The executive council of the western cape

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In the matter of:


First Applicant


(WESTERN CAPE) Third Applicant

KAMALASEN CHETTY Fourth Respondent
C B HERANDIEN Fifth Respondent

Heard on: 16 August, 30 August and 14 September 1995

Delivered on: 22 September 1995


[ ] CHASKALSON P: This case involves fundamental questions of constitutional law. At issue are matters of grave public moment concerning the imminent local government elections. We would have preferred more time for consideration of these questions and the formulationof our views. Time does not permit that however. Because of the urgency of the matter and its possible impact on the local government elections there is a pressing need to announce our conclusions and basic reasoning within the shortest possible time.

[ ] The case arises from a dispute between the Executive Council of the Western Cape and the national government relating to the validity of amendments to the Local Government Transition Act (the Transition Act").1 These amendments were effected by the President by proclamation purporting to act in terms of powers vested in him under the Transition Act. The validity of the proclamations embodying the amendments was challenged on constitutional and non-constitutional grounds.

[ ] The constitutional challenge was lodged with the Registrar of this Court at the end of June 1995 with a request that it be dealt with as a matter of urgency.2 It was said that if the dispute was not resolved promptly the local government elections within the Cape Town metropolitan area could not be held on the date planned, namely 1 November 1995. All the parties asked us to deal with the matter as one of urgency. It was set down for hearing on 16 August 1995 (the term commenced on 15 August) and directions were given in terms of Rule 17(5) for the speedy disposal of the preparatory phases of the case.
[ ] A simultaneous challenge on non-constitutional grounds, seeking to review the validity of the proclamations as an abuse of the authority vested in the President, was launched in the Cape Provincial Division of the Supreme Court (the CPD). The matter was dealt with as one of urgency and on 11 August 1995 the CPD (per Conradie J, Khhn J concurring) dismissed the case.
[ ] The relief sought by the Applicants in their original notice of motion to this Court was for an order for the following:
1. Granting them direct access to this Court in terms of section 100(2) of the Constitution3 read with Rule 17, declaring unconstitutional certain amendments to the Transition Act effected by Proclamations R 58 of 7 June 1995 and R 59 of 8 June 1995 (the Proclamations), and the Proclamations themselves.
2. Setting aside the appointment of the Fourth and Fifth Respondents as members of the Provincial Committee for Local Government for the Western Cape Province (the Committee) which had been effected pursuant to Proclamation R 58 and reinstating the Fourth and Fifth Applicants as members of the Committee (which had been effected by the Third Applicant prior to the enactment of the Proclamations).
3. Directing that the First, Second and Third Respondents be jointly and severally liable for the costs of this application and that if the Fourth and Fifth Respondents opposed the application that all the Respondents be jointly and severally liable for such costs.
[ ] Section 245(1) of the Constitution provides that

Until elections have been held in terms of the Local Government Transition Act, 1993, local government shall not be restructured otherwise than in accordance with that Act.

