Van Dyk v National Commissioner, South African Police Service and Another

• Jurisdiction: South Africa
• Citation: 2004 (4) SA 587 (T)

Van Dyk v National Commissioner, South African Police Service and Another
2004 (4) SA 587 (T)

2004 (4) SA p587

Citation	2004 (4) SA 587 (T)
Case No	4268/2002
Court	Transvaal Provincial Division
Judge	Du Plessis J
Heard	June 10, 2003
Judgment	June 10, 2003
Counsel	T J Kruger SC for the applicant.; G J Marcus SC (with him S Güldenpfennig) for the respondents.

Flynote : Sleutelwoorde H

Court — Powers of — Power meru motu to consider constitutionality of laws it is called upon to I enforce — Tension between principle that Court not entitled to enforce constitutionally invalid laws and principle that Court entitled only to decide issues properly raised by parties — Manner in which tension to be resolved to be left to develop over time.

Court — Constitutional Court — Leave to appeal — Application for certificate in terms of Rule 18 of Constitutional Court Rules — Issue of constitutionality J

2004 (4) SA p588

raised for first time in present application — Whether Court having duty meru motu to consider constitutionality of A laws it is called upon to enforce — Court playing neutral role and ordinarily only deciding issues raised in pleadings or affidavits — Relevant sections enforced by Court a quo as applicant not contending otherwise and Court not satisfied B that provisions constituting unjustifiable limitation on applicant's constitutional rights — Evidence insufficient to enable Constitutional Court to dispose of matter without having to refer case back for further evidence — No reasonable prospect of Constitutional Court reversing or materially altering Court a quo's order — Interests of justice requiring C litigation to be brought to finality before Constitutional Court — Application dismissed.

Headnote : Kopnota

The applicant, who was a member of the South African Police Service, was charged in a disciplinary hearing with misconduct in that he had participated in political activities in contravention of s 46(1)(a) and (b) of the South African Police Service Act 68 of 1995 (the Act). He was found guilty and dismissed D from the SAPS. The applicant had lodged an internal appeal which was dismissed. He then brought an application to Court to review and set aside the decision of the disciplinary and the appeal tribunals. The applicant did not at any stage contend that s 46 of the Act was inconsistent with the Constitution of the Republic of South Africa Act 108 of 1996. In the present application for a certificate in terms of E Rule 18 of the Rules of the Constitutional Court the applicant argued that the Court was constitutionally obliged to consider mero motu whether or not the provisions of s 46(a) and (b) of the Act were inconsistent with ss 18 and 19 of the Constitution and therefore invalid.

Held, that a court was not entitled to enforce laws that were inconsistent with the Constitution and therefore invalid. Courts F accordingly had a duty to consider mero motu the constitutionality of laws that they were called upon to enforce. In our adversarial system of litigation, however, courts played a neutral role and ordinarily only decided issues that the parties had raised in a pleading or in the affidavits. There was a tension between these principles. The constitutional matter that the applicant sought to raise touched upon this tension and was in that sense one of substance. G The law as to how this tension should be resolved had to be left to develop over time. (At 589I - 590B.)

Held, further, that in casu the relevant sections of the Act had to be enforced, since the applicant did not contend otherwise and the Court was not satisfied that the provisions constituted an unjustifiable limitation of the applicant's constitutional rights...