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IN THE CONSTITUTIONAL COURT OF SOUTH
AFRICA
CASE NO CCT 27/95
In the matter
of:
THE EXECUTIVE COUNCIL OF THE WESTERN
CAPE
LEGISLATURE
First Applicant
THE PREMIER OF THE
WESTERN CAPE Second Applicant
THE MINISTER OF LOCAL
GOVERNMENT
(WESTERN CAPE) Third Applicant
STAFFORD
PETERSEN Fourth Applicant
LESLEY HELENE ASHTON Fifth
Applicant
and
THE PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA First Respondent
THE MINISTER FOR PROVINCIAL AFFAIRS
AND
CONSTITUTIONAL DEVELOPMENT Second Respondent
THE
MINISTER OF JUSTICE Third Respondent
KAMALASEN CHETTY Fourth
Respondent
C B HERANDIEN Fifth Respondent
Heard on: 16
August, 30 August and 14 September 1995
Delivered on: 22 September
1995
JUDGMENT
[ 1 ] CHASKALSON P: This case involves fundamental questions of constitutional law. At issue are matters of grave public moment concerning the imminent local government elections. We would have preferred more time for consideration of these questions and the formulationof our views. Time does not permit that however. Because of the urgency of the matter and its possible impact on the local government elections there is a pressing need to announce our conclusions and basic reasoning within the shortest possible time.
Introduction
[ 2 ] The case arises from a dispute between the Executive Council of the Western Cape and the national government relating to the validity of amendments to the Local Government Transition Act (the Transition Act").[1] These amendments were effected by the President by proclamation purporting to act in terms of powers vested in him under the Transition Act. The validity of the proclamations embodying the amendments was challenged on constitutional and non-constitutional grounds.
[ 3 ] The constitutional challenge was lodged with the Registrar of this Court at the end of June 1995 with a request that it be dealt with as a matter of urgency.[2] It was said that if the dispute was not resolved promptly the local government elections within the Cape Town metropolitan area could not be held on the date planned, namely 1 November 1995. All the parties asked us to deal with the matter as one of urgency. It was set down for hearing on 16 August 1995 (the term commenced on 15 August) and directions were given in terms of Rule 17(5) for the speedy disposal of the preparatory phases of the case.
[ 4 ] A simultaneous challenge on non-constitutional grounds, seeking to review the validity of the proclamations as an abuse of the authority vested in the President, was launched in the Cape Provincial Division of the Supreme Court (the CPD). The matter was dealt with as one of urgency and on 11 August 1995 the CPD (per Conradie J, Kηhn J concurring) dismissed the case.
[ 5 ] The relief sought by the Applicants in their original notice of motion to this Court was for an order for the following:
1. Granting them direct access to this Court in terms of section 100(2) of the Constitution[3] read with Rule 17, declaring unconstitutional certain amendments to the Transition Act effected by Proclamations R 58 of 7 June 1995 and R 59 of 8 June 1995 (the Proclamations), and the Proclamations themselves.
2. Setting aside the appointment of the Fourth and Fifth Respondents as members of the Provincial Committee for Local Government for the Western Cape Province (the Committee) which had been effected pursuant to Proclamation R 58 and reinstating the Fourth and Fifth Applicants as members of the Committee (which had been effected by the Third Applicant prior to the enactment of the Proclamations).
3. Directing that the First, Second and Third Respondents be jointly and severally liable for the costs of this application and that if the Fourth and Fifth Respondents opposed the application that all the Respondents be jointly and severally liable for such costs.
[ 6 ] Section 245(1) of the Constitution provides that
Until elections have been held in terms of the Local Government Transition Act, 1993, local government shall not be restructured otherwise than in accordance with that Act.
The Transition Act was assented to on 20 January 1994, approximately three months before the Constitution came into force. It provides the machinery for the transition from a racially based system of local government to a non-racial system. It establishes the process to be followed in order to reach this goal, a process which was to commence when the Act came into force on 2 February 1994, and to continue until the holding of the first non-racial local government elections which would take place on a date to be promulgated by the Minister of Local Government in the government of national unity.[4]
[ 7 ] The Constitution itself makes provision for the complex issues involved in bringing together again in one country, areas which had been separated under apartheid, and at the same time establishing a constitutional state based on respect for fundamental human rights, with a decentralised form of government in place of what had previously been authoritarian rule enforced by a strong central government. On the day the Constitution came into force fourteen structures of government ceased to exist. They were the four provincial governments, which were non-elected bodies appointed by the central government, the six governments of what were known as self governing territories, which had extensive legislative and executive competences but were part of the Republic of South Africa, and the legislative and executive structures of Transkei, Bophuthatswana, Venda and Ciskei which according to South African law had been independent states. Two of these States were controlled by military regimes, and at the time of the coming into force of the new Constitution two were being administered by administrators appointed by the South African authorities. The legislative competences of these fourteen areas were not the same. Laws differed from area to area, though there were similarities because at one time or another all had been part of South Africa. In addition the Constitution was required to make provision for certain functions which had previously been carried out by the national government, to be transferred as part of the process of decentralisation to the nine new provinces which were established on the day the Constitution came into force, and simultaneously for functions that had previously been performed by the fourteen executive structures which had ceased to exist, to be transferred partly to the national government and partly to the new provincial governments which were to be established. All this was done to ensure constitutional legislative, executive, administrative and judicial continuity.
[ 8 ] The mechanism for this process is contained in Chapter 15 of the Constitution in a series of complex transitional provisions dealing with the continuation of laws, and the transitional arrangements for legislative authorities, executive authorities, public administration, the courts, the judiciary, the ombudsman, local government, the transfer of assets and liabilities and financial matters such as pensions and the like. The dispute in the present case depends on the interpretation of some of these provisions. I mention the complexity of the process because it is relevant to arguments addressed to us in regard to how we should interpret the relevant provisions.
[ 9 ] Section 235(8) of the Constitution empowered the President to assign the administration of certain categories of laws to "competent authorities" within the jurisdiction of the various provinces who, by definition, were authorities designated by the Premiers. Some time after the Constitution came into force the President, purporting to act in terms of section 235(8), assigned the executive authority for the administration of the Transition Act to provincial administrators to be designated by the Premiers of each of the provinces. Section 235(8) also empowered the President when he assigned the administration of a law, or at any time thereafter, to amend or adapt such law in order to regulate its application or interpretation. This was permissible "to the extent that [the President] considers it necessary for the efficient carrying out of the assignment." When the President purported to assign the administration of the Transition Act to administrators in the provinces, he also purported to amend the law in terms of his powers under section 235(8). No objection was made by the Applicants at that time to the assignment or to the amendments to the Transition Act. In fact, the Third Applicant claims to be the Administrator in the Western Cape by virtue of such an assignment.
[ 10 ] The process of restructuring of local government under the Transition Act proceeded and on 23 November 1994 Parliament amended the Act to include a provision under which the President was vested with the power to amend the Act by proclamation. He could do this provided the Committees on Provincial and Constitutional Affairs of the Assembly and the Senate consented to the amendments. There was also a requirement under which the amendments had to be tabled in Parliament and would fall away if Parliament passed a resolution disapproving of them. Once again no objection seems to have been taken at the time by the Applicants to the constitutionality of this amendment. A number of proclamations were passed in terms of this provision, and no challenge was made prior to June 1995 to their constitutionality.
Factual
Background
[ 11 ] On the day that the assignment of the administration of the Transition Act and the consequential amendments were made (15 July 1994), the Second Applicant (the Premier of the Western Cape) designated the Third Applicant (the Minister of local government in the Western Cape) as the competent authority for the administration of the Transition Act for the Western Cape Province. In terms of the Transition Act, the Administrators duties included the demarcation and delimitation of the Western Cape into areas of jurisdiction of transitional councils and transitional metropolitan sub-structures for the purposes of the local government elections anticipated to be held on 1 November 1995. Section 4(1) of the Transition Act required the Administrator to exercise any power conferred on him by the Act with the concurrence of the Provincial Committee, a body which (in terms of section 3(2) of the Transition Act) has to be broadly representative of stakeholders in local government; section 4(1) requires the Administrator to exercise any power conferred on him by the Transition Act with the concurrence of the Provincial Committee; and section 4(3) then provides that where they fail to concur, the matter is to be resolved by the Special Electoral Court.
[ 12 ] The Transition Act as originally enacted provided that after the establishment of provincial government in a province members of a Provincial Committee would hold office during the pleasure of the Executive Council of that provincial government and that vacancies would be filled by the Executive Council. When the events which gave rise to the present dispute occurred, Mr A Boraine and Mr E Kulsen were members of the Committee. Kulsen resigned on 21 February 1995 and on 10 May 1995 the Third Applicant raised the question of Boraines membership of the Committee with the First Applicant, which resolved to delegate to the Third Applicant the power to dismiss Boraine and to fill the two vacancies. The Third Applicant exercised that power by advising Boraine on 11 May 1995 that his membership was being terminated and by appointing the Fourth and the Fifth Applicants in the place of Boraine and Kulsen on 17 May 1995. The reconstituted Committee met on 23 May 1995 and four of its six members (including the Fourth and Fifth Applicants) approved the demarcation proposal of the Third Applicant.[5] The other two members of the Committee (and Boraine) were opposed to the Third Applicants demarcation proposal. His actions made it possible for him to avoid referring to the Special Electoral Court the dispute which would otherwise have arisen between him and the Committee with regard to his demarcation proposal.[6] Intensive negotiations ensued between the major political parties involved and also between representatives of the provincial and national government authorities concerned.[7] It proved impossible to find common ground, however. In the result the reaction of the central government was for the First Respondent to use his powers under section 16A of the Transition Act to promulgate the Proclamations.
[ 13 ] By Proclamation R 58 of 7 June 1995 the First Respondent amended section 3(5) of the Transition Act by transferring the power to appoint and dismiss Committee members from the provincial to the national government.[8] The amendment also served to nullify the appointment by the Third Applicant of the Fourth and Fifth Applicants. The next day the First Respondent amended section 10 of the Transition Act by Proclamation R 59. Before this amendment section 10 of the Transition Act had provided the Administrator with wide powers to make proclamations, inter alia, relating to the demarcation of local government structures and the division of such structures into wards. Proclamation R 59 made section 10 subject to the provisions of a new subsection (4), which effectively invalidated Provincial Committee decisions of the kind in issue taken between 30 April and 7 June. Section 2 of that Proclamation then rendered the amendment explicitly retroactive. The combined effect of the Proclamations was to nullify the appointment of the Fourth and Fifth Applicants as members of the Committee retroactively and also to nullify the Third Applicant's demarcation proposal which the Committee had approved on 23 May 1995. On 15 June 1995 the Second Respondent, acting in consultation with the Third Respondent and after consultation with the Second Applicant, appointed the Fourth and Fifth Respondents as members of the Committee to replace Boraine and Kulsen.
