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CONSTITUTIONAL COURT OF SOUTH AFRICA
YNUICO
LIMITED Applicant
versus
MINISTER OF TRADE AND INDUSTRY First
Respondent
DIRECTOR-GENERAL, TRADE AND INDUSTRY Second
Respondent
GOVERNMENT OF THE REPUBLIC OF Third Respondent
SOUTH
AFRICA
TEA COUNCIL OF SOUTHERN AFRICA Fourth Respondent
(PROPRIETARY)
LIMITED
Heard on 12 March 1996 Case CCT 47/95
Decided on 21
May 1996
J U D G M E N T
DIDCOTT
J:
[1] This matter has come before us as the sequel to an
application which was lodged in the Transvaal Provincial Division of the
Supreme
Court, where Van Dijkhorst J dealt with it. The judgment that he delivered in
adjudicating on the proceedings there has
been reported
[1]. It tells their story fully and
in detail, describing the background to the case, reciting its facts, indicating
the relief which
was sought then, summarising and discussing the contentions
that had been advanced in support of and in opposition to the claim
for
such, furnishing and explaining the conclusions
reached by the Court on
them, and ending with the orders which eventually ensued. All that history is
obtainable from the report
and none of it needs to be repeated now, besides the
few parts that I shall proceed at once to highlight.
[2] By one of
those orders, which was granted under section 102(1) of the interim
Constitution (Act 200 of 1993), Van Dijkhorst
J referred to us and sought our
ruling on the question “whether section 2(1)(b) of the Import and Export
Control Act (No
45 of 1963) is constitutional and valid”. Section
2(1)(b) decrees that:
“The Minister may, whenever he deems it necessary or expedient in the public interest, by notice in the Gazette prescribe that no goods of a specified class or kind or no goods other than goods of a specified class or kind ... shall be imported into the Republic, except under the authority of and in accordance with the conditions stated in a permit issued by him or by a person authorized by him.”
The Minister thus mentioned, the one now cited as
the first respondent, exercised the power gained from the section by causing
Government
Notice R2582 to be published in the Gazette on 23 December 1988. It
prohibited the importation into South Africa, without a permit,
of various
commodities which it listed. They included tea. Both the section and the
provisions of the notice relating to tea
are still in operation. The
applicant does business in this country as a supplier of tea. It has been
refused a permit to import
tea from a foreign source prior to its purchasing a
percentage of the domestic product that satisfies the requirements protecting
local growers which the trade imposes on all such merchants pro
rata.
[3] The applicant’s counsel contended in the Court below
that section 2(1)(b) was incompatible with sections 24 and 26(1) of
the
Constitution. It clashed with section 26(1), he maintained, by empowering the
Minister to invade the right to free economic
activity which was guaranteed
there. It also fell foul of section 24, he added, because the power
conferred on the Minister was
insufficiently defined and circumscribed to meet
the standards of lawful administrative action which that section set. The
arguments
were advanced, as the judgment of Van Dijkhorst J shows, in order to
demonstrate the prospect that was then envisaged of our holding
section 2(1)(b)
to be unconstitutional on those grounds. In the event, however, counsel
persisted with neither contention in
this Court. Indeed he disavowed,
unequivocally and repeatedly, all reliance here on either. He did not tell us
the reason for
his retreat, whether the doubts which his side apparently
entertained by that stage had to do with the effect of the rights asserted
previously or with their limitation under section 33(1) of the Constitution.
But the explanation does not matter. The abandonment
of the points, whatever
accounted for that, has made it unnecessary for us to consider those now, and
unwise too when the result
was that we heard no argument on them. The issues
thus raised had better therefore be left open until some future occasion arrives
when we have to decide them and they are thoroughly explored.
[4]
Before us counsel concentrated instead on, and confined his client’s case
to, a third attack launched on section 2(1)(b).
It invoked no fundamental right
proclaimed and protected by chapter 3 of the Constitution, but concerned the
topic of legislative
power and was based on section 37 of that charter, which
declares 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 gist of the argument
which counsel presented on the ostensible strength of section 37 was this. The
section entrusted Parliament,
and Parliament alone, with plenary legislative
power. Neither there nor elsewhere did the Constitution allow Parliament to
surrender
or transfer any portion of that omnipotence to a Minister. Such a
surrender or transfer was consequently unconstitutional. Yet
for so much, in
effect, section 2(1)(b) provided. For it gave the Minister carte blanche
in empowering him to legislate within the area that it demarcated. No objective
guidelines or criteria for his exercise of the power
were prescribed. Nor was
its exercise limited by aught but the condition that he believed the fiat which
he had in mind to be “necessary
or expedient in the public
interest”, a restriction so general, so indefinite and so subjective that
it amounted to none in
either substance or worth.
