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[2001] ZACC 7
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Member of the Executive Council for Local Government and Development Planning Western Cape and Another v Paarl Poultry Enterprises CC t/a Rosendal Poultry Farm (CCT38/01) [2001] ZACC 7; 2002 (2) BCLR 133 ; 2002 (3) SA 1 (CC) (14 December 2001)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT
38/01
MEMBER OF THE EXECUTIVE COUNCIL FOR
LOCAL GOVERNMENT AND
DEVELOPMENT
PLANNING OF THE WESTERN CAPE PROVINCE First
Applicant
BOLAND DISTRICT MUNICIPALITY Second Applicant
(as successor
to the Winelands District Council)
versus
PAARL POULTRY
ENTERPRISES CC
t/a ROSENDAL POULTRY FARM Respondent
Heard on : 6
November 2001
Decided on : 14 December 2001
JUDGMENT
YACOOB J:
Introduction
[1] The
local government restructuring process in terms of the Local Government
Transition Act No. 209 of 1993 (the LGTA) was completed
for the whole country
when municipal elections[1] were held
towards the end of last year.[2] This
application for leave to appeal arises from that process as it unfolded in
relation to local government structures in the Western
Cape outside the Cape
Town metropolitan area during 1997 and 1998. In particular, this Court must
consider the validity of section
10[3]
(the savings provision) of a
Proclamation[4] (Proclamation 52)
enacted by the Member of the Executive Council of the Western Cape Province (the
MEC) purportedly pursuant to section
10(1) of the LGTA.
[2] Proclamation
52 was prompted by an unusual sequence of events. Before it was amended in
November 1996, the LGTA did not require
district councils to be elected on the
basis of proportional representation. Consequently they were elected in the
Western Cape
according to establishment
Proclamations[5] that did not provide
for their election on that basis. Parliament then passed an
Act[6] (the 1996 amendment) which
substantially amended the LGTA, and in a provision that came into effect on 1
July 1997 required district
councils to be elected according to a system of
proportional representation. No one did anything to ensure that district
councils
in the Western Cape were reconstituted to comply with this amendment.
As a result the Cape of Good Hope High
Court[7] (the High Court) made an
order that district councils in the Western Cape had been “improperly
elected” since 1 July
1997 in that they had not been elected on the basis
of proportional representation in compliance with the
LGTA.[8] The MEC was required to put
the matter right within sixty days. Proclamation 52, enacted by the MEC in
December 1998 in an effort
to comply with this judgment and order (the
District Council Judgment), provided in the main for district councils in
the Western Cape to be constituted on the basis of proportional representation.
But it did more. The savings provision in it, section 10, sought to validate
all decisions and actions of district councils retrospectively
from 1 July 1997
to cover the period during which these councils had been improperly elected
according to the District Council Judgment. This became a bone of
contention.
[3] The savings provision reads as follows:
“10. Subsection (5) of section 42 of the Enactment contained in Proclamation 152 is substituted by the following:
(i) by the substitution therefor of the following—
‘(5) Any—
(a) movable and immovable property and other assets the ownership of which was transferred or vested;
(b) levies, revenue and other monies, levied or paid or recovered or payable or recoverable by or to a district council;
(c) prosecution commenced or defended;
(d) litigation launched or defended or any arbitration commenced by or against a district council;
(e) power exercised or duty or obligation performed in connection with the employment of employees, including the appointment of such employees;
(f) resolution taken;
(g) notice, certificate or other document issued;
(h) direction, approval, consent or authority given;
(i) exemption, licence or permit granted or issued;
(j) by-law made;
(k) employee nominated;
(l) agreement or contract entered into;
(m) delegation of powers granted;
(n) rates, tariffs or charges levied or imposed;
(o) reservation of land made;
(p) election made;
(q) power exercised or duty or obligation performed, and
(r) other action taken or thing done,
(i) by a prior regional services council shall be deemed to have been taken, issued, given, granted, made, elected, nominated or done by the succeeding district council and shall remain of force and effect until rescinded, varied or amended by the succeeding district council, and
(ii) by a district council which has been declared by the Cape High Court in
case number 1499/98 not to have been properly elected
since 1 July 1997 in
accordance with the basis of proportional representation as required by the
provisions of section 9D(1)(b)(i)
of the Act as amended, since 1 July 1997 shall
be deemed to have been done, taken, issued, given, granted, made, elected,
nominated,
exercised or performed by a district council constituted in
accordance with the said section 9D(1)(b)(i).’
(ii) . . . . ”
[4] The
Winelands District Council (Winelands) was one of those declared to have been
improperly elected in the District Council Judgment. In the High Court,
Winelands[9] sued the
respondent,1[0] for the payment of
certain levies.1[1] The latter
asked for a declaratory order that Winelands had been constituted improperly,
unlawfully and inconsistently with the
LGTA since 1 July 1997, and that material
decisions taken in relation to the institution of proceedings and the issue of
summons
during the first half of 1998 had therefore been incompetent. The
respondent relied on the District Council Judgment and Winelands resisted
the claim that it had not been properly constituted by relying on the savings
provision. The respondent took
the point that this provision was invalid and
the issue of its invalidity was set down for special
hearing1[2] before any evidence was
heard. The High Court allowed the MEC to intervene in the proceedings to
support the validity of the savings
provision and, after hearing argument,
ultimately declared it to be ultra vires the LGTA and
invalid.1[3] The MEC and Winelands
have, with a positive certificate from the High Court, applied for leave to
appeal directly to this Court
against the judgment of the High Court and the
President directed amongst other things that the application be set down for
hearing
and that the merits of the appeal be argued at the same
time.
[5] It became apparent at the hearing before this Court that
Winelands had ceased to exist and that the Boland District Municipality
(Boland)
had been established in its place. The applicants lodged an application seeking
an order that Boland be substituted for
Winelands as the second applicant in so
far as is necessary. The application is not opposed and should be
granted.
[6] The respondent contended in limine that the application for
leave to appeal should not be granted because the issue in the appeal
is not a
constitutional matter and because the circumstances of this case do not warrant
an appeal directly to this Court from the
judgment of the High Court. I
disagree. The finding by the High Court that the savings provision is invalid
is necessarily a finding
that the action of the MEC in enacting the Proclamation
constituted an unlawful exercise of public power. Any issue involving the
legality of the exercise of public power is a constitutional
matter.1[4] The case does raise a
constitutional matter.