[ 14 ] That sequence of events led to the Applicants challenging the Proclamations before the CPD and in this Court. This set in motion a chain of events which has culminated in the Applicants challenging the constitutional validity of section 16A of the Transition Act, and the constitutional validity of the assignment of the administration of the Act to provincial administrators. Not only do the Applicants put in issue the validity of the Presidential proclamation from which the Third Applicant derives his own authority, but in so doing and in challenging the validity of section 16A they put in doubt the validity of everything that has been done under the Transition Act since 15 July 1994, including all the preparations that have been made for the holding of the elections which are scheduled to take place in most of the country on 1 November, barely a month from now.
Direct and Urgent
Access
[ 15 ] The first aspect to be considered is whether urgent and direct access to this Court should be granted. The manner in which the Applicants launched their assault on the Proclamations led to considerable difficulty, not only for the Respondents but also for this Court. The case was brought on an urgent basis; it was submitted that we had exclusive jurisdiction to hear it and that we should grant direct access to this Court under section 100(2) of the Constitution and Rule 17 of the Constitutional Court Rules. We were told that the local government elections in the Cape Town metropolitan area and in the whole of the Province would be put in jeopardy if the issues were not urgently resolved. It was impressed upon us that the Third Applicant could not act without the concurrence of the Committee and that, until the dispute regarding the composition of the Committee had been resolved, arrangements for local government elections in the Western Cape Province would be at a standstill. It was pointed out that the disputed validity of the Proclamations left in limbo whether it was the national government that had the power to change the composition of the Committee or whether such power still vested in the provincial authority concerned. The Respondents agreed that the matter was of such import and urgency as to justify direct access being afforded to this Court.
[ 16 ] There was disagreement, however, on the question whether the essential dispute falls within the exclusive jurisdiction of this Court. It is unnecessary to decide who is right on that issue. It is clear from the provisions of section 98(2)(c) of the Constitution that we do have jurisdiction to enquire into the constitutionality of any law and that, in terms of section 98(2)(e), we also have jurisdiction to deal with disputes of a constitutional nature between organs of state at any level of government.[9] In any event, the matter has now been referred to this Court by the First Respondent in terms of the powers vested in him by section 82(1)(d) of the Constitution.[10]
[ 17 ] Although the elections in the Western Cape metropolitan area are no longer to be held on the 1st November, elections in other parts of the Western Cape are scheduled for that date. The issues raised in these proceedings could also have an impact on the elections elsewhere in the country. We are satisfied that we should make every endeavour to resolve the issues expeditiously and that urgent and direct access to this Court is warranted. An appropriate order will therefore be included at the end of this judgment.
Application to Amend Notice of
Motion
[ 18 ] The second aspect to be considered is whether we should grant an application by the Applicants to amend their notice of motion to include as their first prayer a challenge to the validity of section 16A of the Transition Act. The application to amend was made so belatedly and diffidently as to cause the Respondents considerable embarrassment and the Court no little bother. Ordinarily we would not have allowed it. However, the validity of the section is not only central to the present matter but of vital public importance generally. The question has to be decided now and any further delay would not be in the public interest. For that reason the amendment must be allowed and the Courts order contains the relevant provision to that effect.
Summary of Legal Argument before this
Court
[ 19 ] In their founding affidavits the Applicants attacked the Proclamations on five separate grounds, in substance only one of which was relied upon in the first written argument lodged preparatory to the hearing. The argument that was persisted in was that the Proclamations were unconstitutional because they invaded the functional or institutional integrity of the Western Cape Province within the meaning of Constitutional Principle XXII, contained in Schedule 4 to the Constitution read with sections 74(1) and 232(4) thereof.[11] On the day before the hearing the Applicants sought to supplement their attack on the Proclamations by introducing an attack on the Proclamations on the grounds that they violated sections 61 and 62 of the Constitution and on the further ground that section 16A of the Transition Act was itself unconstitutional for its inconsistency with those sections of the Constitution.[12]
[ 20 ] Due to the lateness of the introduction of these fresh attacks and due to their possible impact on the outcome of this case, the Court granted a postponement giving the Applicants time to augment their submissions and affording the Respondents an opportunity to challenge them so that full and proper argument could be presented. Counsel were invited to consider argument on the possibility that there could be an answer to the Applicants attack on section 16A if the First Respondent nevertheless had had the power in terms of section 235(8) of the Constitution to do what he had done.
[ 21 ] The Applicants augmented written argument, somewhat surprisingly, contained no express attack on the constitutionality of section 16A. At best there was an alternative submission, relegated to a footnote. The argument also did not deal with the possible application of section 235(8) of the Constitution. The Applicants augmented written argument, which consolidated all the grounds on which the Applicants at that stage relied, limited the attack on the Proclamations to three submissions. First, their alleged violation of Constitutional Principle XXII; second, their alleged subversion of sections 61 and 62(2) of the Constitution; and finally, that section 16A of the Transition Act, duly read down in accordance with section 232(3) of the Constitution so as to authorize only proclamations which do not violate Constitutional Principle XXII or subvert sections 61 and 62(2), renders the Proclamations ultra vires that section.
[ 22 ] While the written submissions of the Applicants avoided a substantive attack on section 16A, a supplementary affidavit by the Second Applicant impugned its constitutionality. Because of the importance of the point counsel for the Applicants were put to an election at the resumed hearing on 30 August 1995. After some vacillation they then elected to apply to amend the notice of motion so as to include a prayer for the striking down of section 16A. Counsel for the Respondents opposed the application to amend and - quite justifiably - renewed a complaint expressed in their written submissions, namely that the repeated and unheralded changes of front on the part of the Applicants put the Respondents in the invidious position of not knowing from time to time what case they were to meet. They stressed that no proper explanation had been offered for the vacillation traced above in relation to proceedings instituted over two months earlier and emphasized that the implications of allowing the amendment would be profound. In terms of the proclamations promulgated under the provisions of section 16A, sections 3, 4, 7, 7A, 8, 9, 10, 10A, 11, 13, 16 and 16B Part VA and Schedules 1 and 4 of the Transition Act had been amended or inserted or both, some of them amended more than once. Counsel for the Respondents advanced ex tempore argument regarding the attack on section 16A and were given an opportunity to respond further in writing.[13] The Respondents also handed in an affidavit by the First Respondent dealing with his state of mind regarding the jurisdictional prerequisites to a decision to amend the Transition Act by virtue of the power to amend conferred on him by sections 235(8) of the Constitution. Relying on the line of reasoning followed in Latib's case[14] counsel for the Respondents argued that it was of no consequence that the Proclamations cited section 16A as the authority for their promulgation and not section 235(8) of the Constitution. They argued that, ex facie his affidavit, the First Respondent had made up his mind on the appropriate facts and had merely exercised his consequent power under an inappropriate statutory provision.
[ 23 ] Subsequent to the hearing this Court realised that there were questions regarding section 235(8) of the Constitution and related provisions which had not been addressed by counsel in their written or oral argument. These questions were of such importance that we considered it necessary to afford the parties an opportunity and the Court the benefit of debating them. The parties' legal representatives were therefore urgently invited to canvass the particular issues at a further hearing set down on 14 September 1995. Having now had that further debate we are satisfied that the case ultimately turns on the resolution of five issues. They are (i) whether the Proclamations fall foul of Constitutional Principle XXII; (ii) whether they are invalidated by section 61 of the Constitution or (iii) by section 62(2) of the Constitution; (iv) whether section 16A of the Transition Act itself is unconstitutional; and (v) whether the Proclamations were nevertheless validly promulgated under section 235(8) of the Constitution. We proceed to consider each of those issues in turn.
Constitutional Principle XXII
[ 24 ] The first and main basis of Applicants attack on the Proclamations was that they were unconstitutional by reason of their being in violation of Constitutional Principle XXII which is contained in Schedule 4 of the Constitution. The relevant provision states:
The national government shall not exercise its powers (exclusive or concurrent) so as to encroach upon the geographical, functional or institutional integrity of the provinces.
[ 25 ] It was argued that the terms of the Constitutional Principle were contravened by virtue of the fact that the Proclamations and the legislative amendments effected thereby gave ...rise to a direct assault on the legitimate provincial autonomy and functional and institutional integrity of the Western Cape. The argument on behalf of the Applicants was based on a characterisation of the Constitutional Principles as being immutable and a contention that they are of application, along with the other provisions of the Constitution, to all laws made or in force and all acts performed during the period of operation of the present Constitution.
[ 26 ] In support of the argument as to the applicability of the Constitutional Principles, much reliance was placed on section 232(4) of the Constitution which provides:
In interpreting this Constitution a provision in any Schedule ... to this Constitution shall not by reason only of the fact that it is contained in a Schedule, have a lesser status than any other provision of this Constitution which is not contained in a Schedule, and such provision shall for all purposes be deemed to form part of this Constitution.
[ 27 ] The argument on behalf of the Applicants amounted to this: the import in section 232(4) of the Constitution of the phrases shall not ... have a lesser status than any other provision of this Constitution and shall be deemed for all purposes admit of no qualification; it leaves no room for the suggestion that the Constitutional Principles are mere aids to interpreting the substantive provisions of the Constitution. If anything, they have a higher status than the rest of the provisions in the Constitution.
[ 28 ] In response, the principal argument was that the Constitutional Principles are applicable to the making of the final Constitution and do not apply in substance to the transitional period. While noting that the contents of the Constitutional Principles may possibly serve as an aid to interpreting the other provisions of the Constitution, it was argued that this could not be done selectively. He pointed out that if Constitutional Principle XXII was applicable to the powers and status of provinces under the current Constitution as the Applicants contended, so too would Constitutional Principle XIX which provides, inter alia, that [t]he powers and functions at the national and provincial levels of government shall include exclusive and concurrent powers. . . Since section 126 of the Constitution provides only for concurrent and no exclusive powers to the provinces, this Constitutional Principle was not intended to be complied with in terms of the current Constitution. Constitutional Principles XXI(2) and (4), XXIII and XXIV were also cited as examples of obvious inconsistencies between the current Constitution and the Constitutional Principles, and as indicating that the provisions of the Constitutional Principles dealing with the status and powers of provinces related to the future and not the present.
[ 29 ] The Constitutional Principles are a set of thirty-four provisions contained in Schedule 4 of the Constitution. They represent principles which were agreed upon and adopted by the Negotiating Council of the Multi-Party Negotiating Process to provide definitive guidelines for the drafting of the final Constitution. The current Constitution makes a number of references to the Constitutional Principles. That they have a significant role to play is obvious. The precise ambit of that role is what is in dispute.
[ 30 ] In the Preamble the Constitutional Principles are described as a solemn pact in accordance with which the elected representatives of all the people of South Africa should be mandated to adopt a new Constitution.
