Guzana v Council of State, Republic of Ciskei

• Jurisdiction: South Africa
• Judge: Diemont JA, Galgut JA and Rabie JA
• Judgment Date: 02 February 1993
• Citation: 1993 (2) SA 445 (CkA)
• Hearing Date: 04 December 1992
• Court: Ciskei Appellate Division

Diemont JA, Galgut JA et Rabie, JA.:

This application was originally brought in the General Division of the Supreme Court, but was in terms of the provisions of s 9(3)bis of the Supreme Court Decree 43 of 1990 (Ck) I directed by the Chief Justice to be heard by this Court.

The applicant is the widow of the late Mangwane Onward Guzana, who was, together with one Charles Xhanti Sebe, killed on 27 January 1991.

The respondent is the Council of State of the Republic of Ciskei, as established by the Republic of Ciskei Constitution Decree 45 of 1990. It is a body which consists of a Chairman and a number of Councillors of State, who hold office at the Chairman's pleasure. It is vested with the J legislative

Diemont, Galgut et Rabie JJA

A authority of Ciskei, and makes laws by issuing Decrees. The Chairman of the Council is vested with the executive authority of Ciskei, and he is also the Commander-in-Chief of the armed forces of Ciskei. (See ss 11, 12, 13, 18 and 21 of the Republic of Ciskei Constitution Decree 45 of 1990.)

The chairman of the respondent Council is, and has at all relevant times B been, Brigadier Oupa Joshua Gqoza.

The applicant, whose locus standi to bring the application was admitted in argument before us, seeks an order declaring that certain two Decrees issued by the respondent Council are invalid for being in conflict with the provisions of ss 1(2) and 4(1) of Schedule 6 of the Ciskei Constitution Decree 45 of 1990. The two Decrees are: (i) Security C Amendment Decree 5 of 1992, and (ii) Constitution Second Amendment Decree 10 of 1992. The aforesaid Schedule 6 contains a list of 'Fundamental rights and responsibilities'. Section 1(2) of the Schedule states:

'All persons shall be equal before the law',

while s 4(1) thereof reads as follows: D

'In the determination of their civil rights and obligations or any criminal charges against them, all persons are entitled to a fair and public hearing by an independent, impartial and competent court or tribunal established by law: Provided that where the interests of juvenile persons or morals otherwise require, hearings may be conducted in camera.' E

A reading of the applicant's founding and replying affidavits shows that she does not challenge the validity of the whole of the aforesaid Decrees 5 and 10 of 1992, but of only some of the provisions thereof. As to Decree 5, s 2 thereof provides for the amendment of three Acts in the manner set out in three sections of the Schedule to the Decree. Only the amendments F referred to in the first two sections of the schedule are relevant to the application. They read as follows:

'(1)

Section 42 of the Civil Proceedings Evidence Act 1965 is hereby amended by the addition of the following subsection, the existing section becoming ss (1):

"(2)

Nothing in ss (1) contained shall be construed as compelling the Chairman of the Council of State whether as person, Head of G State or lawful successor to the office-bearers mentioned in s 37(2)(b) of the Republic of Ciskei Constitutional Decree 45 of 1990, to give evidence in any civil proceedings or before any commission of inquiry."

(2)

Section 206 of the Criminal Procedure Act 1977 is hereby amended by the addition of the following subsection, the existing section becoming ss (1):

"(2)

Nothing in ss (1) contained shall be construed as compelling H the Chairman of the Council of State, whether as person, Head of State or lawful successor to the office-bearers mentioned in s 37(2)(b) of the Republic of Ciskei Constitutional Decree 45 of 1990, to give evidence in any criminal proceeding or at an inquest."'

Decree 10 of 1992 substituted a new s 12 for s 12 of the Constitution I Decree 45 of 1990. The applicant's attack on Decree 10 is an attack on ss (5) of the new s 12, which reads as follows:

'(5)

The Chairman shall be a competent but not a compellable witness in any judicial or quasi-judicial proceedings or in any proceedings conducted in terms of any law before any tribunal or at any enquiry or investigation.'

J There was no similar provision in the earlier s 12.

Diemont, Galgut et Rabie JJA

A An inquest in terms of the provisions of the Inquests Act 29 of 1984 was ordered into the circumstances of the death of the applicant's husband and of the aforesaid Sebe. Claassens J was appointed to hold the inquest. The inquest proceedings, which commenced in June 1991, have not yet been completed, and at the moment they stand adjourned to a date in February 1993. B

We have very little knowledge of what has transpired at the inquest thus far, no record of the proceedings having been made available to us, but it can nevertheless be...