficulties of its predecessor,
IC s 241(8). Whether it achieves that result remains uncertain. One of the interpretational
difficulties turns on the meaning of the word ‘pending’. The term was considered by
Kentridge AJ in the context of IC s 241(8) in S v Mhlungu & others.2 He observed that the
term ‘pending’ in relation to proceedings may have different connotations according to its
context. In its normal meaning, however, proceedings are pending if they have begun but are
not yet finished.3 He further pointed out that what was not so clear is when a legal proceeding
may be said to have begun. Like its predecessor, item 17 of Schedule 6 applies to both civil
and criminal proceedings. Kentridge AJ pointed out that in Roman law there was some
controversy whether civil proceedings were pending only upon litis contestatio or upon
service of the summons. He indicated that modern authority favours the latter view.4 With
regard to criminal proceedings, reference was made to s 144(4) of the Criminal Procedure
Act 51 of 1977, which requires an indictment to be served on an accused at least ten days
before the date appointed for trial. Section 76 of the Criminal Procedure Act provides that
proceedings at a summary trial in a Superior Court shall be commenced by the serving of an
indictment on the accused and the lodging thereof with the Registrar of the Court concerned.
Kentridge AJ expressly left open the question of when a criminal trial can be said to be
pending. He contended himself with the observation that unless a duly served indictment
was lodged with the Registrar before 27 April, there would appear to be no basis on which
it could be contended that on 27 April 1994 the proceedings were pending in terms of
s 241(8). He added, however, that it did not follow that in the context of s 241(8) proceedings
1
See above, § 6.4(h).
2
1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC).
3
At para 51 citing Hoffmann J in Arab Monetary Fund v Hashim & others [1992] 1 WLR 553 at 558, [1992] 1
All ER 645 (Ch) at 649j.
4
At para 52n1. In support of the proposition that modern authority favours the view that a civil proceeding is
pending upon service of summons, Kentridge AJ referred to Michaelson v Lowenstein 1905 TS 324; Van As v
Appollus en andere 1993 (1) SA 606 (C) at 609; S v Saib 1994 (4) SA 554 (D) at 559.
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JURISDICTION, POWERS AND PROCEDURES OF THE COURT
are pending as soon as the indictment is lodged. It may be that for the purposes of that section
criminal proceedings are pending only on plea, or when the evidence has begun.1 It seems
that one of the objects of item 17 of Schedule 6 is to ensure a smooth transition from the
interim Constitution to the final Constitution. It seeks to avoid disruption in constitutional
litigation by ensuring a separation between the old and the new. In the context of criminal
trials the effect is likely to be minimal because the constitutional right to a fair trial embodied
in IC s 25 is substantially the same as its counterpart in FC s 35. It is submitted, however,
that if one of the objectives of the transitional provision is to avoid disruption, there is much
to be said for the proposition that a criminal trial is pending only once evidence has begun,
since at that point it could result in substantial disruption if the trial were to be conducted
under different legal regimes. Before the commencement of evidence, however, no problems
of disruption arise.
41 Where it is clear that a matter is pending before a court when the final Constitution took
effect, the matter must be disposed of under the interim Constitution unless the interests of
justice require otherwise.2 The word ‘proceedings’ in item 17 has been held to include appeal
proceedings.3 Where application proceedings had been instituted before 4 February 1997,
but affidavits raising constitutional issues had only been filed thereafter, it was held that the
proceedings were pending when the new Constitution took effect.4
In another case, application proceedings instituted before 4 February 1997 were met with
answering affidavits filed therafter, embodying a counter-application for an order declaring
the provisions of a statute to be unconstitutional. It was held that the counter-application had
to be dealt with under the final Constitution.5 In S v Van Nell en ’n ander6 the two accused
had been convicted of possessing dagga. The conviction was based on the reverse onus
provision contained in s 20 of the Drugs and Drug Trafficking Act.7 Neither of the accused
testified in their defence and accordingly failed to rebut the presumption in question. They
were convicted and sentenced during the period of operation of the interim Constitution. The
matter went on automatic review before the final Constitution took effect. The matter was
set down for argument after the final Constitution had come into operation. It was held that,
although the criminal proceedings had been finalized before the coming into operation of
1
At para 52.
2
In S v Ntsele 1997 (11) BCLR 1543 (CC) the accused had been convicted in the magistrate’s court on the basis
of the presumption in s 21(1)(b) of the Drug Trafficking Act 140 of 1992. On review, the Natal High Court declared
s 21(1)(b) to be inconsistent with the Constitution. The matter was then referred to the Constitutional Court. It was
not clear whether or not the matter was ‘pending’ when the final Constitution came into operation on 4 February
1997. Even on the assumption that proceedings were pending, the Constitutional Court held that the ‘interests of
justice’ afforded it flexibility. Since the Constitutional Court concluded that the section in question was indeed
unconstitutional, it held that ‘the interests of justice require that we do not indulge in legal technicalities’ (at para 8)
which might delay the setting aside of an unconstitutionally obtained conviction. Hence the court dealt with the
matter under the final Constitution.