[ 31 ] Chapter 5 of the Constitution locates their role in the context of a new constitutional text. In terms of section 71, the new constitutional text shall comply with the Constitutional Principles and that text, even though it would have been passed by the Constitutional Assembly, shall not be of any force and effect unless the Constitutional Court has certified that all the provisions of such text comply with the Constitutional Principles...
[ 32 ] In terms of section 74 of the Constitution, the Constitutional Principles cannot be repealed or amended and neither can section 74 itself nor any other provision in Chapter 5 in so far as it relates to them or to the requirement that the new constitutional text shall comply with the Constitutional Principles, or that such text shall be certified by the Constitutional Court as being in compliance therewith.
[ 33 ] It is necessary to consider section 232(4) of the Constitution in context. It is contained in Chapter 15 which is entitled General and Transitional Provisions and the section itself, according to the heading, deals with Interpretation. Section 232(4) is not conclusive on the issue of the exact status of the Constitutional Principles in relation to other provisions in the current Constitution. The section is of general application to all the Schedules to the Constitution. It ensures that they are treated for all purposes as if they formed part of the main body of the Constitution, and makes clear that they do not have a lesser status than provisions located elsewhere in the Constitution. Ordinarily, the position with regard to matter contained in a schedule is as set out by Kotze JA in African and European Investment Co. Ltd. v Warren and Others 1924 AD 308 at 360:
No doubt a schedule or rule attached to a Statute and forming part of it is binding, but in case of clear conflict between either of them and a section in the body of the Statute itself, the former must give way to the latter.
Craies, Statute Law (7th ed. by
Edgar, 1971) at 224, notes:
A schedule in an Act is a mere question of drafting, a mere question of words. The schedule is as much a part of the statute, and is as much an enactment, as any other part, but if an enactment in a schedule contradicts an earlier clause the clause prevails against the schedule. (Citation omitted).
See also Driedger on the Construction of Statutes (3rd ed. by Ruth Sullivan 1994) 278-284, and Steyn, Die Uitleg van Wette (1981) 151-152.
[ 34 ] Section 232(4) therefore ensures that the Schedules to the current Constitution are regarded not merely as an explanatory adjunct subordinated to the clause to which they are attached. Nor are the Schedules texts lacking constitutional status which could be amended by an ordinary Act of Parliament in terms of section 59; on the contrary, section 232(4) guarantees that, apart from Schedule 4 (which embodies the Constitutional Principles), they can only be amended by a two-thirds majority as provided for in section 64. See also section 74(2). Like all provisions of the Constitution they must be interpreted in their context, and if relevant, can be taken into account in interpreting other provisions of the Constitution.
[ 35 ] The Constitutional Principles indeed have a higher status than the rest of the Constitution in that they cannot be amended at all (see section 74). This particular status stems from their special function in the matrix of the two-stage constitution-making process agreed to during the Multi-Party Negotiation Process and reflected in the text of the Constitution.
[ 36 ] Clearly the current Constitution is made up of various components each of which has a specific focus. There are provisions, for instance, which deal with present arrangements and which have no special claim to being included in a future Constitution; there are also specific provisions which are directed at the process of bringing about a new Constitution. The question is where the Constitutional Principles, which are fully part of the current Constitution, fit into the scheme of things.
[ 37 ] The language of the Constitution itself provides a strong indication of the applicability and overriding purpose of the Constitutional Principles. It should be mentioned firstly that the current Constitution is, itself, a transitional measure, designed to tide the country over an interim period while a new Constitution is being drafted. Indeed it proclaims itself as an historic bridge; it was never intended to be the final destination. Thus while it brings about far-reaching changes in the governance of this country, it also prescribes and regulates the process leading towards the achievement of the final Constitution. In that sense the historic bridge is not just between the past, with all that characterised it, and the present, which is governed by this Constitution, but also between the present and the future, which will be governed in terms of the new Constitution. Various provisions of the current Constitution prescribe how the new Constitution should come about and the Constitutional Principles form part of the future-directed framework, as do certain other provisions contained elsewhere in the current Constitution.
[ 38 ] Constitutional Principle I states:
The Constitution of South Africa shall provide ...
This is clearly a reference to the Constitution which the Constitutional Assembly has been mandated to draft and not the current one. Many more of the thirty-four Constitutional Principles are couched in similar language, clearly indicating relevance only to the final Constitution and not to the present. Some of the provisions refer in terms to the current and the new Constitutions; Constitutional Principle II, for example, states:
Every one shall enjoy all universally accepted fundamental rights, freedoms and civil liberties, which shall be provided for and protected by entrenched and justiciable provisions in the Constitution, which shall be drafted after having given due consideration to inter alia the fundamental rights contained in Chapter 3 of this Constitution. (My italics).
See also Constitutional Principles XVIII(2) and (3). The whole scheme of XVIII, for instance, clearly distinguishes between this Constitution and the Constitution.
[ 39 ] Perhaps one of the most revealing textual features is the consistency with which the phrases the Constitution and this Constitution are used in the text of the current Constitution. The former, with three notable exceptions, is used consistently in the context of the new Constitution and the latter, without exception, in that of the current Constitution. The three exceptions with regard to the former are:
(a) in the Preamble, ... the following provisions are adopted as the Constitution of South Africa.
(b) the short title (section 251): This Act shall be called the Constitution of the Republic of South Africa, 1993 ...
(c) in section 227(2): The National Defence Force shall --
(a) exercise its powers and perform its functions solely in the national interest by--
(i) upholding the Constitution;
(ii) ...
The textual
consistency referred to is maintained in the entire Schedule 4.
[ 40 ] Constitutional Principle XXI refers to the Constitution a number of times, and the context is clearly consistent only with the future Constitution. Constitutional Principle XXIII likewise deals with a future Constitution and the operative words are again the Constitution. It is improbable that Constitutional Principle XXII would have been sandwiched in between those provisions if it was not also dealing with the new Constitution which is in the process of preparation.
[ 41 ] It would be strange indeed if these very widely phrased provisions, intended to be given detailed constitutional texture in future, were to be read as impacting immediately and directly on the structures and functions of the present governmental system, not to speak of Chapter 3 on Fundamental Rights. We have no doubt that the Constitutional Principles, like the other provisions of Chapter 5 are intended to be of substantive application in the drafting and adoption of the new Constitution and, by virtue of section 160(3) of the current Constitution, they are also of application to any provincial constitutions which may be adopted. Thus, the statement in section 232(4) that they are for all purposes deemed to form part of the substance of this Constitution relates to their status and not to their function or operation. In my view, the Applicants argument on this score entirely misconceives the place of the Constitutional Principles in terms of the total constitutional scheme, and must be rejected.
Section 61 of the
Constitution
[ 42 ] It was argued that the amendments to the Transition Act purportedly made in terms of Proclamation R 58 constituted legislation "affecting ... the exercise or performance of powers and functions of the provinces", in terms of section 61 of the Constitution, and could only lawfully be effected in accordance with the "manner and form" provisions of that section. As this was not done, that Proclamation, and the action subsequently taken under it, were invalid and of no force or effect.
[ 43 ] Section 61 provides that:
Bills affecting the boundaries or the exercise or performance of the powers and functions of the provinces shall be deemed not to be passed by Parliament unless passed separately by both Houses and, in the case of a Bill, other than a Bill referred to in section 62, affecting the boundaries or the exercise or performance of the powers or functions of a particular province or provinces only, unless also approved by a majority of the senators of the province or provinces in question in the Senate.
In terms it applies only to parliamentary enactments and not to legislative action such as the making of proclamations or regulations in terms of such enactments. Any other construction would not only do violence to the language of the section, but would place a severe impediment in the way of effective government.
[ 44 ] Prima facie the Proclamations which are in issue in the present case were within the scope of the President's powers under section 16A. But if the section is construed narrowly so as to exclude such authority, or if the section itself is inconsistent with the Constitution and accordingly invalid, the validity of the Proclamations can be impugned.
[ 45 ] The principal argument for the Applicants was that section 16A, read literally, authorises the making of legislation in a way which is contrary to the "manner and form" requirements of section 61 of the Constitution, and should therefore be "read down" and confined to an authority to deal with matters which are not within the scope of section 61.
[ 46 ] In the judgment given in the CPD proceedings, Conradie J points to the uncertain scope of section 61 and to difficulties that exist in construing its provisions. There are these difficulties; it is, however, not necessary to resolve them in the present case. The sole purpose of section 16A is to enable the President to amend the Transition Act by proclamation. The administration of the Transition Act is vested in provincial organs. If the Transition Act deals with the powers and functions of the provinces within the meaning of section 61, it is difficult to see how the powers under section 16A could ever be exercised without affecting such powers and functions.
[ 47 ] Moreover, section 61 is not the only section in the Constitution which prescribes "manner and form" provisions for the passing of legislation. "Manner and form" provisions are also prescribed by sections 59 and 60. Section 59 deals with "ordinary" legislation, and section 60 with Money Bills. No purpose would be served by reading down section 16A so as to avoid a challenge based on section 61 of the Constitution, if that would expose the section as read down to a challenge under section 59. This means that we have to deal with the larger question raised by this Court during argument, namely, whether or not it was competent for Parliament by means of section 16A to vest in the President the power to amend the Transition Act by proclamation. The answer to this question depends in the first instance upon whether under our Constitution, Parliament can delegate or assign its law-making powers to the executive or other functionaries, and if so under what circumstances, or whether such powers must always be exercised by Parliament itself in accordance with the provisions of sections 59, 60 and 61 of the Constitution. I will deal with that question later. But first it is necessary to address the argument based on section 62(2) of the Constitution that was advanced on behalf of the Applicants.
Section 62(2) of the
Constitution
[ 48 ] The argument was that the Proclamations in question amended the powers and executive competence of the provinces within the meaning of sections 126 and 144 of the Constitution, and in particular those of the Western Cape Province, and therefore had to be enacted in accordance with the provisions of section 62(2) of the Constitution. In my view there is no substance in this argument. Section 62 deals with amendments to the Constitution and not with amendments to national legislation such as the Transition Act under which legislative or executive functions can be vested in the provinces. The fact that the Transition Act is referred to in section 245 of the Constitution does not make it part of the Constitution nor does it require amendments to that Act to be made in accordance with the provisions of section 62. This is made clear by section 232(2) of the Constitution which provides that:
(a) Any reference in this Constitution to any particular law shall be construed as a reference to that law as it exists from time to time after any amendment or replacement thereof by a competent authority.
(b) An amendment, replacement or repeal of a law referred to in paragraph (a), shall for the purposes of section 62 not be considered to be an amendment of this Constitution, and any such amendment, replacement or repeal of a law shall for its validity be dependent on its consistency with this Constitution in terms of section 4(1).
It was contended by counsel for the Applicants that this does not apply to the Proclamations because they are not referred to in the Constitution and section 232(2) is accordingly not applicable to them. The short answer to this contention is that the Proclamations, if valid, do not amend the Constitution. They amend the Transition Act.
