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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT
37/96
CERTIFICATION OF THE AMENDED TEXT OF THE
CONSTITUTION OF THE
REPUBLIC OF SOUTH AFRICA, 1996
Heard on: 18, 19 and 20 November
1996
Delivered on: 4 December
1996
JUDGMENT
THE
COURT:
INTRODUCTION
[1] South Africa is currently functioning
under an interim constitution (the
“IC”)[1] that, among other
things, prescribes how the country’s final constitution is to come into
being.[2] Three of the essential
steps of that constitution-making process are that (i) the Constitutional
Assembly (the “CA”)[3] has
to adopt the new constitutional text by a two-thirds
majority,[4] (ii) such text must
comply with a prescribed set of Constitutional Principles
(“CPs”),[5] and (iii) it
can come into force only once this Court has certified that it indeed so
complies.[6]
[2] Pursuant to
those provisions of the IC, the CA adopted a new constitutional text (the
“NT”) with the requisite majority
in May 1996 and transmitted it to
this Court for certification. After an extensive enquiry we delivered a
judgment (the “Certification Judgment” or
“CJ”)[7] in which
we traced the background to the creation of the IC, and analysed the role and
meaning of the CPs. We also explained the
nature, purpose and scope of our
certification function, described how we had gone about performing that task and
set out the reasons
for our conclusions. In the event we withheld certification
of the NT for reasons we ultimately expressed in the following terms:
“A. CONCLUSION
It is therefore our conclusion that the following provisions of the NT do not comply with the CPs:
. NT 23, which fails to comply with the provisions of CP XXVIII in that the right of individual employers to engage in collective bargaining is not recognised and protected.
. NT 241(1), which fails to comply with the provisions of CP IV and CP VII in that it impermissibly shields an ordinary statute from constitutional review.
. NT sch 6 s 22(1)(b), which fails to comply with the provisions of CP IV and CP VII in that it impermissibly shields an ordinary statute from constitutional review.
. NT 74, which fails to comply with -
CP XV in that amendments of the NT do not require ‘special procedures involving special majorities’; and
CP II in that the fundamental rights, freedoms and civil liberties protected in the NT are not ‘entrenched’.
. NT 194, which fails in respect of the Public Protector and the Auditor-General to comply with CP XXIX in that it does not adequately provide for and safeguard the independence and impartiality of these institutions.
. NT 196, which fails to comply with -
CP XXIX in that the independence and impartiality of the PSC is not adequately provided for and safeguarded; and
CP XX in that the failure to specify the powers and functions of the Public Service Commission renders it impossible to certify that legitimate provincial autonomy has been recognised and promoted.
. NT ch 7, which fails to comply with -
CP XXIV in that it does not provide a ‘framework for the structures’ of local government;
CP XXV in that it does not provide for appropriate fiscal powers and functions for LG;
and CP X in that it does not provide for formal legislative procedures to be adhered to by legislatures at LG level.
. NT 229, which fails to comply with CP XXV in that it does not provide for ‘appropriate fiscal powers and functions for different categories of local government’.
. To the extent set out in this judgment the provisions relating to the powers and functions of the provinces fail to comply with CP XVIII.2 in that such powers and functions are substantially less than and inferior to the powers and functions of the provinces in the IC.
We wish to conclude this judgment with two observations. The first is to reiterate that the CA has drafted a constitutional text which complies with the overwhelming majority of the requirements of the CPs. The second is that the instances of non-compliance which we have listed in the preceding paragraph, although singly and collectively important, should present no significant obstacle to the formulation of a text which complies fully with those requirements.
B. ORDER
We are unable to and therefore do not certify that all of the provisions of the Constitution of the Republic of South Africa, 1996 comply with the Constitutional Principles contained in schedule 4 to the Constitution of the Republic of South Africa Act 200 of 1993.”[8]
[3] The
CA, acting in accordance with the provisions of section 73A(2) of the
IC,[9] reconvened and in due course
passed an amended text of the new constitution (the “AT”) which not
only addressed the grounds
for non-certification set out in the Certification
Judgment, but also effected many editorial and other minor changes to the
NT. On 11 October 1996 the AT was passed by more than the requisite
majority in
the CA and its Chairperson duly transmitted the text to this Court for
certification.
[4] This Court is now required to examine afresh whether
the AT complies with the CPs. That is what section 73A(1), (2) and (3) read
with section 71(2) of the IC
dictate.[10] Nevertheless we could
not ignore what had gone before. In particular we had to approach the present
certification exercise in the
context of the CJ. There we identified
specific features of the NT that did not, in our view, comply with the CPs and
gave detailed reasons for that
view. The CA for its part was obliged to take
those reasons into account in drafting the
AT.[11]
[5] Upon receipt of
the request for certification the Court issued directions, similar to those
given for the previous certification
proceedings,[12] relating to the
receipt of written submissions from the public, the political parties entitled
to be represented in the CA and the
CA itself. The Court also directed the CA
to publish the directions of the Court as widely as possible and to make copies
of the
AT freely available. The Court subsequently issued further directions
indicating a hearing schedule, to commence on 18 November
1996.
[6] Although the two certification exercises are in principle the
same, there is one significant difference that should be highlighted.
It
relates to the approach to be adopted to certain categories of objections. It
is of course open to any objector to certification
of the AT to raise an issue
not considered before, or to contend that we erred in certifying some or other
provision of the NT which
is repeated in the AT. That is implicit in the
mandate given to the Court to measure the AT, ie the text as a whole, against
the
CPs, read both singly and
cumulatively.[13] Nevertheless the
proponent of such a contention has a formidable task.
[7] This is so for
a number of reasons. In the first instance the previous certification exercise
was conducted in the light of very
extensive written and oral submissions
emanating not only from political parties represented in the CA and the CA
itself, but also
from the broad spectrum of South African society as a
whole.[14] It is, of course,
possible that some important feature was overlooked, notwithstanding the
comprehensive nature of those submissions,
the thoroughness with which they were
argued and the Court’s earnest endeavour to leave no stone unturned. But
that, we believe,
is unlikely.
[8] By like token it is possible that we
erred in our analysis of an objection and wrongly concluded that the provision
of the NT
to which it was directed complied with the CPs. Many of the questions
raised at the time were difficult and we have no claim to
infallibility.
Nevertheless we cannot vacillate. The sound jurisprudential basis for the
policy that a court should adhere to its
previous decisions unless they are
shown to be clearly wrong is no less valid here than is generally the case.
Indeed, having regard
to the need for finality in the certification
process[15] and in view of the
virtually identical composition of the Court that considered the questions
barely three months ago, that policy
is all the more desirable
here.
[9] Furthermore the procedure prescribed by s 73A of the IC clearly
contemplates interaction between the CA and this Court in relation
to the
amendment of a constitutional text found not to comply with the CPs. Subsection
73A(1) obliges the Court to give the CA “the
reasons for its
finding” of non-compliance, while the succeeding subsection requires the
CA to pass an amended text “taking
into account the reasons of the
Constitutional Court”. We accordingly tried to make plain in the
CJ precisely in what respects - and why - we found that the NT failed to
measure up to the CPs. And it was probably also the reason
why the AT bears
every sign that the CA took the CJ as the blueprint for amending the
NT.
[10] At the same time we were mindful, during both the previous
deliberations and again now, that the finality of
certification[16] demanded and
demands that we make assurance doubly sure. We have therefore carefully
examined each contention advanced in opposition
to certification during these
proceedings, irrespective of whether it corresponds with an objection dismissed
in the CJ.
[11] Only two of the political parties entitled to be
represented in the CA, the Democratic Party (“DP”) and the Inkatha
Freedom Party (“IFP”), lodged written submissions objecting to
certification. The National Party, the largest opposition
party in the CA and
an objector during the previous certification proceedings, formally advised us
that it did not intend objecting
to certification of the AT. The province of
KwaZulu-Natal (“KZN”)and eighteen private individuals and interest
groups
also lodged written submissions regarding
certification.[17] The CA in turn
filed written submissions in support of certification. The DP, the IFP, KZN and
the CA presented oral argument at
the hearing, which continued for some two and
one-half days. Although their respective written submissions were not
co-extensive,
the IFP made common cause with KZN at the hearing and was
represented by the same advocate, who made one set of submissions on behalf
of
both his clients. In what follows such argument will therefore simply be
ascribed to KZN.
[12] We have now had an opportunity to study all the
written submissions and oral arguments advanced in opposition to certification
of the AT and those presented on behalf of the CA. The nature of the renewed
certification exercise, the extent and limits of this
Court’s functions
and the manner in which we have performed that duty remain as before.
Consequently we do not repeat all
that has been said in that regard in the
CJ (and use the same abbreviations and mode of citation as in the
CJ).[18] We do consider it
advisable though, to repeat and emphasize one paragraph of the CJ, which
applies with equal force to the certification of the AT, paragraph 27:
“First and foremost it must be emphasised that the Court has a judicial and not a political mandate. Its function is clearly spelt out in IC 71(2): to certify whether all the provisions of the NT comply with the CPs. That is a judicial function, a legal exercise. Admittedly a constitution, by its very nature, deals with the extent, limitations and exercise of political power as also with the relationship between political entities and with the relationship between the state and persons. But this Court has no power, no mandate and no right to express any view on the political choices made by the CA in drafting the NT, save to the extent that such choices may be relevant either to compliance or non-compliance with the CPs. Subject to that qualification, the wisdom or otherwise of any provision of the NT is not this Court’s business.”
[13] The scope of the current exercise is
considerably narrower than before and permits of more focused discussion. We do
so under
the following main headings:
The Bill of Rights
Amendments to
the Constitution
Local Government
Transitional Provisions
Traditional
Monarch
Intervention Permitted by AT 100
Public Protector, Auditor-General and the Public Service Commission
Compliance with CP XVIII.2
[14] It will be
observed that the list of topics we discuss does not include all of the
objections and submissions listed in Annexure
1. As in the case of the previous
certification exercise[19] we do not
consider it necessary, or indeed desirable, to address in this judgment each and
every contention advanced. We have studied
all of them. Those that invoke
substantive issues we have not previously treated, or that raise contentions
covered by the oral
or written submissions on behalf of the DP and KZN are dealt
with in the course of this judgment. The balance raise issues that
were
considered and disposed of in the previous
proceedings,[20] or that concern
matters that have no bearing on compliance with the
CPs,[21] or voice concerns that are
properly within the province of the CA’s political
judgment.[22]
[15] Inasmuch
as this judgment is concerned with certification of the AT, we do not deal with
grounds for non-certification of the
NT that have been rectified by the CA. It
is evident from a comparison of the AT with the NT that the CA indeed
conscientiously
addressed the shortcomings we identified in the
CJ[23] and made a concerted
effort to rectify them. Whether it succeeded in that endeavour is, of course,
the substantive question discussed
in this judgment. But it should be noted
that many of the original grounds for non-certification have so clearly been
eliminated
by the reformulation produced by the CA that no renewed objection
could be raised. Thus major areas of contention have been removed.
