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National Gambling Board v Premier of KwaZulu-Natal and Others (CCT32/01) [2001] ZACC 8; 2002 (2) BCLR 156; 2002 (2) SA 715 (21 December 2001)

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CONSTITUTIONAL COURT OF SOUTH AFRICA



CCT 32/01


THE NATIONAL GAMBLING BOARD Applicant

versus

THE PREMIER OF KWAZULU-NATAL First Respondent

THE KWAZULU-NATAL GAMBLING BOARD Second Respondent

THE MINISTER OF TRADE AND INDUSTRY
OF THE REPUBLIC OF SOUTH AFRICA Third Respondent

ZONKE MONITORING SYSTEMS (PTY) LTD Fourth Respondent

MALINI (PTY) LTD Fifth Respondent

Heard on : 8 November 2001

Decided on : 21 December 2001




JUDGMENT





DU PLESSIS AJ:


[1] The applicant, the National Gambling Board, is a juristic person established by section 2 of the National Gambling Act, 1996[1] (the national Act). The third respondent, the Minister of Trade and Industry (the Minister), is the member of the national executive

[1]responsible for the administration of the national Act. Although he is cited as a respondent, he has filed an answering affidavit in support of the relief sought by the National Board.


[2] The first respondent is the Premier of KwaZulu-Natal (KZN). The Premier is the member of the KZN provincial executive responsible for the administration of the KwaZulu-Natal Gambling Act, 1996[2] (the KZN Act). The second respondent, the KwaZulu-Natal Gambling Board (the KZN Board), is a juristic person established by the KZN Act. The fourth and the fifth respondents are companies. Their respective interests in these proceedings are peripheral as will become apparent in due course. The Premier opposes the application. The other respondents abide the Court’s decision.

[3] The application concerns the electronic monitoring of gambling machines other than gambling machines in casinos. In terms of section 44(1)(a)(ii) read with section 104(1)(b)(i) of the Constitution and with Schedule 4 thereof, the national legislature and provincial legislatures have concurrent legislative competence to pass laws concerning gambling.[3] The national Act provides[4] that gambling machines, other than those in casinos, “shall be linked to a central electronic monitoring system for the purposes of the monitoring and detection of significant events associated with each gambling machine”. Section 54 of the KZN Act provides that every “gaming machine that is authorised by” the KZN Board “for use on licenced premises shall be connected to the prescribed electronic monitoring system.”

[4] The essential dispute between the parties is this: The National Board contends that there may be only one central electronic monitoring system in the Republic to which all gambling machines in the country must be linked. The Premier contends that each province is at liberty to choose not to be connected to the national system and that it may establish its own central electronic monitoring system to which the gambling machines in that province must be linked. It is convenient to refer to a central electronic monitoring system as a “CEMS”, as did the parties. The National Board seeks relief aimed at declaring that there may be only one CEMS and also an interdict to restrain the Premier and the KZN Board from establishing a provincial CEMS.

The facts
[5] The national Act came into operation on 18 April 1997 and established the National Board. The Board started a process to identify the nature of the monitoring system suited for South African needs. It consulted “world renowned experts”. In addition, the Minister held regular meetings with members of the various provincial executive councils (MINMEC meetings). At these meetings the nature of the monitoring system to be introduced was also discussed. At such a meeting held on 30 August 1999, it was agreed by all present that one centralised monitoring system for the country “might be more effective and efficient”. A member of the KZN executive present at this meeting did not distance the KZN executive from the decision.

[6] At that stage regulation 58 of the regulations promulgated under the KZN Act provided that the monitoring system contemplated in section 54 of the Act had to comply with certain design and operational standards. The regulations did not unequivocally refer either to a central system for the province or to a single national monitoring system. On 11 February 2000 the KZN regulations were amended by the addition of regulation 58(8) which provides:

“The electronic monitoring system referred to in this regulation ... shall be a single one operated by the Province or an entity contracted by the Province which shall have no other interest in respect of gaming in the Province.”