[ 49 ] It was also contended that the Proclamations are inconsistent with the proviso to section 62(2), which requires amendments to the legislative and executive competences of a province to be effected with the consent of the relevant provincial legislature. But section 62(2) is a clause dealing with constitutional amendments, and the proviso must be read as qualifying the substantive part of the clause and not as an independent constitutional requirement applicable to any legislation dealing with provincial powers and functions. S v Mhlungu and Others 1995 (7) BCLR 793 (SA) at paragraph 32. Where, as in the present case, provincial organs are vested with powers or functions by national legislation, such powers and functions can be changed by national legislation. Changes thus effected do not involve constitutional amendments and do not have to be implemented in accordance with the provisions of section 62.
The validity of Section 16A of
the Local Government Transition Act
[ 50 ] Section 16A of the Transition Act provides:
(1) The President may amend this Act and any Schedule thereto by proclamation in the Gazette.
(2) No proclamation under subsection (1) shall be made unless it is approved by the select committees of the National Assembly and the Senate responsible for constitutional affairs.
(3) A proclamation under subsection (1) shall commence on a date determined in such proclamation, which may be a date prior to the date of publication of such proclamation.
(4)(a) The Minister shall submit a copy of a proclamation under subsection (1) within 14 days after the publication thereof to Parliament.
(b) If Parliament by resolution disapproves of any such proclamation or any provision thereof, such proclamation or provision shall cease to be of force and effect, but without prejudice to the validity of anything done in terms of such proclamation or such provision before it so ceased to be of force and effect, or to any right or liability acquired or incurred in terms of such proclamation or such provision before it so ceased to be of force and effect.
[ 51 ] The legislative authority vested in Parliament under section 37 of the Constitution is expressed in wide terms - "to make laws for the Republic in accordance with this Constitution." In a modern state detailed provisions are often required for the purpose of implementing and regulating laws, and Parliament cannot be expected to deal with all such matters itself. There is nothing in the Constitution which prohibits Parliament from delegating subordinate regulatory authority to other bodies. The power to do so is necessary for effective law-making. It is implicit in the power to make laws for the country and I have no doubt that under our Constitution parliament can pass legislation delegating such legislative functions to other bodies. There is, however, a difference between delegating authority to make subordinate legislation within the framework of a statute under which the delegation is made, and assigning plenary legislative power to another body, including, as section 16A does, the power to amend the Act under which the assignment is made.
[ 52 ] In the past our courts have given effect to Acts of parliament which vested wide plenary power in the executive. Binga v Cabinet for South West Africa and Others 1988 (3) SA 155(A) and R v Maharaj 1950 (3) SA 187(A) are examples of such decisions. They are in conformity with English law under which it is accepted that parliament can delegate power to the executive to amend or repeal acts of parliament. S. Wade and C. Forsyth, Administrative Law, pp. 863-864 (Clarendon Press, Oxford, 7th ed. 1994). These decisions were, however, given at a time when the Constitution was not entrenched and the doctrine of parliamentary sovereignty prevailed. What has to be decided in the present case is whether such legislation is competent under the new constitutional order in which the Constitution is both entrenched and supreme. This requires us to consider the implications of the separation of powers under the Constitution, the "manner and form" provisions of sections 59, 60 and 61, the implications of the supremacy clause (section 4) and the requirement that parliament shall make laws in accordance with the Constitution (section 37).
[ 53 ] In the United States of America, delegation of legislative power to the executive is dealt under the doctrine of separation of powers. Congress as the body in which all federal law-making power has been vested must take legislative decisions in accordance with the "single, finely wrought and exhaustively considered, procedure" laid down by the US Constitution, which requires laws to be passed bicamerally and then presented to the President for consideration for a possible veto. INS v Chada 462 US 919 (1983) per Burger CJ at 951. Delegation of legislative power within prescribed limits is permissible because, as the Supreme Court has said, "[w]ithout capacity to give authorizations of that sort we should have the anomaly of legislative power which in many circumstances calling for its exertion would be but a futility." Per Hughes CJ in Panama Refining Co. v Ryan 293 US 388, 421 (1935). The delegation must not, however, be so broad or vague that the authority to whom the power is delegated makes law rather than acting within the framework of law made by Congress. This distinction was explained by Taft CJ in Hampton & Co v United States 276 US 394, 407 (1928)(quoting Ranney J in Wilmington and Zanesville Railroad Co. v Commissioners, 1 Ohio St. 77 (1852)) as follows:
The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.
[ 54 ] In Ireland, under the influence of the United States jurisprudence, the courts have adopted a similar approach. See the comments of McMahon J in the High Court in Cityview Press Limited and Another v An Chomhairle Oiliuna and Others [1980] IR 381. The Supreme Court, confirming the decision of McMahon J in the Cityview Press case, held that whilst parliament cannot delegate its power to make laws to the executive, it is competent for it to make laws under which a regulatory power is delegated to the executive. The test as to whether lawmaking or regulatory powers have been delegated is "whether what is challenged as an unauthorised delegation of parliamentary power is more than the mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution." Per O'Higgins CJ, supra, at 395 et seq.
[ 55 ] The courts of some Commonwealth countries seem to take a broader view of the power to delegate legislative authority than the courts of the United States, and to permit parliament to delegate plenary law-making powers to the executive, including the power to amend Acts of parliament. In part this is due to the influence of English law and decisions of the Privy Council, and in part to the form of government in such countries. In the United States there is a clear separation of powers between the legislature and the executive. In Commonwealth countries there is usually a clear separation as far as the judiciary is concerned, but not always as clear a separation between the legislature and the executive. Many of the Commonwealth countries have followed the English system of executive government under which the head of the government is the Prime Minister, who sits in parliament and requires its support to govern. Although there is a separation of functions, the Prime Minister and the members of his or her cabinet sit in parliament and are answerable to parliament for their actions.
[ 56 ] The influence of English law is referred to by Dixon J in his judgment in the Australian High Court in Victorian Stevedoring and General Contracting Co. Pty. Ltd. & Meakes v Dignan [1931] 46 CLR 73 at pages 101-102, in which the Court declined to follow the United States cases. In the same case, Evatt J (at page 114) drew attention to the differences in the form of government of Commonwealth countries and that of the United States, saying:
In dealing with the doctrine of "separation" of legislative and executive powers, it must be remembered that, underlying the Commonwealth frame of government, there is the notion of the British system of an Executive which is responsible to Parliament. That system is not in operation under the United States Constitution.
...
This close relationship between the legislative and executive agencies of the Commonwealth must be kept in mind in examining the contention that it is the Legislature of the Commonwealth, and it alone, which may lawfully exercise legislative power.
In Australia, it seems to have been accepted that the Commonwealth parliament can delegate a legislative power to the executive and vest in the executive the power to make regulations which will take precedence over Acts of Parliament. That is what was done in Dignan's case which, in the context of subordinate legislation, was cited with approval by the Privy Council in Attorney-General for Australia v The Queen 1957 AC 288 at 315. In Cobb & Co Ltd and Others v Kropp and Others 1967 (1) AC 141 the Privy Council upheld a decision of the Supreme Court of Queensland finding that it was competent for the state legislature to vest in its Commissioner for Transport the power to impose taxes in the form of license fees on transport operators, as well as the power to determine the amount of the fees, which could be made to vary between operator and operator. Queensland had a bi-cameral legislature and the Order in Council under which it was established provided that "all bills for appropriating any part of the public revenue for imposing any new rate tax or impost" should originate in the Legislative Assembly. It was held that the plenary powers vested in the Queensland legislature entitled it to vest this authority in the Commissioner for Transport. A similar decision had previously been given by the Privy Council in Powell v Apollo Candle Company Ltd. (1885) 10 AC 282, where a challenge to the levying of customs duties by the Governor of New South Wales under general empowering legislation was unsuccessful.
[ 57 ] Seervai in his work on the Indian Constitution deals at length with the Indian jurisprudence on the power of parliament to delegate legislative power to the executive. H. M. Seervai, Constitutional Law of India, vol. II, para. 22.1 et seq. (3d ed., 1983). He refers to various judgments and decisions of judges in the Supreme Court of India which in his view contradict each other and vacillate between on the one hand sanctioning a broad delegation of law-making power by parliament to the executive, and on the other, requiring such delegation of legislative power to be carried out within a policy framework prescribed by parliament. Seervai himself takes the view that under the Indian Constitution a legislature has the power to pass a law under which the executive is given the power to implement an Act and to modify its provisions to enable it to work smoothly. He states at paragraph 21.53 that:
[L]egislative power is not "property" to be jealously guarded by the legislature, but is a means to an end, and if the end is desired by the legislature and the difficulties in achieving that end cannot be foreseen, it is not only desirable but imperative that the power to remove difficulties should be entrusted to the executive Government which would be in charge of the day-to-day working of the law. (Citation omitted).
The cases referred to by Seervai were not available to us at the time this judgment was prepared, and in the limited time that we have had to prepare our judgments it was not feasible to make arrangements to procure copies of the judgments or to trace the development of the law in India since the publication of the third edition of his book in 1983.
[ 58 ] In Canada, under the influence of the Privy Council decision in Hodge v The Queen (1883) 9 AC 117 and Shannon v Lower Mainland Dairy Products Board [1938] AC 708, it seems to be accepted that parliament has wide powers of delegation. Hogg, Constitutional Law of Canada (3d ed. 1992) at paragraph 14.2, notes:
The difference between the Canadian and the American systems resides not only in the different language of the two constitutional instruments, but in Canada's retention of the British system of responsible government. The close link between the executive and the legislative branches which is entailed by the British system is utterly inconsistent with any separation of executive and legislative functions.