There is no
longer any sustainable ground for objection to the constitutional provisions
relating to labour relations (NT
23);[24] the shielding of ordinary
legislation from constitutional scrutiny (NT 241, and NT sch 6 s
22(1)(b));[25] safeguarding the
independence and impartiality of the Public Protector and the Auditor-General
(NT 194);[26] and the taxing powers
and legislative procedures of local government (NT 229 and NT Ch
7).[27]
[16] We now deal in
turn with each of the topics mentioned in paragraph 13 above.
THE BILL
OF RIGHTS
Freedom of Trade, Occupation and Profession
[17] An
objection, made by the Black Sash Trust, that was not raised before relates to
AT 22 (a verbatim repetition of NT 22), the
relevant part of which
provides:
“Every citizen has the right to choose their trade, occupation or profession freely.”
The contention is that the right of
occupational choice extended to citizens by AT 22 is a “universally
accepted fundamental
right” which should be extended to everyone, ie
irrespective of citizenship, in order to comply with CP II. The objection
is
foundationally flawed and it serves little purpose to cite, as the objector
does, examples in international human rights instruments
ostensibly extending
the right of occupational choice to citizens and non-citizens alike. We say
“ostensibly” because
the instruments cited do not upon proper
analysis bear such an unqualified meaning.
[18] The European Convention
for the Protection of Human Rights and Fundamental Freedoms embodies no such
right to occupational choice.[28]
Nor does the International Covenant on Civil and Political Rights
(“ICCPR”). Article 12.4 of the ICCPR provides that
“[n]o one
shall be arbitrarily deprived of the right to enter his own country”. The
right, in terms of the ICCPR, to
enter a particular country is accordingly
reserved for nationals only. This would reserve to States Parties the right to
regulate
nationality, citizenship or naturalization. There does not appear to
be anything in these instruments which would prohibit States
Parties when
regulating these matters from imposing suitable conditions, which would not
otherwise conflict with the instruments,
limiting the rights of non-nationals in
respect of freedom of occupational
choice.[29]
[19] Article 6.1
of the International Covenant on Economic, Social and Cultural Rights
(“ICESCR”) ostensibly recognises
the right of
“everyone” to “the opportunity to gain his living by work
which he freely chooses or accepts”.
But this right would be subject to
what has been said in the preceding paragraph. Even more important is the fact
that Article
2.3 of ICESCR itself allows developing countries “with due
regard to human rights and their national economy” to “determine
to
what extent they would guarantee the economic rights recognized in the present
Covenant to non-nationals”. It is subject
to the even broader
qualification in article 2.1 which makes it clear that the right in question is
not fully enforceable immediately,
each State Party only binding itself
“to the maximum of its available resources” to “achieving
progressively the
full realization of the rights recognized in the present
Covenant”. In no way do we intend to denigrate the importance of
advancing and securing such rights. We merely point out that their nature and
enforceability differ materially from those of other
rights.
[20] The
European Social Charter part I(1) which states that “[e]veryone shall have
the opportunity to earn his living in an
occupation freely entered upon”
must be evaluated in the same light. The introduction to part I makes clear
that the obligation
on Contracting Parties in respect of this right goes no
further than “accept[ing] as the aim of their policy, to be pursued
by all
appropriate means, both national and international in character, the attainment
of conditions in which the following rights
and principles may be effectively
realised”.[30] The
instruments discussed do not support the proposition that non-citizens are
entitled to be treated on the same footing as citizens
in regard to the freedom
of occupational choice.
[21] This distinction is in fact recognised in
the United States of America[31] and
also in Canada.[32] There are other
acknowledged and exemplary constitutional democracies where the right to
occupational choice is extended to citizens
only, or is not guaranteed at all.
One need do no more than refer to
India,[33]
Ireland,[34]
Italy[35] and
Germany.[36] CP II, as we made
plain in the CJ, requires inclusion in a bill of rights of “only
those rights that have gained a wide measure of international acceptance as
fundamental human rights”.[37]
The fact that a right, in the terms contended for by the objector, is not
recognised in the international and regional instruments
referred to and in a
significant number of acknowledged constitutional democracies is fatal to any
claim that its inclusion in the
new South African Bill of Rights is demanded by
CP II. It follows that the objection must be rejected.
Civil
Society
[22] CP XII requires that:
“Collective rights of self-determination in forming, joining and maintaining organs of civil society, including linguistic, cultural and religious associations, shall, on the basis of non-discrimination and free association, be recognised and protected.”
[23] Counsel for KZN contended that
this CP has not been complied
with.[38] He referred to AT
31,[39] which protects the right of
persons belonging to cultural, religious or linguistic communities to form, join
and maintain cultural,
religious and linguistic associations and other organs of
civil society, but does not extend its protection to other communities.
His
argument was that the wording of this clause does not comply with the
requirements of CP XII.
[24] CP XII does not indicate how the collective
rights of self-determination are to be recognised and protected. That was a
matter
for the CA to decide. Having regard to the CPs as a whole, the
“[c]ollective rights of self-determination” mentioned
in CP XII are
associational individual rights, namely, those rights which cannot be fully or
properly exercised by individuals otherwise
than in association with others of
like disposition. The concept “self-determination” is circumscribed
both by what
is stated to be the object of self-determination, namely,
“forming, joining and maintaining organs of civil society”
as well
as by CP I which requires the state for which the Constitution has to provide,
to be “one sovereign state”.
In this context
“self-determination” does not embody any notion of political
independence or separateness. It clearly
relates to what may be done by way of
the autonomous exercise of these associational individual rights, in the civil
society of one
sovereign state. The objects of the AT 31 rights do not differ
from the objects of the CP XII rights of self-determination; both
sets of
objects comprise various activities in relation to organs of civil society,
“organs of civil society” being specifically
mentioned in AT
31(1)(b). One ostensible difference is the fact that the subjects of the CP XII
rights are unspecified and therefore
unrestricted, whereas AT 31 confers them on
persons belonging to the three specified communities. It was this perceived
difference
that gave rise to the objection.
[25] The AT is based on
founding values which include human dignity, the achievement of equality, the
recognition and advancement
of human rights and freedoms, the supremacy of the
Constitution and the rule of law. It makes provision for a multi-party system
of democratic government, with provision for three levels of government, to
ensure accountability, responsiveness and
openness.[40] This provides a
protective framework for civil society, which is enhanced by institutional
structures such as the Public Protector,
the Human Rights Commission, the
Commission for the Promotion and Protection of Rights of Cultural, Religious and
Linguistic Communities,
and the Commission for Gender
Equality,[41] and ultimately by AT
ch 2 which contains a justiciable Bill of Rights. The Bill of Rights is
described as a “cornerstone of
democracy”,[42] and the state
is required to respect, protect, promote and fulfil these
rights,[43] which are enforceable by
an independent judiciary.[44]
[26] AT ch 2 protects a range of individual rights of association
including freedom of
association,[45] freedom to form and
participate in the activities of political
parties,[46] and freedom to form and
join a trade union or employers’ organisation and participate in its
activities.[47] Freedom of
association is conferred upon everyone. In addition AT 30 separately protects
the right of all people to use the language
and to participate in the cultural
life of their choice. AT 8(4) extends the protection of the Bill of Rights to
juristic persons,
“to the extent required by the nature of the rights and
the nature of that juristic person”. AT 38 permits all these
rights to be
enforced by an association acting in the interest of its members, and a person
acting in the interest of a group or
class of persons. The clear protection of
rights of association coupled with the generous standing provisions protect the
rights
of collective self-determination stipulated by the CP for those
communities not expressly protected by AT 31.
[27] The requirements of
CP XII are therefore met by the provisions of AT 31, the institutional
structures provided by the AT and
the express protection of rights of
association in AT ch 2 together with the procedural provisions governing their
enforcement.
States of Emergency
[28] AT 37 deals with the
circumstances in which legislation may derogate from the Bill of Rights during a
declared state of emergency.
It permits such derogation only if it “is
strictly required by the
emergency”[48] and the
legislation “is consistent with the Republic’s obligations under
international law applicable to states of
emergency”.[49] It prohibits
indemnification of the state or any person in respect of any unlawful
act,[50] and also prohibits
legislation or action that would derogate from particular
rights.[51] These non-derogable
rights are set out in a table which forms part of AT 37.
[29] In the
CJ we drew attention to what appeared to us to be an irrational exclusion of
certain rights from the list of non-derogable rights and
we suggested that the
list should have been compiled more rationally and thoughtfully than had been
done.[52] We did not, however,
decline to certify the NT on the grounds that this had not been done. This is
clear from the way in which
we dealt with this issue at paragraphs 92 to 95 of
the CJ, and from paragraph 482 of the CJ in which we summarized
our conclusions.
[30] Presumably as a result of these comments the table
of non-derogable rights was revised in the AT. It now includes more of the
AT
9(3) anti-discrimination provisions, the right of children under the age of
fifteen years not to be used directly in armed
conflict,[53] and the right to have
evidence obtained in violation of the Bill of Rights excluded at a criminal
trial if its admission would render
the trial unfair.
[31] KZN now
objects to AT 37 on the grounds that the table of non-derogable rights does not
comply with CP II. It relies in particular
on paragraphs 94 to 95 of the
CJ and argues that the table is still not drawn up on a rational basis.
It contends that the table should have included more of the
various types of
discrimination prohibited by AT 9(3), the right to freedom of conscience,
religion, thought, belief and opinion
(AT 15(1)), the right not to be deprived
of citizenship (AT 20) and the right to make decisions concerning reproduction
(AT 12(2)(a)).
[32] Counsel for KZN argued that the table remained
irrational notwithstanding the amendments. A similar submission was made by
various
non-governmental organizations in a written argument addressed to us
dealing with AT 9, although they do not contend that this would
constitute
grounds for not certifying the
AT.[54]
[33] Discrimination
on the grounds of race, colour, ethnic or social origin, sex, religion or
language has been made non-derogable,
but not discrimination on the grounds of
gender, pregnancy, marital status, sexual orientation, age, disability,
conscience, belief,
culture and birth which is also prohibited by AT 9(3). It
was contended that there is no rational basis for these exclusions.
[34] Counsel for KZN accepted that there might be aspects of the right
to freedom of conscience, religion, thought, belief and opinion
which could
legitimately be curtailed during an emergency. He contended, however, that
there could be no derogation from the core
of the right, which he described as
the right to hold particular religious, moral, and other beliefs and opinions,
and that this
core ought to have been protected in the table of non-derogable
rights.
[35] AT 20 provides that “[n]o citizen may be deprived of
citizenship”. It was contended that an emergency could in itself
be no
justification for depriving a citizen of his or her citizenship and that AT 20
should have been included in the table of non-derogable
rights to prevent
possible abuses of emergency powers.
[36] The criticisms directed against
the choices made in compiling the table of non-derogable rights are not without
substance. It
should be acknowledged, however, that there are difficulties in
defining in the abstract precisely what rights, or what “core”
aspects of particular rights, should be made non-derogable in an emergency. The
CA was called upon to draft the provision at a time
when the parameters of the
rights referred to were uncertain and had not yet been the subject of judicial
determination. It chose
to protect the rights in the first instance through the
provision that any derogation must be strictly required by the emergency
and to
include in the list as non-derogable certain core rights such as the rights to
life and dignity and freedom from torture and
cruel punishment.
