Brink v Kitshoff NO

• Jurisdiction: South Africa
• Judge: Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J, Sachs J
• Judgment Date: 15 May 1996
• Citation: 1996 (4) SA 197 (CC)
• Docket Number: CCT 15/95
• Hearing Date: 09 November 1995
• Counsel: E Bertelsmann SC (with him H T Venter) for the applicant. M Helberg SC (with him A J Louw) for the respondent. J Kentridge (with her M Chaskalson) for the amicus curiae (the Centre for Applied Legal Studies of the University of the Witwatersrand).
• Court: Constitutional Court

Chaskalson P:

[1] This is another case in which difficulties have arisen in regard to the application of the provisions of s 102(1) of the Constitution.

[2] Section 102(1), which deals with the referral of constitutional issues to this Court G by a Provincial or Local Division of the Supreme Court, and ss 103(3) and (4), which deal with referrals of constitutional issues raised in other courts, are necessary to address problems of jurisdiction. A Provincial or Local Division of the Supreme Court has jurisdiction under s 101 of the Constitution to determine certain constitutional issues. In the absence of a consent to jurisdiction in terms of s 101(6) it has no H jurisdiction to give a decision on the constitutionality of an Act of Parliament, to rule on disputes of a constitutional nature between the national government and any other organ of government, or to deal with disputes between organs of State of different provinces.

[3] No provision is made for proceedings to be initiated in the Constitutional Court, but s 100(2) empowers the Constitutional Court to make provision in its Rules 'for direct I 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'. Such provision has been made by Rule 17, which permits 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 J

Chaskalson P

A necessitated by the use of the ordinary procedures would prejudice the public interest or prejudice the ends of justice and good government'.

[4] The procedures, which are prescribed by s 102(1), (2), and (3) and s 103(2), (3) and (4) of the Constitution, contemplate that constitutional issues within the exclusive jurisdiction of the Constitutional Court will be raised formally in proceedings before the B Supreme Court or other courts, and will only be referred to the Constitutional Court for its decision in circumstances where it would be appropriate to do so. It is in the first instance the responsibility of the Supreme Court to decide whether or not the circumstances are appropriate.

[5] Thus, if the validity of any legislation is challenged in the magistrate's court or other court which has no jurisdiction to deal with such challenge, the presiding officer must C either act in terms of s 103(2) and deal with the matter on the assumption that the legislation is valid, or if he or she is 'of the opinion that it is in the interest of justice to do so', [1] postpone the proceedings in terms of s 103(3) to enable the party who has raised the matter to apply to the Supreme Court for relief in terms of s 103(4). The Supreme Court has the power in terms of s 103(4) to deal with the issue itself if it is within its jurisdiction or to refer it to the Constitutional Court if it is beyond its D jurisdiction. To exercise the power to refer the issue to the Constitutional Court, the Provincial or Local Division concerned must be of the opinion that a decision on the validity of the law will be material to the adjudication of the matter, that there is a reasonable prospect that the relevant law will be held to be invalid, and that it is in the E interest of justice that the issue be decided. If a decision is taken to refer the issue to the Constitutional Court the Provincial or Local Division concerned must make a finding on any evidence that may be relevant to the constitutional issue. This will be necessary only if oral evidence has to be heard and, although that is not specifically F stated, the provision clearly contemplates that in such event the evidence will be heard by the Provincial or Local Division concerned.

[6] Sections 102(1), (2) and (3) prescribe the procedure to be followed in dealing with G constitutional issues raised in proceedings before a Provincial or Local Division. They provide:

'(1) 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 H within the exclusive jurisdiction of the Constitutional Court in terms of s 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: Provided that, if it is necessary for evidence to be heard for the purposes of deciding such issue, the Provincial or Local Division concerned shall hear such evidence and make a finding thereon, before I referring the matter to the Constitutional Court.