According to Hogg , although delegation of legislative power between parliament and provincial legislatures is not permitted, delegation of such power by parliament to the executive, short of a complete abdication of its power, is permissible. Supra paras. 14.2 and 14.3; see also, Finkelstein, Laskins Canadian Constitutional Law, vol. 1, pp. 42-46 (Carswell Student Edition, 5th ed. 1986). It is not clear what the Canadian Courts would regard as a complete abdication of power. In Re Gray (1918) SCR 150, as cited in Hogg, in which this statement was made, upheld wide powers to make laws vested in the Governor in Council. It was followed by the Supreme Court of Canada in Reference Re Regulations (Chemical) Under War Measures Act (1943) 1 DLR 248, where it was pointed out (at p. 253) that the Privy Council had laid down the principle that, in an emergency such as war, the autonomy of the Dominion to make laws for the peace, order and good government of the nation, in view of the necessities arising from the emergency, may displace or overbear the authority of the Provinces in areas which they would otherwise have had exclusive jurisdiction. These were war cases, and typically greater latitude is allowed to the legislature in such circumstances. Cf. Dignan's case (supra) at 99; see also, Re Manitoba Government Employers Association and Government of Manitoba 79 DLR (3d) 1 at 15, which suggests that such broad delegations may not be permissible at other times. Hogg suggests that a possible exception to this rule is the federal taxing power because of the constitutional provisions requiring such legislation to originate in the House of Commons. He refers, at 344, to In Re Agricultural Products Marketing Act 84 DLR (3d) 257, in which such a challenge was raised but disposed of by the Supreme Court of Canada on the grounds that the disputed levies were not taxes but administrative charges. The majority of the Court, however, rejected the argument that the taxing power could not be delegated on the basis that if such a delegation were inconsistent with the relevant provisions of the Canadian Constitution, the Act under which the delegation was made should be treated as having impliedly amended them. Id., per Pigeon J at 322. This is in accordance with the rule that an Act inconsistent with the constitution is to be regarded as amending the constitution unless the constitution prescribes special procedures for such amendments and those procedures have not been followed. Kariapper v Wijesinha [1968] AC 717(PC) at 742F. An argument along these lines would not be permissible under our Constitution because it prescribes special procedures for amendments. Harris and Others v Minister of the Interior and Another 1952 (2) SA 428 (A). See also: Attorney-General for New South Wales v Trethowan [1932] AC 526 (PC) at 541; The Bribery Commissioner v Ranasinghe [1965] AC 172 (PC) at 199.
[ 59 ] The Canadian cases referred to in paragraph [58] were decided before the introduction of section 52 into the Canadian Constitution in 1982. This section provides that the Constitution shall be the supreme law and that legislation inconsistent with the Constitution shall be invalid. Neither Hogg nor Finkelstein suggest that this has had any effect on the rule in Hodge's case or the cases that have followed it. Hogg takes the position that the Constitution was in any event supreme prior to the introduction of section 52, and that the amendment did no more than record what has always been accepted [Hogg para. 55.1]. But there is a difference between a constitutional order which limits Parliaments authority to make certain laws and binds Parliament to legislate according to certain procedures, and one which treats Parliament as supreme. Whatever the situation may be in Canada in the light of the Privy Council decisions and the terms of that countrys constitution, we have to decide this issue in the light of the terms of our own Constitution.
[ 60 ] Whilst it seems to be accepted in most of the Commonwealth that parliament can delegate wide powers to the executive, the separation of powers as far as the judiciary is concerned has been strictly enforced, and the Privy Council has held to be invalid legislation which encroaches upon the judicial power. Attorney General for Australia v The Queen (supra) and Liyanage v The Queen 1967 (1) AC 259 at 286C (an appeal from the Supreme Court of Ceylon). In Liyanage's case it was said that the power to make laws derived from the Constitution and had to be exercised in accordance with its provisions. Those provisions prevented parliament from issuing bills of attainder to the judiciary.
[ 61 ] This brief and somewhat limited survey of the law as it has developed in other countries is sufficient to show that where Parliament is established under a written constitution, the nature and extent of its power to delegate legislative powers to the executive depends ultimately on the language of the Constitution, construed in the light of the country's own history. Our history, like the history of Commonwealth countries such as Australia, India and Canada was a history of parliamentary supremacy. But our Constitution of 1993 shows a clear intention to break away from that history. The preamble to the Constitution begins by stating the "need to create a new order." That order is established in section 4 of the Constitution which lays down that:
(1) This Constitution shall be the supreme law of the Republic and any law or Act inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force and effect to the extent of the inconsistency.
(2) This Constitution shall bind all legislative executive and judicial organs of the State at all levels of government.
Sub-section (2) is of particular importance in the present case.
[ 62 ] The new Constitution establishes a fundamentally different order to that which previously existed. Parliament can no longer claim supreme power subject to limitations imposed by the Constitution; it is subject in all respects to the provisions of the Constitution and has only the powers vested in it by the Constitution expressly or by necessary implication. Section 37 of the Constitution spells out what those powers are. It provides that:
The legislative authority of the Republic shall, subject to this Constitution, vest in Parliament, which shall have the power to make laws for the Republic in accordance with this Constitution.
The supremacy of the Constitution is reaffirmed in section 37 in two respects. First, the legislative power is declared to be "subject to" the Constitution, which emphasises the dominance of the provisions of the Constitution over Parliaments legislative power, S v Marwane 1982(3) SA 717(A) at 747 H - 748 A, and secondly laws have to be made "in accordance with this Constitution." In paragraph [51] of this judgment we I pointed out why it is a necessary implication of the Constitution that Parliament should have the power to delegate subordinate legislative powers to the executive. To do so is not inconsistent with the Constitution; on the contrary it is necessary to give efficacy to the primary legislative power that Parliament enjoys. But to delegate to the executive the power to amend or repeal Acts of Parliament is quite different. To hold that such power exists by necessary implication from the terms of the Constitution could be subversive of the "manner and form" provisions of sections 59, 60 and 61. Those provisions are not merely directory. They prescribe how laws are to be made and changed and are part of a scheme which guarantees the participation of both houses in the exercise of the legislative authority vested in Parliament under the Constitution, and also establish machinery for breaking deadlocks. There may be exceptional circumstances such as war and emergencies in which there will be a necessary implication that laws can be made without following the forms and procedures prescribed by sections 59, 60 and 61. Section 34 of the Constitution makes provision for the declaration of states of emergency in which provisions of the Constitution can be suspended. It is possible that circumstances short of war or states of emergency will exist from which a necessary implication can arise that Parliament may authorise urgent action to be taken out of necessity. A national disaster as a result of floods or other forces of nature may call for urgent action to be taken inconsistent with existing laws such as environmental laws. And there may well be other situations of urgency in which this type of action will be necessary. But even if this is so (and there is no need to decide this issue in the present case) the conditions in which section 16A were enacted fall short of such an emergency. There was, of course, urgency associated with the implementation of the Transition Act, but the Minister has regulatory powers under the Act, and legislation could have been passed to authorise the President to issue proclamations not inconsistent with the Act. Whether this could have included a power to amend other Acts of Parliament need not now be decided. An unrestricted power to amend the Transition Act itself cannot be justified on the grounds of necessity, nor can it be said to be a power which by necessary implication is granted by the Constitution to the President. Sections 59, 60 and 61 of the Constitution are part of an entrenched and supreme Constitution. They can only be departed from where the Constitution permits this expressly [section 235 (8) is such a case] or by necessary implication. In the present case neither of these requirements is present.
[ 63 ] Insistence upon compliance with the manner and form provisions of the Constitution in these circumstances is not elevating form above substance. The authorisation of legislation such as section 16A allows control over legislation to pass from Parliament to the executive. Later this power could be used to introduce contentious provisions into what was previously uncontentious legislation. Assuming this is done at a time party A has a majority in the Assembly, but not in the Senate, it would be difficult for other parties to secure a resolution of Parliament which would be needed to invalidate the delegation. It would also render ineffective the special procedures prescribed by sections 60 and 61. A contention that this would be a consequence of the Assembly and the Senate having passed the legislation in the first place, would be of little solace to parties in the Senate in a situation in which the authorisation is given at a time when Party A has a majority in the Assembly and the Senate, but later loses its majority in the Senate. In such circumstances, it could block a resolution objecting to legislation enacted under the delegation which could never have been passed without such delegation.
[ 64 ] Mr Gauntlett on behalf of the Respondents placed considerable reliance on the fact -- which is also been mentioned in some of the Commowealth judgments -- that Parliament retains control over the functionary to whom plenary legislative power is delegated and can withdraw it if the power is not exercised in accordance with its wishes. In the present case that element of control clearly exists, for the President can only legislate with the consent of the appropriate committees of both the Senate and the Assembly, on which there is multi-party representation, and Parliament can by resolution disapprove of the legislation made by the President, in which event it will cease to have validity. There is also the fact that the statute in issue in the present case is essentially a transitional provision, designed to manage the difficult and complicated transition to democratic local government for a limited period of time. The power vested in the President is a power to amend the Transition Act, which because of its far reaching implications would, even if section 16A were valid, have to be narrowly construed, R v Secretary of State for Social Security, Ex Parte Britnell 1991 (1) WLR 198 (HL), and would not necessarily include the power to make fundamental changes to the Act, S v Mngadi and Others 1986 (1) SA 526 (N)(but compare the judgment in the case on appeal sub nom, Attorney-General, Natal v Mngadi and Others 1989 (2) SA 13 (A) at 21C-F with 21H). These are all factors which could be relied upon to explain and justify the delegation of law-making power to the President in terms of section 16A. But if Parliament does not have the constitutional authority to delegate this power to the executive or to any other body, the reasonableness of the delegation or the absence of objection is irrelevant. The only way in which Parliament can confer power on itself to act contrary to the Constitution is to amend the Constitution. And this was not done in the present case.
[ 65 ] The Respondents placed considerable reliance on the fact that section 10 of the Transition Act vests extensive powers in the Administrator who is a provincial functionary. These powers include the power to modify or even repeal Acts of Parliament for the purpose of implementing decisions taken in terms of the Transition Act for the establishment and empowerment of transitional councils. This, they contend, is incorporated by reference through section 245 of the Constitution which requires the restructuring of local government to be carried out in accordance with the provisions of the Transition Act and impliedly sanctions the provisions of section 10 of that Act. Even if it is assumed that the provisions of section 10 of the Transition Act are sanctioned by section 245 of the Constitution (and there is no need to express any opinion on that issue) it does not follow that section 16A which is contained in a post-constitutional Act of Parliament was also sanctioned. The powers vested in the Administrator by section 10 of the Transition Act are limited to the making of "enactments not inconsistent with this [Transition] Act with a view to the transitional regulation of any matter relating to local government". It is essentially a regulatory power which, because of the conflicting provisions of various enactments which were given the force of law by section 229 of the Constitution, might have been needed in order to cut across the provisions of old laws which had not yet been repealed. Section 16A is quite different. It is a general power to amend the Transition Act itself. It is subject to no express limitation and can not be equated to the regulatory powers vested in the Administrators by section 10 of the Transition Act. Such a power cannot be inferred from section 245 of the Constitution.
Section 235 (8) of the
Constitution
[ 66 ] In the circumstances it is necessary to consider whether the two Proclamations can be justified under the provisions of section 235 (8) of the Constitution. The Respondents contend that if section 16A is inconsistent with the Constitution, the Proclamations were nonetheless within the President's powers under section 235 of the Constitution. Because of the arguments relied on by the Applicants in response to this contention it is necessary to set out the full terms of section 235. It reads as follows:
(1) A person who immediately before the commencement of this Constitution was-
(a) the State President or a Minister or Deputy Minister of the Republic within the meaning of the previous Constitution;
(b) the Administrator or a member of the Executive Council of a province; or
(c) the President, Chief Minister or other chief executive or a Minister, Deputy Minister or other political functionary in a government under any other constitution or constitutional arrangement which was in force in an area which forms part of the national territory,
shall continue in office until the President has been elected in terms of section 77(1)(a) and has assumed office: Provided that a person referred to in paragraph (a), (b) or (c) shall for the purposes of section 42(1)(e) and while continuing in office, be deemed not to hold an office of profit under the Republic.