[37] It
is understandable that those who are protected by AT 9(3) but have not been
included in the anti-discrimination provisions
declared to be non-derogable,
should express concern over the exclusion. CP II does not, however, require
that any particular rights
or category of rights be made non-derogable under an
emergency. What it requires is that universally accepted protection be accorded
to particular rights.
[38] The requirement of AT 37(4)(a) that any
derogation be “strictly required by the emergency” imposes a
stringent test.
This, and the other provisions of AT 37, provide extensive
protection to all AT ch 2 rights under an emergency. In the unhappy
event of
the declaration of a state of emergency, it will be the duty of the courts to
ensure that the full measure of this protection
is accorded to such rights.
Moreover, the fact that a distinction is drawn in the AT 37 table between
certain rights does not, of
itself, mean that, outside of an emergency, any such
hierarchical distinction should be drawn between the rights in
question.
[39] Counsel for KZN contended that the filter provided by AT
37(4)(a) is inadequate because it refers only to legislation enacted
in
consequence of a declaration of a state of emergency, whereas AT 37(2)
contemplates that in addition to legislation enacted, “other
action”
may be taken in consequence of an emergency. There is no substance in this
contention. Action that may be taken will
be subject to the full protection of
the Bill of Rights unless it is specifically authorised by legislation
derogating from such
provisions. Any such legislation will have to pass the
test of AT 37(4)(a).
[40] Neither now, nor in the previous certification
case, has any objector been able to point to any universally accepted principle
concerning the protection of rights under states of emergency that has not been
met by the provisions of NT 37 or AT 37. It was
for this reason that in our
previous judgment we declined to hold that NT 37(5) did not comply with the CPs.
For the same reason
we must reject the objection raised in the present
proceedings to AT 37.
State of National Defence
[41] It was
contended by counsel for the DP that AT 203 dealing with a state of national
defence, which may be declared by the President
as head of the national
executive, is inconsistent with CPs I, II, IV and VII. NT 203, which was to the
same effect, was not subject
to any objection at the time of the previous
hearing. The submission now made is premised on the assumption that the
declaration
of a state of national defence is in effect a declaration of martial
law which would suspend the Constitution. Counsel for the DP
accepted, rightly
in our view, that if this is not so, and if the declaration of a state of
national defence does not detract from
the supremacy of the Constitution, the
objection would fall away.
[42] Article 2.4 of the United Nations Charter
provides that:
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
This prohibition is subject to
article 51 of the Charter which provides in relevant part that:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.”
[43] These provisions outlaw war but permit
the use of force in
self-defence.[55] Although there
have been frequent breaches of these provisions since the Charter was signed,
international law still treats a war
of aggression as
unlawful.
[44] Consistent with international law the
NT[56] and
AT[57] confer a power on the state
to defend itself through the use of force, but not to declare war. Hence the
power that is vested in
the President as head of the executive by AT 203 is to
declare a state of national defence. Similar terminology is used in the German
Basic Law,[58] the Namibian
Constitution,[59] and the
IC.[60]
[45] The declaration
of a state of national defence does not constitute a declaration of martial
law.[61] Nor does it, in itself,
lead to the suspension of the Constitution or any of its provisions. It may
provide grounds for the declaration
of a state of emergency in terms of AT
37(1), but in that event all the provisions of AT 37 would be applicable.
[46] In its written argument counsel for KZN raised an objection to AT
203 contending that it is contrary to CP XXXI. This objection,
which was not
raised by it at the previous hearing, is based on two arguments. First, that
the grounds on which a state of national
defence may be declared are not
mentioned in the Constitution, and secondly that there is no provision that the
power to declare
a state of national defence should only be exercised in the
national interest.
[47] Counsel for KZN correctly did not persist in
these arguments. CP XXXI is concerned with the manner in which members of the
security
forces are required to carry out their
functions.[62] It does not deal
with the exercise of presidential powers, and has no bearing on the declaration
of a state of national defence.
AMENDMENTS TO THE
CONSTITUTION
[48] In the CJ, we held that the provisions of NT 74
failed to comply with both CP XV and CP
II.[63] CP XV provides
that:
“Amendments to the Constitution shall require special procedures involving special majorities.”
We held, at
CJ paragraph 156, that no special procedures were provided for amending
the Constitution as required by this principle. CP II provides
that:
“Everyone 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.”
We held, at CJ paragraph 159,
that the provisions of NT ch 2 which contained the Bill of Rights were not
satisfactorily entrenched in the Constitution
as required by CP II. In response
to our judgment, the CA amended the constitutional text. The DP argues,
however, that AT 74 still
does not meet the prescriptions of CP II and CP XV.
It has raised two principal objections. First, counsel for the DP argued that
AT 74(2) and (3) fail to comply with CP XV because they do not make provision
for “special majorities” in either the
National Assembly (the
“NA”) or the National Council of Provinces (the “NCOP”).
The DP’s second objection
is that AT 74(2) is not in compliance with CP II
in that it still fails adequately to “entrench” the rights contained
in AT ch 2. We consider first, whether the AT meets the requirements of CP XV
by providing “special procedures” for
the amendment of the
Constitution and then the two objections raised by the DP.
Special
Procedures
[49] In paragraph 152 to 156 of the CJ we held that CP
XV had not been complied with because of the absence of special procedures for
the amendment of the Constitution.
In the CJ at paragraph 153 we held
“special procedures” to mean the provision of “more stringent
procedures” when “compared
with those which are required for other
legislation”.
[50] AT 74(4) to (7) now prescribe procedures that
have to be followed in passing amendments to the Constitution. A bill amending
the Constitution may not contain any other
matter.[64] At least thirty days
notice of the proposed amendment must be published in the national Government
Gazette to permit public
comment,[65] and similar notice must
be given formally to the provincial legislatures and to the NCOP for public
debate if the proposed amendment
is not one required to be passed by the
NCOP.[66] Written comments received
from the public or the provincial legislatures must be brought to the attention
of the Speaker of the
NA,[67] and
the bill amending the Constitution may not be put to a vote until at least
thirty days have elapsed since its introduction or
tabling in the
NA.[68] If the proposed amendment
concerns only a specific province or provinces, the bill may not be passed
unless it has been approved
by the legislature or legislatures of the province
or provinces
concerned.[69]
[51] The
procedures which are required by the AT for the passing of amendments to the
Constitution ensure that the Constitution can
only be amended by a bill that
specifically purports to do so and that time is allowed for all interested
persons to comment on a
proposed amendment. These are indeed more stringent
procedures than those required for other legislation.
[52] Although the
DP objected that special procedures have not been provided for constitutional
amendments, it’s counsel correctly
did not persist in this contention. We
are satisfied that the procedures prescribed by the AT meet the requirements of
CP XV and
in the circumstances we hold that the AT complies with CP XV in so far
as it requires special procedures to be followed for constitutional
amendments.
Special Majorities
[53] CP XV also requires special
majorities for amendments to the Constitution. The NT required any amendment to
NT 1, which sets
out the founding values of the Constitution, to be supported by
at least seventy five per cent of the members of the
NA.[70] Amendments affecting the
NCOP, altering provincial boundaries, powers, functions or institutions, or
amending a provision dealing
specifically with a provincial matter, required the
support of two-thirds of the members of the NA and six provinces in the NCOP.
Other amendments to the Constitution, including amendments to the Bill of Rights
contained in NT ch 2, required the support of at
least two-thirds of the NA, but
did not have to be passed by the
NCOP.[71]
[54] No change was
made to the majorities prescribed by NT 74 for constitutional amendments other
than amendments to the Bill of Rights.
This had not been the subject of
objection at the previous hearing and was not required by our judgment. It was
nevertheless contended
by counsel for the DP that the majorities required for
such amendments do not constitute “special majorities” which are
required by CP XV, because there are certain categories of legislation, other
than constitutional amendments, which require similar
majorities.[72]
[55] The
objection is based on a passage in paragraph 153 of the CJ in which we
said that:
“It is appropriate that the provisions of the document which are foundational to the new constitutional state should be less vulnerable to amendment than ordinary legislation. The requirement of ‘special procedures involving special majorities’ must therefore necessarily mean the provision of more stringent procedures as well as higher majorities when compared with those which are required for other legislation.”
This passage was relied upon to support
the untenable proposition that a special majority is one higher than that
required for the
passing of any other legislation.
[56] Immediately
before the passage quoted above we had stated that the purpose of CP XV
“... is obviously to secure the NT, the ‘supreme law of the land’, against political agendas of ordinary majorities in the national Parliament.”[73]
What
was being contrasted in paragraph 153 of the judgment was “ordinary
legislation” requiring “ordinary majorities”
and
constitutional amendments which required “special procedures involving
special majorities”.
[57] IC 63 deals with the ordinary majorities
required for ordinary legislation. It provides that:
“Save where otherwise required in this Constitution, all questions before the National Assembly or the Senate or before the National Assembly and the Senate in a joint sitting, shall be determined by a majority of votes cast.”
Conventionally, and in the absence of a special
requirement calling for a higher majority, that is how decisions have ordinarily
been
taken by legislative bodies in South Africa at least since
1910.[74]
[58] AT 53(1)
provides that
“Except where the Constitution provides otherwise -
(a) a majority of the members of the National Assembly must be present before a vote may be taken on a Bill or an amendment to a Bill;
(b) at least one third of the members must be present before a vote may be taken on any other question before the Assembly; and
(c) all questions before the Assembly are decided by a majority of the votes cast.”
NT 53(1) was to the same effect. A
higher quorum is required for the passing of legislation than is required for
other decisions,
but the conventional principle that legislation is ordinarily
passed by a majority of votes cast has been retained.
[59] CP XV clearly
requires a departure from this conventional principle for the enactment of
constitutional amendments. When it
requires special majorities, it means
special majorities in contrast to an ordinary majority achieved by a simple
majority of a quorum
of a legislature. At the time CP XV was drafted, the
drafters could not have had any other ordinary majority in mind. The CA has
provided that all constitutional amendments require a two-thirds majority in the
NA. This is clearly a “special majority”
when compared with the
conventional simple majority rule.
[60] Counsel for the DP interpreted
the words “special majorities” in CP XV to mean, in effect,
majorities higher than
the highest required for any legislation not amending the
Constitution. Such an interpretation is artificial and appears to assume
for no
demonstrable reason that the drafters intended to contrast “special
majorities” as referred to in CP XV with something
other than a
conventional ordinary majority. There is no textual or other basis for such an
interpretation. Nor is there anything
in the CPs which would preclude the CA
from requiring special majorities for legislation other than constitutional
amendments. The
objection on this ground must therefore fail.
[61] The
DP also contended that the method of voting in the NCOP on constitutional
amendments permitted such amendments to be passed
by the NCOP without the
support of a “special majority”. The NCOP consists of delegations
of ten delegates from each
province.[75] Delegates are not
elected to this position; they are appointed by the provincial legislature, are
answerable to it, and are subject
to recall by
it.[76] NCOP decisions, subject to
certain exceptions,[77] are to be
taken on the basis that each province has one vote, which will be cast on its
behalf by the head of its delegation, in
accordance with an authority conferred
on him or her by the provincial
legislature.[78] The support of six
provinces that is required by AT 74(3) for constitutional amendments affecting
provincial interests or the NCOP
depends upon the votes of each of the
provincial delegations in the NCOP, and not upon the votes of the individual
delegates. It
follows, so it was contended, that there may be circumstances in
which the support of six provinces can be secured, notwithstanding
the fact that
the majority of the individual delegates are opposed to the measure.