This amendment escaped the attention of both the National Board and the Minister. Their consultations to identify the most suitable system for the country continued. In May 2000 those present at a MINMEC meeting agreed to finalise a tender for a centralised monitoring system. In the same month the principle of a single CEMS was accepted at a meeting of the National Board. Representatives from KZN were present at both these meetings. At neither did such representatives record any dissent.
[7] Regulations to be promulgated under the national Act were then prepared. The draft regulations made provision for a single CEMS for the whole country. On 6 November 2000 the Premier wrote to the National Board and made it clear that KZN did not intend to participate in a single, countrywide CEMS, but intended to have its own provincial system. On 21 December the regulations under the national Act were promulgated. With reference to the CEMS contemplated in section 13(1)(i) of the national Act, regulation 8(2) provides:

“A single central electronic monitoring system shall be operated by a person appointed on the terms and conditions as laid down by the Board after consultation with the Minister.”


[8] The National Board invited proposals for the installation of the single CEMS. The fourth and the fifth respondents submitted proposals. It is apparent from a minute of a MINMEC meeting held on 2 March 2001 that the Minister was then again informed that the Premier had concerns about the intended single CEMS. The Minister undertook to address these concerns at a forthcoming meeting with the Premier. At a meeting of the National Board in April, the KZN representative again made it clear that the province did not support the concept of a single CEMS and intended to install its own provincial CEMS. The National Board nevertheless proceeded with the preparations for the single CEMS. On 10 April it resolved to award the contract to provide and operate a single CEMS to the fourth respondent. The fifth respondent instituted proceedings in the High Court to review and set aside this decision. In view of their respective interests the fourth and fifth respondents were joined in these proceedings. The review application has been settled. Nothing turns on it.

[9] The Minister and the Premier met in May 2001. They discussed the CEMS and the Minister left with the impression that the Premier had agreed to the concept of a single CEMS. According to the Premier the impression was mistaken.

[10] By notice in the provincial gazette of 26 July 2001 the KZN Board invited public proposals to provide and operate a CEMS for KZN. On 31 July the National Board’s attorneys wrote to the Premier and the KZN Board and sought an undertaking from each that the process calling for proposals would be stopped. They warned that if the undertakings were not given, their client would launch urgent court proceedings. No undertaking was given and the present proceedings were urgently launched in this Court on 8 August. On 29 August the application was postponed to 8 November 2001.

The issues
[11] In the first place the National Board seeks an order that the matter is urgent and should be dealt with in terms of Rule 11(1) of the Rules of this Court.

[12] Secondly, the National Board seeks a declaratory order that there is a dispute as contemplated by section 167(4)(a) of the Constitution[5] between it on the one hand and the Premier and the KZN Board on the other hand. The effect of such an order would be that this Court has exclusive jurisdiction to decide the matter.

[13] When the case was called on 8 November, the National Board sought and was granted an amendment to its notice of motion. In terms of the amended notice of motion, the National Board seeks an order granting it direct access to this Court in the event of it being held that the dispute does not fall within the Court’s exclusive jurisdiction.

[14] In its third prayer the National Board sought an interim interdict restraining the Premier and the KZN Board from “taking any steps whatsoever towards” the continuation of the process to award a contract for a CEMS in KwaZulu-Natal. The interim interdict was sought pending the final adjudication of an application for the permanent relief set out hereunder.[6] No interim relief was granted on 29 August 2001. The main application was fully argued on 8 November 2001 and will be dealt with in this judgment. Accordingly, any need which may have existed for an interim interdict has fallen away. For reasons that will become apparent, issues relating to the interim interdict must nevertheless be dealt with.
[15] The main application seeks a declaration that the implementation of a single CEMS falls exclusively within the constitutional power of the National Board in consultation with the Minister. The National Board also seeks declaratory orders to the effect that there may be only one CEMS operated throughout the country. Finally, it seeks an interdict to restrain the Premier and the KZN Board from implementing the provincial CEMS and an order for costs.

[16] The Premier opposes the grant of all the orders sought.

Exclusive jurisdiction
[17] The National Board contends that in terms of section 167(4)(a) of the Constitution this Court has exclusive jurisdiction to decide this case. Section 167(4)(a) provides:

“Only the Constitutional Court may -
decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state”.


[18] Section 239 of the Constitution defines “organ of state” as:

“(a) any department of state or administration in the national, provincial or local sphere of government; or
(b) any other functionary or institution -

(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer”.

