S v Marwane

• Jurisdiction: South Africa
• Judge: Rumpff CJ, Jansen JA, Rabie JA, Muller JA, Miller JA, Diemont JA, Joubert JA, Cillié JA, Viljoen JA, Galgut AJA and Van Heerden AJA
• Judgment Date: 19 May 1982
• Hearing Date: 01 March 1982
• Court: Appellate Division

Rumpff CJ:

I have carefully read the judgment of my Brother MILLER. I F have difficulty with the interpretation of the phrase 'subject to the provisions of this Constitution...' in s 93 (1) of the Constitution. This difficulty springs from the background of the Constitution and some of its own provisions. It is really a broad contextual problem. If one looks at this type of phrase, in what may be described as a statute G passed by a Parliament in the ordinary course of business, one would be inclined to give to it the extensive meaning which my Brother MILLER has given it. I am not persuaded, however, that in the present case the phrase has an extensive meaning. I am of the opinion that it should be restrictively construed and that the appeal on this issue should be dismissed.

H Bophuthatswana became an independent State through a process of evolution. The lands which became Bophuthatswana were originally part of the Cape Colony and of the Republics of the Transvaal and the Orange Free State which existed before 1902. Thereafter they were part of the Cape Colony and the two new Colonies of the Transvaal and the Orange Free State and then became part and parcel of the Union of South Africa, and in 1961 of the Republic of South Africa. When Bophuthatswana became independent it carried with it inter alia a vast and complex body of statute law. Some of the statute law was

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aimed at protecting the whole of the Republic of South Africa (including what is now the independent Republic of Bophuthatswana) against the A violent overthrow of the State through sabotage and murder, inter alia by the African National Congress. Some of these statutes suspended some fundamental rights in order to combat forces threatening to destroy all fundamental rights. The enmity directed at the Republic of South Africa was also aimed in general at an independent national state created by B the Republic of South Africa. Not only would these states not be recognised internationally but they would be treated with contempt by the African National Congress and its associates. In these circumstances the birth of the new State of Bophuthatswana occurred in perilous circumstances, well known to the fathers of the new Constitution. In fact, not long ago, a police station in Bophuthatswana was attacked by terrorists and innocent people were killed.

C During the course of the evolutionary process leading to independence, Bophuthatswana first became a self-governing territory on 26 May 1972 in terms of the South African National States Constitution Act 21 of 1971. It had inter alia a Legislative Assembly to make laws not inconsistent D with Act 21 of 1971 in respect of any matter referred to in Schedule 1 of the Act. It also had an executive government in the form of a Cabinet consisting of a Chief Minister and five other Ministers.

As far as tribal law and tribal government is concerned, s 11 of Act 21 of 1971 reads as follows:

'Notwithstanding anything in this Act contained, the duties, powers, E authorities and functions lawfully exercised by paramount chiefs, chiefs and headmen at the date on which the first executive council for an area is constituted, shall be and remain in force until varied or withdrawn by the competent authority.'

And s 12 provides:

'Notwithstanding anything in this Act contained, the powers, authorities and functions lawfully exercised by tribal and regional authorities at F the date on which the first executive council for an area is constituted, shall be and remain in force until varied or withdrawn by the legislative assembly.'

Section 18 of the Act 21 of 1971 reads as follows:

'Subject to the provisions of this Act, all laws which immediately prior to the constitution of the first executive council for an area in terms of s 5 were in force in that area or any portion thereof, shall continue G in force until repealed or amended by the competent authority.'

On 6 December 1977 the South African Status of Bophuthatswana Act 89 of 1977 came into force. On the same date the Republic of Bophuthatswana Constitution Act 18 of 1977 was promulgated in Bophuthatswana. Section 1 of the South African Act 89 of 1977 reads as follows: H

'(1)

The territory known as Bophuthatswana and consisting of the districts mentioned in Schedule A, is hereby declared to be a sovereign and independent State and shall cease to be part of the Republic of South Africa.

(2)

The Republic of South Africa shall cease to exercise any authority over the said territory.'

Section 2 reads:

'(1)

Subject to the provisions of ss (2), any rule of law which was in force in Bophuthatswana immediately prior to the commencement of this Act, including the National States Constitution Act 21 of 1971 shall continue

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in force as a rule of law of Bophuthatswana until repealed or except in so far as it may be amended by the competent authority in Bophuthatswana.