[62] This argument is based on a misconception of the NCOP, which is a
council of provinces and not a chamber composed of elected
representatives.
Voting by delegation reflects accurately the support of the different provincial
legislatures for a measure under
consideration. In effect, therefore, the
support required for amending the Bill of Rights is two-thirds of the NA and the
support
of six provincial legislatures. That is a significant
majority.
[63] The last of the objections by the DP to the provisions of
the AT dealing with amendments to the Constitution was that the approval
of the
NCOP is required only for those constitutional amendments that affect the
provinces or involve the founding values, the Bill
of Rights or the NCOP
itself.[79] Other constitutional
amendments do not have to be voted on by the NCOP and can be passed by the NA
alone with the support of two-thirds
of its
members.[80] The DP contended that
a two-thirds majority in the NA alone does not constitute a special majority
within the meaning of CP XV.
It sought to derive support for this contention
from the fact that the AT requires all other legislation to be debated in and
voted
on by the NCOP.
[64] The NCOP is also required to consider
legislation which does not affect the provinces. When it does so, voting is by
delegates
and not by delegation,[81]
but if it fails to pass such legislation, its refusal can be overridden by an
ordinary majority in the NA.[82]
What is important is that such legislation does not have to be passed by the
NCOP. In substance the NCOP has no more than a delaying
power, and if its
support is not secured, the legislation can be passed by a simple majority in
the NA.
[65] Although the NCOP does not vote on other amendments to the
Constitution, it has to be consulted in regard to them. At least
thirty days
before it is introduced into the NA, particulars of any bill amending the
Constitution must be published in the Government
Gazette for public
comment,[83] submitted to each of
the provincial legislatures for their
views,[84] and to the NCOP for
public debate.[85] Any written
comments received from provincial legislatures or the public must be tabled in
the NA when the bill amending the Constitution
is
introduced.[86] The bill may only
be put to a vote thirty days after it has been introduced or tabled in the
NA.[87] The absence of a formal
vote in the NCOP is balanced by the provision empowering the provincial
legislatures to make their views
known to the NA directly. In substance,
therefore, the involvement of the NCOP in respect of other amendments to the
Constitution,
is little different from its involvement in ordinary legislation.
In both instances there is a formal debate. Where ordinary legislation
is
involved there is a vote in the NCOP but the NCOP has no more than a delaying
power.[88] Where other amendments
to the Constitution are involved there is a debate in the NCOP but no vote; the
provincial legislatures make
their views known directly to the NA instead of
through a vote in the NCOP. The power of the NCOP to delay ordinary legislation
is balanced by the requirements that at least thirty days notice be given before
a bill amending the Constitution is introduced into
the
NA,[89] and that the bill may only
be put to a vote in the NA thirty days after it has been introduced or
tabled.[90]
[66] It was not
suggested at either of the hearings that the CPs specifically require amendments
to the Constitution to be passed
by the NCOP. The CPs do not require a
bicameral Parliament; nor, if there is more than one chamber of Parliament, do
they require
all legislation to be passed by each chamber. The CA was entitled
to vest the power to effect other amendments to the Constitution
in the NA
alone, as long as it did so in a manner that complied with CP
XV.
[67] Other amendments to the Constitution require the special
procedures referred to above, and the support of at least two-thirds
of the
members of the NA. In substance this is a significantly higher majority than is
required for the passing of ordinary legislation
that does not involve the
provinces. There is no substance therefore in the DP’s contention that
the requirement of “special
majorities” in CP XV has not been met in
the AT.
Entrenchment of the Bill of Rights
[68] The NT
permitted amendments to be made to the Bill of Rights by a majority of
two-thirds of the members of the
NA.[91] This was the special
majority prescribed for constitutional amendments generally. We held that CP II
required the Bill of Rights
to be afforded more protection than
this.[92] The CA responded in AT
74(2) by requiring amendments to the Bill of Rights to be supported not only by
two-thirds of the members
of the NA, but also by six provinces in the
NCOP.
[69] The DP contended in its written argument that the amendment
made does not afford sufficient protection to the Bill of Rights
because AT
74(3) permits AT 74(2) to be amended by two-thirds of the NA without the support
of the NCOP. It drew attention in this
regard to the provisions of AT 74(1),
which entrench the founding values contained in AT 1, by requiring a
seventy-five per cent
majority in the NA and the support of six provinces for
any amendment of these provisions, or of AT 74(1) itself.
[70] AT 74(2)
can only be amended by a bill passed in terms of AT 74(3). AT 74(2)(a) which
requires a two-thirds majority in the
NA for an amendment to the Bill of Rights
can only be amended in terms of AT 74(3). We shall assume, but not decide, that
such an
amendment does not require the consent of the NCOP in terms of AT
74(3)(b), but only a two-thirds majority in the NA. The effect
of this is that
AT 74(2)(a) can be amended by a two-thirds majority of the NA without the
participation of the NCOP. On the other
hand, an amendment of AT 74(2)(b),
which requires the consent of six of the nine provinces in the NCOP for an
amendment to the Bill
of Rights, requires the approval of both two-thirds of the
NA and six of the nine provinces in the NCOP in terms of the provisions
of AT
74(3)(a) and (b). It is not possible, in the light of AT 74(3)(b)(i), for the
NA to dispense with this requirement without
the approval of six of the nine
provinces in the NCOP. In the result, there is no way, whether direct or
indirect, in which a provision
of the Bill of Rights can be amended without the
approval of six provinces in the NCOP.
[71] Under the NT the NA could
have amended the Bill of Rights with a two-thirds majority without the consent
of the NCOP. We held
that this was not sufficient to meet the requirement of
“entrenchment” provided for in CP
II.[93] The CA has now added as a
requirement for the amendment of the Bill of Rights, the consent of a special
majority of the NCOP. This
consent may not be dispensed with by the NA acting on
its own. If the CA had included an express requirement that the NA’s
voting majority in AT 74(2)(a) could not have been amended without the consent
of six of the nine provinces in the NCOP, the rights
entrenched in AT ch 2 would
have been even more securely entrenched. This may well have been desirable.
However we cannot say that
it was necessary. In the circumstances, we are of
the view that there has been compliance with CP II.
LOCAL
GOVERNMENT
A Framework for the Structures of Local
Government.
[72] In the CJ we held that NT ch 7, dealing with
local government (“LG”), failed to comply with CP XXIV in that it
did not provide
a “framework for the structures” of LG; with CP XXV
in that it did not provide for appropriate fiscal powers and functions
in
respect of different categories of LG; and with CP X in that it did not provide
for formal legislative procedures to be adhered
to by legislatures at LG
level.[94]
[73] It was not
disputed that as a result of the amendments that have been made the AT now
complies with CP XXV and CP X. In AT 160(3),
(4), (7) and (8) the CA responded
to the finding by this Court that the NT failed to comply with CP X. Provision
is there made for
the formal legislative procedures to be adhered to by
legislatures at LG level. And with regard to CP XXIV the CA has in AT 229
made
provision for the differential allocation of fiscal powers and functions
according to the municipal categories provided for
in AT 155(1). We are
satisfied that these CPs have in fact been complied with and, indeed, that was
not disputed by the objectors.
It was contended by counsel for KZN, however,
that the AT still does not comply with CP XXIV.
[74] CP XXIV
provides:
“A framework for local government powers, functions and structures shall be set out in the Constitution. The comprehensive powers, functions and other features of local government shall be set out in parliamentary statutes or in provincial legislation or in both.”
[75] In
the CJ we held:
“At the very least, the requirement of a framework for LG structures necessitates the setting out in the NT of the different categories of LG that can be established by the provinces and a framework for their structures. In the NT, the only type of LG and LG structure referred to is the municipality. In our view this is insufficient to comply with the requirements of the CP XXIV. A structural framework should convey an overall structural design or scheme for LG within which LG structures are to function and provinces are entitled to exercise their establishment powers. It should indicate how LG executives are to be appointed, how LGs are to take decisions, and the formal legislative procedures demanded by CP X that have to be followed. We conclude, therefore, that the NT does not comply with CP XXIV and CP X.”[95]
[76] The
CA amended NT 155, dealing with the establishment of municipalities, NT 160
dealing with the internal procedures of municipalities,
and NT 229 dealing with
municipal fiscal powers. It contended that these amendments adequately address
the problem identified in
the CJ.
[77] The effect of these
amendments is to specify three different categories of municipalities that can
be established. In substance
these are (a) self-standing municipalities, (b)
municipalities that form part of a comprehensive coordinating structure, and (c)
municipalities that perform coordinating functions. In the terminology of
existing legislation the third category would include
structures such as
regional and metropolitan councils. It has been made clear that it is a
national function to establish the criteria
for determining which category of
municipality should be established in a particular area and how powers and
functions are to be
divided between municipalities with shared
powers.[96] National legislation
must also define the types of municipality that may be established within each
category but it is for the provincial
legislature to determine which types
should be established in its
province.[97] The internal
procedures for the functioning of municipalities have been defined more
precisely than was the case in the NT, but
national legislation must still
provide the criteria for determining the size of a municipal council, the types
of committees it
may have and the size of committees that are
established.
[78] The AT sets out the categories of LG that can be
established,[98] and a scheme for LG
within which LG structures are to function. The scheme is one which involves
the establishment of municipalities
for the whole of the territory of the
Republic.[99] A municipality will
have legislative and executive powers in respect of the local government matters
listed in part B of AT sch
4 and part B of AT sch 5, and any other matter
assigned to it by national or provincial
legislation.[100] These powers
will be vested in its
Council.[101] The legislative
power is to be exercised by the making of
by-laws,[102] a power which must
be exercised by the Council itself and may not be delegated by it to any
person.[103] A framework for an
electoral system according to which members of the Council are to be elected is
set out in AT 157, and the manner
in which decisions are to be taken and by-laws
passed is prescribed by AT 160. A framework for the demarcation of municipal
boundaries
and wards is
provided.[104] AT ch 13
establishes a framework for the fiscal powers and functions of municipalities,
revenue allocation to municipalities, the
preparation of budgets, treasury
control, and the procurement of goods and services. The objects of LG are
defined in AT 152, and
municipalities are required to observe and adhere to the
principles of cooperative government set out in AT ch 3.
[79] Counsel for
KZN contended that the LG provisions of the AT are not materially different to
those contained in the NT and that
the flaws in the NT identified in our
judgment have not been remedied. He argued that it is not possible to discern
from the AT
how LG will be organized, precisely what types of LG the provinces
will be able to establish, or how the various types of LG will
relate to each
other and exercise their powers either individually or jointly. A minimum
requirement for a framework, so it was
contended, is that it should identify and
set the parameters for an overall design of a coherent system of
LG.