The Transition Act was assented to on 20 January 1994, approximately three months before the Constitution came into force. It provides the machinery for the transition from a racially based system of local government to a non-racial system. It establishes the process to be followed in order to reach this goal, a process which was to commence when the Act came into force on 2 February 1994, and to continue until the holding of the first non-racial local government elections which would take place on a date to be promulgated by the Minister of Local Government in the government of national unity.4
[ ] The Constitution itself makes provision for the complex issues involved in bringing together again in one country, areas which had been separated under apartheid, and at the same time establishing a constitutional state based on respect for fundamental human rights, with a decentralised form of government in place of what had previously been authoritarian rule enforced by a strong central government. On the day the Constitution came into force fourteen structures of government ceased to exist. They were the four provincial governments, which were non-elected bodies appointed by the central government, the six governments of what were known as self governing territories, which had extensive legislative and executive competences but were part of the Republic of South Africa, and the legislative and executive structures of Transkei, Bophuthatswana, Venda and Ciskei which according to South African law had been independent states. Two of these States were controlled by military regimes, and at the time of the coming into force of the new Constitution two were being administered by administrators appointed by the South African authorities. The legislative competences of these fourteen areas were not the same. Laws differed from area to area, though there were similarities because at one time or another all had been part of South Africa. In addition the Constitution was required to make provision for certain functions which had previously been carried out by the national government, to be transferred as part of the process of decentralisation to the nine new provinces which were established on the day the Constitution came into force, and simultaneously for functions that had previously been performed by the fourteen executive structures which had ceased to exist, to be transferred partly to the national government and partly to the new provincial governments which were to be established. All this was done to ensure constitutional legislative, executive, administrative and judicial continuity.
[ ] The mechanism for this process is contained in Chapter 15 of the Constitution in a series of complex transitional provisions dealing with the continuation of laws, and the transitional arrangements for legislative authorities, executive authorities, public administration, the courts, the judiciary, the ombudsman, local government, the transfer of assets and liabilities and financial matters such as pensions and the like. The dispute in the present case depends on the interpretation of some of these provisions. I mention the complexity of the process because it is relevant to arguments addressed to us in regard to how we should interpret the relevant provisions.
[ ] Section 235(8) of the Constitution empowered the President to assign the administration of certain categories of laws to "competent authorities" within the jurisdiction of the various provinces who, by definition, were authorities designated by the Premiers. Some time after the Constitution came into force the President, purporting to act in terms of section 235(8), assigned the executive authority for the administration of the Transition Act to provincial administrators to be designated by the Premiers of each of the provinces. Section 235(8) also empowered the President when he assigned the administration of a law, or at any time thereafter, to amend or adapt such law in order to regulate its application or interpretation. This was permissible "to the extent that [the President] considers it necessary for the efficient carrying out of the assignment." When the President purported to assign the administration of the Transition Act to administrators in the provinces, he also purported to amend the law in terms of his powers under section 235(8). No objection was made by the Applicants at that time to the assignment or to the amendments to the Transition Act. In fact, the Third Applicant claims to be the Administrator in the Western Cape by virtue of such an assignment.
[ ] The process of restructuring of local government under the Transition Act proceeded and on 23 November 1994 Parliament amended the Act to include a provision under which the President was vested with the power to amend the Act by proclamation. He could do this provided the Committees on Provincial and Constitutional Affairs of the Assembly and the Senate consented to the amendments. There was also a requirement under which the amendments had to be tabled in Parliament and would fall away if Parliament passed a resolution disapproving of them. Once again no objection seems to have been taken at the time by the Applicants to the constitutionality of this amendment. A number of proclamations were passed in terms of this provision, and no challenge was made prior to June 1995 to their constitutionality.
Factual Background
[ ] On the day that the assignment of the administration of the Transition Act and the consequential amendments were made (15 July 1994), the Second Applicant (the Premier of the Western Cape) designated the Third Applicant (the Minister of local government in the Western Cape) as the competent authority for the administration of the Transition Act for the Western Cape Province. In terms of the Transition Act, the Administrators duties included the demarcation and delimitation of the Western Cape into areas of jurisdiction of transitional councils and transitional metropolitan sub-structures for the purposes of the local government elections anticipated to be held on 1 November 1995. Section 4(1) of the Transition Act required the Administrator to exercise any power conferred on him by the Act with the concurrence of the Provincial Committee, a body which (in terms of section 3(2) of the Transition Act) has to be broadly representative of stakeholders in local government; section 4(1) requires the Administrator to exercise any power conferred on him by the Transition Act with the concurrence of the Provincial Committee; and section 4(3) then provides that where they fail to concur, the matter is to be resolved by the Special Electoral Court.
