J T Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others

• Jurisdiction: South Africa
• Citation: 1997 (3) SA 514 (CC)

J T Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others
1997 (3) SA 514 (CC)

1997 (3) SA p514

Citation	1997 (3) SA 514 (CC)
Case No	CCT 49/95
Court	Constitutional Court
Judge	Didcott J, Chaskalson P, Mahomed DP, Ackermann J, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J, Sachs J
Heard	May 14, 1996
Judgment	November 21, 1996
Counsel	J J Gauntlett (with him G J Marcus) for the applicants and appellants; G L Grobler (with him D E Van Logerenberg and N J Louw) for the second and third respondents (the Minister of Home Affairs and the Government of the Republic of South Africa).

Flynote : Sleutelwoorde I

Constitutional practice — Courts — Constitutional Court — Referral in terms of s 102(1) of Constitution of the Republic of South Africa Act 200 of 1993 — Competence of — Only issue before Provincial or Local Division a constitutional one — Referral of such issue nevertheless competent.

Constitutional practice — Courts — Constitutional practice — Powers of — Declaration J

1997 (3) SA p515

of rights — Constitutional Court adopting rule that declaratory order a A discretionary remedy and discretion not to be exercised in favour of deciding points which are merely abstract, academic or hypothetical — Such rule subject in special circumstances to exceptions, in case of Constitutional Court those necessitated by factors fundamental to proper constitutional adjudication — B Court should not be compelled to determine issue of statute's inconsistency with Constitution of the Republic of South Africa Act 200 of 1993 when such can produce no tangible result beyond mere declaration — Court declining to exercise discretion in favour of determining constitutional validity of certain provisions of Indecent or Obscene Photographic Matter Act 37 of 1967 and Publications Act 42 of 1974 where such Acts in interim entirely repealed by C Films and Publications Act 65 of 1996 soon to be brought into operation — Such a clear instance of issues which are wholly academic.

Headnote : Kopnota

In the light of s 7(4) of the Constitution of the Republic of South Africa Act 200 of D 1993 it seems hardly imaginable that the framers of the Constitution intended, when they provided in s 102(1) for referrals of issues to the Constitutional Court for determination, to differentiate between cases in which the questions calling for the Constitutional Court's consideration were the sole ones raised and those where other issues that did not concern that Court accompanied them, excluding the former from the process and confining it to the latter. There is no sound reason in principle or in E pursuit of some policy for such a distinction. Nor does the wording of s 102(1) show that it was meant to be drawn. The subsection deals with 'any matter' coming before a Provincial or Local Division which contains an issue that falls within the exclusive jurisdiction of the Constitutional Court and may be decisive of the case. The Division must then refer the issue to the Constitutional Court, once it believes that a referral F would serve the interests of justice. And that is surely so on the wording, whether the issue stands alone or additional ones emerge as well which do not have to be determined in the Constitutional Court. Subsections (2), (3) and (17) of s 102 lend support to this construction of the section, dispelling any doubt that may linger about G the import of ss (1), demonstrating quite clearly the competence of a referral when the issue to which it relates is the only one in the case. (Paragraph [9] at 521D–522D/E.)

A declaratory order is a discretionary remedy, in the sense that the claim lodged by an interested party for such an order does not in itself oblige the Court handling the matter to respond to the question which it poses, even when that looks like being capable of a ready answer. A corollary is the judicial policy governing the discretion thus vested in H the Courts, a well-established and uniformly observed policy which directs them not to exercise it in favour of deciding points that are merely abstract, academic or hypothetical ones. There is no reason why this new Court, the Constitutional Court, should not adhere in turn to a rule that sounds so sensible. Its provenance lies in the intrinsic character and object of the remedy, rather than some jurisdictional concept I peculiar to the work of the Supreme Court or otherwise foreign to that performed in the Constitutional Court. (Paragraph [15] at 525A–C.) The Constitutional Court should, no doubt, regard the rule, like most general rules, as one that is subject in special circumstances to exceptions, in the Constitutional Court's field those necessitated now and then by factors which are fundamental to a proper constitutional adjudication. (Paragraph [15] at 525D–E.) J

1997 (3) SA p516

Section 98(5) of the interim Constitution enjoins the Constitutional Court to declare A that a law is invalid once we have found it to be inconsistent with the Constitution. But the requirement does not mean that the Court is compelled to determine the anterior issue of inconsistency when, owing to its wholly abstract, academic or hypothetical nature should it have such in a given case, the Court going into it can produce no B concrete or tangible result, indeed none whatsoever beyond the bare declaration. (Paragraph [15] at 525E–F/G.)

