South Africa: Constitutional Court

CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT 19/99

THE PREMIER OF THE PROVINCE OF THE
WESTERN CAPE First Applicant

THE SPEAKER OF THE PROVINCIAL PARLIAMENT
OF THE WESTERN CAPE Second Applicant

versus

THE ELECTORAL COMMISSION First Respondent

THE CHIEF ELECTORAL OFFICER Second Respondent


Heard on : 26 May 1999

Order issued on : 26 May 1999

Reasons furnished on : 2 September 1999




JUDGMENT




MOKGORO J:


[1]On 26 May 1999, and at the conclusion of oral argument in this matter, the
following order was unanimously made by the Court:

"1. The number of seats in the Western Cape Provincial Parliament
is governed by section 13 of the Constitution of the Western
Cape 1998, namely 42.
2. The determination made by the first respondent on 17 March
1999, namely that after the election scheduled for 2 June 1999
the Western Cape Provincial Parliament will have 39 seats, is
invalid.
3. The respondents are to pay the costs of the application."

At the time, it was intimated that reasons for the order would be furnished later. These
are the reasons.

[2]In preparation for the second democratic election in the history of the country, the
Electoral Commission ("the Commission") made a determination of the number of seats
for each provincial legislature. For the Western Cape, the number, based on a formula
of one representative per hundred thousand inhabitants, was set at 39 seats. The
provincial government of the Western Cape, however, contended that in terms of section
13 of the Constitution of the Western Cape ("the provincial constitution"), the province
is entitled to a total of 42 seats. Much correspondence passed between the parties in an
effort to resolve the conflict, but without success. On 20 May 1999 the applicants, at the
eleventh hour, approached this Court for a declarator that would vindicate their position.
With the Commission as first respondent, the matter was urgently set down for hearing
on 26 May 1999.

[3]The applicants argued that this Court had exclusive jurisdiction to hear the matter
by virtue of section 167(4)(a) of the Constitution of the Republic of South Africa (the
Constitution), which 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;"

Alternatively, in light of the urgent nature of the matter, the applicants sought leave to
obtain direct access to this Court in terms of rule 17.

[4]It is not clear that section 167(4)(a) governs the current situation. It may be that
the Commission and its Electoral Officer are organs of state as defined by section 239
of the Constitution. However, it is not clear that they are organs of state "in the national
or provincial sphere" as contemplated by section 167(4)(a). If one has regard to the use
of the concept "sphere" in the Constitution, it seems that what is contemplated in section
167(4)(a) is a dispute between different spheres of government, whether national or
provincial. This Court has held that the Commission is an independent institution and
does not form part of government. Moreover, it clearly does not form part of national
government in contradistinction to provincial government. It is doubtful therefore that
the respondents constitute organs of state in the national or provincial sphere, as
provided for in section 167(4)(a).

[5]Furthermore, there are sound considerations of policy for a narrower reading of
section 167(4)(a). It would be undesirable if, whenever there is a dispute between any
of the many institutions that are defined as organs of state in section 239, such disputes
had to come to this Court and this Court only. The most obvious of these considerations
is that exclusive jurisdiction holds with it the consequence that this Court acts as court
of first and final instance, a situation which should be avoided for the reasons we have
expressed in other decisions. However, as there is merit in the applicants' alternative
submission in relation to jurisdiction, we do not need to decide this question. The case
before us dealt with a single crisp issue of constitutional interpretation, which this Court
has had an opportunity to consider before; the declaration sought raises no practical
problems of any magnitude; the parties were already before the Court and prepared to
argue; and the matter was urgent as contended. Accordingly, the clear demands of the
interests of justice required this Court to grant direct access and hear the matter on an
urgent basis.

[6]The applicants claimed that their right to have 42 seats in the provincial legislature
flowed directly from section 13 of the provincial constitution. This section provides quite
simply that "[t]he Provincial Parliament consists of 42 elected members." Such a
provision, they submitted, was regulated by section 143 of the Constitution which, in
relevant part states:

"(1) A provincial constitution . . . must not be inconsistent with this Constitution, but
may provide for-
(a) provincial legislative . . . structures and procedures that differ
from those provided for in [chapter 6 of the Constitution]; or
(b) . . .
(2) Provisions included in a provincial constitution . . . in terms of [paragraph] (a)
. . . of subsection (1)-
(a) must comply with the values in section 1 and with Chapter 3;
and
(b) may not confer on the province any power or function that falls-
(i) outside the area of provincial competence in terms of
Schedules 4 and 5; or
(ii) outside the powers and functions conferred on the
province by other sections of the Constitution."

The applicants contended that a province is permitted to originate legislative structures
and procedures that differ from those provided for in the Constitution by providing for
such structures and procedures in its provincial constitution. Thus, they argued, section
13 of the provincial constitution is not subject to the requirements of section 105(2) of
the Constitution.

[7]The respondents disagreed. In their submission, section 105(2) of the Constitution
was the legal standard governing the situation. Section 105(2) states:

"A provincial legislature consists of between 30 and 80 members. The number of
members, which may differ among the provinces, must be determined in terms of a
formula prescribed by national legislation."
Their argument was that the number of members of every provincial legislature is to be
determined in terms of a formula prescribed by national legislation. Such legislation,
which includes the formula, had been passed in the form of the Act. The formula,
provided for by section 114 read with item 2 to schedule 3 of the Act, prescribed the
number of seats for the Western Cape as a number equal to 39. In the result, there was
a conflict between a provision in the provincial constitution and national legislation.
Such conflicts, they contended, fell to be resolved in favour of the national legislation as
required by section 147(1)(a) of the Constitution which states:

"If there is a conflict between national legislation and a provision of a provincial
constitution with regard to . . . a matter concerning which this Constitution specifically
requires or envisages the enactment of national legislation, the national legislation prevails
over the affected provision of the provincial constitution"

Accordingly, in the respondents' submission, the provisions of the Act take precedence
over the provisions of the provincial constitution.