[7] The applicants urged that leave to appeal
directly to this Court be granted. They say that the appeal does not raise any
matter
other than a constitutional one, that there will be a considerable saving
in costs and time if their request were to be acceded to
and that the issue
calls for urgent final resolution. In support of urgency, they point to the
fact that there is now considerable
uncertainty about the lawfulness of the
existence of seven district councils in the Western
Cape.1[5] The confirmation of the
decision of the High Court would mean that everything done and all decisions
made by all district councils
in the Western Cape from July 1997 until about the
end of 1998 would be null and void. The resultant potential dislocation is
obvious.
They nevertheless sought at the beginning of the hearing to have
admitted as evidence an affidavit in which the degree of that dislocation
was
particularised. This application, which was opposed, is rejected. The
proposed evidence adds nothing. We do not need it to
be persuaded of the
obvious dislocation and the dire consequences that might flow if there were
uncertainty about the capacity of
the district councils in the Western Cape to
act during a period of about a year-and-a-half. This is a case in which leave
to appeal
directly to this Court should be granted. Stable government requires
certainty on this issue as soon as possible and the applicants’
motivation
is well founded.1[6] The merits of
the appeal are considered in the rest of this judgment.
[8] A
preliminary matter must be briefly addressed before delving into the merits.
The High Court, having declared the savings provision
invalid, made no order
pursuant to section 172(1) of the
Constitution1[7] in order to control
the effect of invalidity in the interests of justice. In fact, section 172 is
not mentioned in the High Court
judgment.
[9] In the Pharmaceutical
Manufacturers case1[8]
Chaskalson P, responding to a proposition that judicial review under the
Constitution and under the common law are different concepts,
said on behalf of
a unanimous Court:
“I take a different view. The control of public power by the courts through judicial review is and always has been a constitutional matter. Prior to the adoption of the interim Constitution this control was exercised by the courts through the application of common-law constitutional principles. Since the adoption of the interim Constitution such control has been regulated by the Constitution which contains express provisions dealing with these matters. The common-law principles that previously provided the grounds for judicial review of public power have been subsumed under the Constitution, and in so far as they might continue to be relevant to judicial review, they gain their force from the Constitution. In the judicial review of public power, the two are intertwined and do not constitute separate concepts. I deal more fully with this below.”
Later in the same judgment Chaskalson P
continued:1[9]
“I cannot accept this contention which treats the common law as a body of law separate and distinct from the Constitution. There are not two systems of law, each dealing with the same subject matter, each having similar requirements, each operating in its own field with its own highest court. There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.”
[10] A dispute about whether a provincial
proclamation or a part of it is consistent with an Act of Parliament in terms of
which
that subordinate legislation has been made, is a dispute covered by
section 172 of the Constitution. Section 172 obliges a court
to declare that
any law or conduct that is inconsistent with the Constitution is invalid to the
extent of its inconsistency. National
legislation is defined in section 239 of
the Constitution so as to include subordinate legislation made in terms of an
Act of Parliament.
A provincial proclamation made in terms of an Act of
Parliament including a provincial proclamation made in terms of the LGTA is
national legislation according to the Constitution. It is therefore
“law” within the meaning of section 172(1). There
can be no room
for any suggestion that disputes about whether a provincial proclamation falls
within the terms of an enabling Act
of Parliament are concerned with a common
law principle unrelated to the Constitution. The nature of the inconsistency
relied upon
was that the MEC lacked the power to make the savings provision.
The ultimate question was whether the law in issue was consistent
with the
Constitution. The High Court, having decided that the savings provision was
invalid was bound to consider whether it was
necessary to control the effect of
that order in the interests of justice and equity pursuant to section
172(1).
[11] None of the pleadings before the High Court nor the special
case referred to the provisions of section 172(1) of the Constitution.
The High
Court did not refer to this empowering provision either. The judgment of the
High Court is silent as to the source of
its authority to declare the provision
invalid. There is some uncertainty about whether the High Court considered
that this was
a case covered by section 172(1) of the Constitution. To the
extent that this was not done, the High Court erred. We, like it,
must consider
the case under this section.
The validity of the savings
provision
[12] It was contended before the High Court in support of the
savings provision that the MEC’s section 10 power was original
legislative
power;2[0] alternatively that the
broad and inclusive section 10 empowerment provision of the LGTA conferred the
relevant authority on the MEC
by necessary implication. The High Court rejected
both legs of this submission. The applicants advanced much the same argument
before this Court. The submissions were disputed by the respondent who
contended that the savings provision was inconsistent with
the LGTA because in
effect it purported to transform a district council that had not been properly
constituted in terms of the LGTA
into one that was. The submissions of both
parties concerning the scope of the authority of the MEC rested on the
correctness of
applicants’ starting point that the MEC continued to enjoy
the powers conferred by the LGTA in respect of district councils
despite the
provisions of section 10N(2) which provides as follows:
“(2) The powers conferred upon the MEC by section 10 shall lapse in respect of the area of jurisdiction of a local council, metropolitan council, metropolitan local council, rural council or representative council on the day immediately prior to the commencement of the Local Government Transition Act Second Amendment Act, 1996.”
[13] The submission was that district councils are not
mentioned in section 10N(2) and that the MEC’s section 10 power had
not
lapsed in relation to these councils. This submission accords with part of the
reasoning essential to the conclusion in the
District Council Judgment.
The order directing the MEC to rectify the defect was based on the proposition
that the LGTA not only authorised the MEC to enact
a Proclamation to ensure that
district councils were elected consistently with the amended LGTA but indeed
obliged the MEC to do
so. At pages 15 - 17 of the typed judgment the judge
said:
“It is true that in section 10N of the Transition Act it is stated that the powers conferred upon the M.E.C. by section 10 shall lapse in respect of the area of jurisdiction of a local council, metropolitan council, metropolitan local council, rural council or representative council on the day immediately prior to the commencement of the Local Government Transition Act Second Amendment Act, 1996. What is notable is that the powers conferred upon the M.E.C. in respect of district councils did not lapse. Mr Heunis also submitted that the fact that a provincial committee was to be disestablished in terms of section 10N(1) meant that the M.E.C. was no longer capable of exercising section 10 powers in respect of district councils.
I do not agree with that submission. There must have been a reason why the powers of the M.E.C. in regard to district councils were not included in the lapsing provisions of section 10N(2). If the committee no longer exists, then the effect is that the M.E.C. can act without the committee. Certainly, in a situation like the present one, where the argument is that the Minister should have done what he thought necessary himself and should not have tried to compel the M.E.C. to act in accordance with the requirements of the Second Amendment Act, the argument is of little force. One is not dealing with a situation where an M.E.C. is initiating any provincial legislation or proclamation or regulation where the advice of a committee might be important. He is being told what he ought to do by the National Minister, and he retains the power to carry out the instructions of Applicant on the Act as it is presently worded.”