[ ] The Transition Act as originally enacted provided that after the establishment of provincial government in a province members of a Provincial Committee would hold office during the pleasure of the Executive Council of that provincial government and that vacancies would be filled by the Executive Council. When the events which gave rise to the present dispute occurred, Mr A Boraine and Mr E Kulsen were members of the Committee. Kulsen resigned on 21 February 1995 and on 10 May 1995 the Third Applicant raised the question of Boraines membership of the Committee with the First Applicant, which resolved to delegate to the Third Applicant the power to dismiss Boraine and to fill the two vacancies. The Third Applicant exercised that power by advising Boraine on 11 May 1995 that his membership was being terminated and by appointing the Fourth and the Fifth Applicants in the place of Boraine and Kulsen on 17 May 1995. The reconstituted Committee met on 23 May 1995 and four of its six members (including the Fourth and Fifth Applicants) approved the demarcation proposal of the Third Applicant.5 The other two members of the Committee (and Boraine) were opposed to the Third Applicants demarcation proposal. His actions made it possible for him to avoid referring to the Special Electoral Court the dispute which would otherwise have arisen between him and the Committee with regard to his demarcation proposal.6 Intensive negotiations ensued between the major political parties involved and also between representatives of the provincial and national government authorities concerned.7 It proved impossible to find common ground, however. In the result the reaction of the central government was for the First Respondent to use his powers under section 16A of the Transition Act to promulgate the Proclamations.
[ ] By Proclamation R 58 of 7 June 1995 the First Respondent amended section 3(5) of the Transition Act by transferring the power to appoint and dismiss Committee members from the provincial to the national government.8 The amendment also served to nullify the appointment by the Third Applicant of the Fourth and Fifth Applicants. The next day the First Respondent amended section 10 of the Transition Act by Proclamation R 59. Before this amendment section 10 of the Transition Act had provided the Administrator with wide powers to make proclamations, inter alia, relating to the demarcation of local government structures and the division of such structures into wards. Proclamation R 59 made section 10 subject to the provisions of a new subsection (4), which effectively invalidated Provincial Committee decisions of the kind in issue taken between 30 April and 7 June. Section 2 of that Proclamation then rendered the amendment explicitly retroactive. The combined effect of the Proclamations was to nullify the appointment of the Fourth and Fifth Applicants as members of the Committee retroactively and also to nullify the Third Applicant's demarcation proposal which the Committee had approved on 23 May 1995. On 15 June 1995 the Second Respondent, acting in consultation with the Third Respondent and after consultation with the Second Applicant, appointed the Fourth and Fifth Respondents as members of the Committee to replace Boraine and Kulsen.
[ ] That sequence of events led to the Applicants challenging the Proclamations before the CPD and in this Court. This set in motion a chain of events which has culminated in the Applicants challenging the constitutional validity of section 16A of the Transition Act, and the constitutional validity of the assignment of the administration of the Act to provincial administrators. Not only do the Applicants put in issue the validity of the Presidential proclamation from which the Third Applicant derives his own authority, but in so doing and in challenging the validity of section 16A they put in doubt the validity of everything that has been done under the Transition Act since 15 July 1994, including all the preparations that have been made for the holding of the elections which are scheduled to take place in most of the country on 1 November, barely a month from now.
Direct and Urgent Access
[ ] The first aspect to be considered is whether urgent and direct access to this Court should be granted. The manner in which the Applicants launched their assault on the Proclamations led to considerable difficulty, not only for the Respondents but also for this Court. The case was brought on an urgent basis; it was submitted that we had exclusive jurisdiction to hear it and that we should grant direct access to this Court under section 100(2) of the Constitution and Rule 17 of the Constitutional Court Rules. We were told that the local government elections in the Cape Town metropolitan area and in the whole of the Province would be put in jeopardy if the issues were not urgently resolved. It was impressed upon us that the Third Applicant could not act without the concurrence of the Committee and that, until the dispute regarding the composition of the Committee had been resolved, arrangements for local government elections in the Western Cape Province would be at a standstill. It was pointed out that the disputed validity of the Proclamations left in limbo whether it was the national government that had the power to change the composition of the Committee or whether such power still vested in the provincial authority concerned. The Respondents agreed that the matter was of such import and urgency as to justify direct access being afforded to this Court.
[ ] There was disagreement, however, on the question whether the essential dispute falls within the exclusive jurisdiction of this Court. It is unnecessary to decide who is right on that issue. It is clear from the provisions of section 98(2)(c) of the Constitution that we do have jurisdiction to enquire into the constitutionality of any law and that, in terms of section 98(2)(e), we also have jurisdiction to deal with disputes of a constitutional nature between organs of state at any level of government.9 In any event, the matter has now been referred to this Court by the First Respondent in terms of the powers vested in him by section 82(1)(d) of the Constitution.10
[ ] Although the elections in the Western Cape metropolitan area are no longer to be held on the 1st November, elections in other parts of the Western Cape are scheduled for that date. The issues raised in these proceedings could also have an impact on the elections elsewhere in the country. We are satisfied that we should make every endeavour to resolve the issues expeditiously and that urgent and direct access to this Court is warranted. An appropriate order will therefore be included at the end of this judgment.
