Zondi v MEC, Traditional and Local Government Affairs, and Others

• Jurisdiction: South Africa

Zondi v MEC, Traditional and Local Government Affairs, and Others
2006 (3) SA 1 (CC)

2006 (3) SA p1

Citation	2006 (3) SA 1 (CC)
Case No	CCT 73/03
Court	Constitutional Court
Judge	Langa CJ, Moseneke DCJ, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
Heard	November 8, 2005
Judgment	November 29, 2005
Counsel	A J Dickson SC (with him A A Gabriel) for the first respondent

Flynote : Sleutelwoorde B

Constitutional practice — Courts — Powers of — Power of Courts to vary final orders made in constitutional matters — Principle of finality in litigation to be weighed up against what was just and equitable — Could be varied under common law in order to C adapt to changing circumstances or to meet modern exigencies and under courts' just and equitable jurisdiction.

Constitutional practice — Courts — Application to vary order of suspension of declaration of invalidity — Application constitutional matter or connected with constitutional matter — To be determined in terms of s 172(1) of Constitution. D

Constitutional practice — Courts — Powers of — Power of Court in terms of s 172(1) of Constitution, when declaring statute constitutionally invalid, to suspend effect of such order in interests of justice pending correction of statute — Continuing power — Power wide enough to include power to reconsider order — Order of suspension to be made at the same time as declaration of invalidity. E

Practice — Judgments and orders — Correction, alteration or amendment of court's own judgment — Judgment may be varied where need existing to adapt common law to changing circumstances or to meet modern exigencies.

Practice — Judgments and orders — Correction, alteration or amendment of court's own F judgment — Interlocutory orders may always be varied.

Headnote : Kopnota

In an earlier application to the Constitutional Court to confirm a High Court order declaring, among other provisions, ss 16(1), 29(1), 33, 34 and 37 of the Pound Ordinance 32 of 1947 (KZN) unconstitutional, the Constitutional Court upheld the constitutional challenge and held, inter alia, that its G

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declaration of invalidity had to be suspended for a period of 12 months, and further that in the event of A the Legislature failing to remedy the unconstitutionality in the sections within the stipulated suspended period, any interested party could apply before the expiry of the suspended period for a further suspension. Fifteen days before the expiry of the suspended period, the first respondent, purportedly under Rule 11 of the Rules of the Constitutional Court (which deals with application procedures), applied for an extension of the period of suspension for a further period from B 12 to 24 months. The procedure followed by the first respondent was not, however, in accordance with Rule 11 and the only basis on which the matter could accordingly have been properly placed before the Chief Justice was as one of urgency in terms of Rule 12, which first respondent failed to do. In order to protect the interests of persons who might have been prejudiced if the suspension period was not C extended and in order to consider the underlying constitutional issues, the Court on its own motion extended the period for a further six weeks. The Chief Justice set the matter down for hearing prior to the expiry of the extended suspension period. The parties were directed to address the question of the circumstances under which the Court could D extend the period of suspension of a declaration of invalidity in light of its decision in Minister of Justice v Ntuli 1997 (3) SA 772 (CC) (1997 (6) BCLR 677) and whether the Court would have such power, particularly in the absence of para (g) in the original order which authorised interested parties to make such application. The applicant declined to oppose the first respondent's application to extend and the matter was heard as an E unopposed application to vary and extend the period of suspension of the declaration of invalidity in the original order.

Held, that while Judges could not in general under the common law amend their own final orders since they were functus officio and public interest demanded finality in litigation, certain exceptions were recognised, and that the list of exceptions could be extended. (Paragraphs [28] and [29] at 12F - 13A.) F

Held, further, that the rule was departed from when it was in the interests of justice to do so, and where there was a need to adapt the common law to changing circumstances and to meet the exigencies of modern times. In departing from the general rule the Court invoked its inherent power to regulate its own process. (Paragraph [34] at 14D - E.) G

Held, further, that this approach was consistent with the Constitution, and in particular with s 173 thereof. (Paragraph [35] at 14G.)

