Executive Council, Western Cape Legislature, and Others v President of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, Ngoepe AJ, O'Regan J and Sachs J
• Judgment Date: 22 September 1995
• Citation: 1995 (4) SA 877 (CC)
• Docket Number: CCT 27/95
• Court: Constitutional Court

C Chaskalson P:

[1] 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 formulation of our views. Time does not permit that, however. Because of the urgency of the matter and its possible D impact on the local government elections there is a pressing need to announce our conclusions and basic reasoning within the shortest possible time.

Introduction E

[2] 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 F 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.

[3] 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 G 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) H and directions were given in terms of Rule 17(5) for the speedy disposal of the preparatory phases of the case.

[4] 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 I the Supreme Court (the 'CPD'). The matter was dealt with as one of urgency and on 11 August 1995 the CPD (per Conradie J, Kühn J concurring) dismissed the case.

A [5] 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 s 100(2) of the Constitution [3] read with Rule 17, declaring unconstitutional certain amendments to the Transition Act effected by Procs R58 of 7 June 1995 and R59 of 8 June 1995 (the B '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 Proc R58 and reinstating the fourth and fifth C 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, all the respondents be jointly and severally liable for such costs. D

[6] 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 F 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]

G [7] 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 H the Constitution came into force 14 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

H

A 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 B the South African authorities. The legislative competences of these 14 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 C 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 14 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. D All this was done to ensure constitutional legislative, executive, administrative and judicial continuity.

[8] The mechanism for this process is contained in chap 15 of the Constitution in a series of complex transitional provisions dealing with the continuation of laws, and the transitional arrangements for E 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 F it is relevant to arguments addressed to us in regard to how we should interpret the relevant provisions.

[9] Section 235(8) of the Constitution empowered the President to assign the administration of certain categories of laws to 'competent G 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 s 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 H 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 I also purported to amend the law in terms of his powers under s 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.

[10] The process of restructuring of local government under the Transition J Act proceeded and on 23 November 1994 Parliament

Chaskalson P

A 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. B 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 C

[11] 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 D 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 substructures 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 E power conferred on him by the Act with the concurrence of the Provincial Committee, a body which (in terms of s 3(2) of the Transition Act) has to be 'broadly representative of stakeholders in local government'; s...