[14] After the hearing in this Court, doubt
arose whether the MEC’s power in relation to district councils had indeed
not lapsed
by reason of section 10N(2) of the LGTA. Consequently the President
issued additional directions requesting the parties to furnish
further written
argument on:
“(a) Whether it is correct that the powers conferred on the Provincial Member of the Executive Council responsible for local government by Section 10 of the Local Government Transition Act 209 of 1993 (the LGTA) did not lapse in respect of District Councils when the LGTA was amended by the insertion of section 10N. In addressing this issue, the Parties are requested to have due regard to -
(i) the fact that section 10N(2) provides that the relevant powers “shall lapse in respect of the area of jurisdiction of” the bodies mentioned in the sub-section, and not that the powers are to lapse in respect of the named local government structures;
(ii) the provisions of Section 9D(1)(b)(i) and (ii) of the LGTA which are to the effect that District Councils are composed of representatives of local, rural or representative councils whose areas of jurisdiction fall within the area of that District Council and of representatives of remaining areas;
(iii) the disestablishment of Provincial Committees by section 10N(1) of the LGTA; and
(iv) any other relevant factor.
(b) The legal consequences if section 10N had application to the section 10 powers of the MEC in respect of District Councils more particularly in regard to -
(i) whether the MEC responsible for local government in the Western Cape had the power to promulgate Proclamation 52 of 1998 and;
(ii) whether section 10N(3) had the consequence that section 8 of Proclamation 152 of 1995 remained in force and, if so, until when.”
[15] Written argument on these
matters has been filed on behalf of all the parties and the Court expresses its
appreciation for their
help. It is logical to consider first whether the MEC
retained any authority in relation to district councils.
[16] The
applicants in their further submissions point to the fact that the section 10
powers were not conferred on an area basis;
they seek to remind us that all
municipalities operate within an area of jurisdiction and ask us to ignore the
words “of the
area of jurisdiction” in section 10N(2), contending
that they add nothing. They refute the possibility that district councils
were
excluded because, they point out, areas of jurisdiction comprise those of local,
rural, and representative councils and emphasise
that district councils also
have jurisdiction in remaining
areas.2[1] It is further suggested,
echoing the views in the District Council Judgment quoted in paragraph 13
above, that the disestablishment of provincial committees, militated against the
conclusion that the MECs
lost their section 10 power in relation to district
councils. Finally, it was submitted that the authority of the MEC in relation
to district councils was preserved for the limited purpose of facilitating a
provincial proclamation providing for them to be elected
on a proportional basis
consistently with the 1996 amendment.
[17] These submissions were
disputed on behalf of the respondent. It contended that section 10N(2) referred
to the areas of jurisdiction
of the entities mentioned in it and that, since the
MEC was deprived of his authority in areas of jurisdiction of transitional
local,
rural and representative councils, he was also deprived of authority over
district councils because their areas overlapped. On this
basis
respondent’s counsel concluded that the authority of the MEC had been
preserved only in relation to “remaining
areas”, that is areas in
which primary structures of local government were non-existent.
[18] The
meaning and effect of the introduction of section 10N into the LGTA at the end
of 1996 must be ascertained. We must do
this bearing in mind that section 10N
was not introduced alone, it being but a small element of the whole of Part VIA
inserted by
the 1996 amendment. The purpose for which Part VIA was introduced,
must in turn be determined with due regard to the stage the transition
had
reached at the time and in the context of an understanding of the transition
process in local government as a whole and in non-metropolitan
or rural areas in
particular.
[19] The LGTA understandably set up a regime for transition
in metropolitan areas that differed somewhat from that in non-metropolitan
and
rural areas.2[2] The transition
process in neither was predictable and could therefore not be mechanical or
fixed. That the LGTA had to be amended
upon numerous occasions to cater for
changed circumstances or needs evidences this. It is self-evident, for example,
that as local
government became more structured and democratised, so it became
both necessary and desirable that the extent of executive power
over the process
be decreased. Common to the reconstruction process in both metropolitan and
non-metropolitan or rural areas was
that both were divided into two phases: the
pre-interim phase which embraced negotiations within negotiating forums and
ended immediately
before elections in terms of section 9 of the LGTA, and the
interim phase which began on the day of these
elections2[3] and continued until
final arrangements for local government restructuring were
implemented.2[4]
[20] We
are not here concerned with metropolitan transition. It is enough to say that
this process involved negotiations for and
the establishment of metropolitan
councils and metropolitan local
councils,2[5] the determination of
their respective powers and functions as well as their direct election in terms
of a system that allowed for
both proportional and ward representation. The
non-metropolitan and rural transition process was more complex and less
predictable.
[21] Transition provisions for non-metropolitan or rural
areas in the LGTA at its inception were both tentative and
incomplete.2[6] The most concrete
of these related to local councils which were to be negotiated, proclaimed and
directly elected with agreed powers
and functions in the same way as
metropolitan councils and metropolitan local
councils.2[7] Local councils were
retained from the pre-interim phase through to the interim phase. The position
was very different in relation
to the two other structures provided for:
a. A local government co-ordinating committee was created with certain specified powers and duties but with the councils of those local government bodies existing in its area at its formation retaining all their other powers. No provision was initially made for any election or democratisation of this committee which was to exist during the pre-interim phase only.2[8] The process of reconstruction that started with the existence of local government co-ordinating committees in the pre-interim phase was not taken further for the interim phase.
b. A district council2[9] was to replace any regional services council3[0] or joint services board3[1] which were both old order local government structures. The district council was to exercise certain powers and duties in relation to functions to be performed by local councils, local government co-ordinating committees or local government bodies jointly with these bodies. The MEC had very wide powers in relation to all matters including the way in which district councils were to be constituted. Nowhere in the LGTA as originally conceived was there any provision or any guideline as to what they should do, whether they were to be elected or not and if so, from where they were to be elected. One thing was clear from the expanded definition of this power: a district council became entitled to the levies to which its predecessor (either the regional services council or the joint services board) had been entitled to claim before they had been replaced. It was not certain how district councils would look after the pre-interim phase because provincial committees and local government bodies would presumably have ceased to exist if elections were held in the areas of these local government bodies. Rural and representative councils had not yet seen the light of day. It seemed as though only local councils and district councils would continue to exist in a non-metropolitan area after elections and during the interim phase. There was no clear plan for local government transition in non-metropolitan or rural areas at this time.