3
Properboer Bpk en ’n ander v Die Koringraad 1997 (12) BCLR 1775 (O) at 1777C, a case in which application
proceedings had been launched before 4 February 1997, but judgment delivered only thereafter.
4
Municipality, City of Port Elizabeth v Rudman 1998 (4) BCLR 451 (SE) at 458G--459H.
5
South African Post Office Ltd v Van Rensburg & another 1998 (1) SA 796 (E) at 804G--I.
6
1998 (4) BCLR 506 (NC).
7
Act 140 of 1992.
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CONSTITUTIONAL LAW OF SOUTH AFRICA
the final Constitution, the review proceedings became pending only when the matter came
before the Full Bench for consideration. Hence the final Constitution was held to apply.
42 In Swissborough Diamond Mines (Pty) Ltd & others v Goverment of the Republic of South
Africa & others1 it was held that an interlocutory application to compel discovery in terms
of Rule 35 constituted ‘proceedings’ and that the final Constitution applied to such proceedings notwithstanding the fact that the main action had been instituted even before the coming
into operation of the interim Constitution.2
The ordinary operation of item 17 requires pending matters to be dealt with under the
interim Constitution. The ‘interests of justice’ constitute an ‘exception to the ordinary
operation of the section’ and ‘it is for the party invoking the exception to justify its
application’.3
However, the Constitutional Court has now unequivocally stated that the continued
application of the jurisdictional provisions of the interim Constitution to cases pending before
the Supreme Court of Appeal ‘leads to disruptions, delays and unnecessary costs in the
process of disposing of appeals’ and hence the Supreme Court of Appeal ought to deal with
pending matters under the 1996 Constitution. It is ‘in the interests of justice that in respect
of constitutional issues under the interim Constitution which may in future come before it,
the SCA, as the successor of the Appellate Division, should exercise the jurisdiction conferred
upon it over constitutional matters by Chapter 8 of the 1996 Constitution’.4
It is submitted that there is no closed list of factors which make up the interests of justice
in the context of this provision. The interests of justice would include, for example, the
interests that the parties have in finalizing litigation. Under the final Constitution the High
Court has jurisdiction to declare an Act of Parliament to be unconstitutional. Where,
therefore, a matter arises which ought in the ordinary course to be disposed of in terms of
the interim Constitution, it may nevertheless be in the interests of justice to allow the matter
to be dealt with under the final Constitution and thereby enable the High Court to deal with
arguments based upon the constitutionality of a statute. This serves the purpose, inter alia,
of allowing the law to develop incrementally and gives the Constitutional Court the benefit
of considered judgments on the issue.5 Another factor relevant to the interests of justice might
entail the need expeditiously to curtail unconstitutional conduct on the part of the state.
1
1999 (2) SA 279 (T).
2
At 317J--318G.
3
Fedsure Life Assurance Ltd & others v Greater Johannesburg Transtional Metropolitan Council & others 1998
(2) SA 1115 (SCA) at 1125G--H, 1998 (6) BCLR 671 (SCA).
4
Fedsure Life Assurance Ltd & others v Greater Johannesburg Transitional Metropolitan Council & others 1999
(1) SA 374 (CC), 1998 (12) BCLR 1458 (CC) at paras 112--13.
5
The Constitutional Court has indicated that it should not ordinarily deal with matters as both a court of first
instance and one of last resort (Transvaal Agricultural Union v Minister of Land Affairs & another 1997 (2) SA 621
(CC), 1996 (12) BCLR 1573 (CC) at para 18). See also Bernstein & others v Bester & others NNO 1996 (2) SA
751 (CC), 1996 (6) BCLR 449 (CC) at para 2.