Application to Amend Notice of Motion
[ ] The second aspect to be considered is whether we should grant an application by the Applicants to amend their notice of motion to include as their first prayer a challenge to the validity of section 16A of the Transition Act. The application to amend was made so belatedly and diffidently as to cause the Respondents considerable embarrassment and the Court no little bother. Ordinarily we would not have allowed it. However, the validity of the section is not only central to the present matter but of vital public importance generally. The question has to be decided now and any further delay would not be in the public interest. For that reason the amendment must be allowed and the Courts order contains the relevant provision to that effect.
Summary of Legal Argument before this Court
[ ] In their founding affidavits the Applicants attacked the Proclamations on five separate grounds, in substance only one of which was relied upon in the first written argument lodged preparatory to the hearing. The argument that was persisted in was that the Proclamations were unconstitutional because they invaded the functional or institutional integrity of the Western Cape Province within the meaning of Constitutional Principle XXII, contained in Schedule 4 to the Constitution read with sections 74(1) and 232(4) thereof.11 On the day before the hearing the Applicants sought to supplement their attack on the Proclamations by introducing an attack on the Proclamations on the grounds that they violated sections 61 and 62 of the Constitution and on the further ground that section 16A of the Transition Act was itself unconstitutional for its inconsistency with those sections of the Constitution.12
[ ] Due to the lateness of the introduction of these fresh attacks and due to their possible impact on the outcome of this case, the Court granted a postponement giving the Applicants time to augment their submissions and affording the Respondents an opportunity to challenge them so that full and proper argument could be presented. Counsel were invited to consider argument on the possibility that there could be an answer to the Applicants attack on section 16A if the First Respondent nevertheless had had the power in terms of section 235(8) of the Constitution to do what he had done.
[ ] The Applicants augmented written argument, somewhat surprisingly, contained no express attack on the constitutionality of section 16A. At best there was an alternative submission, relegated to a footnote. The argument also did not deal with the possible application of section 235(8) of the Constitution. The Applicants augmented written argument, which consolidated all the grounds on which the Applicants at that stage relied, limited the attack on the Proclamations to three submissions. First, their alleged violation of Constitutional Principle XXII; second, their alleged subversion of sections 61 and 62(2) of the Constitution; and finally, that section 16A of the Transition Act, duly read down in accordance with section 232(3) of the Constitution so as to authorize only proclamations which do not violate Constitutional Principle XXII or subvert sections 61 and 62(2), renders the Proclamations ultra vires that section.
[ ] While the written submissions of the Applicants avoided a substantive attack on section 16A, a supplementary affidavit by the Second Applicant impugned its constitutionality. Because of the importance of the point counsel for the Applicants were put to an election at the resumed hearing on 30 August 1995. After some vacillation they then elected to apply to amend the notice of motion so as to include a prayer for the striking down of section 16A. Counsel for the Respondents opposed the application to amend and - quite justifiably - renewed a complaint expressed in their written submissions, namely that the repeated and unheralded changes of front on the part of the Applicants put the Respondents in the invidious position of not knowing from time to time what case they were to meet. They stressed that no proper explanation had been offered for the vacillation traced above in relation to proceedings instituted over two months earlier and emphasized that the implications of allowing the amendment would be profound. In terms of the proclamations promulgated under the provisions of section 16A, sections 3, 4, 7, 7A, 8, 9, 10, 10A, 11, 13, 16 and 16B Part VA and Schedules 1 and 4 of the Transition Act had been amended or inserted or both, some of them amended more than once. Counsel for the Respondents advanced ex tempore argument regarding the attack on section 16A and were given an opportunity to respond further in writing.13 The Respondents also handed in an affidavit by the First Respondent dealing with his state of mind regarding the jurisdictional prerequisites to a decision to amend the Transition Act by virtue of the power to amend conferred on him by sections 235(8) of the Constitution. Relying on the line of reasoning followed in Latib's case14 counsel for the Respondents argued that it was of no consequence that the Proclamations cited section 16A as the authority for their promulgation and not section 235(8) of the Constitution. They argued that, ex facie his affidavit, the First Respondent had made up his mind on the appropriate facts and had merely exercised his consequent power under an inappropriate statutory provision.
[ ] Subsequent to the hearing this Court realised that there were questions regarding section 235(8) of the Constitution and related provisions which had not been addressed by counsel in their written or oral argument. These questions were of such importance that we considered it necessary to afford the parties an opportunity and the Court the benefit of debating them. The parties' legal representatives were therefore urgently invited to canvass the particular issues at a further hearing set down on 14 September 1995. Having now had that further debate we are satisfied that the case ultimately turns on the resolution of five issues. They are (i) whether the Proclamations fall foul of Constitutional Principle XXII; (ii) whether they are invalidated by section 61 of the Constitution or (iii) by section 62(2) of the Constitution; (iv) whether section 16A of the Transition Act itself is unconstitutional; and (v) whether the Proclamations were nevertheless validly promulgated under section 235(8) of the Constitution. We proceed to consider each of those issues in turn.

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