Held, further, that simple interlocutory orders stood on a different footing since they did not dispose of issues and could be varied or rescinded on good cause shown and in the exercise of the Court's inherent jurisdiction to control its judgments. (Paragraphs [30] and [31] at 13A/B - D.) H

Held, further, that since an application to vary an order of invalidity was either a constitutional matter or an issue connected with a constitutional matter, it was within the jurisdiction of the Constitutional Court and thus fell to be determined with reference to s 172(1) of the Constitution, which conferred, among other powers, the power to make an order that was just and equitable, including an order suspending a declaration of invalidity for any period. (Paragraphs I [37] and [38] at 15B/C - E/F.)

Held, further, that since an order to suspend an order of invalidity was based on circumstances available to the Court at the time the order was made, it was by its very nature subject to variation since the circumstances could change to render the previously fixed period of suspension unjust or inequitable. (Paragraph [39] at 15H - 16A.) J

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Held, accordingly, that the Court had not only the power but also an obligation, under its just and equitable jurisdiction, to vary A the period to reflect the justice and the equity required by the facts of the case. (Paragraph [39] at 16A/B.)

Held, further, that the Court's power to make a just and equitable order was not limited to the time when the Court suspended the order of invalidity but included the period of suspension, and that B where the facts had changed, or the full implications of the order were not previously apparent, the Court had the power to extend the period, if to do so was just and equitable. It was a continuing power which could be exercised at any stage during the period of suspension. (Paragraphs [40] and [44] at 16B - D and 17C/D.)

Held, further, that an order suspending a declaration of invalidity could only be made at the same time as the declaration of C invalidity since a declaration of invalidity in later proceedings would require reviving the constitutionality of a provision that was already declared invalid. Accordingly, if a declaration was not suspended, or the suspension had lapsed, the Court had no power to suspend the declaration of invalidity. (Paragraph [43] at 16I - 17A.)

Held, accordingly, that as an application to extend the period of suspension of the period of invalidity fell to be dealt with D under the Court's power to make an order that was just and equitable, it was not necessary to consider whether the application to extend should be dealt with under the court's power to develop the common law under s 173, or whether it was necessary to develop the common law and bring it in line with the powers of the Constitutional E Court.(Paragraph [46] at 17F - G/H.)

Held, further, that in view of the principle of finality, the power to extend the period of suspension should be exercised sparingly. Factors that would have to be balanced in determining what was just and equitable would include the sufficiency of the explanation for failure to comply with the original period of suspension; the potentiality of prejudice that would result if the period of F extension was or was not extended; the prospects of complying with the deadline; the need to bring litigation to finality and the need to promote the constitutional project and prevent chaos. (Paragraph [47] at 17I - 18C.)

Held, further, that the power to make an order that was just and equitable was wide enough to include the power to reserve to itself the power to reconsider the period of suspension as well as the G conditions upon which the declaration of invalidity was suspended, should circumstances warrant it. Such an order was by its very nature not final and neither the principle of finality nor the doctrine of functus offficio applied and in para (g) of the original order the Court had expressly reserved to itself the power to vary and extend further the period of suspension of the declaration of H invalidity. (Paragraphs [49] - [51] at 18F - 19D.)

Held, accordingly, that in casu the Court had the power to extend the period of suspension under its general just and equitable jurisdiction and under para (g) which also required a determination of what was just and equitable. (Paragraph I [52] at 19E - F.)

Held, further, that the manner in which the matter had been conducted from the beginning deserved criticism. First respondent had failed to place before the Court information relating to the consequences of an order of invalidity or information as to how long it would take to process the draft Bill that was in existence and as a consequence the Court made the original suspension order without the full facts. (Paragraph [53] at 19G - I.) J

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Held, further, that in casu no explanation for the delay in lodging the...