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

• Jurisdiction: South Africa
• Citation: 1992 (4) SA 434 (CK)

African National Congress (Border Branch) and Another v Chairman, Council of State of the Republic of Ciskei, and Another
1992 (4) SA 434 (CK)

1992 (4) SA p434

Citation	1992 (4) SA 434 (CK)
Court	Ciskei General Division
Judge	Claassens J, Heath J and Claassen AJ
Heard	November 14, 1991; November 15, 1991
Judgment	December 9, 1991

Flynote : Sleutelwoorde G

Ciskei — Constitution of — Fundamental rights and freedoms contained in Schedule 6 of Constitution — Sections 26 and 43 of National Security Act H 13 of 1982 (Ck), which provide respectively for detention without trial and the prohibition of public gatherings without the permission of a magistrate, are in conflict with general rules of public international law which were incorporated into Ciskeian law by virtue of s 3 of Constitution Decree 45 of 1990 — Sections 26 and 43 of Act 13 of 1982 abolish, diminish or derogate from the fundamental rights provided for in Schedule 6 of Constitution. I

Ciskei — Constitution of — Amendment of — Repeal of entrenched clauses by improper procedure — Section 26(2) and (3) of Schedule 6 of Constitution, providing for testing powers of Court, not entrenched clauses but repealed at same time as ss 22 and 41, which were entrenched clauses — Procedure for repeal of entrenched provisions not followed — J Section 26(2) and (3) not having

1992 (4) SA p435

A any independent existence apart from that with ss 22 and 41 — Even though s 26(2) and (3) not entrenched, attempted repeal invalid.

Headnote : Kopnota

The applicants applied for an order declaring that ss 26 and 43 of the National Security Act 13 of 1982 (Ck) abolished, diminished or derogated from the fundamental rights set out in Schedule 6 of the Republic of B Ciskei Constitution Decree 45 of 1990. The State Attorney gave notice to the applicants that the respondents would not oppose the grant of the order and would merely file affidavits for the assistance of the Court. Before the matter was heard, however, the respondents issued the Constitution Third Amendment Decree which purported to repeal the whole of s 26 of the Constitution, and in addition repealed ss 22(4) and 41 and amended s 22(5) thereof to provide that the rights and freedoms conferred by Schedule 6 could be restricted by a Decree of the Council of State at C any time. The applicants had approached the Court in terms of s 26(2) of the Constitution. Section 41 of the Constitution Decree provided that ss 22(4) and (5), 26(1) and s 41 itself could not be amended or repealed unless such repeal or amendment had obtained the support of not less than two-thirds of those voting in a referendum conducted amongst all the citizens of Ciskei. It was common cause that a referendum had not been held. The applicants contended that although the provisions of s 26(2) and D (3) were not protected from repeal, they were so tied up with the other entrenched provisions that they could not be repealed in this manner.

Section 26 of the National Security Act, of which the applicants complained, provided for the detention of certain persons for the purposes of interrogation. Section 43 of the Act prohibited gatherings at which more than 20 people were present unless the gathering had been authorised by a magistrate in writing. The applicants contended that as s 3 of the E Constitution Decree 45 of 1990 incorporated the general rules of public international law into the law of Ciskei and made the latter subservient to the rules of public international law, it had to be determined whether the provisions of ss 26 and 43 of the National Security Act were in conflict with such rules.

Held, as to the preliminary point concerning the validity of the Constitution Third Amendment Decree, that s 26(2) and (3) had no independent standing separate from the entrenched repealed sections and F was so tied up with them that its repeal had to suffer the same fate as that of the entrenched sections which had been repealed in an improper manner.

Held, further, that, on an examination of the provisions of ss 26 and 43 of the National Security Act following the guidelines of international human rights law, it appeared that there was such a tremendous clash between the rights of arrest, detention and prohibition of gatherings as conferred by ss 26 and 43 on the one hand and the rights and freedoms G conferred by Schedule 6 of the Constitution on the other, that it was clear that those sections abolished, diminished, or derogated from the fundamental rights contained in Schedule 6. Application granted.

Case Information

Application for an order declaring various provisions of the National Security Act 13 of 1982 to be in conflict with the Constitution of Ciskei. H The facts appear from the reasons for judgment.

D P de Villiers QC (with him T Deva Pillay) for the applicants.

No appearance for the respondents.

Cur adv vult.

I Postea (December 9).

Judgment

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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The Full Bench

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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The Full Bench

(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...