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[2001] ZACC 8
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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 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.