[19] The parties are agreed that the National Board, the Minister, the Premier and the KZN Board are “organs of state”, and rightly so. The National Board and the KZN Board are institutions “exercising a public power or performing a public function in terms of any legislation” as provided for in paragraph (b)(ii) of the definition. The Premier and the Minister are functionaries “exercising a power or performing a function in terms of the Constitution or a provincial constitution” as envisaged in paragraph (b)(i) of the definition.[7]

[20] The parties are also correctly agreed that they are organs of state “in the national or provincial sphere.” This country’s government is constituted as “national, provincial and local spheres of government.”[8] In section 167(4)(a) the national and provincial spheres are identified in order to exclude from the ambit of the subsection organs of state in the local sphere of government. The National Board and the Minister are organs of state in the national sphere. The Premier and the KZN Board are organs of state in the provincial sphere.

[21]( In Independent Electoral Commission v Langberg Municipality[9] this Court considered the meaning of the phrase “national sphere of government”. It was said that “the national sphere of government comprises at least Parliament, the President and the Cabinet . . . . These state organs comprise the national sphere of government and are within it. They are not section 239 organs of state because they are neither departments nor administrations within the national sphere of government.” Whether Parliament, the President and the Cabinet are organs of state within the definition in section 239 was not an issue in the Langeberg case. As it stands, the quoted words may be understood too widely. In context they mean that Parliament, the President and the Cabinet are not organs of sate within the meaning of paragraph (a) of the definition. Further, the quoted words do not mean that only Parliament, the President and the Cabinet comprise the national sphere of government.


[22] The essential issue in this part of the case is whether there is, between the parties, a dispute “concerning the constitutional status, powers or functions of any of those organs of state”. Mr Prinsloo, who appeared for the National Board, submitted that for a twofold reason, the present dispute falls within the subsection. He submitted that in view of the wide meaning of the term “constitutional matter” in section 167,1[0] “constitutional status, powers or functions” in section 167(4)(a) must bear the same wide meaning. The second leg of Mr Prinsloo’s contention was that the true origin of the present dispute is the concurrent legislative powers of the national Parliament and provinces as regards gambling. That concurrent power originates in Schedule 4 of the Constitution with the result, so it was contended, that the dispute concerns a constitutional power.

[23] In essence Mr Prinsloo’s argument is that every power that is traceable to the Constitution is a “constitutional power” within the meaning of section 167(4)(a). The same would apply to constitutional status and functions. It is true that in a constitutional state all public power is derived from the Constitution.1[1] It follows that every act of an organ of state concerns, in the widest sense, a constitutional status, power or function. Therefore, on Mr Prinsloo’s argument it would follow that every dispute between organs of state concerning their status, powers or functions would be a matter exclusively within this Court’s jurisdiction. On the argument, the word “constitutional” in the phrase “constitutional status, powers or functions” serves no purpose.

[24] The purpose of the word “constitutional” in section 167(4)(a) must now be determined. The word is there used in the context of the status, powers or functions of organs of state. In paragraph (b) of the definition of organ of state, a distinction is made between an institution or functionary “exercising a power or performing a function in terms of the Constitution” and those doing so “in terms of any legislation”. The word “constitutional” in section 167(4)(a) encapsulates the same distinction: It refers to status, powers or functions explicitly or by implication provided for in terms of the Constitution as opposed to those provided for in terms of any legislation. Put differently, the term “constitutional status, powers or functions” in section 167(4)(a) means status, powers or functions derived directly from the Constitution. (Status, powers or functions derived from a provincial constitution are not presently relevant.)

[25] The provisions of section 167(4)(a) must now be applied to the present matter. The dispute is whether the KZN Board has the power to establish its own provincial CEMS. Whether it has the power depends in the first place on the correct interpretation of the national Act and the KZN Act. Therefore, the dispute concerns “a power in terms of any legislation” and not a constitutional power as envisaged in section 167(4)(a).

[26] There was an argument before us as to whether there is a conflict between the two Acts. Save for what I say in the next paragraph, neither party disputed that Parliament and the province had the power to enact respectively the national Act and the KZN Act. The dispute, such as it is, is not about the power of either the province or Parliament to legislate on a particular matter, but how a perceived conflict between the legislation in question is to be resolved under section 146, read with section 148 to 1501[2] of the Constitution. The dispute is about the effect of the legislation and not the power to make it. It is accordingly not a dispute envisaged by section 167(4)(a) of the Constitution and therefore does not fall within this Court’s exclusive jurisdiction.