[80] In terms of CP XXIV the Constitution must provide a
“framework for local government powers, functions and structures”
whilst the “comprehensive powers, functions and other features of local
government shall be set out” in national or provincial
legislation, or in
both. The CP contemplates, therefore, that the Constitution will provide no
more than a framework and that the
details of the LG system would be a matter
for legislation. Counsel accepted that this was so and that the AT provides a
framework
for powers and functions, but contended that it does not provide a
framework for “structures”. He drew attention to
the fact that the
CP refers to “powers, functions and structures” when it deals with
the framework, but to “powers,
functions and other features” when it
deals with comprehensive legislation, and suggested that this indicates that the
CP contemplates
that the structures of LG would be spelled out in greater detail
in the Constitution than the other components of LG. He was, however,
unable to
explain what the “other features” would be if they do not include
structures.
[81] The word “framework” is used in relation to
the three components of LG, and there is no reason to believe that it
was
intended to require “structures” to be dealt with in the
Constitution in greater detail than “powers”
and
“functions”. Even if the words “other features” in CP
XXIV were to be construed as excluding structures
(and we doubt that this is how
it should be construed), it would mean no more than that the CA was given the
choice of dealing with
LG structures in detail in the Constitution. It would
not convert the obligation to provide a framework for LG structures into an
obligation to do more than that. This would not only be inconsistent with the
language of the CP, but it would also be an unusual
requirement to impose on the
drafters of a Constitution. Detail is clearly a matter for legislation,
particularly in the fluid situation
which existed at the time the CPs were
drafted.
[82] The words “framework for local government
structures” are vague and imprecise. Counsel acknowledged this, but
relying
on paragraph 301 of the CJ, he contended that there should at
least have been a description of the types of municipalities that could be
established in each
of the three categories described in AT 155(1). That, in
our view, is to deduce too great a specificity from a phrase of such general
and
imprecise import as a “framework for local government ...
structures”.[105] In
paragraph 301 of the CJ we drew attention to the fact that the only type
of LG and LG structure referred to in the NT was a municipality. We said that a
structural framework should convey an overall “design” or
“scheme” and should indicate “how LG executives
are to be
appointed, how LGs are to take decisions and the formal legislative procedures
demanded by CP X”.[106] The
AT now identifies three categories of
LG,[107] how LG executives are to
be appointed,[108] how LGs are to
take decisions,[109] and the
formal legislative procedures to be
followed.[110] We hold that this,
in the context of the overall scheme described above, is sufficient to meet the
requirements of CP XXIV.
TRANSITIONAL PROVISIONS
Local
Government Provisions
[83] Objection was also taken by KZN to the
provisions of AT sch 6 s 26(1)(a) which states that:
“(1) Notwithstanding the provisions of sections 151, 155, 156 and 157 of the new Constitution -
(a) the provisions of the Local Government Transition Act, 1993 (Act 209 of 1993), as may be amended from time to time by national legislation consistent with the new Constitution, remain in force until 30 April 1999 or until repealed, whichever is sooner”.
It was
contended that these provisions do not comply with the requirements of CP IV.
In support of this contention reliance was placed
on paragraphs 149 and 150 of
the CJ in which we held that NT 241(1) and NT sch 6 s 22(1)(b) did not
comply with the CPs because they impermissibly shielded ordinary
statutes from
constitutional review.
[84] NT 241(1) provided that the provisions of the
Labour Relations Act, 1995, remained valid despite the provisions of the
Constitution.
NT sch 6 s 22(1)(b) contained a similar provision in respect of
the Promotion of National Unity and Reconciliation Amendment Act,
1995. The
provisions of AT sch 6 s 26(1)(a) are different. They do not immunise the Local
Government Transition Act 209 of 1993
from constitutional review. It remains
subject to constitutional review, but is not subject to the framework provisions
of AT 151,
155, 156 and 157 until 30 April 1999. All other provisions of the AT
apply to it and any amendment of its provisions must be consistent
with the
AT.
[85] AT sch 6 s 26(1)(a) is a transitional provision designed to
enable an orderly transition to be made from the existing system
of LG to a
system which conforms with the requirements of the AT. It is implicit in CP
XXIV that this could be done. Otherwise
existing LG laws and structures
inconsistent with any new scheme would be invalidated when the AT comes into
force, which is likely
to result in chaos. The old infrastructure would be
invalid and in all probability there would be no new infrastructure to replace
it. One should not impute such an intention to the framers of the CPs. There
is nothing in the language of CP XXIV that requires
the framework provisions to
come into force immediately. On the contrary the CP contemplates that
legislation will be needed to
make provision for the comprehensive powers,
functions and other features of LG that will be required, and in view of the
known complexities
of the transition to democratic LG, the drafting and
implementation of such legislation are likely to present difficulties and to
require time.
[86] The decision in the CJ on NT 32 read with NT
sch 6 s 23(2)(a) seems to us to be more relevant to the present issue than the
passages relied on by counsel
for KZN. In paragraphs 82 to 87 of the CJ
we considered the implications of a transitional provision which allowed the
legislature a period of three years within which to
implement freedom of
information legislation. We held that “[t]he transitional measure is
obviously a means of affording Parliament
time to provide the necessary
legislative framework for the implementation of the right to
information”.[111] In the
context of CP IX, which requires provision to be made for freedom of
information, and of what was reasonably required on
the part of the legislature
to give effect to this requirement, a period of grace within which to implement
the provision was held
to be reasonable, and consistent with the requirements of
the CPs.
[87] The period of grace allowed for LG transition is less than
the three years allowed for the implementation of freedom of information
legislation. A decision as to the time needed was one to be made by the CA. In
view of the complexities of a transition to a new
order we cannot hold the
period until April 1999 to be unreasonable or that the CA exceeded its authority
in fixing this period.
We accordingly hold that AT sch 6 s 26(1)(a) complies
with the CPs.
Public Administration and Security
[88] A similar
contention was advanced in regard to AT sch 6 s 24(1) which contains
transitional provisions dealing with public administration
and security
services. This clause provides:
“Sections 82(4)(b), 215, 218(1), 219(1), 224 to 228, 236(1), (2), (3), (6), (7)(b) and (8), 237(1) and (2)(a) and 239(4) and (5) of the previous Constitution continue in force as if the previous Constitution had not been repealed, subject to -
(a) the amendments to those sections as set out in Annexure D;
(b) any further amendment or any repeal of those sections by an Act of Parliament passed in terms of section 75 of the new Constitution; and
(c) consistency with the new Constitution.”
[89] The “previous
Constitution” is the IC and the sections referred to deal with the
President’s powers as Commander
in Chief of the South African National
Defence Force, matters relating to the Police Service and Defence Force, and
certain transitional
provisions relating to public administration and the
vesting of assets and liabilities which apparently still have
relevance.
[90] Counsel did not contend that this provision does not
serve a legitimate purpose relating to the transition from the old to the
new
constitutional order. He argues that the provision is objectionable on two
alternate grounds depending on the character of the
sections of the IC which the
provision seeks to retain. If the retained provisions constitute a part of the
new Constitution, then,
argues counsel, they are in breach of CP XV in that they
can be amended by an ordinary majority of the NA without special procedures.
On
the other hand, if the provisions do not constitute a part of the Constitution
but have the status of ordinary legislation, counsel
argues that they are
invalid because the CA does not have the power to retain provisions of the IC as
ordinary legislation.
[91] The first question for consideration,
therefore, is whether the retained provisions form part of the AT or not. AT
sch 6 s 24(1)
provides that the listed provisions shall “continue in
force”. It does not provide that the provisions are deemed to
be part of
the AT (as does, for example, IC sch 6 s 22 in relation to the epilogue to the
IC). In addition, subparagraphs (b) and
(c) make it plain that the retained
provisions are subject to amendment by the procedures applicable to ordinary
legislation, and
that they are subject to the supremacy of the Constitution.
All these factors, in our view, indicate that the provisions retained
do not
form part of the text of the AT but are a form of ordinary legislation.
[92] The remaining question posed is whether the CA had the competence to
retain provisions of the IC as ordinary legislation. It
may be that it is not
necessary to answer this question now. The present inquiry is whether the AT is
in compliance with the CPs
and no other question is relevant to the current
proceedings. On this view, nobody would be precluded by IC 71(3) from raising
the
question of the validity of the retained provisions in subsequent
proceedings, for if the retained provisions themselves do not form
part of the
text of the Constitution, they will not be subject to the ouster contained in IC
71(3).
[93] Be that as it may, it is our view that the CA did have the
power to retain provisions of the IC as ordinary legislation under
the new
order. It is true that the CA is only granted a constitution-making power by
the IC, but such a power is an extensive one.
It involves not only the power to
enact a constitution, but also to make provision for the transition from the old
to the new constitutional
order. To do so, it needs to make provision for the
retention of some if not all existing legislation, as it does in AT sch 6 s
2.
It also needs to regulate the continued existence of the legislature, executive
and judiciary as it does in sch 6 ss 4-12 and
16-18. It is essential that the
CA has such powers in order to ensure that the transition is carried out in an
orderly fashion.
Unless at least some parts of existing law and institutions
were retained by the AT, the legal infrastructure would collapse. It
was not
only within the competence of the CA to attend to this as part of the
constitution-making process, but it was imperative
that it did so.
[94] If it
is accepted that the CA has the power to retain legislation and institutions
from the old order, the only question that
remains is whether that power
included an authority to retain provisions of the IC as law, without making them
an integral part of
the new constitutional text. We fail to understand why the
CA should not have this power. It has the power to repeal the old
constitutional
text, and if this is so, there seems to be no reason why it
should not have the lesser power to retain some of its provisions needed
for the
transition without incorporating such provisions into the Constitution
itself.
[95] On a proper construction of AT sch 6 s 24(1) the provisions
of the IC referred to in that section have been retained to facilitate
the
transition, but are subordinated to the AT, and fall to be dealt with and to be
amended in the same way as any other legislation
that has been retained. It was
within the competence of the CA to do this and in so doing, the CA did not
breach any of the provisions
of the CPs.
TRADITIONAL
MONARCH
[96] CP XIII.2 requires that:
“Provisions in a provincial constitution relating to the institution, role, authority and status of a traditional monarch shall be recognised and protected in the Constitution.”
Counsel for KZN
contends that this requirement has not been complied with.
[97] In order
to deal with this contention it is necessary to have regard to AT 143 and
147(1). They provide:
“143(1) A provincial constitution, or constitutional amendment, must not be inconsistent with this Constitution, but may provide for -
(a) provincial legislative or executive structures and procedures that differ from those provided for in this Chapter; or
(b) the institution, role, authority and status of a traditional monarch, where applicable.
(2) Provisions included in a provincial constitution or constitutional amendment in terms of paragraphs (a) or (b) of subsection (1) -
(a) must comply with the values in section 1 and with Chapter 3; and
(b) may not confer on the province any power or function that falls -
(i) outside the area of provincial competence in terms of Schedules 4 and 5; or
(ii) outside the powers and functions conferred on the province by other sections of the Constitution.
. . . .
147(1) If there is a conflict between national legislation and a provision of a provincial constitution with regard to -
(a) a matter, concerning which this Constitution specifically requires or envisages the enactment of national legislation, the national legislation prevails over the affected provisions of the provincial constitution;
(b) national legislative intervention in terms of section 44(2), the national legislation prevails over the provision of the provincial constitution; or
(c) a matter within a functional area listed in Schedule 4, section 146 applies as if the affected provision of the provincial constitution were provincial legislation referred to in that section.”