[22] The nature of the section 10
power afforded to the provincial MEC in the LGTA at its inception was
necessitated by and must
be seen in this context. Before the pre-interim phase
of negotiation, there existed a range of racially based unrepresentative local
government bodies3[2] with
structures in the rural areas and most areas occupied by a majority of black
people being under-resourced and relatively undeveloped.
The task of replacing
these with viable, non-racial representative local government required much
flexibility particularly in non-metropolitan
or rural areas where neither the
pre-interim nor interim phase had been reasonably conceptualised. The powers of
the provincial
MEC were structured as follows. Sections 10(1) and (2) provided
for a widely defined terrain of power in relation to local government
restructuring in the province while section 10(3) specified that power in detail
making it clear that the grant of specific power
was not to be regarded as
derogating from the general wide power conferred by section 10(1). Sections
10(1) and (2) of the LGTA
at its inception
provided:3[3]
“Powers of Administrator
10. (1) For the purposes of this Act the Administrator concerned may in respect of the area of jurisdiction of the province for which he or she is appointed—
(a) by proclamation in the Official Gazette, make enactments not inconsistent with this Act with a view to the transitional regulation of any matter relating to local government;
(b) provide in any such enactment for the amendment or repeal of any law, including any Act of Parliament or the legislative assembly of any Self-governing Territory, in so far as it relates to any such matter and applies in the province; and
(c) provide in any such enactment that any law, including any Act of Parliament or the legislative assembly of a Self-governing Territory, or any provision of any such law, pertaining to local government affairs shall, subject to the adjustment or amendment of such law or provision as he or she may make in such enactment, apply to any local government body, transitional council or transitional metropolitan substructure referred to in section 16, or to any category of such local government body, transitional council or transitional metropolitan substructure,
and he or she may make different such enactments in respect of different areas, local government bodies, transitional councils or transitional metropolitan substructures.
(b) The Administrator may in like manner amend or repeal a proclamation made under subsection (1).”
[23] All the
specific powers contained in section 10(3) are relevant to the process of the
transformation or the replacement of old
local government bodies with elected
structures contemplated by the LGTA and as appears later became superfluous once
this process
had been completed. The MEC could for example establish,
disestablish and re-establish metropolitan councils or metropolitan local
councils, as well as replace local government bodies with these councils and
appoint their members. Local government bodies could
be dissolved and
membership of these bodies terminated by this functionary pursuant to section
10(3). As is mentioned earlier,3[4]
the MEC had powers concerning the delimitation of areas as well as the
constitution, powers and functions of district councils.
[24] Section 10
was however not as wide as might be imagined. All Proclamations had to be
consistent with the LGTA itself. Thus
for example the Administrator was obliged
to enact Proclamations in accordance with agreements reached during the
pre-interim phase
as set out in section 7(1)(b) and (c). All decisions of the
Administrator or MEC could only be taken with the concurrence of the
provincial
committee which represented the national element in the decision-making process
so that neither the provincial nor the
national government could act
alone.3[5] All Proclamations in
relation to delimitation of areas of jurisdiction of bodies to be established by
Proclamation could only have
been done after due consideration of the advice and
written recommendation of the local government demarcation board in the
province.3[6]
[25] The first
mention of a rural area in the LGTA occurred towards the end of 1994 when it was
amended3[7] by the introduction of a
provision3[8] which empowered the
MEC to establish a transitional council for a rural area of local government
called the transitional rural council.
The MEC was given wide powers in
relation to the delimitation of the area of the council as well as its
constitution, election,
functioning and other matters pertaining to it.
However, the amendment added nothing to the definition of a district council and
it is impossible to determine how the rural council was going to fit into the
scheme of non-metropolitan local government. The same
amendment added a
sub-paragraph about the local government co-ordinating committee to the effect
that it should at least be responsible
for the preparation for and the conduct
of a section 9(1) election within its area of
competence.3[9] These amendments
read together seem to suggest that local government co-ordinating committees
were to mature into elected rural
councils.
[26] All this was clarified
only at the end of June 1995 when a whole new Part VA entitled “rural
local government”4[0] was
introduced into the LGTA. Part VA provided for the establishment of
representative councils consisting of elected members as
well as nominated
members representing interest
groups4[1] and defined the powers
and functions of these bodies.4[2]
There was to be no interest group representation in rural councils. The MEC was
given additional extensive powers in relation to
rural local government.
Perhaps most significantly, this Part included section 9D which was entitled
“Framework for rural
local government”. The section was to the
effect that:
a. Each province was to be divided into areas of jurisdiction of metropolitan councils and district councils;4[3]
b. A district council was to consist of elected members as prescribed by regulation from each of the local, representative or rural councils whose areas are situated within the area of the district council, and where there is a remaining area within the district council, members to represent that area.4[4] The section did not say that district councils must be chosen on the basis of proportional representation. Importantly, their areas of operation were not limited to the areas of local, representative and rural councils, but included remaining areas. Somewhat curiously, the new definition section of Part VA continued to define a district council by reference to section 10(3)(i) which remained unamended and which, as we saw earlier,4[5] makes no reference to how a district council is to be constituted or to representative or rural councils.
[27] The period June 1995
until 26 June 19964[6] saw the
enactment of proclamations concerning the establishment of local, rural,
representative and district councils in all the
provinces as well as the
election of all transitional councils that were to be directly
elected.4[7] After 26 June 1996,
and before the introduction of section 10N into the LGTA as an element of a new
Part VIA during November 1996,
district councils were elected from the members
of local, rural and representative councils and where applicable from remaining
areas.
A brief description of proclamations made by the MEC in the Western
Cape is usefully illustrative. A Proclamation enacted there
towards the end of
19954[8] (Proclamation 152), amongst
other things, established rural
councils,4[9] provided for the
method of their election5[0] and
determined the powers and functions of
rural5[1] and
district5[2] councils. The
Proclamation also determined the number of seats in the district council.
Section 8 provided:
“The competent authority shall determine the number of seats on a district council on the basis that half of the seats shall represent the interests of councils and half of the seats shall represent the interests of transitional local councils and thereafter—
(a) allocate specific seats to councils and transitional local councils;
and
(b) incorporate such allocation in a proclamation published in the Provincial Gazette.”
[28] Early in the next
year a further Proclamation5[3]
(Proclamation 6) was enacted to put Proclamation 152 into detailed practice.
