Kruger v President of Republic of South Africa and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, O'Regan ADCJ, Madala J, Mokgoro J, Ngcobo J, Nkabinde J, Skweyiya J, Van Der Westhuizen J, Yacoob J, Jafta AJ and Kroon AJ
• Judgment Date: 02 October 2008
• Citation: 2009 (1) SA 417 (CC)
• Docket Number: CCT 57/07
• Hearing Date: 19 February 2008
• Counsel: G Budlender for the applicant. No appearance for the first respondent. W Trengove SC (with A Cockerell) for the second respondent. W Trengove SC (with S Budlender) for the third respondent.
• Court: Constitutional Court

Skweyiya J: A

Introduction

[1] The applicant, Mr Kruger, an attorney, has approached this court to secure confirmation of the Pretoria High Court's order declaring a proclamation issued by the President on 11 July 2006 and published in B Government Gazette 29041 to be 'null and void and of no force and effect'. Because the issuing of the proclamation concerned the 'conduct of the President', [1] the High Court referred its order to this court for confirmation in terms of s 172(2)(a) of the Constitution. [2]

[2] We also have before us an application by the Road Accident Fund (the Fund) which was established as a juristic person by s 2(1) of the C Road Accident Fund Act 56 of 1996 (the Principal Act). [3] The object of the Fund is payment of compensation in accordance with the provisions of the Principal Act. [4] The Fund applies for direct access to this court to obtain certainty about the status of another proclamation which was issued by the President on 28 July 2006 and published in Government D Gazette 29086. It seeks an explicit order on its effect in this regard because of what it refers to as the uncertainty created by the order made in the Pretoria High Court. More particularly, it seeks an order declaring that the Second Proclamation lawfully brought ss 1 - 5 of the Road Accident Fund Amendment Act 19 of 2005 (the Amendment Act) into E force and operation on 31 July 2006. The Fund's legal representatives were given leave to file written submissions in this matter and were also allowed to present oral argument in this court.

[3] The matter concerns the constitutional validity of the two proclamations, both of which were issued by the President with the intention of F bringing into operation certain sections of the Amendment Act which would result in the amendment of a number of sections of the Principal Act.

[4] The first one, Proclamation R27, was published in the Government Gazette on 19 July 2006 (the First Proclamation), and the second one, G

Skweyiya J

A Proclamation R32, was published in the Government Gazette on 31 July 2006 (the Second Proclamation). They both bear the signatures of the President and the Minister of Transport, Mr JT Radebe, as required by s 101 of the Constitution.

B [5] Section 101 of the Constitution, which deals with decisions by members of the executive arm of government, provides that:

(1)

A decision by the President must be in writing if it -

(a)

is taken in terms of legislation; or

(b)

has legal consequences.

(2)

C A written decision by the President must be counter-signed by another Cabinet member if that decision concerns a function assigned to that other Cabinet member.

(3)

Proclamations, regulations and other instruments of subordinate legislation must be accessible to the public.

(4)

National legislation may specify the manner in which, and the D extent to which, instruments mentioned in subsection (3) must be -

(a)

tabled in Parliament; and

(b)

approved by Parliament.

[6] The publishing of proclamations in the Government Gazette facilitates easy and quick access by the public to formal orders and decisions by E legal authorities. In the present matter such authority is the President who is the head of State and head of the National Executive. The authority is vested in him and he exercises such authority with other members of Cabinet. [5]

F [7] For ease of reference the full text of each of the two proclamations, as they appear in the respective Government Gazettes, is set out below:

Skweyiya J

First Proclamation A

PROCLAMATION

By the
President of the Republic of South Africa B

No R27, 2006

Road Accident Fund Amendment Act, 2005 (Act No 19 of 2005);
Proclamation with regard to the commencement of ss 4, 6, 10, 11 C and 12

In terms of section 13 of the Road Accident Fund Amendment Act, 2005 (Act No 19 of 2005), I hereby determine 31 July 2006 as the date on D which section 4, 6 10, 11 and 12 will come in operation.

Given under my Hand and the Seal of the Republic of South Africa at Pretoria, on this Eleventh day of July, Two Thousand and Six E

TM MBEKI
President

By Order of the President-in-Cabinet F

JT RADEBE
Minister of the Cabinet G

[8] The two proclamations were issued and published within days of each other by the President, who was competent in terms of s 13 of the Amendment Act [6] to determine by proclamation in the Government Gazette the dates on which the provisions of the Amendment Act would H come into operation.