[27] Mr Prinsloo contended that, to the extent that regulation 58(8) of the KZN regulations creates a conflict between the two Acts read with the respective regulations, regulation 58(8) does not fall within the premier’s powers in terms of the KZN Act. That dispute concerns the statutory power to make the regulation and not a power in terms of the Constitution itself.

[28] It is concluded that while the dispute between the parties is a constitutional matter, it does not concern the constitutional status, powers or functions of the relevant organs of state and accordingly does not fall within the exclusive jurisdiction of this Court under section 167(4)(a) of the Constitution.

The application for direct access
[29] Direct access to this Court is only granted when it is in the interest of justice to do so.1[3] It has been pointed out that it is not generally desirable for a court to sit as a court of first and last instance1[4] and that this Court should do so only in exceptional circumstances.1[5] Where the litigants are organs of state, a further consideration applies. Chapter 3 (sections 40 and 41) of the Constitution deals with cooperative government.

[30] Section 40(2) provides:

“All spheres of government must observe and adhere to the principles in this Chapter and must conduct their activities within the parameters that the Chapter provides.”


[31] Relevant to the grant of direct access to organs of state, section 41(1)(h)(vi) enjoins all organs of state to “avoid legal proceedings against one another”. In terms of section 41(2)(a) an Act of Parliament must “establish or provide for structures and institutions to promote and facilitate intergovernmental relations”. The Act of Parliament must also “provide for appropriate mechanisms and procedures to facilitate settlement of intergovernmental disputes” (subsection (2)(b)). Section 41(3) provides:

“An organ of state involved in an intergovernmental dispute must make every reasonable effort to settle the dispute by means of mechanisms and procedures provided for that purpose, and must exhaust all other remedies before it approaches a court to resolve the dispute.” (underlining supplied.)


Section 41(4) provides:

“If a court is not satisfied that the requirements of subsection (3) have been met, it may refer a dispute back to the organs of state involved.”


[32] The Act of Parliament envisaged in section 41(2) has not been enacted yet. In view of the words in subsection 3 that have been underlined, it could be argued that the failure of Parliament to comply with its obligation in terms of subsection 2 has rendered the important provisions of subsections 3 and 4 inoperative. For reasons that follow, it is not necessary to decide that now. However, even the possibility that such an argument could be raised emphasises the urgent need for the envisaged legislation. Cooperative government is foundational to our constitutional endeavour.1[6] The fact that the Act envisaged in section 41(2) has not been passed requires the attention of the Minister for Justice and Constitutional Development.

[33] It is unnecessary to decide the effect of the failure to pass the Act envisaged in section 41(2), because section 41(1)(h)(vi) obliges organs of state to avoid litigation against one another. The obligation to settle disputes is an important aspect of cooperative government which lies at the heart of Chapter 3 of the Constitution. If this Court is not satisfied that the obligation has been duly performed, it will rarely grant direct access to organs of state involved in litigation with one another.

[34] An amendment to the KZN regulations in February 2000 made unequivocal provision for a provincial CEMS. By that time the National Board had already embarked upon a consultative process in order to determine whether a single national CEMS would be the best option.1[7] The KZN Board was represented on the National Board. In addition, a MINMEC meeting had before February 2000 already decided that a single CEMS might be the most effective. A member of the KZN executive was present at this meeting and raised no objection. In view of all this, the decision to amend the KZN regulation without informing or consulting either the National Board or the Minister does not accord with the principles of cooperative government.1[8] In the course of the year 2000 the National Board and the Minister came to know that KZN intended to instal its own CEMS. Yet, not one of the organs of state involved made an effort to discuss the difference of opinion. It was only after March 2001 that the Minister raised the difference with the Premier. That meeting resulted in no more than a misunderstanding as to what had been decided. There are no minutes or other detail of the meeting in the papers. It is fair to say that, far from cooperating, the organs of state proceeded on their collision course.

[35] When the respondents’ notice to invite public proposals was published, no meaningful effort to avoid legal proceedings was made by either party. In the exchange of letters preceding the urgent application, the parties’ attorneys used phrases such as “it pains us to advise that our client has now instructed us to bring an urgent application . . .”. However, section 41(1)(h)(vi) requires more than lip service.