This Proclamation set out the number of seats in each
local and rural council,
and the number of representatives of each of the local and rural councils who
were together to form each
district
council.5[4] Finally a Proclamation
enacted during April 19965[5]
(Proclamation 18) took advantage of an opportunity offered by a June 1995 LGTA
amendment5[6] allowing rural
councils to be converted into representative
councils.5[7]
[29] This was
the context in which Part VIA was introduced. It included provisions for the
lapsing of the section 10 MEC authority
and the amendment of section 9D(1)(b)(i)
to require that district councils were now to be constituted by members of
local, rural
or representative councils as well as representatives of remaining
areas on a proportional basis. Much of that area had undergone immense
local government reconstruction since the enactment of section 10. Metropolitan
and local
councils whose powers had been negotiated and determined had been
directly elected in all metropolitan areas. Although district
councils had been
established in all non-metropolitan areas as contemplated by the framework
provisions of section 9D(1)(a) and (b)
as they had stood before the 1996
amendment, they were not directly elected.
[30] The primary structures
of local government did not cover all of the non-metropolitan areas with the
result that there remained
areas referred to as “remaining
areas”5[8] that fell outside
the area of a local, rural or representative council. These were areas in which
no primary structures of rural
local government as envisaged by the LGTA
existed.5[9] It will be recalled
that these remaining areas were also represented on district
councils.6[0]
[31] By 1996
the difference between levels of development achieved in metropolitan areas as
opposed to that in non-metropolitan areas
was substantial. Directly elected
metropolitan councils and metropolitan local councils were in place for the
whole of the metropolitan
area. This was not so in non-metropolitan areas.
Perhaps the most significant difference for present purposes is that local
government
in non-metropolitan areas did not consist only of directly elected
structures but were dominated by district councils. These structures
were
indirectly elected except in remaining areas, where they were directly elected
members. The members to serve on district councils
from remaining areas were
not all to be elected members but up to twenty per cent of them could be
nominated to represent interest
groups recognised by the
MEC.6[1] District councils were
unique. The development of democratic local government in these areas lagged
far behind that in metropolitan
areas. The process of the transformation or
replacement of old local government bodies with elected structures contemplated
by the
LGTA had been virtually completed in metropolitan areas and was anything
but complete in non-metropolitan areas. This points to
a need to maintain some
measure of MEC authority there.
[32] Section 10N provides:
“Transitional provisions relating to sections 3, 9, 10 and 10C.—(1) A committee established under section 3 shall be disestablished on the day immediately following upon the day on which the last election or elections contemplated in section 9 have been held for the province concerned.
(2) The powers conferred upon the MEC by section 10 shall lapse in respect of the area of jurisdiction of a local council, metropolitan council, metropolitan local council, rural council or representative council on the day immediately prior to the commencement of the Local Government Transition Act Second Amendment Act, 1996.
(3) Any proclamation made under section 10 and which was in force immediately prior to the commencement of the Local Government Transition Act Second Amendment Act, 1996, shall, notwithstanding the provisions of subsection (2), remain in force.
(4) The MEC may, with the concurrence of the Minister, by proclamation in the Provincial Gazette—
(a) amend or repeal a proclamation referred to in subsection (3): Provided that such proclamation may be amended with retrospective effect to a date not earlier than the publication thereof;
(b) notwithstanding anything to the contrary in this Act contained, amend or repeal a regulation contemplated in section 9 (2); or
(c) re-allocate the powers and duties which have been agreed upon in terms of section 10C(3).
(5) In the event of an inconsistency between a proclamation referred to in subsections (3) or (4) and the provisions of this Act, the latter shall prevail: Provided that the provisions of this subsection shall not apply to those provisions of a proclamation dealing with the allocation of powers and duties of municipalities.”
[33] A plain reading of section 10N
could lead to the construction that the powers of the MEC were not to lapse in
respect of local,
metropolitan, metropolitan local or rural and representative
councils but in respect of the area of jurisdiction of each of these
councils.
This would mean that the section 10 powers lapsed in respect of those areas over
which local, rural and representative
councils had jurisdiction and which also
fell within the jurisdiction of a district council. The only areas, therefore,
in respect
of which the section 10 authority would not have lapsed, on this
reading, would have been remaining areas.
[34] This interpretation is
not entirely free from difficulty, however. Section 10N(2) specified that the
powers of the MEC were
to lapse in respect of both the areas of jurisdiction of
metropolitan councils and metropolitan local councils. But the area of
jurisdiction of a metropolitan council is the same as the sum total of
metropolitan local council areas of which the former is composed.
It would
therefore have been sufficient for a legislature intent upon defining the lapse
of authority by reference to areas of jurisdiction,
to have specified only the
areas of jurisdiction of metropolitan local councils or those of metropolitan
councils. To mention both
is superfluous unless the meaning to be attributed to
“areas of jurisdiction” in section 10N(2) is not geographical.
There is yet another difficulty. As pointed out earlier, the net result of the
construction that powers of MECs were to lapse in
respect of the geographic
areas of jurisdiction of non-governmental structures, is that the MEC’s
authority was preserved for
remaining areas alone. If that had been the
legislature’s purpose, it would surely have said so.
[35] There
was reason to treat district councils differently from other local government
structures in relation to the authority
of the MEC. District councils were the
only structures that had not been directly elected and that were responsible for
the provision
of services in undeveloped rural areas where there were no
directly elected local government structures. In contradistinction to
this, all
of the areas of jurisdiction of metropolitan councils (themselves directly
elected) consisted of directly elected metropolitan
local councils. To put it
another way, circumstances relating to advanced democratisation that contribute
to the efficacy of the
decision to remove the powers of the MEC in relation to
the councils mentioned in section 10N(2) were not applicable to district
councils.
[36] It was submitted on behalf of the respondent that the
abolition of provincial committees is inconsistent with the retention
of section
10 authority in respect of district councils because the legislature would not
have wanted to grant wide power to provincial
functionaries without a
countervailing democratic element. However, they contended in the same breath,
that Parliament was content
to permit the MEC to exercise wide powers without
any democratic control in respect of remaining areas. If the aim was to retain
the power of the MEC uninhibited by a provincial committee in remaining areas,
there seems no reason to suggest an intention not
to retain section 10 authority
in respect of district councils. As was said in the District Council
Judgment: “[I]f the (provincial) committee no longer exists, the
effect is that the MEC can act without the
committee.”6[2]
[37] The
retention of the authority of the MEC in relation to district councils is
explicable. The need for the development of democratic
local government
structures in non-metropolitan areas might be better served if the MEC retained
section 10 authority in respect
of district councils. In any event, the powers
of the MEC in relation to district councils is balanced by a provision that
obliges
the use of district councils, amongst other structures, “with a
view to developing a democratic, effective and affordable system
of local
government.”6[3]
[38] The
difficulties associated with the interpretation of section 10N(2) are largely a
consequence of construing the phrase "area
of jurisdiction" to refer to
geographic areas. The phrase can reasonably be interpreted as referring not to
geographical areas but
to the jurisdictional ambit of the powers and functions
of the various bodies mentioned in section 10. On this basis, the authority
of
the MEC to act pursuant to section 10 of the LGTA lapsed in respect of the ambit
of the powers and functions of local, rural,
metropolitan and metropolitan local
councils. On the other hand, the MEC's section 10 powers continued to exist in
relation to all
matters concerned with the exercise of powers and performance of
functions of district councils. "Area of jurisdiction" in section
10 should
therefore not be interpreted to refer to geographic areas.