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A particular difficulty which is presented by this provision is the situation where there
has been a change in the provisions of the interim Constitution and the final Constitution so
that the result may well be different depending upon which Constitution applies.1 In this
regard various situations must be distinguished. Where the constitutional violation complained
of occurred before 4 February 1997 and entailed only a violation of a right protected under
the interim Constitution, it seems that there will be little scope for contending that the final
Constitution applies. This situation is analogous to those cases in which litigants unsuccessfully sought to invoke constitutional protection in relation to acts and events which occurred
before the coming into operation of the interim Constitution.2 Another situation which may
arise concerns procedure in the conduct of a trial. Thus, for example, even where a criminal
trial was pending before the final Constitution came into operation but is heard after
4 February 1997, it may well be in the interests of justice for an accused to rely on the right
created by s 35(5) of the final Constitution to have excluded evidence obtained in a manner
that violates any right in the Bill of Rights.3
43 It is possible that legislation passed before or during the period of operation of the interim
Constitution may be susceptible to constitutional challenge under both the interim Constitution and the final Constitution. This flows from the jurisprudential effect of a declaration of
invalidity by a competent court. The issue is discussed in Ferreira v Levin NO & others.4
Ackermann J held that the court’s order does not invalidate the law; it merely declares it to
be invalid. Expanding on this proposition, he stated:
‘This does not detract from the reality that pre-existing laws either remained valid or became invalid
upon the provisions of the Constitution coming into operation. In this sense laws are objectively
valid or invalid depending on whether they are or are not inconsistent with the Constitution. The
fact that a dispute concerning inconsistency may only be decided years afterwards, does not affect
the objective nature of the invalidity. The issue of whether a law is invalid or not does not in theory
therefore depend on whether, at the moment when the issue is being considered, a particular person’s
rights are threatened or infringed by the offending law or not.’5
1
For example, under s 26 of the interim Constitution every person was guaranteed the right freely to engage in
economic activity and to pursue a livelihood anywhere in the national territory. The right now embodied in s 22 of
the final Constitution, in terms of which every citizen has the right to choose their trade, occupation or profession
freely, is worded differently and may well have a different reach. A more striking example, however, is the provision
dealing with labour relations in s 27 of the interim Constitution. Not only is the ambit of the equivalent clause in
s 23 of the final Constitution substantially wider but the insulation from constitutional attack contained in s 33(5)
of the interim Constitution no longer applies. The problem potentially arose in Wittman v Deutscher Schulverein,
Pretoria, & others 1998 (4) SA 423 (T), 1999 (1) BCLR 92 (T) in relation to the application of the two Constitutions
(IC s 7(1) and FC s 8(1)), but was not necessary to decide. The court stated, however, that ‘justice demands that
disputes be ventilated on the bases of the law which exists when they arise (and on which the parties receive their
advice, make their decisions to sue or oppose and base their pleadings)’ (at 455G--H). See also Port Elizabeth
Municipality v Rudman & another 1999 (1) SA 665 (SE), which concerned potential differences in the powers of
the courts under the interim and final Constitutions (at 672F--I).
2
See, for example, Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) and Key v
Attorney-General & another 1996 (4) SA 187 (CC), 1996 (6) BCLR 788 (CC).
3
This was the approach adopted by McCall J in S v Naidoo & another 1998 (1) SACR 479 (N), 1998 (1) BCLR
46 (D) in holding that evidence obtained in an alleged violation of an accused’s right to privacy during the period
of operation of the interim Constitution could nevertheless be excluded under FC s 35(5).
4
1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC).
5
At para 27. Although Ackermann J was in the minority, this paragraph was expressly approved in the majority
judgment of Chaskalson P at para 158.
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On this approach the interim Constitution continues to apply and may be invoked in
addition to the final Constitution in relation to laws passed before 27 April 1994 as well as
laws passed during the currency of the interim Constitution.1
(b)
Matters arising after 4 February 1997
Where it is clear that a civil or criminal matter was not pending when the final Constitution
came into operation on 4 February 1997, the matter must be disposed of in terms of the
final Constitution. What is meant by disposed of may well be the subject of controversy.
Section 241(8) of the interim Constitution used the phrase ‘shall be dealt with’. In
S v Mhlungu & others2 Mahomed J, for the majority, observed that the phrase ‘shall be dealt
with’ has different nuances, but one of its well-recognized meanings is ‘take action, act,
proceed (in a matter) . . . Set to work, practise’. He observed further that the idea of disposing
of the matter is in some contexts also a permissible nuance in the meaning of the phrase ‘deal
with’.3 If, therefore, the words ‘disposed of’ are to be treated as synonymous with ‘shall be
dealt with’, then the likely interpretation of item 17 of Schedule 6 is that it is intended to
preserve the authority of the courts established under the interim Constitution to continue
to function as courts for the purposes of adjudication in pending cases.4
44 As indicated above, where a matter arises after 4 February 1997 and the issue in dispute
concerns the constitutionality of a statute passed before 4 February 1997, it is submitted
that the statute may be attacked in terms of both the interim Constitution and the final
Constitution, but would be justiciable by the High Court in terms of the structures created
by the final Constitution. Where the issue in dispute concerns the constitutional validity of
a statute passed after 4 February 1997, it is justiciable only in terms of the final Constitution.
1
It is submitted that item 2 of Schedule 6, which provides that all law that was in force when the final Constitution
took effect continues in force subject only to any amendment or repeal and consistency with the final Constitution,
does not detract from this conclusion. This is so because the reference to all law that was in force must be construed
as a reference to laws that were validly in force. See S v Mapheele 1963 (2) SA 651 (A) at 655D--E. Cf Kauluma
en andere v Minister van Verdediging en andere 1987 (2) SA 833 (A) at 856H--857D.
2
1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC).
3
At para 26.
4
At para 24.
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