(2) Any vacancy which may occur in an office referred to in subsection (1)(a), (b) or (c) shall, if necessary, be filled by a person designated by the persons continuing in office in terms of subsection (1)(a), acting in consultation with the Transitional Executive Council.
(3) Executive authority which was vested in a person or persons referred to in subsection (1)(a), (b) or (c) in terms of a constitution or constitutional arrangement in force immediately before the commencement of this Constitution, shall during the period in which the said person or persons continue in office in terms of subsection (1), be exercised in accordance with such constitution or constitutional arrangement, as if it had not been repealed or superseded by this Constitution, and any such person or persons shall continue to be competent to administer any department of state, administration, force or other institution which was entrusted to, and to exercise and perform any power or function which was vested in, him or her or them immediately before the said commencement: Provided that -
(a) no such executive authority, power or function shall be exercised or performed if the Transitional Executive Council disapproves thereof; and
(b) once the election results of the National Assembly have been certified by the Independent Electoral Commission in terms of the Independent Electoral Commission Act, 1993, the State President referred to in subsection (1)(a) shall exercise and perform his or her powers and functions in consultation with the leader of the party which has received the largest number of votes in the said election.
(4) The Transitional Executive Council may by resolution of a majority of all its members at any time during the period in which the said State President continues in office in terms of subsection (1), require him or her, or any other appropriate authority, to take such steps in terms of any law as are necessary to maintain law and order, including the declaration of a state of emergency or of an area to be an unrest area in terms of an applicable law.
(5) Upon the assumption of office by the President in terms of this Constitution -
(a) the executive authority of the Republic as contemplated in section 75 shall vest in the President acting in accordance with this Constitution; and
(b) the executive authority of a province as contemplated in section 144 shall, subject to subsections (8) and (9), vest in the Premier of that province acting in accordance with this Constitution, or while the Premier of a province has not yet assumed office, in the President acting in accordance with section 75 until the Premier assumes office.
(6) The power to exercise executive authority in terms of laws which, immediately prior to the commencement of this Constitution, were in force in any area which forms part of the national territory and which in terms of section 229 continue in force after such commencement, shall be allocated as follows:
(a) All laws with regard to matters which -
(i) do not fall within the functional areas specified in Schedule 6; or
(ii) do fall within such functional areas but are matters referred to in paragraphs (a) to (e) of section 126(3) (which shall be deemed to include all policing matters until the laws in question have been assigned under subsection (8) and for the purposes of which subsection (8) shall apply mutatis mutandis),
shall be administered by a competent authority within the jurisdiction of the national government: Provided that any policing functions which but for subparagraph (ii) would have been performed subject to the directions of a member of the Executive Council of a province in terms of section 219(1) shall be performed after consultation with the said member within that province.
(b) All laws with regard to matters which fall within the functional areas specified in Schedule 6 and which are not matters referred to in paragraphs (a) to (e) of section 126(3) shall -
(i) if any such law was immediately before the commencement of this Constitution administered by or under the authority of a functionary referred to in subsection (1) (a) or (b), be administered by a competent authority within the jurisdiction of the national government until the administration of any such law is with regard to any particular province assigned under subsection (8) to a competent authority within the jurisdiction of the government of such province; or
(ii) if any such law was immediately before the said commencement administered by or under the authority of a functionary referred to in subsection (1)(c), subject to subsections (8) and (9) be administered by a competent authority within the jurisdiction of the government of the province in which that law applies, to the extent that it so applies: Provided that this sub-paragraph shall not apply to policing matters, which shall be dealt with as contemplated in paragraph (a).
(c) In this subsection and subsection (8) "competent authority" shall mean
-
(i) in relation to a law of which the administration is allocated to the national government, an authority designated by the President; and
(ii) in relation to a law of which the administration is allocated to the government of a province, an authority designated by the Premier of the province.
(7) (a) The President may, after consultation with the Premier of a province, by proclamation in the Gazette take such measures, including legislative measures, as he or she considers necessary for the better achievement of this section.
(b) A copy of a proclamation under paragraph (a), shall be submitted to Parliament within 14 days after the publication thereof.
(c) If Parliament disapproves of any such proclamation or any provision thereof, such proclamation or provision shall thereafter cease to be of force and effect to the extent to which it is so disapproved, but without prejudice to the validity of anything done in terms of such proclamation up to the date upon which it so ceased to be of force and effect, or to any right, privilege, obligation or liability acquired, accrued or incurred as at the said date under and by virtue of such proclamation.
(8) (a) The President may, and shall if so requested by the Premier of a province, and provided the province has the administrative capacity to exercise and perform the powers and functions in question, by proclamation in the Gazette assign, within the framework of section 126, the administration of a law referred to in subsection (6)(b) to a competent authority within the jurisdiction of the government of a province, either generally or to the extent specified in the proclamation.
(b) When the President so assigns the administration of a law, or at any time thereafter, and to the extent that the or she considers it necessary for the efficient carrying out of the assignment, he or she may -
(i) amend or adapt such law in order to regulate its application or interpretation;
(ii) where the assignment does not relate to the whole of such law, repeal and re-enact, whether with or without an amendment or adaptation contemplated in subparagraph (i), those of its provisions to which the assignment relates or to the extent that the assignment relates to them; and
(iii) regulate any other matter necessary, in his or her opinion, as a result of the assignment, including matters relating to the transfer or secondment of persons (subject to sections 236 and 237) and relating to the transfer of assets, liabilities, rights and obligations, including funds, to or from the national or a provincial government or any department of state, administration, force or other institution.
(c) In regard to any policing power the President may only make that assignment effective upon the rationalisation of the police service as contemplated in section 237: Provided that such assignment to a province may be made where such rationalisation has been completed in such a province.
(d) Any reference in a law to the authority administering such law, shall upon the assignment of such law in terms of paragraph (a) be deemed to be a reference mutatis mutandis to the appropriate authority of the province concerned.
(9) (a) If for any reason a provincial government is unable to assume responsibility within 14 days after the election of its Premier, for the administration of a law referred to in subsection (6)(b), the President shall by proclamation in the Gazette assign the administration of such law to a special administrator or other appropriate authority within the jurisdiction of the national government, either generally or to the extent specified in the proclamation, until that provincial government is able to assume the said responsibility.
(b) Subsection (8) (b) and (d) shall mutatis mutandis apply in respect of an assignment under paragraph (a) of this subsection.
The Respondents' contention was that the administration of the Transition Act had been assigned by the President to competent authorities within the provinces in terms of subsection (8) and that the making of the Proclamations was within the scope of his legislative power under sub-section (8) to "amend and adapt" laws assigned under this section.
[ 67 ] It was not disputed that the President had purported to assign the administration of parts of the Transition Act to "competent authorities" within the provinces. The Applicants disputed, however, that this was sufficient to give validity to the Proclamations. They advanced three arguments in answer to the Respondents' contention. First, that the President did not purport to act under section 235(8) of the Constitution and in the circumstances he cannot rely on any power that he might have had under it. Second, that the Transition Act did not fall within the scope of the President's powers under section 235(8) to assign laws. And last, if the President was entitled to assign the Transition Act under section 235(8) he was not empowered by that section to make Proclamations R 58 and R 59.
[ 68 ] In view of the conclusion to which I have come, it is not necessary to decide whether the President can rely on his powers under section 235(8) even though he did not purport to act in terms of such powers when he made the Proclamations. For the purposes of this judgment, I will assume that this can be done.
[ 69 ] The remaining two questions depend upon the proper construction of section 235 of the Constitution. This section makes provision for the transfer of executive authority from the old order to the new order. This purpose, and the circumstances in which it was known that the transfer would have to take place, provide a contextual background relevant to the construction of the section.
[ 70 ] Under the old order, executive authority in what is presently the national territory, was regulated by laws of different legal and constitutional orders. There was the legislation of the Republic of South Africa which was in force in approximately 87% of the national territory. In the remainder of the national territory there was the legislation of the six self-governing territories, and also the legislation of Transkei, Bophuthatswana, Venda and Ciskei (the TBVC states) which according to South African law were sovereign independent states.
[ 71 ] In the Republic of South Africa executive authority was vested in the State President under section 19 of the 1983 Constitution. It was exercised by the State President himself and by Ministers, Deputy-Ministers, Provincial Administrators, and members of the Executive Councils of the provinces. These were all functionaries of the national government and all held their positions at the discretion of the State President.
[ 72 ] In the self-governing territories executive authority was exercised by Chief Ministers and Ministers. In the TBVC states only Bophuthatswana functioned under a Constitutional form of government at the time the Constitution was adopted. The other three states were ruled by military regimes who made laws by decree. Constitutional government collapsed in Bophuthatswana before the elections took place and the military regime in Ciskei abandoned its control of that territory. The vacuum in these two territories was filled by South African administrators, who also made law by decree.
[ 73 ] The laws in force in different parts of the national territory identified the political functionaries who had responsibility for the implementation of these laws. Under the new constitutional order they would cease to have power, and provision had to be made in the Constitution for the manner in which this responsibility would be transferred from the old order to the new order. The framework of the scheme according to which this object was to be achieved was as follows:
i) All laws in force in any part of the national territory would continue in force subject to repeal or amendment by a competent authority [Section 229].
ii) The political functionaries exercising executive power in different parts of the national territory would retain that power until a President had been elected under the new Constitution and had assumed office [Section 235 (1) and (5)].
iii) Subject to certain conditions not relevant to this case the executive power referred to in (ii) was to be exercised in accordance with the laws previously in existence under the constitutional arrangements previously in force [Section 235(3)].
iv) On the assumption of office by the President elected under the new Constitution executive power would pass from the old functionaries [whose power came to an end at that moment], to the President and Premiers under the new Constitution [Sections 75, 144 and 235(5)].
[ 74 ] There were a number of problems which had to be addressed in order to carry out this scheme:
i) The new Constitution allocates legislative power to parliament and to the provincial legislatures. In terms of section 37 parliament is given legislative competence over the whole of the national territory and in respect of all matters. The legislative competence of the provincial legislatures, dealt with in section 126 of the Constitution, is restricted. They have concurrent competence with parliament in respect of the matters referred to in schedule 6 to the Constitution and their territorial competence is limited to the provincial territory. Section 126(3) makes provision for the way in which any conflict that might arise between national laws and provincial laws in this field of concurrent powers is to be resolved. If there should be such conflict, national laws are given precedence in so far as they meet criteria specified in sections 126(3)(a) to (e) and provincial laws are given precedence in respect of other matters.
ii) The "old laws" had been designed for a different constitutional order. They did not fit the new order territorially, and they vested powers in functionaries who no longer held office and had no precise counterparts under the new constitutional order. They had also been drafted to deal with the powers and functions of legislative bodies which no longer existed and now had to be applied to a different constitutional order in which there were different legislative bodies with different powers and functions. Some of the "old laws" would have dealt with matters which would be within the exclusive competence of parliament, and some with matters which would be within the concurrent competence of the parliament and the provincial legislatures. This distinction could exist not only between different laws, but also within particular laws.
iii) Section 75 of the Constitution provides that:
The executive authority of the Republic with
regard to all matters falling within the legislative competence of Parliament
shall vest
in the President, who shall exercise and perform his or her powers
and functions subject to and in accordance with this Constitution.