[39] Finally,
it must be remembered that the MEC did have section 10 power in respect of
district councils of the province. The
suggestion is that section 10N(2)
stripped the MEC of that power. If the legislature had intended to do this, one
would have expected
it to have done so directly and not in an oblique way. The
MEC did have authority to make Proclamation 52 and this conclusion in
the
District Council Judgment is correct.
[40] The next question is
whether the MEC had authority to enact the savings provision. The submission
concerning inconsistency
and the absence of the power of the MEC was rooted in
the proposition that district councils had been improperly constituted since
1
July 1997. That proposition was derived from the order in the District
Council Judgment to the effect that district councils had been
“improperly elected” since 1 July 1997. Absent this substratum the
entire
argument collapses. If district councils had, on a proper analysis, been
lawfully constituted during the period 1 July 1997 until
they were reconstituted
after the enactment of Proclamation 52, a savings provision would have been
unnecessary because there would
have been no need to validate acts and decisions
of district councils. We must therefore decide whether district councils were
lawfully
constituted in the Western Cape during this
period.
[41] Section 8 of Proclamation
1526[4] which became applicable to
representative councils in March 1996 by reason of Proclamation 18, did not
provide for local and representative
councils to be represented on district
councils on a basis of proportional representation. Section 9D(1)(b)(i) as it
then read did
not require this.6[5]
Proclamations 6 and 18 respectively which were a more concrete implementation of
Proclamation 152 and determined the number of seats
that each named local and
representative council was to have in each separately identified district
council also did not result in
any proportional representation. All these
Proclamations were valid and district councils had been validly elected pursuant
to them.
[42] None of these proclamations was repealed or amended
consequent upon the amendment to section 9D(1)(b)(i) requiring district
councils
to be elected on the basis of proportional representation. It is important to
note also that the establishment Proclamations
were not set aside by the
District Council Judgment. They remained on the provincial statute book
until the enactment of Proclamation 52 which provided in detail for district
councils
to be elected on the basis of proportional representation consistently
with the relevant amendment to the LGTA as from 31 January
1999. What is more,
no law binding on district councils required their reconstitution before
Proclamation 52 was enacted.
[43] The question to be answered is whether
there was any inconsistency between section 8 of Proclamation 152 and the seat
allocation
provisions contained in Proclamations 6 and 18 of 1996 read together
on the one hand, and the amended section 9D(1)(b)(i) requiring
district councils
to be elected on the basis of proportional representation, on the other. There
was none. The unamended section
9D(1)(b)(i) read with section 10(3)(i) of the
LGTA could not have been implemented in the absence of proclamations enacted by
the
MEC determining the precise number of seats that each local, district or
rural council or, if applicable, each remaining area, would
have on the district
council concerned. Likewise, the amended section of the LGTA remained devoid of
sufficiently concrete content
and could not have been implemented until and
unless a provincial proclamation or national Regulations equivalent to the
establishment
Proclamations set out the number of seats to which each local,
rural or representative council was entitled to have in a district
council.
[44] Until the appropriate provincial proclamation or national
Regulations had been enacted, there was no law defining the number
of seats that
each primary council should have in a district council other than Proclamation
152 of 1995 read with Proclamations
6 and 18 of 1996. The amendment to section
9D(1)(b)(i) required national or provincial subordinate regulation
re-determining the
composition of district councils. The failure to enact the
necessary legislative framework did not result in district councils becoming
unlawfully constituted. There was no vacuum. The failure did, however,
constitute a breach of an obligation by the functionaries
obliged to put the
appropriate legal mechanism in place. There was accordingly no inconsistency
between section 8 of Proclamation
152 read with Proclamations 6 and 18 of 1996
and section 9D(1)(b)(i) of the LGTA. Therefore district councils constituted in
accordance
with Proclamation 6 of 1996 in the Western Cape therefore remained
lawfully constituted beyond 1 July 1997 until there was an appropriate
national
or provincial regulation that defined the number of seats each local, rural or
representative council should have on a district
council consistently with
proportional representation as required by the amendment.
[45] The
District Council Judgment correctly ordered the MEC to do so. It erred
however in declaring district councils to have been improperly elected. The
District Council Judgment focused on whether the MEC was obliged to
ensure that district councils came to be elected consistently with the changes
required
by the amendment. In the process of doing so, the judgment
acknowledged that district councils had not been elected in accordance
with the
amended section 9D(1)(b)(i) as a matter of fact. It did not focus on the
separate question whether the failure to enact
the necessary legal framework and
to cause the councils to be reconstituted accordingly, had resulted in their
being unlawfully constituted
in the legal sense despite the fact that they had
initially been constituted according to the legal mechanism applicable to them.
District councils had been properly elected in accordance with the only
regulatory mechanism that had been applicable to them at
the time. This
conclusion concerning the effect of section 9D(1)(b)(i) accords with the spirit,
purport and objects of the Constitution,
and particularly with its founding
value, the rule of law. The spirit, purport and objects of the Constitution and
the rule of law
contemplate “a purposive ordering of social
relations” in communities regulated by
law.6[6]
[46] The conclusion
that lawfully constituted district councils remained lawfully constituted
despite the failure to enact an appropriate
new subordinate regulatory
mechanism, means that the declaratory relief sought by the applicants in the
High Court cannot be granted.
The application for leave to appeal must
therefore be granted and the appeal must succeed. The order made by the High
Court should
be set aside.
[47] One last comment needs to be made. The
High Court, having declared the savings provision inconsistent with the
Constitution,
did not consider whether it was necessary to make an order to
control the effect of the declaration of invalidity. It ought to have
done so.