[98] The objection was as
follows. AT 143(1)(b) gives effect to the recognition of the
constitution-making power required by CP XIII.2,
but it does not give effect to
the requirement of protection. As a result, and because of the provisions of AT
147(1), provisions
in a provincial constitution dealing with traditional
monarchs are rendered vulnerable to being overridden by national
legislation.
[99] CP XIII.2 does not require the relevant provisions of a
provincial constitution to be given a position of supremacy in the national
constitution, allowing them to prevail over all other protected interests. What
is required is that the institution of the monarchy
should be given the
recognition and protection that it needs to enable it to carry out its
traditional role and to maintain its status
and authority, consistent with the
constraints inherent in a republican and wholly democratic constitutional
order.[112]
[100] AT 142
which vests a constitution-making power in a provincial legislature, and AT
143(1) which permits that power to be exercised
so as to make provision for a
traditional monarch, are both protected by AT 74(3) which requires a special
majority of both the NA
and the NCOP for any amendment to these clauses. That
is the same as the protection given to the Bill of Rights.
[101] The
objection was not directed to the form of the constitution-making power; it was
concerned with the substance of the power,
ie whether it could be subordinated
to national legislation.
[102] Counsel for KZN and counsel for CA both
assumed that AT 147(1) is applicable to the provisions in a provincial
constitution
dealing with a traditional monarch. It is not entirely clear,
however, exactly what impact, if any, AT 147(1) might have on a provision
in a
provincial constitution dealing with a traditional monarch. AT 147(1)(a) deals
with national legislation “required”
or “envisaged” by
the AT. AT 219(1) requires national legislation to establish a framework for
determining the remuneration
of persons holding public office including
traditional leaders. This would include a traditional
monarch.[113] An independent
commission has to make recommendations concerning such remuneration, and its
recommendations have a role in the determination
and implementation of the
remuneration. The legislation required does not bear directly upon the
institution, role, authority and
status of a traditional
monarch.
[103] AT 212(1) envisages the possibility of national
legislation making provision for a special role for traditional leadership as
an
institution at local level in matters affecting local communities. This, too,
could have no more than an indirect bearing on
a traditional monarch whose
concerns as monarch are not at local level.
[104] A provincial
legislature would be protected by AT 41 against a possible abuse of the
legislative power vested in Parliament
by AT 219(1) and 212(1). AT 41(1)
requires that:
“[a]ll spheres of government and all organs of state within each sphere must -
. . . .
(e) respect the constitutional status, institutions, powers and functions of government in other spheres;
. . . .
(g) exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere.”
[105] We
were referred to no other legislation required or envisaged by the Constitution
that might be applicable to the institution,
role, authority or status of a
traditional monarch. If regard is had to the fact that legislation sanctioned
by AT 147(1)(a) can
have only an indirect bearing on such matters, AT 143(1)
read with AT 74(3) and AT 41 provide sufficient protection for the provisions
of
a provincial constitution to meet the requirements of CP XIII.2.
[106] AT
147(1)(b) deals with national legislative intervention in terms of AT 44(2). AT
44(2) authorises Parliament to intervene
by legislation with regard to a matter
falling within an exclusive functional area listed in AT sch 5, when it is
necessary to do
so for the purposes referred to in that provision. For present
purposes we will assume that AT 44(2) applies to the provisions of
a provincial
constitution enacted in terms of the authority contained in AT 143(1)(b). The
only item in AT sch 5 that apparently
may have any bearing on a traditional
monarch, is provincial cultural matters. The intervention sanctioned by AT
44(2) is unlikely
to have any relevance to the institution, role, authority or
status of a traditional monarch. But even if there should be circumstances
where such intervention is justifiable as being necessary for a purpose defined
in AT 44(2), and it affects in some way the institution,
role, authority or
status of a traditional monarch, it would be intervention that is specifically
required by CP XXI.2. The CPs
must be interpreted so as to be in harmony with
one another. Because of the compelling importance of the matters referred to in
NT 44(2), and the imperative language of CP XXI.2, the protection contemplated
by CP XIII.2 should not be construed as including
protection against
intervention under NT 44(2).
[107] NT 147(1)(c) deals with conflicts between provisions of a
provincial constitution and national legislation with regard to “a
matter
within a functional area listed in Schedule 4”. AT sch 4 lists the
functional areas of concurrent national and provincial
legislative competence.
The functional area of “[t]raditional leadership subject to Chapter 12 of
the Constitution”
is included in the list.
[108] It is not
necessary to decide in these proceedings whether or not a provision in a
provincial constitution enacted pursuant
to the power conferred on provincial
legislatures by AT 142 and AT 143 should be characterised as being legislation
to which AT 147(1)(c)
applies. A traditional monarch is a traditional leader
and AT sch 4 would empower a provincial legislature to make laws dealing
with
the institution, role, authority and status of the monarch. The power to
incorporate such legislation in a provincial constitution
is, however, derived
from AT 143(1)(b) and exists independently of AT sch 4. It would continue to
exist, for instance, if AT sch
4 were to be amended so as to delete traditional
leadership from the functional areas referred to. It may be, therefore, that
this
is a special power which is not subject to AT 147(1)(c).
[109] In
the view that we take of this matter, however, it is not necessary to decide
this issue. AT 146 gives preference to provincial
legislation, and protects it
against national legislation, unless circumstances exist in which a national
override can be justified.
The circumstances which would justify such an
override can have only limited application to the institution, status, role and
authority
of a traditional monarch.
[110] We are satisfied that the
recognition and protection required by CP XIII.2 have been afforded by the
provisions of the AT to
which we have referred, and we hold that the AT complies
with CP XIII.2.
INTERVENTION PERMITTED BY AT 100
[111] AT 100
provides that:
“(1) When a province cannot or does not fulfil an executive obligation in terms of legislation or the Constitution, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including -
(a) issuing a directive to the provincial executive, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations; and
(b) assuming responsibility for the relevant obligation in that province to the extent necessary to -
(i) maintain essential national standards or meet established minimum standards for the rendering of a service;
(ii) maintain economic unity;
(iii) maintain national security; or
(iv) prevent that province from taking unreasonable action that is prejudicial to the interests of another province or to the country as a whole.
(2) If the national executive intervenes in a province in terms of subsection (1)(b) -
(a) notice of the intervention must be tabled in the National Council of Provinces within 14 days of its first sitting after the intervention began;
(b) the intervention must end unless it is approved by the Council within 30 days of its first sitting after the intervention began; and
(c) the Council must review the intervention regularly and make any appropriate recommendations to the national executive.
(3) National legislation may regulate the process established by this section.”
[112] KZN previously objected to these
provisions on the grounds that they interfere with provincial autonomy. We
dealt with this
objection at paragraphs 263 to 266 of the CJ and
concluded that the objection should be dismissed.
[113] The objection
has now been reformulated and advanced on the basis that AT 100 contravenes CP
VI which requires that:
“There shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.”
The
crux of the objection as it is now presented, is that in permitting the national
executive to intervene under AT 100(1)(b) without
first requiring that it take
the steps referred to in AT 100(1)(a), the separation of powers required by CP
VI has not been complied
with.
[114] There is no substance in this
contention. CP VI is concerned with the separation of powers between the
legislature, the executive
and the judiciary. It is not concerned with
separation between national and provincial legislative and executive functions.
In
any event, on a proper construction of AT 100 the issue raised by KZN does
not arise.[114]
[115] It
was also contended that AT 100(1) is inconsistent with CP XXI.2 because it does
not define all the steps that may be taken
by the national government if it
decides to intervene. This contention was based on the wording of AT 100(1) and
particular importance
was attached to the words “by taking any appropriate
steps to ensure fulfilment of that obligation, including ...”.
Relying on
these words counsel for KZN contended that there is a general empowerment of the
national executive in AT 100(1) to intervene
by taking “appropriate
steps”. The specific powers set out in AT 100(1)(a) and (b) are
accordingly not the only steps
that can be taken by the national executive; it
can also take any other “appropriate steps”. Such a power, it was
contended,
lacks precision and is contrary to CP XXI.2 which provides
that:
“The following criteria shall be applied in the allocation of powers to the national government and the provincial governments:
. . . .
2. Where it is necessary for the maintenance of essential national standards, for the establishment of minimum standards required for the rendering of services, the maintenance of economic unity, the maintenance of national security or the prevention of unreasonable action taken by one province which is prejudicial to the interests of another province or the country as a whole, the Constitution shall empower the national government to intervene through legislation or such other steps as may be defined in the Constitution.” (emphasis added)
[116] CP XXI.2
provides one of the “criteria [which] shall be applied in the allocation
of powers to the national government
and the provincial governments”.
Central to its meaning is the phrase “the Constitution shall empower the
national government
to intervene through legislation or such other steps as may
be defined in the Constitution”. Four points need to be made.
First, the
intervention provision which must be embodied in the Constitution is one
providing for such intervention when “it
is necessary for” the
maintenance, establishment or prevention of the matters dealt with in the first
part of CP XXI.2. Second,
it is not obligatory for the Constitution to make
provision both for legislation and “other steps”; at the same time
nothing prohibits the Constitution from doing so. Third, making provision in
the Constitution for such intervention in circumstances
other than those
prescribed by CP XXI.2 is not prohibited if it complies with the other CPs.
Fourth, should the Constitution make
provision for intervention in respect of
matters or situations not covered by CP XXI.2, in the sense that they do not
relate to the
necessity of maintaining, establishing or preventing the matters
referred to, such provisions need not comply with the dictates of
the concluding
part of CP XXI.2, again subject to compliance with the other
CPs.
[117] The CA has carried out its CP XXI.2 obligation by providing
for legislative intervention through the provisions of AT 44(2).
It was not
obliged to do more. At the same time it was at liberty to provide in the
Constitution for the national government to
intervene through other defined
steps in the circumstances prescribed by CP XXI.2. It was also at liberty,
although not obliged,
to make provision in the Constitution for national
government intervention, consistent with the other CP’s, falling outside
the field of CP XXI.2.
[118] The construction of AT 100 should be
approached against the above background. It deals with a failure by a province
to fulfil
an executive obligation. If this happens the national executive is
empowered to take appropriate steps to ensure the fulfilment
of the obligation.
This is a legitimate power to confer on the national executive. As we said in
the CJ at paragraph 266:
“NT 100 serves the limited purpose of enabling the national government to take appropriate executive action in circumstances where this is required because a provincial government is unable or unwilling to do so itself. This is consistent not only with CP XXI.2 but also with CP XX, which requires the allocation of powers to be made on a basis that is conducive to effective public administration. Any attempt by the national government to intervene at an executive level for other purposes would be inconsistent with the NT and justiciable. NT 100 does not diminish the right of provinces to carry out the functions vested in them under the NT; it makes provision for a situation in which they are unable or unwilling to do so. This cannot be said to constitute an encroachment upon their legitimate autonomy.”
In a
constitutional scheme such as that embodied in the CPs the national executive is
fully entitled, if not obliged, to do what is
necessary to ensure that the
Constitution and legislation consistent with the Constitution are adhered
to.
