Mulaudzi and Others v Chairman, Implementation Committee, and Others

• Jurisdiction: South Africa
• Judge: Liebenberg ACJ and Van den Heever AJ
• Judgment Date: 06 June 1994
• Citation: 1995 (1) SA 513 (V)
• Docket Number: 41/94
• Court: Venda Supreme Court

Van den Heever AJ:

This matter initially came before me by way of an D urgent application on 7 March 1994. Certain interim relief was granted and the main application was postponed until 21 March 1994, on which date it was again postponed, by agreement between the parties, until 28 March 1994. It was eventually heard before the presently constituted Full Bench on 29 and 30 March 1994, and judgment was reserved.

E The following relief is claimed in the notice of motion:

'1. . . . .

2. . . .

3. That the fourth respondent's, alternatively the second respondent's, alternatively the first respondent's, actions in issuing letters of F demand for policy documents and letters placing the applicants on leave without pay in terms of Proc 1 of 1994 (V) be declared unlawful and be set aside and that the said respondents be interdicted from taking any action against the applicants in terms of such letters and Proc 1 of 1994 (V).

4. That the applicants be reinstated in their positions with immediate G effect.

5. That the second respondent's actions in issuing Proc 1 of 1994 (V) be declared unlawful and of no force and effect.

6. That Proc 1 of 1994 (V) be declared unlawful and of no force and effect.

. . . .'

H The only other prayer in the notice of motion which is relevant for present purposes is prayer 9, which contains a prayer for costs against all the respondents, the one paying the other to be absolved.

During the course of argument Mr Van der Merwe, who appeared for the applicants, applied for an amendment of the notice of motion to include I two further prayers. One for an order declaring Proc 2 of 1994 (V) to be invalid and of no force and effect and the other for an order declaring a certain Government Notice 3 of 1994 (V), published in the Government Gazette of 23 February 1994, to be invalid and of no force and effect.

It was common cause between the parties that, if the applicants were J successful as far as prayer 6 is concerned, it would automatically follow

Van den Heever AJ

A that the Government Notice also be declared invalid as the said notice was issued in terms of the provisions of Proc 1 of 1994 (V). This amendment was therefore granted by agreement between the parties.

Mr Visser, who appeared for the respondents, opposed the proposed amendment concerning Proc 2 of 1994 (V). He stressed the fact that a B notice regarding such an amendment was only given in the applicants' replying affidavits, and even if that is to be regarded as proper notice, a substantial application should have been brought for an amendment before they would have been obliged to fully consider whether to oppose it and on which grounds. Such an application was never moved and they therefore C were not properly prepared to argue the validity or otherwise of Proc 2 of 1994 (V). Mr Visser further submitted that, although the relief claimed in prayer 6 of the notice of motion would involve argument as to the validity of a proclamation promulgated by the Council of National Unity of the Republic of Venda, it might well be that different arguments could be advanced as far as the validity of Proc 2 of 1994 (V) is concerned; an aspect which they have not fully considered.

D Mr Van der Merwe argued that the reason why a prayer for the invalidation of Proc 2 of 1994 (V) was not originally drafted into the main application was because the said proclamation was only promulgated and published in the Government Gazette on 7 March 1994, in other words on the same day as E the urgent application was moved in this Court. They had no prior knowledge of the fact that the said proclamation would be published and it was therefore impossible for them to include any relief claimed in respect of Proc 2 of 1994 (V) in the notice of motion. Hence the notification in the replying affidavits to amend the notice of motion by including the prayer referred to above in respect of Proc 2 of 1994 (V). Mr Van der F Merwe further argued that, although no substantial application was made to formally amend the original notice of motion, no prejudice will be suffered by any of the respondents if such an amendment be granted by the Court and he indicated that the arguments that will be advanced by them for the invalidation of Proc 2 of 1994 (V) would be the same arguments as those advanced in respect of Proc 1 of 1994 (V). If therefore counsel for G the respondents were properly prepared to argue the question regarding the validity of Proc 1 of 1994 (V) they would, in countering the arguments addressed by counsel for the applicants regarding Proc 1 of 1994 (V), also be addressing and countering the arguments relating to Proc 2 of 1994 (V).

H Mr Visser indicated, however, that, even if the amendment is granted, he would not be asking for a postponement of the matter and that he was prepared to argue his case as if the amendment had been granted. Argument proceeded on that basis and the decision, whether to grant the application for amendment, was reserved.