The Court, in the present case, held that, although a Provincial Division had erred in holding that a referral in terms of s 102(1) of the interim Constitution to the Constitutional Court of the question whether certain provisions of the Indecent or Obscene Photographic Matter Act 37 of 1967 and of the Publications Act 42 of 1974 C was incompetent in a case raising no issue but the ones on which a ruling from the Constitutional Court was wanted (paras [9] and [6] at 519F and 521D), and that the application for leave to appeal to the Constitutional Court should be granted, the appeal allowed and the requested referral substituted for the refusal thereof by the D Provincial Division (para [14] at 524G/H–H), it would nevertheless decline to issue such a ruling as Parliament had, since the reservation of judgment by the Court on the application for leave to appeal and the appeal itself, passed the Films and Publications Act 65 of 1996, which repealed the Indecent or Obscene Photographic Matter Act, 1967, and the Publications Act, 1974, entirely, replacing them with a substantially different scheme. The Court pointed out that, although the new Act had been enacted very recently and had not been brought into operation, that would in all probability E happen very soon. The Court held further that neither of the applicants, nor anyone else, stood to gain the slightest advantage from an order dealing with the old Acts' moribund and futureless provisions. The Court held, further, that in all the circumstances there could hardly be a clearer instance of issues that were wholly academic, exciting no interest but an historical one and that the Court should therefore decline at this stage to grant the declaratory order sought. (Paragraph [16] at 526C–G/H, paraphrased.) F

Cases Considered

Annotations

Reported cases

The following decided cases were cited in the judgment of the Court:

Anglo-Transvaal Collieries Ltd v South African Mutual Life Assurance Society 1977 (3) SA 631 (T)

Brink v Kitshoff NO 1996 (4) SA 197 (CC) (1996 (6) BCLR 752) G

Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others 1996 (3) SA 617 (CC) (1996 (1) SACR 587; 1996 (5) BCLR 609)

Compagnie Interafricaine de Travaux v South African Transport Services and Others 1991 (4) SA 217 (A)

Erasmus v Protea Assuransiemaatskappy Bpk 1982 (2) SA 64 (N) H

Family Benefit Friendly Society v Commissioner for Inland Revenue and Another 1995 (4) SA 120 (T)

Herbert Porter and Co Ltd and Another v Johannesburg Stock Exchange 1974 (4) SA 781 (W)

Luitingh v Minister of Defence 1996 (2) SA 909 (CC) (1996 (4) BCLR 581)

Muller v The Master and Others 1992 (4) SA 277 (T) I

Ex parte Nell 1963 (1) SA 754 (A)

Reinecke v Incorporated General Insurances Ltd 1974 (2) SA 84 (A)

S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC) (1995 (2) SACR 125; 1995 (7) BCLR 851)

Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam, and Another; Maphanga v Officer Commanding, South African Police Murder and Robbery Unit, Pietermaritzburg, and Others 1995 (4) SA 1 (A) J

1997 (3) SA p517

South African Mutual Life Assurance Society v Anglo-Transvaal Collieries Ltd A 1977 (3) SA 642 (A)

Transvaal Agricultural Union v Minister of Land Affairs and Another 1997 (2) SA 621 (CC) (1996 (12) BCLR 1573).

Statutes Considered

Statutes

The following Statutes were considered by the Court: B

The Constitution of the Republic of South Africa Act 200 of 1993, ss 7(4), 98(3) and (5), 101, 102: see Juta's Statutes of South Africa 1996 vol 5 at 1-134, 1-148, 1-149, 1-150

The Films and Publications Act 65 of 1996: see Juta's Statutes of South Africa 1996 vol 5 at 1-32

The Indecent or Obscene Photographic Matter Act 37 of 1967: see Juta's Statutes of South Africa 1996 vol 5 at 1-5 C

The Publications Act 42 of 1974: see Juta's Statutes of South Africa 1996 vol 5 at 1-6.

Case Information

Application for leave to appeal and appeal from a decision in the Transvaal Provincial Division (Daniels J), refusing an application for the referral of a constitutional question D to the Constitutional Court. The facts and the nature of the questions for referral appear from the judgment of Didcott J.

J J Gauntlett SC (with him G J Marcus) for the applicants and appellants.

No appearance for the first respondent. E

G L Grobler SC (with him D E van Loggerenberg and N J Louw) for the...