[5] A question that
calls for no answer at present is how an attack like that would have fared had
it been aimed at a similar
delegation of legislative power which was sanctioned
by a statute passed after the Constitution came into force on 27 April 1994,
or
even at the exercise of a comparable power delegated earlier but wielded later
than that date. The question does not arise in
this case, where the power
bestowed on the Minister was both delegated to and exercised by him before the
Constitution entered the
picture, the enactment of the statute containing
section 2(1)(b) and the publication of the notice issued under it having each
preceded
that event.
[6] The chronology is crucial because it means, in
my opinion, that section 37 has no bearing on the matter. The section, as I
construe
it, deals with the location and source of legislative power solely from
the time when the Constitution began to operate, leaving
untouched the state of
affairs that prevailed previously. That it cannot rightly be interpreted
otherwise is clear, I am satisfied,
from both its text and its context. Its
predominant verbs speak in the future tense and accordingly with reference to
the future.
It talks about Parliament, which the section immediately preceding
it identifies as the Parliament consisting of “the National
Assembly and
the Senate”, a description that does not cover our old and defunct
legislature but fits only the reconstructed
one. The setting in which all those
features are seen is chapter 4, a cluster of sections that refer unmistakably to
the new Parliament
alone when they fix its duration and regulate elections to
its membership. And the power to legislate “in accordance with this
Constitution” which the section grants can hardly be attributed to an
earlier Parliament that was about to die when the Constitution
took effect.
Counsel’s latest contentions therefore rested on a foundation which had no
substance[2].
[7] Section
2(1)(b) and the ensuing notice were products of an era when the reign of
Parliament was subject substantively to no constitutional
discipline or control.
In exercising the sovereignty which it thus enjoyed Parliament could competently
confer on a Minister or somebody
else whatever legislative powers it chose to
assign to him,
including plenary ones, and it did so not infrequently. Of
the instances that spring to mind the most notorious was probably the
occasion
when the Native Administration Act (No 38 of 1927) appointed the
Governor-General as the “Supreme Chief” of
those whom it called
“natives” and equipped him with a power to legislate for them which
was virtually absolute. That
provision has become a dead letter by now and will
no doubt be removed from the statute book in due course. Still active there,
however, are plenty of others less anachronistic which authorised the delegation
of legislative power in terms quite as broad as
and no less consequential than
the ones of section 2(1)(b). Their current status, shared with the rest of the
statutory survivors,
has been settled by section 229 of the Constitution, which
stipulates in its relevant parts that:
“Subject to this Constitution, all laws which immediately before
the commencement of this Constitution were in force... shall continue in force..., subject to any repeal or amendment of such laws by a competent authority.”
The explanation for that was
obviously the impracticality of dismantling all our old statutory law in one
fell swoop when nothing
had yet been constructed to replace it, a treatment
which would have thrown the governmental, administrative and economic
infrastructure
and functioning of the country into immediate chaos. Those who
cannot readily imagine that the framers of the Constitution intended
even in the
interests of stability to perpetuate measures of the particular kind now under
discussion should remind themselves of
something else, of a flaw much worse and
more fundamental in every statute then in force which was nevertheless thought
not to disqualify
it from retention. I refer, of course, to its enactment by
a Parliament that had been elected undemocratically and was not representative
of all our people. The genesis of a statute and its contents give rise, to be
sure, to conceptually separate criticisms. It seems
scarcely surprising all the
same that, having swallowed the camel of illegitimate origin, those concerned
saw no need to strain
at the gnat of unbridled delegation. Nor do we in turn
have any reason to shrink from attaching to the words of section 229 their
natural and ordinary meaning. Its only word that looks like calling for some
comment is “laws”. Section 2(1)(b) amounts
to a “law”
as defined in section 2 of the Interpretation Act (No 33 of 1957). So does the
notice, given its regulatory
character. Section 229 contains nothing which
indicates that “laws” are mentioned there in a sense different from
the
one thus defined. Both section 2(1)(b) and the notice are therefore
“laws” for the purposes of section 229. The result
is that it has
preserved each of them.
[8] In stating that I have not overlooked the
qualification expressed in the opening words of section 229, according to which
the
continued force of the old laws that it perpetuates is “subject to
this Constitution”. Miller JA analysed and discussed
such qualifications
in S v Marwane[3], saying about
the phrase “subject to the provisions of this Constitution” which
appeared in the Constitution of Bophuthatswana:
“The purpose of the phrase ‘subject to’ in such a context is to establish what is dominant and what subordinate or subservient; that to which a provision is subject is dominant - in case of conflict it prevails over that which is subject to it. Certainly, in the field of legislation, the phrase has this clear and accepted
connotation. When the legislator wishes to convey that that which is now being enacted is not to prevail in circumstances where it conflicts, or is inconsistent or incompatible, with a specified other enactment, it very frequently, if not almost invariably, qualifies such enactment by the method of declaring it to be ‘subject to’ the other specified one.”