[36] The parties have made no meaningful effort to comply with their constitutional obligation of cooperative government. The dispute primarily raises questions of interpretation. Such disputes can be resolved amicably however. Moreover, organs of state’s obligation to avoid litigation entails much more than an effort to settle a pending court case. It requires of each organ of state to re-evaluate its position fundamentally. In the present context, it requires of each of the organs of state to re-evaluate the need or otherwise for a single CEMS, to consider alternative possibilities and compromises and to do so with regard to the expert advice the other organs of state have obtained.

[37] The parties’ failure to comply with the obligations of Chapter 3 is sufficient ground for refusing direct access.

[38] There are, apart from the parties’ failure to comply with Chapter 3 of the Constitution, further reasons why direct access should not be granted in this case. Involving as it does the interpretation of legislation, this is a case in which this Court should have the benefit of other courts’ views before it deals with the matter. The case does not raise matters of national interest that need urgent resolution. The interests of justice do not require that this Court deals with the matter as a court of first and last instance.

[39] The application for direct access will be refused.

Costs
The wasted costs of 29 August 2001
[40] The National Board urgently sought an interim interdict pending the final decision of the main application. It was the alleged urgency that necessitated the matter to be enrolled on 29 August. No interim interdict was granted on that date, and the wasted costs occasioned by the enrollment were reserved. The reasons for not granting the interim interdict will in the main determine the question of the wasted costs.

[41] An applicant for an interim interdict must show a prima facie right to the main relief pending which the interim interdict is sought.1[9] As the parties must now comply with their obligation to try and resolve their dispute amicably, it is unnecessary and undesirable to express a view on the merit of the National Board’s contention that the legislation allows only one national CEMS. For present purposes I assume that the National Board has established a prima facie right to the main relief it sought.

[42] The second requirement for an interim interdict is that the applicant must show that it has a reasonable apprehension of irreparable harm should the interim interdict not be issued. The irreparable harm which the National Board purported to show in this case only relates to harm it would allegedly have suffered if the respondents were allowed to install a provincial CEMS. However, when the interim interdict was sought, the installation of the provincial CEMS was not imminent. No more than a process calling for proposals was under way, and that process was at a very early stage. The mere fact that the respondents had called for proposals could not have resulted in irreparable harm to the National Board. It had no reasonable apprehension of harm, let alone irreparable harm. On that basis alone the National Board’s application for an interim interdict could in any event not have succeeded.

[43] The claim for an interim interdict was wholly unnecessary. On the assumption that the National Board is entitled to the main relief, it may well be that the respondents were wasting time and money, but it was not the National Board’s time or money. There may be remedies to stop an organ of state from wasting public money, but that was not the National Board’s case.

[44] The National Board is therefore liable for the wasted costs of 29 August 2001.

The costs of the main application
[45] All the organs of state ought to have attempted to avoid this litigation. Not one of them performed that obligation. The Premier, who knew of the National Board’s extensive consultation process, went on with steps to implement the KZN monitoring system without consulting the organs of state in the national sphere. These are powerful considerations for ordering each party to pay its own costs. However, it is essentially the undue haste with which the National Board launched these proceedings that occasioned the costs.

[46] Dealing with the urgency of the application, the National Board alleged no more than that it was in the interests of all concerned to have certainty. That may be so, but it is true of almost all litigation. The mere fact that certainty is desirable does not render a matter urgent as envisaged in Rule 11(1) of the Rules of this Court. There may be cases in which certainty is urgently necessary, but this is not such a case. There was no need for the National Board to have brought the application urgently. It could and should first have endeavoured to resolve the dispute amicably. At worst it should have brought the application in the ordinary course. That would have afforded all concerned time for reflection. By launching this application as if it were extremely urgent, the National Board removed any opportunity for negotiation. The unfounded application for an interim interdict compounded the problem. In the circumstances the costs should follow the result.

[47] Both parties were represented by two counsel. In view of the complexity of the matter, their decision to employ two counsel cannot be faulted. The costs of two counsel must be allowed.

