Member of the Executive Council for Development Planning and Local Government, Gauteng v Democratic Party and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Sachs J, Yacoob J
• Judgment Date: 29 May 1998
• Citation: 1998 (4) SA 1157 (CC)
• Docket Number: CCT 33/97
• Hearing Date: 17 March 1998
• Counsel: WH Trengove (with him M Chaskalson) for the appellant. PJ Van Blerk (with him DN Unterhalter) for the respondents.
• Court: Constitutional Court

Chaskalson P:

[1] My judgment deals only with the application for leave to appeal. [1] On the merits of the appeal, I concur in I the judgment of Yacoob J and in the order made by him.

Chaskalson P

[2] At a meeting of the Eastern Metropolitan Substructure of the Greater Johannesburg Transitional A Metropolitan Council ('the Council') on 31 May 1997, a dispute arose as to the voting majority required for the approval of its budget for the forthcoming financial year. While certain members of the Council argued that a simple voting majority was all that was required, [2] others insisted that a two-thirds majority was necessary. [3] B

[3] The Council and the appellant in the present matter brought an urgent application in the Witwatersrand High Court for an order declaring a simple voting majority to be sufficient. At the heart of the dispute between the parties were and are different interpretations as to the status of and relationship between certain C contradictory provisions in the 1996 Constitution [4] and the Local Government Transition Act [5] ('the LGTA'). The matter came before Snyders J, who held that item 26(2) of Schedule 6 of the 1996 Constitution in effect insulated s 16(5) and (6) of the LGTA against constitutional scrutiny until 30 April 1999. [6] For the purposes of the present judgment it is not necessary for me to consider the reasons for this decision in any D detail. It is sufficient to say that as a result of the finding made by her, Snyders J dismissed the application with costs.

[4] The appellant and the Council decided to challenge this decision. They wished to appeal directly to the E Constitutional Court or, in the event of such leave being refused, to the Supreme Court of Appeal ('the SCA') or a Full Bench of the High Court. The problem which they faced was that the existing legislation and Rules of Court did not deal specifically with the procedure to be followed in such circumstances.

[5] This was due to the fact that the interim Constitution, [7] in terms of which the Constitutional Court was F established, provided that appeals from decisions of Provincial or Local Divisions of the Supreme Court on constitutional matters lay solely to the Constitutional Court, [8] which was the Court of final instance in respect of such matters. [9] The Appellate Division ('the AD'), the highest Court in respect of all other matters, did not G therefore have jurisdiction in respect of matters within the jurisdiction of the Constitutional Court. [10] This was, however, changed by the 1996 Constitution, which repealed the interim Constitution.

Chaskalson P

[6] Section 166 of the 1996 Constitution, which deals with the judicial system, provides that: A

'The courts are -

(a)

the Constitutional Court;

(b)

the Supreme Court of Appeal;

(c)

the High Courts, including any High Court of appeal that may be established by an Act of Parliament to hear B appeals from High Courts;

(d)

the magistrates' courts; and

(e)

any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the High Courts or the magistrates' courts.'

[7] Schedule 6 of the 1996 Constitution, which deals with the transition from the legal order under the interim C Constitution to the new order established by the 1996 Constitution, provides insofar as is relevant in item 16 that:

'(2)(a) The Constitutional Court established by the previous Constitution becomes the Constitutional Court under the new Constitution. D

. . .

(3)(a) The Appellate Division of the Supreme Court of South Africa becomes the Supreme Court of Appeal under the new Constitution.

. . . .

(4)(a) A Provincial or Local Division of the Supreme Court of South Africa or a Supreme Court of a homeland or a E General Division of such a Court, becomes a High Court under the new Constitution without any alteration in its area of jurisdiction, subject to any rationalisation contemplated in subitem (6).

. . . .'

[8] In dealing with the jurisdiction of the SCA, the 1996 Constitution provided that it 'may decide appeals in F any matter' [11] and thereby brought constitutional matters within its jurisdiction. It also provided that the Constitutional Court 'is the highest Court in all constitutional matters' [12] and that the SCA 'is the highest Court of appeal except in constitutional matters . . .'. [13]

[9] As far as procedure is concerned, the 1996 Constitution provides in s 171 that '(a)ll courts function in G terms of national legislation, and their Rules and procedures must be provided for in terms of national legislation'. And in s 167(6) that:

'National legislation or the Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court - H

(a)

to bring a matter directly to the Constitutional Court; or

(b)

to appeal directly to the Constitutional Court from any other court.'