[119] AT 100(1)(a) and (b) deal with a failure by a provincial
executive to fulfil an executive obligation which results in prejudice
to
essential national standards, established minimum standards for the rendering of
a service, economic unity, or national security,
or that is prejudicial to the
interests of another province or the country as a whole. They empower the
national government to assume
responsibility in such circumstances for the
obligations that have not been carried out, but only to the extent necessary for
the
purposes referred to in AT 100(1)(b)(i)-(iv). AT 100 prescribes the
procedure that has to be followed in order to do this. First,
a directive must
be issued in terms of AT 100(1)(a). After this has been done the national
executive may assume responsibility for
the obligations to the extent that it is
necessary to do so. That will presumably depend upon the response to the
directive.
[120] AT 100(1)(a) and (b) deal with one process. This
follows from the fact that they have not been formulated in the alternative,
but
are linked by the conjunction “and”. The issuing of a directive in
terms AT 100(1)(a) has no consequences in itself;
it only has relevance as part
of a process which requires a directive to be issued before the intervention
sanctioned by AT 100(1)(b)
takes place. If intervention in terms of AT
100(1)(b) occurs, the requirements of AT 101(2) have to be complied with. These
successive
steps constitute the process referred to in AT 100(3) which may have
to be regulated by legislation.
[121] This process meets the requirements
of CP XXI.2. It is confined to the matters referred to in the CP and defines
the steps
to be taken - ie a directive, followed by the assumption of the
obligation, and the procedures prescribed by AT 100(2).
[122] AT 100(1)
also deals with the non-fulfilment of obligations by a province in circumstances
to which CP XXI.2 does not apply.
It is provided that in such circumstances the
national executive may deal with the problem through taking “appropriate
steps”.
[123] “Appropriate steps” within the meaning
of AT 100(1) will not ordinarily include the assumption of a provincial
obligation
by the national executive. That is clear from the language of AT
100(1), which gives an extended meaning to “appropriate steps”
to
permit such action in the circumstances referred to in AT
100(1)(b).[115] The extended
meaning is confined, however, to the intervention dealt with in AT
100(1)(b).
[124] The reference to “appropriate steps” in AT
100(1) must be construed in the context of the Constitution as a whole
and the
provision that it makes for the distribution of power between different levels
of government. If regard is had to the CPs
and the constitutional scheme
embodied in the AT, it would not be appropriate for the national executive to
attempt to intervene
in provincial affairs in a manner other than that
authorised by the Constitution or by legislation enacted in accordance with the
Constitution. “Appropriate steps” would thus include action such as
a resort to the procedures established under AT
41(2) for the promotion of
intergovernmental relations and the settlement of intergovernmental disputes and
the exercise of the treasury
control powers under AT
216.[116] It would not, however,
include resort to means that would be inconsistent with AT ch 3, and in
particular, with the obligation under
AT 41(1)(g) to exercise its powers in a
manner that “does not encroach on the geographical, functional or
institutional integrity”
of provincial governments.
[125] On this
construction of the clause, AT 100 means -
(a) when an obligation is not performed by a province the national executive can intervene through taking appropriate steps;
(b) “appropriate steps” must be construed to mean steps that are appropriate in the context of the Constitution; and
(c) where it is necessary to intervene for the purposes referred to in AT 100(1)(b) “appropriate steps” has an extended meaning, and permits the assumption of responsibility by the national executive for an obligation of the provincial executive, to the extent that it is necessary to do so for such purposes.
[126] The requirements of CP XXI.2 are met by AT
44(2), AT 100(1)(a) and (b) and AT 100(2). The other powers vested in the
national
executive by AT 100 fall outside the scope of CP XXI.2. They do not
depend on the “intervention” being necessary for
the purposes
referred to in CP XXI.2 and do not involve the assumption by the national
executive of responsibility for the obligations
that have not been carried out.
The parameters of these powers are sufficiently clear and constrained to meet
the requirements of
CP XX.
[127] We see no reason to depart from the
finding made in the CJ that NT 100, to which AT 100 corresponds, complies
with CPs XX and XXI.2. The objection to AT 100 must therefore be
dismissed.
PUBLIC PROTECTOR, AUDITOR-GENERAL AND THE PUBLIC SERVICE
COMMISSION
[128] CP XXIX requires:
“The independence and impartiality of a Public Service Commission, a Reserve Bank, an Auditor-General and a Public Protector shall be provided for and safeguarded by the Constitution in the interests of the maintenance of effective public finance and administration and a high standard of professional ethics in the public service.”
[129] In the
CJ we said that it was necessary to consider the position of each
institution separately, having regard to its powers and functions,
in order to
determine whether the provisions made in the NT for the protection of the
independence and impartiality of that institution
met the requirements of CP
XXIX.[117]
[130] We held
that in the light of the functions they had to perform, the independence and
impartiality of the Public Protector and
the Auditor-General had not been
adequately protected, but the provisions dealing with the Reserve Bank were
adequate.[118]
[131] NT 196
dealt with the PSC as follows:
“(1) There is a single Public Service Commission for the Republic to promote the values and principles of public administration in the public service.
(2) The Commission is independent and must be impartial and regulated by national legislation.
(3) Each of the provinces may nominate a person to be appointed to the Commission.
(4) Members of the Commission nominated by provinces may exercise the powers and perform the functions of the Commission in their provinces, as prescribed by national legislation.
(5) The Commission is accountable to the National Assembly.”
[132] The number of commissioners to be
appointed and the procedures according to which they would be appointed or could
be removed
from office were not dealt with in the NT. That was left to be
regulated by national legislation.
[133] In dealing with the provisions
of the NT relating to the PSC we held that the basic powers and functions of the
PSC were not
set out clearly in the NT, and
“[w]ithout knowing what the functions and powers of the PSC will be and what protection it will have in order to ensure that it is able to discharge its constitutional duties independently and impartially, we are unable to certify that [CP XXIX] has been complied with.”[119]
[134] As
a result of the CJ the provisions of the NT dealing with the PSC,
including procedures for the appointment and removal of commissioners, and the
provisions
dealing with the appointment and removal from office of the Public
Protector and the Auditor-General, have been amended. The AT
substantially
enhances the independence of both the Public Protector and the Auditor-General.
AT 193(5)(b)(i) now provides that
the resolution of the NA recommending their
appointment be passed with a supporting vote of at least sixty per cent of the
members
of the NA and AT 194(2)(a) now provides that the resolution of the NA
calling for their removal from office must be adopted with
a supporting vote of
at least two-thirds of the members of the NA. We are now satisfied that the
terms of CP XXIX have been met
in respect of both the Public Protector and the
Auditor-General. The DP did not contend to the contrary, but objected to the
provisions
dealing with the PSC, submitting that they are insufficient to meet
the requirements of CP XXIX.
[135] The functions of the PSC are now
defined in the AT. Its main functions are to promote the basic values and
principles governing
public administration laid down by the
AT;[120] to investigate, monitor
and evaluate the organisation, administration and personnel practices of the
public service;[121] to propose
measures to ensure
efficiency;[122] to give
directions relating to recruitment and related
matters;[123] and to advise
national and provincial organs of state in regard
thereto.[124] It is required to
monitor adherence to applicable
procedures[125] and to investigate
and report on grievances of employees in the public
service.[126]
[136] The
size of the PSC and the procedures to be followed in appointing commissioners
and removing them from office are also dealt
with in the AT. The PSC is to
consist of fourteen members, of whom five are to be appointed on approval by the
NA, and nine on nomination
by the Premiers of the nine provincial
legislatures.[127] The
appointment procedure involves a recommendation by a multiparty appointment
committee of the relevant legislature, and the approval
of the legislature
itself.[128]
[137] AT
196(2) provides that the PSC is “independent and must be impartial, and
must exercise its powers and perform its functions
without fear, favour or
prejudice”. In terms of AT 196(3):
“Other organs of state, through legislative and other measures, must assist and protect the Commission to ensure the independence, impartiality, dignity and effectiveness of the Commission. No person or organ of state may interfere with the functioning of the Commission.”
[138] AT
196(11) deals with the removal of a commissioner from office. It provides
that:
“A commissioner may be removed from office only on -
(a) the ground of misconduct, incapacity or incompetence;
(b) a finding to that effect by a committee of the National Assembly or, in the case of a commissioner nominated by the Premier of a province, by a committee of the legislature of that province; and
(c) the adoption by the Assembly or the provincial legislature concerned, of a resolution with a supporting vote of a majority of its members calling for the commissioner’s removal from office.”
[139] The DP
contended that the role of the PSC is similar to the roles of the Public
Protector and the Auditor-General, and that
the procedures laid down for the
protection of the independence of public service commissioners should be no less
stringent than
those for the removal from office of the Public Protector and the
Auditor-General, which require a resolution of at least two-thirds
of the
members of the NA.
[140] AT 196(1) provides that there shall be a single
PSC for the Republic. As a commission it will have joint responsibility for
the
work that it does. This, and the fact that it consists of fourteen members
appointed by ten different legislatures, enhances
its independence and makes any
individual commissioner less vulnerable to unfair dismissal than the Public
Protector and the Auditor-General
might be. The dismissal of one of fourteen
commissioners will not necessarily have a significant impact on the work of the
PSC;
the removal of the Public Protector or the Auditor-General could have a
profound impact on the functioning of that office.
[141] Counsel for the
DP drew attention to the fact that AT 196(13) provides that a commissioner
appointed by a province may perform
the functions of the commission in that
province “as prescribed by national legislation”. That is so, but
it will not
relieve the PSC of joint responsibility for the work that it does,
nor prevent the thirteen remaining commissioners from coming to
the support of
an individual commissioner wrongly accused of misconduct, incompetence or
incapacity.
[142] The functions of the PSC are materially different to
those of the Public Protector and the Auditor-General. Inherent in the
functions of the Public Protector is the “investigation of sensitive and
potentially embarrassing affairs of
government”,[129] whilst the
Auditor-General has a crucial role in “ensuring that there is openness,
accountability and propriety in the use
of public
funds”.[130] They perform
sensitive functions which require their independence and impartiality to be
beyond question, and to be protected by
stringent provisions in the
Constitution. The PSC’s primary function is to promote “a high
standard of professional
ethics in the public
service”.[131] While it has
important supervisory and watchdog functions, a good deal of its work will be of
a routine or advisory nature. As
an institution it cannot be equated with the
Public Protector or the Auditor-General. A similar distinction is to be found
in the
IC which affords a lesser protection to the PSC than it does to the
Public Protector and the Auditor-General. According to its provisions,
commissioners of the national PSC are
appointed[132] and can be removed
by the President.[133] Grounds
for removing a commissioner from office are:
“misconduct, or unfitness for his or her duties, or incapacity to carry them out efficiently, or if, for reasons other than unfitness or incapacity, his or her removal from office will promote efficiency ....”[134]
Similar
provision is made for the appointment and removal of provincial public service
commissioners by the Premiers of the
provinces.[135]
[143] “Misconduct,
incapacity or incompetence,” the only grounds on which a commissioner can
be removed from office in
terms of AT 196(11)(a), are legitimate grounds for
dismissal. The removal of a commissioner from office depends upon the passing
of a resolution by the relevant legislature that the commissioner has been
guilty of such conduct. In the view that we take of this
issue it is not
necessary to decide whether a finding to that effect by the committee of the
relevant legislature could be challenged
in the courts. If it can, that is an
added protection. If it cannot, and if there is any suspicion that the vote has
been taken
on other grounds, and that the removal is not justified, the decision
could be made the subject of a complaint to the Public Protector.