The High Court’s jurisdiction to grant interim relief pending a matter exclusively in this Court’s jurisdiction in terms of section 167(4)(a)
[48] This matter is not within this Court’s exclusive jurisdiction. The High Court therefore had jurisdiction to deal with the application for an interim interdict. Mr Prinsloo however pointed out that the National Board had been advised to bring the application for the interim interdict in this Court because there was no precedent to guide it in the choice of the correct court. It is important that this Court gives guidance in that respect.

[49] An interim interdict is by definition

“a court order preserving or restoring the status quo pending the final determination of the rights of the parties. It does not involve a final determination of these rights and does not affect their final determination.”2[0]


The dispute in an application for an interim interdict is therefore not the same as that in the main application to which the interim interdict relates. In an application for an interim interdict the dispute is whether, applying the relevant legal requirements, the status quo should be preserved or restored pending the decision of the main dispute. At common law, a court’s jurisdiction to entertain an application for an interim interdict depends on whether it has jurisdiction to preserve or restore the status quo. It does not depend on whether it has the jurisdiction to decide the main dispute.2[1]

[50] Whether a high court will have jurisdiction to grant interim relief pending a matter exclusively within this Court’s jurisdiction does not depend on the form or effect of the interim relief. It depends on the proper interpretation of the relevant provision and on the substance of the order: Does it involve a final determination of the rights of the parties or does it affect such final determination?2[2] If it does not, the High Court will, depending on the provision that grants exclusive jurisdiction, have jurisdiction to grant interim relief.
[51] It does not follow that a high court will always have jurisdiction to grant or refuse interim relief pending the decision of a matter exclusively within this Court’s jurisdiction. To decide whether a high court has such jurisdiction the provision in terms of which this Court has exclusive jurisdiction must be interpreted. Section 167(4)(c) of the Constitution is an example of a provision giving to this Court exclusive jurisdiction to grant interim relief. It provides that this Court has exclusive jurisdiction to “decide applications envisaged in section 80 or 122". Sections 80 and 122 respectively provide that members of the National Assembly and provincial legislatures may apply to the Constitutional Court for an order declaring that all or part of respectively a national or a provincial Act is unconstitutional. Sections 80(3) and 122(3) are identical. They provide:

“The Constitutional Court may order that all or part of an Act that is the subject of an application in terms of subsection (1) has no force until the Court has decided the application if -
(a) the interests of justice require this; and
(b) the application has a reasonable prospect of success.”


Read together, sections 167(4)(c) and sections 80(3) and 122(3) assign exclusive jurisdiction to this Court to grant interim relief.

[52] Ordinarily, an interim interdict is appropriate when the facts which establish a right to a final order are in dispute. It has been held in some cases that an interim interdict is not appropriate when the facts relating to a final order are not in dispute. In such a case the court will proceed to decide the legal issue pertaining to the main dispute. It will then issue or refuse a final order.2[3] In other cases it has been held that there may be circumstances in which the court will issue an interim interdict even if the facts pertaining to the main dispute are not in dispute.2[4] Mr Prinsloo contended that the former proposition is correct. Proceeding from there, he argued that if a particular court does not have jurisdiction in the main dispute, it follows that it cannot have jurisdiction in an application for an interim interdict pending the resolution of the main dispute. It is unnecessary to decide which line of cases is correct. A court hearing an application for an interim interdict can obviously only decide the main dispute if it has jurisdiction to do so. A court that does not have jurisdiction in the main dispute will simply determine whether the applicant has a prima facie right to the relief which is to be sought in the court having jurisdiction to deal with it.2[5]

[53] Section 167(4)(a) provides that only this Court “may decide disputes between organs of state” in the relevant spheres and concerning those organs’ constitutional status, powers or functions. The exclusive jurisdiction of this Court is to decide the disputes in question. There is no reason why the ordinary common law should not apply. Provided that a high court is not called upon to decide a dispute within this Court’s exclusive jurisdiction, it has jurisdiction to grant interim relief pending the final determination of such a dispute.

[54] It should be emphasised that we express no view in this case on whether a high court has jurisdiction to grant interim relief in relation to those other matters in section 167(4) in respect of which exclusive jurisdiction is conferred upon this Court. In particular, we do not decide whether a high court would have the power to grant interim relief to prevent an amendment to the Constitution from coming into operation (section 167(4)(d)) or in circumstances where Parliament or the President has failed to fulfil a constitutional obligation (section 167(4)(e)). These provisions confer very special powers upon this Court which may give rise to different constitutional considerations. There is no need to consider those questions now.