Trengove AJ quoted that passage with
approval in Zantsi v Council of State, Ciskei, and
Others[4]. Continuing, Miller JA
cited the judgment delivered in C and J Clark Ltd v Inland Revenue
Commissioners[5], where Megarry J
had remarked:
“In my judgment, the phrase ‘subject to’ is a simple provision which merely subjects the provisions of the subject subsections to the provisions of the master subsections. Where there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail.”
The effect of the qualification
encountered at the beginning of section 229 can easily be illustrated in the
light of that analysis.
No perpetuated law is immune to subsequent
nullification once it violates a fundamental right entrenched in chapter 3, the
dominant
part. It remains open to attack on those grounds notwithstanding its
preservation by section 229, the subordinate one. Indeed we
have already struck
down a number of preserved laws on that very score. Others may lend themselves
to constitutional challenges
that lie outside chapter 3. No extra challenge
occurs to me at present. But I shall assume, without deciding, that some are
duly
cognizable.
[9] Counsel seized on the qualification introducing
section 229 and set out from that point on an alternative route which approached
section 37 indirectly this time. It passed through section 4(1) of the
Constitution, which ordains that:
“This Constitution shall be the supreme law of the Republic and any law... inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force or effect to the extent of the inconsistency.”
The
destination then reached was this. Section 37 enunciated a cardinal
constitutional value, so counsel argued, even if it did not
apply in its terms
to the situation preceding the operation of the Constitution. For the reasons
mentioned earlier section 2(1)(b)
was inconsistent with that value, and
accordingly with section 37. It followed that section 4(1) deprived section
2(1)(b) of all
force and effect.
[10] I see no merit in that argument
either. The pair of judgments to which I have referred demonstrate that, before
one provision
can rank as dominant over or subordinate to another, there must be
a conflict, an inconsistency or an incompatibility between them,
as Miller JA
put it, or the clash or collision of which Megarry J spoke synonymously. None
emerges here. Section 37 goes no further,
on my reading of it, than the limited
distance measured already by me. It and section 229 have separate fields of
operation and
deal with different topics, the former looking only to the future
and governing legislative power there alone, the latter focussing
on the past
and preserving the statutory legacy of that. Nor, once the two sections are
thus reconciled
with each other, can any inconsistency be found between
section 37 and section 2(1)(b). The applicant then gains no assistance from
section 4(1), which specifies such disharmony as the very cause of nullity.
[11] A third attempt at bringing section 37 to bear on the case for the
applicant was ventured when counsel took yet another alternative
tack. Since
the Constitution came into force, he contended, our new Parliament had tacitly
voted in favour of section 2(1)(b), or
likewise adopted its provisions, by
neither repealing nor suitably amending them. The contention depended on the
idea propounded
by him that an acquiescent silence could well be a factor no
less legally telling in the work of Parliament than it sometimes became
in the
world of contracts. That proposition strikes me as a most extraordinary one.
It implies that Parliament’s power to
legislate can be exercised by not
legislating. In their significance it equates Parliamentary debates on
legislative proposals,
and their culmination in the due consideration of those,
with a total lack of both. And a positive decision gets imputed to Parliament
in ignorance of what it would have actually decided on applying its mind to the
matter. The notion is untenable.
[12] The applicant’s case must
therefore fail on all its individual counts. In the result an order is now made
in the terms
that follow.
(a) Section 2(1)(b) of the Import and Export Control Act (No 45 of 1963) is declared not to be inconsistent with section 37 of the interim Constitution (Act 200 of 1993), and therefore not to be invalid on the score of any such inconsistency.
(b) The applicant is directed to pay the costs of the proceedings in this Court, including those incurred by each respondent which were occasioned by his or its employment of the services of two counsel.
(c) The case is remitted to the Transvaal Provincial Division of the Supreme Court for the determination by it of any issue in the matter that remains to be resolved, including the question of the costs previously incurred there which it reserved for the decision of this Court or, in the absence of that, for its own future decision.
Chaskalson P, Mahomed DP, Ackermann J,
Kentridge AJ, Kriegler J, Langa J, Madala J, Mokgoro J,
O’Regan J and
Sachs J concurred in the judgment of Didcott
J
Counsel for the applicant : N Singh SC, with him K Govender,
instructed by Asif Essa and Co.
Counsel for the first, second J L
van der Merwe SC, with him N J Louw, and third respondents : instructed by PRT
Rudman Attorneys.
Counsel for the fourth respondent : D M Fine SC,
with him D B Spitz, instructed by Jowell, Glynn and Marais
Inc.
.
[1] 1995 (11) BCLR 1453 (T).
[2]Marais J rejected similar contentions and reached the same conclusion in an unreported judgment delivered by him on 28 September 1995 in S v Coetzee and Others, a case heard in the Witwatersrand Local Division of the Supreme Court which was numbered 70/92.
[3]1982(3) SA 717 (A) at 747 H to 748A.
[4]Paragraph [27]: 1995(4) SA 615 (CC) at 624 F; 1995 (10) BCLR 1424 (CC) at 1434 H-J.
[5][1973]2 All ER 513 (Ch D) at 520 e-f.
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