President of the Republic of South Africa and Others v South African Rugby Football Union 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: 10 September 1999
• Citation: 2000 (1) SA 1 (CC)
• Docket Number: CCT 16/98
• Counsel: W H Trengove SC (with him A E Bham and M Chaskalson) for the appellants. M C Maritz SC (M Helberg SC and J G Cilliers) for the second and fourth respondents.
• Court: Constitutional Court

President of the Republic of South Africa and Others v South African Rugby Football Union and Others
2000 (1) SA 1 (CC)

2000 (1) SA p1

Citation	2000 (1) SA 1 (CC)
Case No	CCT 16/98
Court	Constitutional Court
Judge	Chaskalson P; Langa DP; Ackermann J; Goldstone J; Kriegler J; Madala J; Mokgoro J; O'Regan J; Sachs J; Yacoob J
Heard	May 7, 1999; May 10, 1999; May 11, 1999; May 12, 1999; May 13, 1999
Judgment	September 10, 1999
Counsel	W H Trengove SC (with him A E Bham and M Chaskalson) for the appellants.; M C Maritz SC (M Helberg SC and J G Cilliers) for the second and fourth respondents.

Flynote : Sleutelwoorde

Commission — Appointment of — Constitution of the Republic of South Africa Act 108 of 1996, s 84(2)(f) — President accused of irrevocably abdicating responsibility for appointing commission to C Minister — Even if such abdication occurring, such invalid — President entitled to seek and rely on advice but has to make final decision — President entitled to change mind at any time prior to promulgation of notice appointing commission and nothing which she or he said before then can deprive her or him of that power — President unable to irrevocably abdicate power to appoint commission. D

Evidence — Witnesses — Calling, examination and refutation of — Cross-examination — General rule that it is essential, when it is intended to suggest that witness not speaking truth on particular point, to direct witness's attention to fact by questions put in cross-examination showing that imputation intended to be made and to E afford witness opportunity of giving any explanation and defending her or his character — If point in dispute left unchallenged party calling witness entitled to assume that unchallenged testimony accepted as correct — Precise nature of imputation should be made clear to witness so that it can be met and destroyed, particularly where imputation relies upon inferences drawn from other evidence in proceedings — Should F be made clear not only that evidence is challenged but also how it is challenged — Rule not inflexible one — Where prior notice given to witness that honesty is being impeached or such intention is otherwise manifest or where story of so incredible tand romancing a nature that most effective cross-examination is to ask witness to leave box, it is not G

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necessary to cross-examine on point — Rules relating to duty to A cross-examine not to be applied in mechanical way but with due regard to all facts and circumstances of each case — Proper observance owed to pauper and prince alike — In case of President there is added dimension that not only is personal honour and dignity at stake but President, as head of State, is representative of all people — Rule needing to be observed scrupulously. B

Constitutional law — Human rights — Right to administrative justice in terms of s 33 of Constitution of the Republic of South Africa Act 108 of 1996 — Decision by President to appoint commission of inquiry in terms of s 84(2)(f) of Constitution — Whether persons affected by decision entitled to hearing before decision C taken — Commission of inquiry an adjunct to policy formation responsibility of President — Commission a mechanism whereby information and advice obtained — In appointing commission of inquiry President not implementing legislation but exercising original constitutional power — Neither subject-matter nor exercise of that power administrative in character — Appointment of commission in terms of s 84(2)(f) not administrative action within meaning of D s 33 of Constitution — Accordingly audi alteram partem principle not applicable to appointment.

Commission — Extension of provisions of Commissions Act 8 of 1947 to commission of inquiry appointed in terms of s 84(2)(f) of Constitution of the Republic of South Africa Act 108 of 1996 — Once decision taken to appoint commission and subject-matter of E commission's investigation constitutes matter of public concern, decision to extend Commissions Act powers to it not subject to opportunity to be heard — Vesting of such powers in commission not, in itself, infringing rights — Subsequent conduct by commission constrained by duty to act fairly — Rights of witnesses before commission therefore F protected — Commission only vested with powers of subpoena if it is investigating matter of public concern — Whether it is such investigation or not an objective question justiciable before Courts.