Even if the District Council Judgment had been correct that district
councils had been unlawfully constituted from 1 July 1997 to the date of their
recomposition pursuant
to Proclamation 52, and even if the High Court were
correct that the savings provision is inconsistent with the Constitution, there
would have been compelling reasons in the circumstances of the present case, to
attach conditions to the order to enable councils
to recover rates and taxes
levied in good faith by the de facto councillors, and to avoid the consequence
that would otherwise follow
from an unconditional order declaring that all the
district councils in the Western Cape were unlawfully constituted for a period
of more than eighteen months.
[48] The findings in this judgment are
that:-
a. Section 10 of the LGTA conferred wide powers in respect of local restructuring on provincial MECs;
b. this included the power to constitute district councils;
c. the nature and rate of local government reconstruction was more complex and less rapid in non-metropolitan areas as opposed to metropolitan areas;
d. when the authority of the MEC in relation to certain local government matters lapsed by reason of the introduction of section 10N(2) of the LGTA towards the end of 1995, local government restructuring was less advanced in non-metropolitan or rural areas dominated by district councils;
e. the authority of the MEC did not lapse in respect of district councils by reason of the introduction of section 10N(2);
f. district councils had, before the amendment to section 9D(1)(b)(i) requiring their election according to proportional representation, been properly constituted in accordance with a valid provincial regulatory framework;
g. the failure to enact a new regulatory framework aimed at the reconstitution of district councils on the basis of proportional representation pursuant to the amendment rendered an order directing the MEC to do so appropriate;
h. that failure, however, did not result in district councils becoming unlawfully constituted; and
i. these councils remained lawfully constituted after 1 July 1997 despite the failure to enact the new regulatory framework.
Costs
[49] The respondent relied on a
number of defences in an effort to resist the payment of levies to a public body
responsible for
the delivery of services in a rural area in which there was
obviously considerable need for services. One of the defences relied
on has now
turned out to be futile. There is no reason why it should not pay the costs
both in the High Court and in this Court
consequent upon that futile point
having been taken.
Order
[50] The following order is made:
1. The Boland District Municipality is substituted for the Winelands District Council as the applicant.
2. The application for leave to appeal is granted.
3. The appeal is allowed with costs including the costs consequent upon the employment of two counsel.
4. The order of the High Court is set aside and for it is substituted an order that:
a. The Defendant’s application for declaratory relief is dismissed.
b. The Defendant is ordered to pay the costs of the application.
5. The matter is referred back to the High Court and is to be dealt with in the light of this judgment.
Chaskalson
CJ, Langa DCJ, Ackermann J, Kriegler J, Madala J, Mokgoro J, O’Regan J,
Sachs J, Du Plessis AJ and Skweyiya AJ concur
in the judgment of Yacoob
J.
For the applicants: JC Heunis SC and N Bawa instructed by the State
Attorney, Cape Town for the first applicant and by Dirk Joubert
Attorneys,
Stellenbosch for the second applicant.
For the respondents: WG Burger SC instructed by Van Der Spuy and Partners, Cape Town.
[1] Pursuant to the Local
Government: Municipal Structures Act 117 of
1998.
[2] Item 26(1)(a) of Schedule
6 to the Constitution provides:
“26. (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 in respect of a Municipal Council until a Municipal Council replacing that Council has been declared elected as a result of the first general election of Municipal Councils after the commencement of the new Constitution . . . .”
[3] The section is considered in more detail at paras 22 and 23 below.
[4] Proclamation 52 of 1998 enacted by Provincial Gazette Extraordinary 5316 of 11 December 1998.
[5] Proclamations 152 of 1995 enacted by Provincial Gazette Extraordinary 5004 of 15 December 1995, 6 of 1996 enacted by Provincial Gazette Extraordinary 5028 of 11 March 1996 and 18 of 1996 enacted by Provincial Gazette Extraordinary 5040 of 26 April 1996 all of which will be discussed later in the judgment.
[6] Act 97 of 1996.
[7] In The Minister for Provincial Affairs and Constitutional Development v The Member of the Executive Council for Local Government in the Western Cape Province and Others (Cape of Good Hope High Court) Case No 1499/98, 2 July 1998, unreported, per Foxcroft J, Tebbutt J concurring.
[8] Section 9D(1)(b)(i).
[9] The plaintiff in the court below.
1[0] The defendant in the court below.
[1]1 Regional Services and Regional Establishment levies were outstanding, to the amount of R320 217,75 in terms of section 12(1)(a) of the Regional Services Council Act 109 of 1985, for the period July 1995 to September 1997.
1[2] In terms of Rule 33(4) of the Uniform Rules of the High Court.
1[3] The Winelands District Council v Paarl Poultry Enterprises CC t/a Rosendal Poultry Farm and Another (Cape of Good Hope High Court) Case No 3519/1998, 30 August 2001, unreported, per Jali J, Davis J concurring.
1[4] Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 paras 56 and 58, which deals with the position under the Interim Constitution; Pharmaceutical Manufacturers Association of South Africa and Another: in Re Ex Parte President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 paras 31 and 51.
1[5] These district councils were established by Proclamation 152 of 1995 (above n 5), and were all joined in the case that ended with the District Council Judgment (Case No 1499/98) as the third to ninth respondents.
1[6] Member of the Executive
Council for Development Planning and Local Government in the Provincial
Government of Gauteng v Democratic
Party [1998] ZACC 9; 1998 (4) SA 1157; 1998 (7) BCLR 855
(CC) paras 29 - 32.
1[7] Section
172(1) provides:
“(1) When deciding a constitutional matter within its power, a court—
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including—
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.”
1[8] Pharmaceutical Manufacturers Association of South Africa and Another: in Re Ex Parte President of the Republic of South Africa and Others (above n 14) para 33.
1[9] Ibid para 44.
2[0] Middelburg Municipality v Gertzen 1914 AD 544.
2[1] In terms of section 9D(1)(b)(ii) which will be elaborated upon later.
[2]2 Compare section 7(1)(b)(i) and 7(1)(b)(ii) and section 8(1)(a) and 8(1)(b).
2[3] The last of these elections was held on 26 June 1996.
2[4] The definition of pre-interim phase and interim phase in section 1 of the LGTA read with sections 6, 7, 8 and 9.
2[5] Metropolitan local councils were referred to as metropolitan substructures until the change effected by section 10B. These will be referred to as metropolitan local councils. See the definitions introduced by section 10B. In addition, all the structures established pursuant to the LGTA bore the prefix “transitional” before this word was excised by the definitions introduced by section 10B. I will for convenience not use the word “transitional”.