I I have carefully considered the arguments presented by counsel regarding the amendment of the notice of motion and I am satisfied that the legal issues pertaining to the validity of Proc 2 of 1994 (V), and this Court's powers to enquire into the validity thereof, have been fully addressed in argument. Mr Van der Merwe's main argument regarding the validity of Proc 1 of 1994 (V) and his argument regarding the validity of Proc 2 of 1994 J (V) are based on exactly the same legal grounds. Mr Visser's

Van den Heever AJ

A response to Mr Van der Merwe's argument in respect of Proc 2 of 1994 (V) is also the same as his response to Mr Van der Merwe's argument in respect of the validity of Proc 1 of 1994 (V). Mr Van der Merwe also advanced an alternative argument regarding the validity of Proc 1 of 1994 (V) which differs materially and substantially from his main argument, but this B argument does not at all affect Proc 2 of 1994 (V) and therefore has no bearing on the application for the amendment of the notice of motion.

I am therefore satisfied that the issues concerning both proclamations can and should be dealt with simultaneously and that no prejudice will be suffered by any of the respondents if the matter is dealt with on that basis. The amendment is accordingly granted.

C In the premises the notice of motion is amended by including the following new paragraph:

'7A. That Proc 2 of 1994 (V) be declared unlawful and of no force and effect.

7B. That Government Notice 3 of 1994 (V) published in the Government D Gazette of 23 February 1994 be declared invalid and of no force and effect.'

Historical background of the present legislative authority in the Republic of Venda (the Council of National Unity)

E The territory known as Venda formed part of the province of Transvaal, one of the four provinces of the Republic of South Africa, and as such was part and parcel of the territory comprising the South African State.

Following the process created and developed by the Native Land Act 27 of 1913, the Black Administration Act 38 of 1927, the Native Trust and Land Act 18 of 1936, the Black Authorities Act 68 of 1951 and the Promotion of F Black Self-Government Act 46 of 1959, a national black state known as Venda was granted self-governing status in terms of the National States Constitution Act 21 of 1971. (These Acts were all passed by the South African Parliament.)

The National States Constitution Act contained inter alia a constitution G which was made applicable to Venda, and provision was made for a Legislative Assembly and an Executive Authority and in terms of s 34 of the Act the High Court of Venda was established, which replaced the Supreme Court of South Africa. A certain degree of autonomy was thereby obtained.

On 2 July 1979 the Status of Venda Act 107 of 1979 (RSA) was enacted in H which the territory known as Venda was declared to be a sovereign and independent State and ceased to form part of the Republic of South Africa. It was also provided for in the said Act that the Republic of South Africa would cease to exercise any authority over the said territory and that the Legislative Assembly of Venda, constituted in terms of the National States I Constitution Act 21 of 1971, could draft a constitution for the territory.

The Venda Legislative Assembly in fact drafted a constitution and it was duly enacted by the Legislative Assembly of Venda as the Republic of Venda Constitution Act 9 of 1979 (V) on 13 September 1979. In terms of s 1(1) J of the Act Venda became a sovereign independent State and a Republic.

Van den Heever AJ

A In terms of s 24(1) of the Republic of Venda Constitution Act 1979, the legislative power vested in Parliament consisting of the State President and the National Assembly and s 24(2) provided that:

'Parliament shall be the sovereign legislative authority in and over the Republic and shall have full power to make laws for the peace, order and good government of the Republic.'

B Subsection 4 provided that no Court of law shall be competent to enquire into or to pronounce upon the validity of any Act. The High Court of Venda, which had previously been established to replace the Supreme Court of South Africa, was replaced by the Supreme Court of Venda. See S v Mariba 1980 (3) SA 1074 (V) at 1077E.

C This development is exhaustively discussed by the following writers: Vorster et al Constitutions of Transkei, Bophuthatswana, Venda and Ciskei (1985) at 149 et seq; Boulle, Harris and Hoexter Constitutional and Administrative Law (1989) at 227 et seq; Gretchen Carpenter Introduction to South African Constitutional Law (1987) at 402 et seq; Basson and Viljoen South African Constitutional Law (1988) at 307 et seq. D

During 1990 an extra-constitutional change in Government occurred in Venda when a Council of National Unity, consisting of 10 members, took control of the...