Congress of Traditional Leaders of South Africa v Minister for Local Government, Eastern Cape, and Others

• Jurisdiction: South Africa
• Judge: Davies AJP, Pickering J, Miller AJ
• Judgment Date: 24 October 1995
• Citation: 1996 (2) SA 898 (TkS)
• Docket Number: 1675/95
• Hearing Date: 18 October 1995
• Counsel: M Nonkonyana for the applicant. J J Gauntlett SC (with him D S Koyana) for the first respondent. J J Gauntlett SC (with him J C Heunis) for the second and third respondents.
• Court: Transkei Supreme Court

J Pickering J:

The Local Government Transition Act 209 of 1993 ('the Transition Act') was promulgated on 2 February 1994. As stated by

Pickering J

A Chaskalson P in The Executive Council of the Western Cape Legislature and Others v The President of the Republic of South Africa and Others case No CCT 27/95 (now reported as Executive Council, Western Cape Legislature, and Others v President of the Republic of South Africa and Others 1995 (4) SA 877 (CC) (1995 (10) BCLR 1289)), the Transition Act provides the machinery for the B transition from a racially based system of local government to a non-racial system and 'establishes the process to be followed 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 elections have now been scheduled to take place on 1 November 1995. C

On 15 July 1994 the President, the third respondent herein, acting in terms of s 16A of the Transition Act, issued Presidential Proclamation R129 of 1994 in terms whereof the provisions of the Transition Act were made applicable throughout the national territory of South Africa including those areas which formerly fell within the area of the TBVC States. D

On 30 June 1995 the third respondent, again acting under s 16A of the Transition Act, issued Presidential Proclamation R65 of 1995 in terms whereof he purported to amend the Act by the insertion of part VA consisting of ss 9A to 9E. In terms of these sections certain rural local government structures were established, in E particular district councils and transitional representative councils. Section 9D sets out what is termed 'a framework for rural local government'.

Thereafter the first respondent, acting under the powers vested in him by s 10 of the Transition Act, issued certain proclamations being Provincial Proclamations 16 to 20 of 1995, in terms whereof, inter alia, election regulations for rural areas were F implemented and regional services councils were abolished and replaced with district councils. Transitional representative councils were also established.

In consequence of the promulgation of the aforementioned proclamations, the applicant launched an urgent application citing the Member of the Executive G Council for Local Government and Housing, Eastern Cape, the Minister of Provincial Affairs and Constitutional Development, and the President of the Republic of South Africa, as the first, second and third respondents respectively. In the application the applicant sought, inter alia, an order declaring Proc R129 of 1994 issued by the third respondent to be unconstitutional, an order that all H regulations and/or directives issued in terms of the proclamations or any legislation amending the Transition Act, including Provincial Proclamations 18, 19 and 20 be declared invalid, and certain other relief in terms whereof tribal and regional authorities would continue to exist and exercise their functions until such time as new legislation had been passed by 'the competent authority after having I been referred to the House or Council of Traditional Leaders in terms of the Constitution of the Republic of South Africa Act 200 of 1993' (the 'Constitution Act').

Because the applicant's case was not presented with any great degree of coherence or clarity it has been difficult to ascertain the precise nature of its case on the J merits.

Pickering J

A In my view, however, Mr Gauntlett, who appeared for the respondents, has correctly identified the applicant's essential complaint as being that the application of the Transition Act to rural areas in the Eastern Cape Province in some manner deprives traditional leaders of their powers in terms of various legislation which B was not specified by the applicant, which powers were in some sense entrenched in substantive provisions of the Constitution Act. For reasons that will appear hereunder it is not necessary to deal in any greater detail with the nature of applicant's case on the merits.

The respondents raised certain points in limine, namely: that on the papers the C deponent to the founding affidavit, Chief Gwadiso, had no authority on behalf of the applicant to institute the application or to depose to the affidavit; that Contralesa had no locus standi to bring the application in that it did not have a direct and substantial interest in the subject-matter of the litigation; and that this Court had no jurisdiction to enquire into the validity of certain of the legislation attacked by the D applicant. Mr Nonkonyana who appeared for the applicant informed the Court that the applicant conceded the latter point concerning jurisdiction. However, he categorised the remaining two points in limine as being 'mere technicalities'. Mr Gauntlett, who appeared for the respondents, for his part submitted, correctly in my E view, that these are not matters of mere technicality.

In regard to the necessity for a litigant's authority properly to appear from its affidavits he referred to the decision in Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2) SA 347 (C) at 351D-H where Watermeyer J stated:'I proceed now to consider the case of an artificial person, like a company or co-operative society. In such a case there is judicial precedent for holding that objection may be taken if there is nothing before the Court to show that the applicant has duly authorised the institution of notice of motion proceedings (see for example Royal Worcester Corset Co v Kesler's Stores 1927 CPD 143; Langeberg Ko-operasie Beperk v Folscher and Another 1950 (2) SA 618 (C)). Unlike an individual, an artificial person can only function through its agents and it can only take decisions by the passing of resolutions in the manner provided by its constitution. An attorney instructed to commence notice of motion proceedings by, say, the secretary or general manager of a company would not necessarily know whether the company has resolved to do so, nor whether the necessary formalities had been complied with in regard to the passing of the resolution. It seems to me, therefore, that in the case of an artificial person there is more room for mistakes to occur and less reason to presume that it is properly before the Court or that proceedings which purport to be brought in its name have in fact been authorised by it.

There is a considerable amount of authority for the proposition that, where a I company commences proceedings by way of petition, it must appear that the person who makes the petition on behalf of the company is duly authorised by the company to do so (see for example Lurie Brothers Ltd v Arcache 1927 NPD 139, and other cases mentioned in Herbstein and Van Winsen Civil Practice of the Superior Courts in South Africa at 37, 38). This seems to me to be a salutary rule and one which should apply also to notice of motion proceedings J where the applicant is an artificial person.'

Pickering J

A Nor is the issue of whether or not an applicant has locus standi technical. The law, as it stands at present, does not permit the bringing of representative or class actions save in those circumstances now specified in s 7 of the Constitution Act.

At the outset of the hearing we were informed by counsel that they were in B agreement that the points in limine should be argued and disposed of prior to any argument being addressed to us on the merits of...