Constitutional law — Human rights — Right to administrative justice in terms of s 33 of Constitution of the Republic of South Africa Act 108 of 1996 — Legitimate expectation doctrine — Question whether legitimate G expectation of hearing exists more than factual question — It is not whether expectation exists in mind of litigant but whether, viewed objectively, such expectation is, in legal sense, legitimate — Question is whether duty to act fairly requires hearing in those circumstances.

Constitutional law — Constitution — Constitution of the Republic of South H Africa Act 108 of 1996 — President — Executive authority — Cabinet Minister alleged to have entered into agreement whereby he was precluded from approaching President to appoint commission — Public authority cannot enter into contract wholly incompatible with discretion conferred upon it — One member of Cabinet cannot of her or his own accord enter into contract with third party which will preclude or constrain President from exercising powers conferred upon her or him I directly by Constitution.

Commission — Commissions Act 8 of 1947 — Matter of public concern — In determining whether subject-matter of commission's investigation indeed 'matter of public concern', test to be applied objective one — Use of adjective 'public' not meaning that only public organisations or State J

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institutions may be subjects of commission of inquiry vested with A Commissions Act powers — 'Public' qualifying 'concern' — Question is whether subject of investigation by commission a matter of concern to public — Commissions Act can apply to commission inquiring into internal management of private autonomous organisations, provided that those affairs indeed matters of public concern — 'Public concern' more restricted notion than that of public interest — Concern B must not be private or undisclosed concern of President, but widely shared concern of members of public — Concern to be one shared by significant segment or portion of public.

Commission — Appointment of — Not necessary that once commission of inquiry appointed commission automatically vested with powers under Commissions Act — Only competent to vest such powers in commission if C commission investigating matter of public concern — No similar limitation on power to appoint commissions in terms of s 84(2)(f) of Constitution of the Republic of South Africa Act 108 of 1996 — Commission can be appointed to investigate matter which is not of public concern and to which provisions of Commissions Act do not apply — Equally, President may decide not to make provisions D of Commissions Act applicable even to commission of inquiry investigating matter of public concern — Appointment of commission of inquiry in terms of Constitution separate legal act distinct from that which vests powers contained in Commissions Act in commission of inquiry.

President — President called to testify in civil case — Courts should be E aware that President not in same position as any other witness — Doctrine of separation of powers requiring court to seek to protect status, dignity and efficiency of office of President and President should be required to give evidence orally in open court in civil matters relating to performance of her or his official duties only in exceptional circumstances — Even when exceptional circumstances require President to give evidence, special dignity and status of F President together with busy schedule and importance of her or his work to be taken into account — Public interest requiring dignity and status of President to be preserved and protected, that efficiency of Executive not impeded and that robust and open discussion takes place unhindered at meetings of Cabinet when sensitive and important matters of policy discussed — Judiciary to exercise appropriate restraint in G those cases — On other hand, there is equally important need to ensure courts not impeded in administration of justice.

Headnote : Kopnota

The first appellant, acting in terms of s 84(2)(f) of H the Constitution of the Republic of South Africa Act 108 of 1996, had appointed a commission of inquiry into the affairs of the first respondent and had declared the provisions of the Commissions Act 8 of 1947 to be applicable to the commission. The respondents, averring, inter alia, that the first respondent had abdicated his power to appoint the commission to the second appellant (the Minister of Sport and Recreation); that the respondents had not been I afforded a hearing prior to the commission being appointed or the decision being made to extend the provisions of the Commissions Act to the commission; that the second appellant had entered into a legally binding contract with the first respondent which precluded the second appellant from approaching the first appellant for the appointment of a commission and from which arose a legitimate expectation to be heard before the J

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commission was appointed; and that, as the first respondent had A intended the Commissions Act to apply to the commission when he appointed it, the matter for investigation by the commission had to be a 'matter of public concern' and it was not, had applied to a High Court for an order, inter alia, setting aside the notices in which the appointment of the commission and the extension of the...