African National Congress (Border Branch) and Another v Chairman, Council of State of the Republic of Ciskei, and Another

• Jurisdiction: South Africa
• Judge: Claassens J, Heath J and Claassen AJ
• Judgment Date: 09 December 1991
• Court: Ciskei High Court

Claassens J, Heath J et Claassen AJ:

On 4 December 1981 the Republic of Ciskei became an independent and sovereign State. It adopted its own Constitution, namely the Constitution Act 20 of 1981. On 4 March 1990 the present regime ousted the then existing government by way J of a

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coup d'état, and has remained in power ever since. The regime is headed by a Council of State and a Chairman, the Head of State. They are second and first respondents respectively. In terms of Proclamation 1 of 1990, it proclaimed itself the effective government, suspending certain portions of the Constitution Act 20 of 1981. Section 4 of the said Proclamation reads as follows: B A

'That, save as set out above, all existing laws, statutes and proclamations in force prior to the commencement of this proclamation shall continue in operation until suspended, amended, or repealed by proclamation of the Council of State.'

On 5 February 1991 the present government adopted a new constitution in terms of the Republic of Ciskei Constitution Decree 45 of 1990, by way of C Proclamation 2 of 1991, issued by the first respondent by virtue of the powers vested in him by s 42 of the said Decree. Section 3 thereof reads as follows:

'3. International law part of law of Ciskei - The general rules of public international law shall be an integral part of the law of Ciskei, D and subject to the provisions of this Decree, they shall take precedence over the laws of Ciskei and shall directly create rights and duties for the people of Ciskei.'

Section 37(1) reads as follows:

'37. Application of laws:

(1) Subject to the provisions of this Decree, all laws which were in E operation immediately prior to the commencement of this Decree, including all Acts of the National Assembly passed in terms of the Republic of Ciskei Constitution Act 1981 and all Decrees of the Council of State published in the Government Gazette between 4 March 1990 and the commencement of this Decree, shall continue to operate until repealed or amended by the competent authority.'

From this it is clear that prior existing laws remain in force (whether F curtailed or not by this Constitution) and shall remain operative until repealed or amended. One of those laws that remains in operation is the National Security Act 13 of 1982.

Attached to the Constitution as Schedule 6 thereto is a 'Bill of Rights' labelled 'Fundamental Rights and Responsibilities'. In terms of s 22(4) the legislative authority, 'save as provided in ss (5), . . . shall not G have the power to make any law abolishing, diminishing or derogating from any fundamental right as set out in Schedule 6'. Subsection (5) relates to restrictions that may legally be imposed on those rights, and reads as follows:

'(5) The rights and freedoms conferred in Schedule 6 may be restricted H by a Decree with general application for reasons which are necessary in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health and morals, for the protection of the reputation or the rights of others, for maintaining the authority and impartiality of the Judiciary and for the social, moral and economic well-being and upliftment of all the inhabitants of the State, provided that such a restriction shall not I negate the essential content of the said rights and freedoms.'

In terms of s 26 the Courts are given certain testing rights. It will be convenient to set out the whole of s 26:

'26. Validity of laws:

(1) The Supreme Court shall be competent to enquire into and pronounce J upon the validity of a Decree in pursuance of the question:

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(a)

A whether the provisions of this Decree were complied with in connection with any law which is expressed to be decreed by the Council of State; and

(b)

subject to the provisions of this Decree, whether the provisions of any such Decree abolish, diminish or derogate from any fundamental right as set out in Schedule 6.

(2) When the Chairman or an aggrieved person has any doubt on the question whether any law or provision thereof which was in force in the B Republic before 4 March 1990 or if any draft Decree which is to be considered by the Council of State, abolishes, diminishes or derogates from any fundamental right as set out in Schedule 6, the Chairman or such person may cause such question to be submitted to the Supreme Court for argument and decision.

(3) If the Supreme Court decides that any law, draft Decree or provision C referred to in ss (2) abolishes, diminishes or derogates from any fundamental right so referred to, the Chairman shall cause such law, draft Decree or provision to be submitted to the Council of State for decision as to whether such law, draft Decree or provision ought to be repealed, amended or reconsidered.'

Against that background we now turn to the present application. The D applicants (to whom I shall refer in more detail later on) seek the following relief, as set out in the notice of motion:

'1.

