Zantsi v Council of State, Ciskei, and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J, Sachs J and Trengove AJ
• Judgment Date: 22 September 1995
• Docket Number: CCT/24/94
• Court: Constitutional Court
• Hearing Date: 16 May 1995
• Citation: 1995 (4) SA 615 (CC)

Chaskalson P

[1] I agree with the judgment of Trengove AJ and will confine my remarks to the application of s 102(8) of the Constitution. [*] This E section provides:

'If any Division of the Supreme Court disposes of a matter in which a constitutional issue has been raised and such Court is of the opinion that the constitutional issue is of such public importance that a ruling should be given thereon, it may, notwithstanding the fact that the matter has been disposed of, refer such issue to the Constitutional Court for a F decision.'

Before an issue can be referred to this Court in terms of s 102(8), three requirements must be satisfied. First, a constitutional issue must have been raised in the proceedings; secondly, the matter in which such issue G was raised must have been disposed of by the Supreme Court; [1] and, thirdly, the Division of the Supreme Court which disposed of the matter must be of the opinion that the constitutional issue is of sufficient public importance to call for a ruling to be made thereon by this Court.

[2] In the United States of America, and as long ago as 1885, Matthews J H said:

'(N)ever . . . anticipate a question of constitutional law in advance of the necessity of deciding it; . . . never . . . formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' [2]

I This rule, though not absolute, has ordinarily been followed by Courts in

Chaskalson P

A the United States of America since then. [3] Although the United States jurisprudence is influenced by the 'case' and 'controversy' requirement of art III of the US Constitution, the rule stated by Matthews J is a salutary rule which has been followed in other countries. [4]

B [3] It is also consistent with the requirements of s 102 of our Constitution and the decision of this Court in S v Mhlungu and Others [5] where Kentridge AJ said:

'I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.' [6]

C [4] The same principle underlies the provisions of s 102(5), which require appeals from a Provincial or Local Division of the Supreme Court to be dealt with first by the Appellate Division and, where possible, to be disposed of by that Court without the constitutional issue having to be addressed. It is only where it is necessary for the purpose of disposing of the appeal, or where it is in the interest of justice to do so, that D the constitutional issue should be dealt with first by this Court. [7] It will only be necessary for this to be done where the appeal cannot be disposed of without the constitutional issue being decided; and it will only be in the interest of justice for a constitutional issue to be decided first, where there are compelling reasons that this should be done.

E [5] This rule allows the law to develop incrementally. In view of the far-reaching implications attaching to constitutional decisions, it is a rule which should ordinarily be adhered to by this and all other South African Courts before whom constitutional issues are raised. It is within this context that the provisions of s 102(8) should be viewed and interpreted.

F [6] Section 102(8) of the Constitution applies only to cases which have been disposed of. A referral of the moot issue in such circumstances is

Chaskalson P

A the exception, and it follows that the section should be invoked only in exceptional circumstances. In other words, there must be a compelling public interest that requires the reference to be made. [8]

B [7] It is not ordinarily desirable for a Court to give rulings in the abstract on issues which are not the subject of controversy and are only of academic interest, and s 102(8) should not be invoked in order to refer to this Court an issue which was not relevant to the case which had to be decided. [9] In the present case, it is not clear from the judgments of the Ciskei Provincial Division whether the issue concerning the jurisdiction of Provincial and Local Divisions of the Supreme Court generally, as C distinct from the jurisdiction of the Ciskei Provincial Division, was in fact raised during the proceedings, or whether it was raised only in the judgments. But, even if the issue was raised during the proceedings, it was not, as appears from the judgment of Trengove AJ, relevant to the case which had to be decided. Section 102(8) should therefore not have been D invoked.

[8] The issue has, however, become one of public importance as a result of the judgments given by the Ciskei Supreme Court. The judgments held that Provincial and Local Divisions of the Supreme Court have jurisdiction to enquire into the validity of Acts of Parliament passed prior to 27 April E 1994. For the reasons given by Trengove AJ this is not correct, and to avoid the uncertainty that might otherwise result from such judgments, it has been necessary for this Court to deal with that issue. This Court is not, however, obliged to and will not ordinarily decide issues which are not correctly referred to it under s 102(8).