[10] When Snyders J delivered her judgment in the present case [14] the national legislation and Rules contemplated by s 167(6) had not yet been I

Chaskalson P

passed, [15] nor had the Uniform Rules of Court been amended to make provision for the manner in which A appeals from decisions of the High Court on constitutional issues should be dealt with.

[11] Rule 18 of the existing Constitutional Court Rules makes provision for appeals to the Constitutional Court from decisions of the High Court [16] on constitutional matters. The procedure prescribed by these Rules B requires a party wishing to appeal against such a decision to apply formally to the Constitutional Court for leave to appeal. In terms of Rule 18(e) the applicant has to attach to the application a certificate from the Judge or Judges who gave the decision, stating whether or not such Judge or Judges are of the opinion C that:

'(i)

the constitutional issue is one of substance on which a ruling by the Court is desirable; and

(ii)

the evidence in the proceedings is sufficient to enable the Court to deal with and dispose of the matter without having to refer the case back to the Division concerned for further evidence; and D

(iii)

there is a reasonable prospect that the Court will reverse or materially alter the decision given by the Division concerned if permission to bring the appeal is given . . .'.

[12] The Supreme Court Act [17] and Uniform Rule 49 [18] also make provision for appeals from decisions of the High Court. Section 20 of the Act, which deals with appeals in civil proceedings, provides that: E

'An appeal from a judgment or order of the Court of a Provincial or Local Division in any civil proceedings or against any judgment or order of such a Court given on appeal shall be heard by the Appellate Division or a Full Court, as the case may be.'

It goes on to provide that appeals in such matters can be brought only with leave of the Court against whose judgment or order the appeal was made or, if such leave is refused, with leave of the AD itself. [19] The Court F granting leave determines whether the appeal is to be made to a Full Court of a Provincial Division or to the AD. [20] The AD is to be engaged only if the considerations involved in the appeal are of such a nature as to warrant its attention. [21] Appeals can be made to the AD against the decision of the appeal by the Full G Court, but only with special leave of the AD. [22]

[13] If civil proceedings are construed in s 20 as including 'constitutional matters', the section, insofar as it provides that appeals from Provincial or Local Divisions shall be heard by the AD or a Full Court, is prima facie H

Chaskalson P

inconsistent with s 167(6) of the 1996 Constitution, which requires provision to be made for appeals to be A brought directly to the Constitutional Court from a decision of any other court where it would be 'in the interests of justice and with leave of the Constitutional Court'. To read it consistently with the 1996 Constitution, s 20 may have to be construed as applying to civil proceedings other than constitutional matters, B or possibly as being invalid to the extent that it requires appeals from the High Court in constitutional matters to be made to the SCA. In either event consideration will have to be given to the question whether appeals from the High Court to the SCA in constitutional matters are to be governed by s 20 or s 21 of the Supreme Court Act. [23] C

[14] It is not necessary in the present case to decide how appeals to the SCA in constitutional matters should be dealt with. That is pre-eminently a question for the SCA to decide. It is sufficient to say that the Supreme Court Act should not be construed in a way which detracts from the provisions of s 167(6) of the 1996 Constitution. D

[15] In S v Pennington and Another [24] this Court held that, pending the enactment of the legislation or the passing of the Rules contemplated by s 167(6) of the 1996 Constitution, the procedures for bringing matters before this Court must be regulated either by its existing Rules [25] or, where such Rules are not applicable, by procedures prescribed by the Court itself, which as far as possible should be in accordance with procedures E ordinarily followed by this Court in similar cases. [26] Rule 18 of the Constitutional Court Rules deals with appeals from decisions of the High Court to this Court. The practice followed by this Court in dealing with such applications is for the President to refer the application to all the members of the Court, who decide in F conference whether or not to grant leave to appeal. The decision of the Court is then communicated to the parties. This procedure is consistent with s 167(6) of the 1996 Constitution and, pending the promulgation of the Rules contemplated by the section, Rule...