Chaskalson P

A (2) If, in any matter before a Local or Provincial Division, there is any issue other than an issue referred to the Constitutional Court in terms of ss (1), the Provincial or Local Division shall, if it refers the relevant issue to the Constitutional Court, suspend the proceedings before it, pending the decision of the Constitutional Court.

(3) If, in any matter before a Provincial or Local Division, there are both constitutional and other issues, the Provincial or Local Division concerned B 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.'

The Constitution contemplates that constitutional disputes will ordinarily be dealt with C by the Provincial or Local Division before the Constitutional Court is engaged; and this is so even if the only issue in the case is a constitutional issue within the exclusive jurisdiction of the Constitutional Court. This follows from the language of s 102(1) and (2), which necessarily implies that s 102(1) is applicable to cases in which the only issue is the one to be referred to the Constitutional Court, and s 102(17), which makes provision for appeals to the Constitutional Court against a decision of the Supreme D Court refusing a referral where 'the only issue raised is a constitutional issue within the exclusive jurisdiction of the Constitutional Court'.

[7] The Constitution requires the Supreme Court to deal with constitutional issues E raised in proceedings brought before it in terms of ss 102(1) or 103(4), if such issues are within its jurisdiction. Where the constitutional issues raised in proceedings before it are within the jurisdiction of the Provincial or Local Division, they will ordinarily be considered in conjunction with the other issues in the case, and any appeal will be dealt F with in accordance with the provisions of s 102(4), (5), (6) and (7); such appeals will also be subject to the Rules of the Supreme Court and the Constitutional Court.

[8] Where, however, a constitutional issue within the exclusive jurisdiction of the Constitutional Court is raised in a matter, the Provincial or Local Division is empowered by s 102(1) to refer such issue to the Constitutional Court for its decision. It is not, however, obliged to do so. It is required by the section to have regard to two G further matters upon which the exercising of the power is dependent. First, whether the issue is one which may be decisive for the case; and, secondly, whether it would be in the interest of justice to refer the issue to the Constitutional Court. The referral should only be made if both these requirements have been satisfied.

[9] The importance of the second issue has been stressed in a number of decisions where it has been pointed out that it is not in the interest of justice to refer an issue H which is based upon a contention that has no reasonable prospect of being upheld by the Constitutional Court. It has also been pointed out that it is not ordinarily in the interest of justice for cases to be heard piecemeal, and that as a general rule if it is possible to

Chaskalson P

A decide a case without deciding a constitutional issue this should be done. [2]

[10] The importance of the first issue is referred to by Didcott J in Luitingh v Minister of Defence, [3] he held that the requirement that it 'may be decisive' was satisfied 'once the ruling given there may have a crucial bearing on the eventual outcome of the case as B a whole, or on any significant aspect of the way in which its remaining parts ought to be handled'. This would include an issue which, if decided in favour of the party who has raised it, would put an end to or materially curtail the litigation. It would also include an issue such as the constitutionality of the provisions of s 217(1)(b)(ii) of the Criminal Procedure Act 51 of 1977, dealing with the onus of proof in relation to the C admissibility of a confession in a criminal trial, which arose in S v Zuma and Others [4] and S v Mhlungu and Others. [5] In Zuma's case, which had been wrongly referred for other reasons, the decision of the entire case in fact depended on where the onus lay. In Mhlungu's case a ruling would determine the way in which the voir dire was to be conducted, and was also necessary in fairness to the accused to enable them to D decide whether or not to give evidence.

[11] Evidence that may be necessary for the determination of a constitutional issue should be placed before the Supreme Court at the time of the application for referral. E Frequently, this can be done on affidavit. There may, however, be exceptional cases in which it is necessary for oral evidence to be led in respect of the constitutional issue, and the proviso to s 102(1) requires that in such cases the Provincial or Local Division concerned shall hear the evidence and make findings thereon before referring the issue F to the Constitutional Court. This requirement is clearly directed towards avoiding the delays and inconvenience that would...