2[6] Executive Council, Western Cape Legislature, and Others v President of the Republic of South Africa and Others [1995] ZACC 8; 1995 (4) SA 877 (CC); 1995 (10) BCLR 1289 (CC) per Kreigler J paras 178 - 183; African National Congress and Another v Minister of Local Government and Housing, KwaZulu-Natal and Others [1998] ZACC 2; 1998 (3) SA 1 (CC); 1998 (4) BCLR 399 (CC) per O’Regan J paras 4 - 19; Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development and Another; Executive Council, KwaZulu-Natal v President of the Republic of South Africa and Others [1999] ZACC 13; 2000 (1) SA 661 (CC); 1999 (12) BCLR 1360 (CC) per Ngcobo J paras 16 - 21.
2[7] Sections 7(1)(b) and 8.
2[8] Section
7(1)(c).
2[9] In terms of section
10(3)(i)which provides:
“the disestablishment of any local government body referred to in paragraph (h) or (i) of the definition of local government body and the establishment of a body to be known as a services council, sub-regional council, regional council or district council to jointly exercise the powers and perform the duties in relation to certain local government functions for a non-metropolitan area of local government by transitional local councils, local government co-ordinating committees or local government bodies within such areas, including the delimitation of such an area after due consideration of the advice and written recommendations of the Board, and the constitution, functioning, powers, duties, assets, rights, employees and financing of such body: Provided that such services council, sub-regional council, regional council or district council shall have the power to levy and claim the regional services levy and the regional establishment levy referred to in section 12 (1) (a) of the Regional Services Councils Act, 1985, or section 16 (1) (a) of the KwaZulu and Natal Joint Services Act, 1990, as the case may be, which the disestablished local government body referred to in paragraph (h) or (i) of the definition of local government body would, but for its disestablishment, have levied and claimed . . . . ”
3[0] Referred to in paragraph (h) of the definition of local government body contained in section 1 of the LGTA.
3[1] Referred to in paragraph (i) of the definition of local government body contained in section 1 of the LGTA.
3[2] As appears from the
definition of local government bodies in section
1.
[3]3 The section is now not
materially different and reads as follows:
“10. Powers of MEC.—(1) For the purposes of this Act the MEC concerned may in respect of the area of jurisdiction of the province for which he or she is appointed, but subject to the provisions of subsection (4)—
(a) by proclamation in the Provincial Gazette, make enactments not inconsistent with this Act with a view to the transitional regulation of any matter relating to local government;
(b) provide in any such enactment for the amendment or repeal of a law in force in or in a part of that province, including an Act of Parliament, or any provision of such a law, in so far as it relates to any such matter and applies in or in such part of that province;
(c) provide in any such enactment that any law, including an Act of Parliament, or any provision of such a law, pertaining to local government affairs shall, subject to the adjustment or amendment of such law or provision as he or she may make in such enactment, apply to any local government body, transitional council or transitional metropolitan substructure referred to in section 16, or to any category of such local government bodies, transitional councils or transitional metropolitan substructures, in that province or a part thereof,
and he or she may make different such enactments in respect of different areas, local government bodies, transitional councils or transitional metropolitan substructures.
(2) The MEC may in like manner amend or repeal a proclamation made under subsection (1).”
3[4] Para 21b above.
3[5] Sections 3 and 4 of the LGTA.
3[6] See for example section 10(3)(i) read with the definition of board in section 1 which is now deleted.
3[7] By Proclamation R174 of 1994
enacted by Government Gazette 16093 of 30 November
1994.
3[8] In terms of section
10(3)(iA) which provides:
“ . . the establishment of a transitional council for a rural area of local government not falling within the area of jurisdiction of a transitional metropolitan council or a transitional local council, including the delimitation of the area of jurisdiction of such council after due consideration of the advice and written recommendations of the Board, and the constitution, election, functioning, powers, duties, assets, rights, employees and financing of such council, all the members of which shall be elected in accordance with a system of proportional representation or of ward representation or of both proportional representation and ward representation . . . .”
3[9] Section 7(1)(c)(i)(dd).
4[0] Inserted by Proclamation R65 of 1995 enacted by Government Gazette 16521 of 30 June 1995.
4[1] Section 9C(1) and (2).
4[2] Section 9B(2).
4[3] Section 9D(1)(a).
[4]4 Section 9D(1)(b).
4[5] Para 21b.
4[6] The date on which the last of the transitional local government elections were held in this country.
4[7] Metropolitan, metropolitan local, local, rural and representative councils.
4[8] Proclamation 152 of 1995 (above n 5).
4[9] Section 3(1)(b).
5[0] Section 12.
5[1] Section 38.
5[2] Section 37.
5[3] Proclamation 6 of 1996 (above n 5).
5[4] Schedule 2.
[5]5 Proclamation 18 of 1996 (above n 5).
5[6] Proclamation 65 of 1995
(above n 40).
5[7] Section
9B(4)(c) reads:
“Without derogating from the generality of the power conferred by section 10, a proclamation contemplated in that section may, in respect of rural local government, provide for . . .
(c) the dissolution of any transitional rural council or the conversion of any such council into a transitional representative council.”
5[8] Defined
in section 9A.
5[9] If evidence
is required for the proposition that these areas existed, reference is made to
section 10D(5) introduced by the November
1996 amendment which provides:
“(5) The Minister shall, after consultation with the MECs, establish a body to advise on the expeditious establishment of municipalities in remaining areas and on the rendering of assistance to municipalities in rural areas for the development of administrative infrastructure and the building of service rendering capacity.”
6[0] Above para 26.
6[1] Section 9D(3)(b).
6[2] Above n 7 at 16.
6[3] Section 9D(1)(d).
6[4] Cited in paragraph 27 above.
6[5] Worcester Transitional
Local Council and Others v Member of the Executive Council for Local Government
of the Western Cape Province
and Others (Cape of Good Hope High Court)
Case No 7480/96, 7 October 1996,
unreported.
[6]6 Fedsure
above n 14 at para 56 n 54 which quotes from a judgment in Reference Re
Language Rights under the Manitoba Act, 1870 (1985) 19 DLR (4th) 1 at 24,
where the Supreme Court of Canada held that:
“Additional to the inclusion of the rule of law in the preambles of the Constitution Acts of 1867 and 1982, the principle is clearly implicit in the very nature of a constitution. The Constitution, as the supreme law, must be understood as a purposive ordering of social relations providing a basis upon which an actual order of positive laws can be brought into existence. The founders of this nation must have intended, as one of the basic principles of nation building, that Canada be a society of legal order and normative structure: one governed by rule of law. While this is not set out in a specific provision, the principle of the rule of law is clearly a principle of our Constitution.”