That the honourable Court hears argument and gives its decision on the following question submitted to it by the applicants in terms of s 26(2) of the Republic of Ciskei Constitution Decree 1990, namely:

E Whether s 26 and/or s 43 of the National Security Act 13 of 1982, as amended, abolish(es), diminish(es) or derogate(s) from any fundamental right as set out in Schedule 6 of the said Constitution Decree, and if so in what respect or respects.

2.

More particularly, that the said honourable Court, in answering the aforesaid question, gives a decision as follows, namely that:

(a)

F The provisions of s 26

(i)

purport to abolish the fundamental rights provided for by ss 2(1), 2(2), 3, 4(1)-(6), 5(1), 8(2) and/or 9 of Schedule 6,

or alternatively

(ii)

diminish or derogate from the said rights in fundamental respects so as to negate their essential content. G

(b)

The provisions of s 43

(i)

purport to abolish the fundamental rights provided for by ss 8, 9, 10, read with ss 12 and 11(2) of Schedule 6,

or alternatively

(ii)

diminish or derogate from the said rights in fundamental H respects so as to negate their essential content.

3.

Such other or alternative decisions be given and/or relief be granted to the applicants as to the honourable Court may seem meet.'

As can be seen, it is brought in terms of s 26(2) of the Constitution, requiring this Court to give a decision on the matter as provided for I therein.

This matter was set down for hearing on 13 November 1991, many weeks in advance, with due notice to all parties. On 9 August 1991 the State Attorney, on behalf of respondents, by letter dated 8 August 1991, informed the Registrar and applicants' attorneys that they 'do not intend to oppose this application, and will abide by the decision of the J honourable

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A Court, but the respondents do intend to file an affidavit responding to the applicants' averments and for the assistance of the Court'. Certain affidavits were filed, and replies thereto were filed by applicants.

On Thursday, 7 November 1991, respondents issued the Constitution Third B Amendment Decree No 30 of 1991. This Decree purported to repeal, amongst others, the whole of s 26 of the Constitution, it being the section on the strength of which applicants came to Court. The Decree was furthermore made operative retrospectively as from 28 December 1990. (It is not clear why that date was chosen, but it is in any event a date prior to the coming into operation of the Constitution Decree.) The Decree reads as follows: C

'1.

Amendment of s 22 of Decree No 45 of 1990 - Section 22 of the Republic of Ciskei Constitution Decree, 1990 (hereinafter referred to as the principal Decree) is hereby amended -

(a)

by the deletion of ss (4); and

(b)

by the substitution for ss (5) of the following subsection:

(5)

D The rights and freedoms conferred in Schedule 6 may at any time be restricted by a Decree of the Council of State in terms of this Decree or in terms of any other law.

2.

Repeal of s 26 of Decree No 45 of 1990 - Section 26 of the principal Decree is hereby repealed.

3.

E Repeal of s 41 of Decree No 45 of 1990 - Section 41 of the principal Decree is hereby repealed.

4.

Short title - This Decree shall be called the Constitution Third Amendment Decree, 1991 and shall be deemed to have come into operation on 28 December 1990.'

Because of this Decree, it is obvious that the whole basis of the F application, being brought on the strength of s 26 of the Constitution, was affected. As a result thereof applicants notified respondents by 'notice' dated 11 November 1991, that as a point in limine, they will seek a ruling

'(a)

that such purposrted repeal is invalid and of no force and effect, and

(b)

that their application should therefore proceed'.

G They further notified respondents that they will seek an order 'that respondents pay jointly and severally the additional costs incurred by promulgation of the said Amendment Decree, such costs to include the costs occasioned by the employment of two counsel'. On 12 November 1991 applicants' attorney was informed by respondents' attorney that it was H conceded by him that the said Decree is not valid and therefore the relief sought in the 'notice' would not be opposed. This was confirmed by letter by applicants' attorney to respondents' attorney, telefaxed through the same day. The letter also confirmed that costs would be asked for as stated in the 'notice'.

On that basis and against that background the hearing started, lasting I for two days. For applicants appeared Messrs D P de Villiers SC and D Pillay. The Court is greatly indebted to counsel for very well-prepared heads of argument and supplementary documentation, without which the...