Skweyiya J

Second Proclamation A

PROCLAMATION
B By the
President of the Republic of South Africa

No R32, 2006

C Road Accident Fund Amendment Act, 2005 (Act No 19 of 2005);
Proclamation with regard to the commencement of certain sections.

D In terms of section 13 of the Road Accident Fund Amendment Act, 2005 (Act No 19 of 2005), I hereby amend Proclamation No 27 of 2006, by the substitution for the reference to sections 4, 6, 10, 11 and 12 in the said Proclamation for the reference to section 1, 2, 3, 4 and 5 of the Amendment Act, 2005 (Act No 19 of 2005).
E
Given under my Hand and the Seal of the Republic of South Africa at Pretoria, on this 28th day of July, Two Thousand and Six

F TM MBEKI
President

By Order of the President-in-Cabinet

G JT RADEBE
Minister of the Cabinet

H [9] It is permissible under s 81 of the Constitution [7] for the legislature to authorise the President to fix the date on which an Act of Parliament is to come into operation. Furthermore, different dates may be fixed in respect of different provisions of an Act of Parliament which authorises I a member of the executive to implement legislation. [8]

Skweyiya J

[10] In Ex parte Minister of Safety and Security and Others: In re S v Walters A and Another [9] Kriegler J said:

[70] The national legislative process is concluded by s 81, which reads as follows:

'A Bill assented to and signed by the President becomes an Act of Parliament, must be published promptly, and takes B effect when published or on a date determined in terms of the Act.'

For present purposes two features of the section should be noted. First, that it requires prompt publication of the Bill once it has become an Act and, secondly, that there are two possible inception dates for such an C Act; either upon its publication or on another date determined in the Act itself or in a manner it prescribes. Parliament is thus afforded the power by s 81 of the Constitution not to fix the date of inception of an enactment itself but to prescribe in such enactment how such date is to be determined.

[71] Although the Constitution does not expressly say so, it is clear that D this power vested in Parliament to include in an enactment terms for determining its date of inception, includes the power to prescribe that such date is to be determined by the President. The language of s 81 is wide enough to allow such a procedure and there is no objection in principle to a Legislature, in the exercise of its legislative powers, leaving the determination of an ancillary feature such as an inception E date to an appropriate person. It is therefore recognised legislative practice to use this useful mechanism to achieve proper timing for the commencement of new statutory provisions. Accordingly this Court has twice accepted the existence and constitutional propriety of the practice without comment.' [10]

(Footnotes omitted.) F

[11] In Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others, [11] Chaskalson P referred to the power of the President to bring law into operation as a power which lies between the lawmaking and the administrative process. G This exercise of public power, it was held, has to be carried out lawfully and consistently with the provisions of the Constitution insofar as they may be applicable to the exercise of such power. [12] In In re Constitutionality of the Mpumalanga Petitions Bill, 2000 [13] Langa DP reiterated this and went on to say that the functionary best placed to make such determination is H

Skweyiya J

A ordinarily the head of the executive responsible for the implementation of the legislation. [14]

[12] As indicated above the First and Second Proclamations bear the names of the President and the Minister of Cabinet responsible for the implementation of both the Principal Act and the Amendment Act. But B it is the President who has to determine when the provisions of the Amendment Act will come into effect.

[13] The power the President has under s 13 of the Amendment Act, though limited, is an important one. It provides an important link between the lawmaking and the administrative processes and has to be C exercised lawfully and in compliance with the Constitution. [15] The proclamations were intended to be a step in the legislative process. Being proclamations bringing a statute into force, they had to be couched in clear and unambiguous language.

[14] It is accepted by all the parties that the Second Proclamation was D issued to correct a bona fide error which had been made in the First Proclamation and that the President had become aware of that error before 31 July 2006, the date on which the sections mentioned in that proclamation were to come into operation. The First Proclamation reflected ss 4, 6, 10, 11 and 12 of the Amendment Act as the sections which were to come into operation on 31 July 2006, instead of ss 1 - 5 of E the Amendment Act.

[15] It should however be noted that Mr Kruger does not directly attack the validity of the Second Proclamation in his application to this court and does not seek an order that it be declared invalid, hence the F application for direct access to this court by the Fund.

The issues at hand

[16] The issues that...