[8]The succinct legal issue in this case, therefore, is whether section 105(2) and the
legislation passed pursuant thereto, has any application to the composition of a provincial
legislature which is provided for in a provincial constitution.

[9]It does not. Section 143(1) permits provincial constitutions to provide for different
legislative structures and procedures for provinces who choose to establish their own
distinctive legislatures. It permits such differences subject to the qualification in
subsection 2(a) and (b). They must comply with the founding values in section 1 and
the principles of cooperative government in Chapter 3 of the Constitution. Furthermore,
a provincial constitution may not bestow powers beyond those conferred upon the
province by the national Constitution. The respondents correctly did not contend that any
of these qualifications had been violated. If a provincial constitution regulates the
procedures and structures of a provincial legislature and in so doing it does not violate
section 143(2), then the provisions of chapter 6, including section 105(2), have no
application to that province. One might loosely refer to these provisions of chapter 6 as
default provisions: they provide the framework for provincial legislative and executive
structures and procedures where none is provided for by a provincial constitution. If
section 105(2) has no application, then neither does any legislation authorised pursuant
thereto. Any difference in this regard that there might be between the prescripts of
national legislation passed pursuant to constitutional authorisation and a provincial
constitution is therefore not a conflict envisaged to be resolved by section 147. It is a
difference that is exempted from the application of that section because it is sanctioned
by another provision of the Constitution.

[10]This is not a novel proposition. The issue was squarely before us in the judgment
delivered by this Court during the certification process of the Western Cape
Constitution. In the course of that judgment the Court unanimously held the following
at paragraph 51:
"The ANC and the national government also object to [section 13], which provides that
the provincial parliament shall consist of 42 members. The basis of the objection was that
it was inconsistent with NC 105(2) . . . The objectors also argued that because the NC
provides that national legislation must prescribe the formula in terms of which the number
of seats of provincial legislatures will be calculated, it was not competent for a provincial
legislature to regulate this matter in its constitution. Neither argument is valid. The
number of members of a legislature is clearly a part or aspect of a legislative structure or
procedure, in respect of which NC 143(1)(a) permits a provincial constitution to provide
something different."

Once a province has determined its own legislative structures in terms of section 143,
such structures cannot be altered by national legislation. It is clearly the intention of the
Constitution to exempt provisions of a provincial constitution relating to legislative or
executive structures or procedures from the application of the constitutional default
provisions. In this case, it is the 42 seats determined by section 13 of the provincial
constitution and provided for by section 143 of the Constitution, and not the 39
determined in terms of the Act, which prevail.

[11]The respondents also submitted that if the Western Cape legislature was entitled
to have 42 as opposed to 39 members in its legislature, it would infringe the right to
equality and to vote in free and fair elections. Equality would be violated, so they argued,
because the province would ultimately have more seats in relation to its population size.
The Western Cape would be out of step with the rest of the provinces and the Republic
generally, and would create a situation where the voting strength would be unequal. This
in turn would violate the right to free and fair elections. It was further contended that this
situation would place an extra burden on the fiscus.

[12]There is no merit in any of these arguments. Because we have a proportional
system of representation, the additional number of seats does not increase the strength of
the vote cast in the Western Cape. The outcome of the election will entitle the parties to
be proportionally represented in the provincial parliament. That is the case irrespective
of the number of seats.

[13]The "bloated" Western Cape parliament will not be able to exercise illegitimate or
unequal power in the National Council of Provinces. There the number is fixed at 10
members per province. Votes cast in the Western Cape will not only have equal effect
within that province, but also equal effect in relation to other provinces within the
National Assembly. The differences between provinces do not extend beyond the specific
boundaries of any province. Similarly, because of the minimum and maximum limits
stipulated in section 105(2), relative to its population size the Northern Cape has more
seats and Kwa-Zulu-Natal less seats than they would have in terms of the strict application
of the formula. There is therefore no violation of equality or of the right to vote in free
and fair elections. The complaint about burdening the fiscus is met by the fact that the
provincial constitution was passed by a two-thirds majority, thus democratically and
constitutionally accepting its size and its resulting fiscal implications.
[14]What is the effect then of the determination made under the Act as far as the
Western Cape is concerned? It is invalid. Were the Western Cape to amend its
constitution by removing section 13 so that the provincial constitution no longer regulated
the number of seats in the provincial legislature, the Commission would then be
empowered in terms of the Electoral Act read with section 105(2) of the Constitution to
make an appropriate determination.

[15]In this matter, the parties agreed that costs should follow the result.



Chaskalson P, Langa DP, Ackermann J, Goldstone J, Madala J, O'Regan J, Sachs J and
Yacoob J concur in the reasons of Mokgoro J.For the applicants: J Kentridge instructed by Mallinicks Inc., Cape Town.

For the respondents: IAM Semenya SC with P Mokoena instructed by Pule,
Selebogo & Partners, Marshalltown.