The provinces are given executive competence by section 144(2)over:
...all mattes in respect of which such province has exercised its legislative competence, matters assigned to it by or under section 235 or any law, and matters delegated to it by or under any law.
iv) With the possible exception of the Transition Act with which I will deal later, none of the "old laws" vested legislative powers in the nine new provinces. On the other hand the matters dealt with by the "old laws" were within the legislative competence of Parliament which has competence in respect of all matters. Subject to an assignment or delegation of power to the provinces under an old law -- and this calls for consideration later when the terms of the Transition Act are dealt with -- the source of executive power that the provinces have in respect of the "old laws" is the assignment provisions of section 235. In the absence of such provisions executive power under the "old laws", not being provincial laws within the meaning of section 144 of the Constitution, would have vested in the President and would have been administered by functionaries appointed by him.
[ 75 ] The broad scheme under which these problems are dealt with under the Constitution is as follows
i) The old laws remain in force in the parts of the national territory in which they were previously in force until repealed or amended by a competent authority [S229].
ii) They are classified according to the criteria specified in schedule 6 and section 126(3) in order to determine whether the executive authority under such laws should be exercised by a national functionary or a provincial functionary. This is a practical way of arranging for the transfer of executive functions under the old laws to appropriate functionaries under the new constitutional order. It also permits provinces to establish executive government in the fields of their legislative competence without having first to enact laws for that purpose.
[ 76 ] The details according to which the scheme is to be implemented are set out in sections 235(6),(8) and (9). These sub-sections do not seek to classify the laws as laws of Parliament or laws of the provinces. They remain "old laws" in force in parts of the national territory which correspond neither with the national territory nor the provincial territories. What the sub-sections deal with is "the power to exercise executive authority" in terms of such laws.
[ 77 ] What sections 235(6), (8) and (9) seek to accomplish is the allocation of the power to exercise executive authority from the President, in whom such authority vested when he assumed office (section 235 (5)(a)) to the Premiers of the province in whom the executive authority of the provinces is vested under the Constitution. It does this by setting criteria for the identification of the "competent authorities" who for this purpose are defined as follows in sub-section 6(c):
(i) in relation to a law of which the administration is allocated to the national government, an authority designated by the President: and
(ii) in relation to a law of which the administration is allocated to the government of a province, an authority designated by the Premier of the province.
In this way recognition is given to the constitutional status of the President and the Premiers in whom the executive authority of the Republic and the provinces is vested.
[ 78 ] Section 235(6) specifies the criteria according to which the allocations are to be made. The two criteria which are of importance in the present case are:
i) Is the matter one which falls within the functional areas specified in schedule 6.
ii) Is the matter one which is referred to in paragraphs (a) to (e) of section 126.
[ 79 ] The allocation is to be made to a competent authority within the provinces if
i) It is a matter which falls within the functional areas specified in schedule 6; and
ii) it is not a matter referred to in paragraphs (a) to (e) of section 126.
[ 80 ] Sub-sections (8)(a) and (9) cater for a situation in which a province does not have the administrative capacity to carry out the assignment. The Premier of a province can only require the assignment to be made if the administrative capacity to do so exists within the province. If that capacity is not established within fourteen days after the election of the Premier of the province concerned the matter is to be dealt with by "a special administrator or other appropriate authority within the national government" until the provincial government is able to assume that responsibility.
[ 81 ] The laws governing the matters to be assigned had not been designed for the new constitutional order, but provision is made in section 235(8)(b) for the President to amend or adapt the laws in order to deal with this problem.
[ 82 ] This then is the framework provided by section 235 for dealing with the problem of transferring the power to exercise executive authority from the old order to the new order. In respect of some laws it would have been reasonably clear whether the matter was one which was to go to an authority within the province, or to stay under the control of the national government. But there would have been other instances - and the Transition Act is one - in which there is some difficulty in determining how to deal with the matter. In view of the complexity of the process this is not surprising.
[ 83 ] As far as the Transition Act is concerned the difficulties are these. The first is to determine whether or not the Transition Act is a law which falls to be dealt with in terms of section 235(6) of the Constitution, which identifies the laws which are subject to assignment by the President. If it is, the next question is whether it is a law "with regard to matters which fall within the functional areas specified in schedule 6". If it is not, then it did not fall within the powers of assignment given to the President under section 235(8)(a). If it is, then the last question that arises is whether it is a law which deals with "matters referred to in paragraphs (a) to (e) of section 126(3). Such laws, too, are not subject to assignment under section 235(8)(a).
[ 84 ] The overall purpose to be achieved through the application of section 235 is a systematic allocation of the "power to exercise executive authority" in terms of each of the "old laws", to an authority within the national government or authorities within the provincial governments. Sub-section 8(b)(ii) indicates that this authority may be allocated to provincial functionaries in respect of parts of a law and in respect of other parts of the same law, to national functionaries. To achieve this purpose the President is given the power in sub-section 8(b) to amend or adapt the laws to the extent that he considers it necessary "for the efficient carrying out of the assignment". The purpose of this power is clearly to provide a mechanism whereby a fit can be achieved between the old laws and the new order.
[ 85 ] The Transition Act was designed for the new order. It is referred to in section 245 of the Constitution as the law which will regulate the holding of the first elections for local government structures, and its provisions deal with the process to be followed from the time of its enactment (January 1994) until the elections which would only take place after the Constitution came into force. It identifies the functionaries that are to have administrative powers during the pre-constitutional phase and those who are to have such powers after the Constitution has come into force. In this respect it is materially different to other "old laws". What has to be decided is whether this takes it outside the scope of the allocation process that is to take place under section 235.
[ 86 ] Section 235(6) makes provision for the allocation scheme described in that section to apply to "laws which, immediately prior to the commencement of this Constitution, were in force in any area which forms part of the national territory and which in terms of section 229 continue in force". No exceptions or qualifications are made in respect of laws falling within this description. The Transition Act was a law which was in force in the whole of the Republic of South Africa, including the self-governing territories [section 2 of the Transition Act as originally enacted], prior to the coming into force of the Constitution. It did not in terms apply to the TBVC states during this period; if it had purported to do so, then according to South African law then in force, it would have been an exercise in extra-territorial jurisdiction. During the resumed argument counsel for the Applicants and the Respondents were asked whether they were aware of any legislation in the TBVC states incorporating the Transition Act by reference. Neither counsel was in a position to answer this question. Counsel were asked to make enquiries as to whether or not this was the case. On the 15th September this Court was advised in writing by Mr Gauntlett that the Department of Provincial Affairs and Constitutional Development in the government of national unity had made enquiries and to the best of their knowledge there was no such legislation. The Respondents have not sought to contradict this statement. I am not aware of any such legislation and I have dealt with the matter on the basis that prior to the coming into force of the Constitution the Transition Act was in force in part only of what is now the national territory.
[ 87 ] Section 229 provides a constitutional foundation for the continuation of the "old laws" after the coming into force of the Constitution. It is applicable to "all laws ... in force in an area which formed part of the national territory... This would include the Transition Act. In terms, however, the continuity given by section 229 is applicable only to the areas in which such laws were in force prior to the commencement of the Constitution. This means that in terms of section 229 the Transition Act is given post-constitutional validity only in that part of the national territory which was the old Republic of South Africa.
[ 88 ] Reverting to section 235(6), the Transition Act is a law referred to in the preamble to that sub-section. It was in force prior to the commencement of the Constitution in "any area which forms part of the national territory" and it continued to be in force "in terms of section 229". The Transition Act therefore meets the two requirements specified in sub-section (6) for bringing laws within its purview. It therefore meets the qualification for assignment in terms of section 235(8).
[ 89 ] How then is the allocation to be made? Sections 235(6) deals with the power to exercise executive authority and it does so in the context of the administration of laws. The emphasis on administration of laws is repeated in sub-section (8), which also specifies as a pre-condition for any assignment to a provincial functionary, the existence of an administrative capacity within the province concerned to carry out the assignment. Public administration in the transition is dealt with in section 236. What section 235 is concerned with is the capacity of provinces to establish departments of provincial government under political functionaries answerable to the Premiers. Thus in sub-section 6(c) it is specified that the competent authorities must be functionaries designated by the Premiers. And it is to them that the power to exercise executive authority has to be assigned. They assume the political responsibility for the implementation of the laws within their provinces.
[ 90 ] The difficulty that exists in applying the criteria laid down by section 235(6) to the Transition Act, lies not only in the fact that the Act was designed to cater for the post-constitutional period, but also in the fact that section 235(6) is concerned with executive powers at the level of administration, and uses for this purpose, schedule 6 which deals with legislative competence, and paragraphs (a) to (e) of section 126(3) which deal not with legislative competence, but with how conflicts between provincial legislation and national legislation in the realm of Schedule 6 functional areas are to be resolved.
[ 91 ] Accepting as I do that the Transition Act has to be dealt with in accordance with section 235(6), the two questions that are determinative of the allocation to be made must be addressed. First, is it a law which deals with a matter within a functional area referred to in Schedule 6. The emphasis is on functional area and not on legislative capacity. The answer to the question must be yes. The law deals with local government matters which are matters within the functional areas specified in Schedule 6.
[ 92 ] Secondly, does the law deal with matters referred to in sub-paragraphs (a) to (e) of section 126(3)? Only two of these paragraphs are relevant. They are sub-paragraphs (a) and (b).
[ 93 ] Sub-paragraph (a) refers to "a matter that cannot be regulated effectively by provincial legislation". There are such matters in the Transition Act. They are the matters dealt with by section 9(1) and section 12 of the Act which vest powers in the responsible Minister in the national government. But executive authority in respect of such matters was not assigned to provincial functionaries. The other matters dealt with in the Act could be regulated by provincial legislation. They deal with the implementation of the Act at provincial level. Under the Act in the form in which it was when it was enacted, and "continued" under section 229, the Administrator was the Executive Council of the province. It was given the power under section 10(1)(a) of the Act to make enactments "not inconsistent with this Act with a view to the transitional regulation of any matter relating to local government". In terms of section 10(1)(b) this power included the power to amend or repeal any Act of Parliament or legislative assembly of any Self-governing Territory, and in terms of section 10(1)(c) the powers of the Administrator included the power to extend the application of such laws to local government bodies within the province and to adapt such laws for that purpose. It is not necessary to decide whether these powers are inconsistent with the Constitution or whether, because of the reference to the Transition Act in section 245, they enjoy a special status. What they demonstrate is that all the matters dealt with in the sections other than section 9(1) and 12 are to be implemented at provincial level by provincial functionaries with the power to make laws in respect of all such matters. The Act itself tells us that these matters can be regulated effectively by provincial legislation and administered by provincial functionaries and makes provision for that to be done. The fact that the provincial powers are derived from an Act of parliament and not the Constitution, does not alter the character of the matters which are made the subject of provincial legislation. If the Act is amended by a competent authority the matters could possibly be taken out of that category; but at the time the Constitution came into force that had not been done, and the matters remained matters which could be regulated effectively in terms of the Act by means of subordinate provincial legislation.