(2)

A Unless otherwise agreed between the Government of the Republic and the Government of Bophuthatswana and subject to the provisions of s 5 (2), no authority or person in the Republic shall in terms of any law which by virtue of ss (1) remains in force in Bophuthatswana, exercise any power or authority or perform any function in or in respect of Bophuthatswana.'

It is clear that the Republic of South Africa intended that 'any rule B of law', ie both the common law (including tribal law) and also statute law which was in force in Bophuthatswana prior to Act 89 of 1977, would continue in force in Bophuthatswana until repealed. This appears also from the provisions of s 3 of Act 89 of 1977 which reads:

'(1)

The Legislative Assembly of Bophuthatswana, as constituted in terms of the National States Constitution Act 21 of 1971 may, C subject to the provisions of ss (2), make laws (including a constitution) for Bophuthatswana in the manner prescribed by the said Act, and may in any such law provide for the making of such laws by any authority other than the said Legislative Assembly.

(2)

Submission of a bill to the State President, assent thereto by him and signing of a copy thereof by him shall not be necessary D for the making of any law by the said Legislative Assembly by virtue of the provisions of ss (1).'

The words 'subject to the provisions of ss (2) make laws (including a constitution)...' in s 3 (1) must be read with the provisions of s 2 and confirm, in my view, that 'any rule of law' would continue to be in E force until repealed or amended. In the circumstances prevailing, and set out above, I have no doubt that, as far as existing laws were concerned, both the South African Parliament and the Legislative Assembly of Bophuthatswana intended such laws to continue to apply, subject of course to any amendment or repeal after 6 December 1977 when the Constitution would take effect.

F As indicated by my Brother MILLER the Constitution is divided in 11 chapters. Chapter 1 comprises seven sections under the heading 'Republic of Bophuthatswana'. Section 6 reads:

'Bophuthatswana is comprised of the districts mentioned in Schedule 3, together with such other land as may be added thereto.'

Section 7 reads as follows: G

'(1)

This Constitution shall be the supreme law of Bophuthatswana.

(2)

Any law passed after the date of coming into operation of the Constitution which is inconsistent with the provisions thereof, shall, to the extent of such inconsistency, be void.'

This section in very clear language indicates that as from the date of H the birth of the new Republic the Constitution shall be the supreme law of the new State and that any law passed by the new Parliament thereafter must comply with the provisions of the Constitution, which would include the provisions of chap 2 containing the fundamental rights. In chap 1 there is, significantly, no mention of existing laws which, at the time of birth of the new State, could be inconsistent with chap 2 on fundamental rights. Chapter 2 is headed 'Declaration of Fundamental Rights'. Some of these rights are mentioned in the judgment of my Brother MILLER.

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Chapter 10 is entitled 'Repeal and Amendment of Constitution'. It contains s 79 which reads as follows:

'(1)

Parliament may repeal or amend any provisions of the first 10 A chapters of this Constitution with a two-thirds majority of its members present in the National Assembly: Provided that if the procedure in s 49 (3) is petitioned for such a repeal or amendment, a two-thirds majority vote shall be obtained in both groups.

(2)

The provisions of chap 11 of this Constitution may be repealed or amended in the manner provided in s 49 (1).

(3)

B Except for Schedules, 1, 2, 3, 4 and 5, which shall be repealed or amended in the manner provided for in ss (1), the President may amend the other Schedules to this Constitution by proclamation in the Gazette.'

Section 49 (1) to which ss (2) of s 79 refers reads as follows:

'All questions in the National Assembly shall, subject to the provisions C of ss (3), be determined by a majority of votes of members present, other than the Speaker or, in his absence, the Deputy Speaker who shall have and exercise a casting vote in the case of an equality of votes.'

Chapter 11 is entitled 'Transitional and Saving Provisions'. Substantially, provision is made for the situation after the commencement of the Constitution and until the new Parliament seeks to D make new laws or repeal or amend existing laws. That is the period when the South African Parliament clearly intended all existing laws to continue in force, without any qualification, until repealed or amended (s 2 of the South African Act 89 of 1977). In this regard s 85 of the Constitution in chap 11 provdes as follows:

'Notwithstanding anything in this Constitution contained all...