The political
consequences attaching to an unfounded attempt to remove a commissioner, and an
adverse finding by the Public Protector,
are likely to be
considerable.
[144] The protection afforded to the PSC has been
substantially strengthened by the AT, and is of a much higher standard than that
provided by the NT or the IC. If due regard is had to the functions of the PSC,
and the ambit of the protection given to commissioners
by the provisions of the
AT to which we have referred, the requirements of CP XXIX have clearly been
complied with.
COMPLIANCE WITH CP XVIII.2
[145] CP XVIII.2
provides that:
“The powers and functions of the provinces defined in the Constitution, including the competence of a provincial legislature to adopt a constitution for its province, shall not be substantially less than or substantially inferior to those provided for in this Constitution.”
[146] This CP therefore requires a
comparison between the powers and functions of the provinces in the AT and those
in the IC, and
an assessment as to whether the powers of the provinces in the AT
are indeed substantially less than or substantially inferior to
those in the IC.
That question involves two enquiries. The first enquiry is whether the powers
and functions of the provinces in
the AT are indeed less than or inferior to
those accorded to the provinces in terms of the IC. If the answer to that
enquiry is
in the negative, no further enquiry in terms of CP XVIII.2 is
required. If the answer to this question is positive, the second question
which
needs to be determined is whether the powers and functions of the provinces in
terms of the AT are substantially less than
or substantially inferior to those
provided for in the IC.
[147] Both these questions were addressed by this
Court in the relevant parts of the CJ dealing with the corresponding
provisions of the NT. We held that:
(a) The powers and functions of the provinces defined in the NT were less than or inferior to the powers and functions of the provinces contained in the IC in respect of four main areas. These four areas were provincial police powers, tertiary education (other than technikons and universities), local government, and traditional leadership.[136]
(b) Although the powers and functions accorded to the provinces in these four areas in the NT were indeed less than or inferior to the corresponding powers and functions of the provinces set out in the IC, this would not in itself have justified the inference that the powers and functions of the provinces, taken as a whole, were substantially less than or substantially inferior to the powers and functions vested in the provinces under the IC.[137]
(c) These were, however, not the only relevant considerations.
“There is in addition the presumption in NT 146(4) which favours national legislation which is sought to be justified on the grounds that it is necessary for one of the purposes referred to in NT 146(2)(c). There is also the alteration in the scope of the override contained in NT 146(2)(b). It introduces the criterion for the setting of norms and standards for a matter that it be required ‘in the interests of the country as a whole’, in place of the criterion in IC 126(3)(b) that the norms and standards be required for the ‘effective performance’ of the matter. These changes apply to legislation in the entire field of concurrent powers, giving added strength to national legislation in respect of such matters, and weakening the position of the provinces should there be a conflict with competing provincial legislation.”[138]
(d) Having regard to this additional consideration the “combined weight” of the four factors referred to previously and that additional factor justified the conclusion that “in the context of the NT as a whole” the powers and functions of the provinces in the NT were not only less than or inferior to the corresponding powers and functions of the provinces in the IC but also substantially so. For this reason the NT did not satisfy CP XVIII.2.[139]
[148] It
is clear from this analysis that the differences between NT 146(4) (read with NT
146(2)(b) and (c)) on the one hand and IC
126(3)(b) on the other, was a crucial
factor in this Court’s conclusion that the powers and functions of the
provinces in
the NT were indeed substantially less than or substantially
inferior to the corresponding powers of the provinces in IC 126(3).
And indeed
counsel for the DP and more especially for KZN launched a vigorous attack on the
corresponding provisions of the AT, contending
that the changes made to NT 146
by the CA pursuant to our previous finding still do not constitute compliance
with CP XVIII.2.[140] It is
therefore necessary to consider what the terms are of the changes made to AT 146
and to assess the importance of these
changes. For this purpose the texts of IC
126(3)(b), NT 146(2) and (4) and AT 146(2) and (4) need to be analysed
carefully.
[149] In terms of IC 126 a provincial legislature is given
jurisdiction to make laws with regard to all matters which fall within
the
functional areas which are specified in IC sch
6[141] but the national Parliament
itself also has legislative competence in those
areas.[142] A conflict between a
law passed by a provincial legislature and an Act of Parliament in these areas
is regulated by the relevant
parts of IC 126, which read as follows:
“(3) A law passed by a provincial legislature in terms of this Constitution shall prevail over an Act of Parliament which deals with a matter referred to in subsection (1) or (2) except in so far as -
(a) the Act of Parliament deals with a matter that cannot be regulated effectively by provincial legislation;
(b) the Act of Parliament deals with 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;
(c) the Act of Parliament is necessary to set minimum standards across the nation for the rendering of public services;
(d) the Act of Parliament is necessary for the maintenance of economic unity, the protection of the environment, the promotion of interprovincial commerce, the protection of the common market in respect of the mobility of goods, services, capital or labour, or the maintenance of national security; or
(e) the provincial law materially prejudices the economic, health or security interests of another province or the country as a whole, or impedes the implementation of national economic policies.
(4) An Act of Parliament shall prevail over a provincial law, as provided for in subsection (3), only if it applies uniformly in all parts of the Republic.
(5) An Act of Parliament and a provincial law shall be construed as being consistent with each other, unless, and only to the extent that, they are, expressly or by necessary implication, inconsistent with each other.”
[150] What is clear from IC 126(3) is that
unless it is established that any of the conditions referred to in IC
126(3)(a)-(e) are
satisfied, a law passed by a provincial legislature in terms
of the IC prevails over the relevant Act of Parliament dealing with
the same
matter.
[151] There was a material change to the whole scheme in terms of
the NT, which gives provincial legislatures competence to pass laws
in four
areas.[143] First, they were
given exclusive competence to pass laws in certain functional areas which were
listed in NT sch 5.[144] Second,
they were given concurrent powers, together with the national Parliament, to
pass other laws in the functional areas listed
in NT sch
4.[145] Third, they were accorded
power to operate outside of these functional areas if it was expressly assigned
by national legislation.[146] And
finally, they were given the power to pass a constitution for the
province.[147]
[152] This
scheme still contained the potential for conflict between national legislation
and provincial legislation falling within
a functional area listed in NT sch 4.
This conflict was regulated by NT 146, which reads as follows:
“(1) This section applies to a conflict between national legislation and provincial legislation falling within a functional area listed in Schedule 4.
(2) National legislation that applies uniformly with regard to the country as a whole prevails over provincial legislation if any of the following conditions are met:
(a) The national legislation deals with a matter that cannot be regulated effectively by legislation enacted by the respective provinces individually.
(b) The interests of the country as a whole require that a matter be dealt with uniformly across the nation, and the national legislation provides that uniformity by establishing -
(i) norms and standards;
(ii) frameworks; or
(iii) national policies.
(c) The national legislation is necessary for -
(i) the maintenance of national security;
(ii) the maintenance of economic unity;
(iii) the protection of the common market in respect of the mobility of goods, services, capital and labour;
(iv) the promotion of economic activities across provincial boundaries;
(v) the promotion of equal opportunity or equal access to government services; or
(vi) the protection of the environment.
(3) National legislation prevails over provincial legislation if the national legislation is aimed at preventing unreasonable action by a province that -
(i) is prejudicial to the economic, health or security interest of another province or the country as a whole; or
(ii) impedes the implementation of national economic policy.
(4) National legislation that deals with any matter referred to in subsection (2)(c) and has been passed by the National Council of Provinces, must be presumed to be necessary for the purposes of that subsection.
(5) Provincial legislation prevails over the national legislation if subsection (2) does not apply.
(6) (a) National and provincial legislation referred to in subsections (1) to (5) includes a law made in terms of an Act of Parliament or a provincial Act only if that law has been approved by the National Council of Provinces.
(b) If the Council does not reach a decision within 30 days of its first sitting after the law was referred to it, the legislation must be considered for all purposes to have been approved by the Council.
(7) If the National Council of Provinces does not approve a law referred to in subsection (6)(a), it must, within 30 days of its decision, forward reasons for not approving the law to the authority that referred the law to it.”[148]
[153] When
NT 146 was compared with IC 126(3) it was clear that the grounds upon which
national legislation could override provincial
legislation had been expanded in
important respects. NT 146(2)(b) introduced a new ground for an override based
on the “interests
of the country as a whole”, to deal with
uniformity “across the nation” instead of the previous criterion in
terms
of IC 126(3)(b) which provided merely that the norms and standards were
required for the “effective performance” of the
matter.[149] More crucially, NT
146(4) gave to national legislation a clear advantage by providing that when
national legislation dealt with
any matter referred to in NT 146(2)(c) and it
had been passed by the NCOP,[150]
it had to be presumed to be necessary for the purposes of NT 146(2)(c). These
features of NT 146 weighed heavily with this Court
in the previous certification
proceedings when we concluded that the powers and functions of the provinces in
the NT as a whole were
substantially less than or substantially inferior to
their corresponding powers and functions in the
IC.[151]
[154] The CA has
addressed itself to this analysis and conclusion by introducing a new
formulation of sections 146(2) and 146(4) in
the AT. The preamble to NT
146(2)(b), which provided that for the purposes of prevailing over provincial
legislation the relevant
criterion to justify uniformity was “[t]he
interests of the country as a whole”, has been replaced by a more
stringent
criterion which provides that the national legislation must deal
“with a matter that, to be dealt with effectively, requires
uniformity
across the nation.” Secondly, and significantly, the whole of NT 146(4),
which previously created a presumption
in favour of national legislation, is
deleted and is replaced by the following:
“When there is a dispute concerning whether national legislation is necessary for a purpose set out in subsection (2)(c) and that dispute comes before a court for resolution, the court must have due regard to the approval or the rejection of the legislation by the National Council of Provinces.”[152]
[155] The
effect of AT 146(4) is to remove the presumption in favour of national
legislation which was contained in NT 146(4). The
issue as to whether or not
the particular national legislation dealt with a matter which was necessary for
the maintenance of national
security or economic unity or the protection of the
common market or any of the others factors listed in NT 146(2)(c) is now
objectively
justiciable in a court without any presumption in favour of such
national legislation. If it is not established that the legislation
is
necessary for any of the purposes identified by AT 146(2)(c), the national
government will not be entitled to rely on AT 146(2)(c)
in order to ensure that
such national legislation prevails over any conflicting provincial legislation
dealing with the matter.
The such national legislation has been approved by the
NCOP will not create any presumption in favour of the national legislation.
All that the court is enjoined to do is to have “due regard to the
approval or rejection of the legislation” by the
NCOP. The obligation to
pay “due regard” means simply that the court has a duty to give to
the approval or rejection
of the legislation by the NCOP the consideration which
it deserves in the circumstances. This is a consideration which the court
might
in any event have been entitled to take into account without an express
provision to that effect.
[156] It was contended on behalf of the
objectors that the express