[ 94 ] Sub-paragraph (b) of section 126(3) refers to a matter "that, to be performed effectively, requires to be regulated or co-ordinated by uniform norms or standards that apply generally throughout the Republic." The sections of the Transition Act in respect of which the power to exercise executive competence was assigned to provincial functionaries dealt with matters which, within the framework of the Act, did not have to be dealt with according to uniform standards. In fact, the Act makes it clear that the Administrators in the different provinces could make their own laws within the prescribed framework, and specifically empowered them to do so.
[ 95 ] We are not concerned in this case with the legislative power to amend the Transition Act; it can be assumed that only Parliament has that power. What we are concerned with is the functionaries to whom executive authority to administer the Act as drafted should be assigned. As long as the Act falls within the scope of section 235(6), and in my view it does, that power must be assigned in accordance with the provisions of that section.
[ 96 ] The assignments that were in fact made were to a functionary designated by the President as far as matters within section 9(1) and 12 were concerned and to functionaries designated by the Premiers as far as other matters were concerned. In my view this was consistent with the scheme laid down by sub-section (6). The administration of the particular matters assigned to the control of functionaries designated by the President were pre-eminently concerned with matters which belonged at national level. The administration of matters assigned to provincial functionaries were all matters which called for action to be taken at provincial level and for decisions in respect of such matters to be taken within the framework of the legislation by provincial functionaries. It was moreover consistent in broad terms with the provisions of the Act itself. The Act which had been drafted with an eye to the future required adaptation in minor respects only. It had to be made applicable to the whole of South Africa, and this was done by Presidential proclamation in terms of section 235(8). The definition of Administrator was changed and became an authority designated by the Premier of a province, and this adaptation was also effected by Presidential proclamation. These amendments do not give rise to any conflict between section 235(8) and section 245. Section 245 refers to the Transition Act, but according to section 232(2)(a) that means the Act as it exists from time to time after any amendment or replacement thereof by a competent authority. This would include amendments or adaptations properly made in terms of section 235(8).
[ 97 ] This detailed analysis of the relevant provisions of the Constitution and their application to the Transition Act is also relevant to the second question. Section 235(8) which empowers the President to amend Acts of Parliament must be construed in the context of the constitutional provision of which it forms part, and as giving the President no greater powers than are necessary for that purpose. Cf., R v Secretary for Social Security, ex Parte Britnell 1991 WLR 198 (HL). The analysis which has been made of the relevant provisions of the Constitution suggests that the power vested in the President in terms of section 235(8) was for the purpose of enabling him to amend or adapt laws to make them fit the new situation. Althought the President is given a subjective discretion in deciding what is or is not necessary, the discretion must be exercised for the purpose of the efficient carrying out of the assignment. The purpose of the power was to enable the President to do what he considered necessary to achieve functional efficiency in the administration of the assigned laws. The legislation could be amended or adapted in so far as it was necessary for that purpose. That was the extent of the President's power. He could not change the laws because he did not like them, or because he felt that they would be more likely with substantive amendments to achieve what he considered to be the objects of the legislation.
[ 98 ] In his affidavit filed in these proceedings the President states that he considered the amendments effected by the Proclamations as necessary for the efficient carrying out of the assignment of the administration of the Transition Act to competent authorities within the jurisdiction of the provinces. The inefficiency to which he refers was not a functional inefficiency arising out of the assignment that had been made; it was an inefficiency resulting from a weakness in the checks and balances prescribed by the Act, which enabled a Provincial Executive Council to avoid referring disputed issues of demarcation to the Special Electoral Court by the simple expedient of changing the composition of the Provincial Committee. This weakness was only discerned when the Committee of the Western Cape was reconstituted in the circumstances which have previously been described. The amendments made to the Act under the Proclamations were not necessary to make the Act fit the new Constitutional order. The inefficiency in the Act that they sought to address is not the sort of inefficiency contemplated by section 235(8). The changes which were made by the Proclamations were therefore outside the scope of the powers vested in the President by section 235(6) of the Act. In fact the President did not purport to act under section 235(8) when he made Proclamations R 58 and R 59. He acted under section 16A. If that section is invalid the powers conferred on the President under section 235(8) are not sufficiently wide to provide a source of power on which reliance can now be placed.
Declaration of Invalidity
[ 99 ] We have said previously that our role as Justices of this Court is not to "second guess" the executive or legislative branches of government or interfere with affairs that are properly their concern. We have also made it clear that we will not look at the Constitution narrowly. Our task is to give meaning to the Constitution and, where possible, to do so in ways which are consistent with its underlying purposes and are not detrimental to effective government. The issues raised in the present case are, however, of fundamental importance. They concern the powers of Parliament and how it is required to function under the Constitution. They concern also the validity of executive proclamations issued by the President which are intended to have the force of law. Constitutional control over such matters goes to the root of a democratic order. Adherence to the prescribed forms and procedures and insistence upon the executive not exceeding its powers are important safeguards in the Constitution. Section 16A was specifically authorised by Parliament and proclamations under that section were issued in consultation with and had the approval of the relevant committees of both houses of Parliament. The proclamations were tabled in Parliament and could have been invalidated by resolution, and no such resolution was passed. Yet, what was done, is inconsistent with what is required by the Constitution.
[ 100 ] Constitutional cases cannot be decided on the basis that Parliament or the President acted in good faith or on the basis that there was no objection to action taken at the time that it was carried out. It is of crucial importance at this early stage of the development of our new constitutional order, to establish respect for the principle that the Constitution is supreme. The Constitution itself allows this Court to control the consequences of a declaration of invalidity if it should be necessary to do so. Our duty is to declare legislative and executive action which is inconsistent with the Constitution to be invalid, and then to deal with the consequences of the invalidity in accordance with the provisions of the Constitution.
[ 101 ] Despite differences in their reasoning, the members of this Court are unanimous in their conclusion that, by virtue of their inconsistency with the Constitution, the provisions of section 16A of the Local Government Transition Act are invalid. The Court has further, by a majority of 9 to 2, come to the conclusion, though for different reasons, that Proclamations R 58 and R 59 of 1995, which were purportedly promulgated under the provisions of section 16A of the Transition Act, cannot be validated under the provisions of section 235 of the Constitution. In the result an order has to be made declaring that Section 16A of the Transition Act is inconsistent with the Constitution.
Sections 98(5) and 98(6) of the
Constitution
[ 102 ] The conclusion that section 16A of the Transition Act is inconsistent with the Constitution has consequences which go far beyond the fact that the Proclamations will be invalidated. Although the other proclamations made under section 16A are not in issue in the present proceedings, this finding of invalidity cannot be ignored. The Proclamations depend on section 16A for their validity. If section 16A is invalid, so are they. In practical terms this means that every step taken in preparation of the local government elections pursuant to those proclamations will be invalidated. Unless this can be rectified, the local government elections cannot proceed, as planned, on 1st November.[15]
[ 103 ] Sections 98 (5) and 98(6) of the Constitution provide:
98 (5) In the event of the Constitutional Court finding that any law or any provision thereof is inconsistent with this Constitution, it shall declare such law or provision invalid to the extent of its inconsistency: Provided that the Constitutional Court may, in the interests of justice and good government, require Parliament or any other competent authority, within a period specified by the Court, to correct the defect in the law or provision, which shall then remain in force pending correction or the expiry of the period so specified.
98 (6) Unless the Constitutional Court in the interests of justice and good government orders otherwise, and save to the extent that it so orders, the declaration of invalidity of a law or a provision thereof -
a) existing at the commencement of this Constitution, shall not invalidate anything done or permitted in terms thereof before the coming into effect of such declaration of invalidity; or
b) passed after such commencement, shall invalidate everything done or permitted in terms thereof.
[ 104 ] The implications of section 98(6) are that if section 16A is declared to be invalid all the proclamations issued under it and everything done pursuant to those proclamations will as a matter of constitutional law, be invalidated unless an order to the contrary is made by this Court.
[ 105 ] Section 98(6) entitles a court that declares a law to be invalid to direct that "anything" done or permitted in terms of such law shall not be invalidated. Taken literally this may be wide enough to be applicable to Proclamations having the force of law, issued under a law declared to be invalid. In my view, however, there must at least be some doubt whether the section should be construed in this way. The section is capable of being construed more narrowly to refer only to acts performed, and not laws made, under an invalid law. But even if the word "anything" is given a wide meaning to encompass the giving of validity to legislation made under an invalid law, it will seldom, if ever, be appropriate to use this power to validate amendments made to Acts of Parliament. It is logically inconsistent to strike down the empowering legislation, and at the same time, to validate Proclamations made under it, which will have the result that the things validated -- laws which should be made only by Parliament -- will apply not only to the past, but to the future as well. This is a task for Parliament and not for the Court.
[ 106 ] Section 98 (5) permits this Court to put Parliament on terms to correct the defect in an invalid law within a prescribed time. If exercised, this power has the effect of making the declaration of invalidity subject to a resolutive condition. If the matter is rectified, the declaration falls away and what was done in terms of the law is given validity. If not, the declaration of invalidity takes place at the expiry of the prescribed period, and the normal consequences attaching to such a declaration ensue. In the present case that would mean that Section 16A and everything done under it would be invalidated.
[ 107 ] The powers conferred on the Courts by sections 98(5) and (6) are necessary powers. When the Constitution came into force there were many old laws on the statute book which were inconsistent with the Constitution. If all of them were to have been struck down and all action taken under them declared to be invalid there could have been a legislative vacuum and chaotic conditions. Sections 98 (5) and (6) enable the Court to regulate the impact of a declaration of invalidity and avoid such consequences. There may also be situations in which it is necessary for the Court to act to avoid or control the consequences of a declaration of invalidity of post-constitutional legislation where the result of invalidating everything done under such legislation is disproportional to the harm which would result from giving the legislation temporary validity. The need for the Courts to have such a power has been recognised in other countries. In Canada for instance where no provision is made specifically in the Constitution for such powers, the Courts have achieved this result by suspending an order invalidating a statute for sufficient time to allow Parliament to take remedial action. Se
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