[55] The following order is made

The application is dismissed with costs including the wasted costs occasioned by the hearing on 29 August 2001. The costs shall include the costs of two counsel.




Chaskalson CJ, Langa DCJ, Ackermann J, Kriegler J, Madala J, Mokgoro J, O’Regan J, Sachs J, Yacoob J and Skweyiya AJ concur in the judgment of Du Plessis AJ.

For the applicant: W R C Prinsloo (SC) and J A Motepe instructed by Manamela Damons Mbanjwa Inc, Pretoria.

For the first respondent: J J Gauntlett (SC) and A M Stewart instructed by Larsoin Brourton & Falconer Inc, Durban.


[1] Act 33 of 1996.

[2] Act 10 of 1996.
[3] Conflicts between national and provincial legislation are dealt with in sections 146 to 150. I shall return

to these later.

[4] Section 13(1)(l).
[5] It provides:

“ Only the Constitutional Court may—
(a) decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state”.

[6] I shall refer to the application for permanent relief as “the main application”.

[7] Sections 85(2) read with 92(1) and 132(1) read with 133(1) of the Constitution.

[8] Section 40(1) of the Constitution.

[9] [2001] ZACC 23; 2001 (3) SA 925 (CC); 2001 (9) BCLR 883 at para 25.

1[0] S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC) para 14; President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1999] ZACC 9; 1999 (4) SA 147 (CC); 1997 (7) BCLR 725 (CC) para 30.
[1]1 Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others [1998] ZACC 17; 1999 (1) SA 374; 1998 (12) BCLR 1458 (CC) para 56-59; Pharmaceuticals Manufacturers Association of SA and Others: In Re Ex Parte Application of President of the RSA and Others [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (CC) paras 17-20.

1[2] Section 148 reads: “If a dispute concerning a conflict cannot be resolved by a court, the national

legislation prevails over the provincial legislation or provincial constitution.”
Section 149 reads: “A decision by a court that legislation prevails over other legislation does not invalidate that other legislation, but that other legislation becomes inoperative for as long as the conflict remains.”

Section 150 reads: “When considering an apparent conflict between national and provincial legislation, or between national legislation and a provincial constitution, every court must prefer any reasonable interpretation of the legislation or constitution that avoids a conflict, over any alternative interpretation that results in a conflict.”

1[3] Section 167(6)(a) of the Constitution and Rule 17 of the Rules of this Court.

1[4] Bruce and Another v Fleecytex Johannesburg CC and Others [1998] ZACC 3; 1998 (2) SA 1143 (CC); 1998 (4) BCLR 415 (CC) paras 7 to 9.
1[5] Christian Education South Africa v Minister of Education [1998] ZACC 16; 1999 (2) SA 83 (CC); 1998 (12) BCLR 1449 (CC)para 4; Dormehl v Minister of Justice 2000 (2) SA 987 (CC); 2000 (5) BCLR 471 (CC) para 5.
1[6] Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, [1996] ZACC 26; 1996 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) paras 287, 290, 469 and 470.

1[7] Paras 5 and 6 above.

1[8] Section 41(h)(iii) provides that organs of state must co-operate with one another in mutual trust and good faith by “informing one another of, and consulting one another on, matters of common interest”.
1[9] LTC Harms in Joubert: The Law of South Africa (first reissue), volume 11 para. 317 with the authority in footnote 1.

2[0] Above n 19 para 314.

2[1] See the majority judgment of Kotzé JA and Grosskopf JA in Airoadexpress v LRTB, Durban [1986] ZASCA 6; 1986 (2) SA 663 (AD).

[2]2 Apleni v Minister of Law and Order and Others 1989 (1) SA 195 (AD) at 200I to 201D.

2[3] Fourie v Olivier en ‘n Ander 1971 (3) SA 274 (T) at 284G to 285H.

2[4] Tony Rahme Marketing Agencies SA (Pty) Ltd and Another v Greater Johannesburg Transitional Metropolitan Council 1997 (4) SA 213 at 216C; Ward v Cape Peninisula Ice Skating Club 1998 (2) SA 487 (C) 497D to 498H.

2[5] Above n 21 at 673H to 673J.