Mahomed DP, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro F J, O'Regan J, Sachs J and Trengove AJ concurred in the judgment of Chaskalson P.

Trengove AJ

Judgment

Trengove AJ

[9] In this matter the Ciskei Provincial Division (Pickard JP and Heath J) referred the following issue to this Court for a A decision in terms of s 102(8) of the Constitution of the Republic of South Africa 200 of 1993 ('the Constitution'), namely:

B 'Whether or not Provincial and Local Divisions of the Supreme Court have jurisdiction to inquire into the constitutionality of acts of the Legislatures of South Africa (as it then was) and the TBVC States which were passed prior to the commencement of the new South African Constitution.'

C (See Zantsi v The Chairman, Council of State, Ciskei, and Another1995 (2) SA 534 (Ck) at 569 (1994 (6) BCLR 136 at 171).

Mr D P de Villiers, with Mr T Deva Pillay, appeared for third respondent and Mr W H Trengove, with Mr L Mpati and Mr K V Matthee, as amici curiae for the applicant at the request of this Court. We are indebted to them D for their assistance.

[10] The factual background of the referral can be summed up as follows. The applicant was dismissed from employment in the Ciskei Defence Force on 22 April 1991. He intended instituting action against third respondent for alleged wrongful dismissal but was debarred from doing so by reason of his failure to comply with the provisions of s 71 of the Defence Act 17 of E 1986 (Ck). In terms of this section, civil proceedings had to be instituted within a period of six months after the cause of action had arisen.

[11] Applicant subsequently sought an order in the Court a quo declaring F s 71 to be unconstitutional on the ground that it was in conflict with art 1(2) of the Ciskei Bill of Rights, set out in Schedule 6 to the Republic of the Ciskei Constitution Decree 45 of 1990 (Ck). The article provided that 'all persons shall be equal before the law'.

[12] The application proceedings were initiated in June 1993, but the G matter only came before the Court for argument on some date (which does not appear from the papers before us) after 10 June 1994. At that stage the three respondents no longer existed. Counsel however agreed that any order made in favour of applicant would be regarded as an order against appropriate organs of the State under the Constitution.

H [13] At the outset of the hearing, Pickard JP, raised the question

'. . . whether or not this Court has now the jurisdiction to declare Act 17 of 1986 (Ck) or any portion thereof to be unlawful, unenforceable or invalid by virtue of its provisions being in conflict with fundamental rights protected in either the erstwhile Ciskei Constitution Decree or the South African Constitution'.

I (At 538I-J (SA) and 140J (BCLR).)

Counsel stated that they were of the view that the Court had the necessary jurisdiction to deal with the application. Applicant's cause of action had arisen during 1991, proceedings had been initiated, and litis contestatio had occurred during 1993, whereupon the Court had jurisdiction to deal with the dispute, which jurisdiction still endured.

J [14] In opposing the application on the merits, counsel for respondents

Trengove AJ

A contended that the decision of the Ciskei Appeal Court in Chairman of the Council of the State v Qokose 1994 (2) BCLR 1 (CkA), handed down on 10 June 1994, was binding on the Court a quo. In that case the provisions of s 48 of the Police Act 32 of 1983 (Ck), which were similar to those of s 71, were held to be valid and not unconstitutional.

B [15] I now refer very briefly to views of the Court a quo on the issue of jurisdiction raised by the learned Judge President at the beginning of the hearing, and its finding on the merits of the application. Pickard JP was of the opinion that the question of jurisdiction revolved around the interpretation of the expression 'Act of Parliament' in ss 101(3)(c) and 98(2)(c) of the Constitution. By various processes of reasoning, to which C I need not now refer, the learned Judge came to the conclusion at 545G (SA) and 147F (BCLR) that

'. . . the only proper interpretation of the provisions of s 101(3)(c) would then be to interpret the expression "Parliament" to mean "Parliament as created by this Constitution" '.

D He accordingly concluded at 546A-B (SA) and 147J-148A (BCLR) that . . . on a proper interpretation of the provisions of s 101 of the Constitution, a Provincial or Local Division of the Supreme Court has jurisdiction to adjudicate upon the constitutionality of any "Act" passed by any legislative body, other than Parliament of the new South E Africa as created by chap 4 of the...