CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 43/02
THE AFRICAN NATIONAL
CONGRESS Applicant
versus
THE UNITED DEMOCRATIC MOVEMENT First
Respondent
THE INKATHA FREEDOM PARTY Second Respondent
THE
DEMOCRATIC PARTY Third Respondent
THE MINISTER FOR JUSTICE AND Fourth
Respondent
CONSTITUTIONAL DEVELOPMENT
THE PRESIDENT OF THE REPUBLIC
OF Fifth Respondent
SOUTH AFRICA
THE MINISTER FOR PROVINCIAL AND Sixth
Respondent
LOCAL GOVERNMENT
THE AFRICAN CHRISTIAN DEMOCRATIC
PARTY Seventh Respondent
THE PAN AFRICANIST CONGRESS OF AZANIA Eighth
Respondent
THE PREMIER OF THE PROVINCE OF Ninth
Respondent
KWAZULU-NATAL
JOHANN KROG First Intervenor
ALEX
CHRISTIANS Second Intervenor
ABBIE MCHUNU Third
Intervenor
SOOBRAMONEY VYTHILINGUM NAICKER Fourth Intervenor
Heard on : 11 November 2002
Decided on : 19 November
2002
JUDGMENT
CHASKALSON CJ:
| [1] | In June 2002, Parliament
passed four Acts aimed at allowing members of national, provincial and local
legislatures to change their
party allegiance without losing their seats. This
legislation was subsequently challenged by the United Democratic Movement (UDM)
in the Cape High Court. First a single judge and then a full bench of that
Court dealt with the matter. The full bench suspended
“the commencement
and/or operation” of the four Acts pending the decision of this Court on
the application by the UDM
to have the Acts declared unconstitutional and
invalid. On 3 and 4 July 2002, this Court convened to consider as a matter of
urgency
the UDM’s application and an appeal by the government against the
orders of the High Court. Having heard argument, the Court
issued an interim
order on 4 July 2002 to stabilise the situation pending a decision of this
Court.[1] |
| [2] | A full hearing took place on
6, 7 and 8 August 2002. On 4 October 2002, this Court delivered three unanimous
judgments concerning
the case. The first, “the UDM interim
judgment”, gave reasons for the interim order of 4 July
2002.[2] The second, “the
UDM appeal judgment”, upheld an appeal against the order of the
Cape High Court and set it aside.[3]
The third, “the UDM main judgment”, dealt with the merits of
the constitutional challenge to the
legislation.[4] |
| [3] | As has already been
mentioned, four pieces of legislation were challenged. The First Amendment
Act[5] and the Local Government
Amendment Act[6] both related to floor
crossing in the local government sphere. The First Amendment Act provided for a
fifteen-day period during
the second and fourth years after a general election,
as well as a once-off fifteen-day period immediately following the commencement
of the legislation, during which party allegiances could be changed without the
councillors concerned losing their seats. The Local
Government Amendment Act
complemented the First Amendment Act by removing references to the bar on floor
crossing and by making provision
for various aspects of local government to
accommodate the new system of limited floor crossing. The Second Amendment
Act[7] and the Membership
Act[8] related to floor crossing in
national and provincial legislatures. The Membership Act allowed for a limited
system of floor crossing
during a fifteen-day period during the second and
fourth years after a general election as well as during a once-off fifteen-day
period immediately following the commencement of the legislation. The Second
Amendment Act complemented the Membership Act by allowing
for the alteration of
the composition of provincial delegations to the National Council of Provinces
if the composition of a provincial
legislature was changed due to floor
crossing. |
| [4] | In the UDM main
judgment, this Court dismissed the constitutional challenge to the First
Amendment Act, the Second Amendment Act and the Local Government
Amendment Act.
It did, however, uphold the challenge to the Membership Act on the ground that
it impermissibly amended the Constitution
by means of ordinary legislation
rather than by a constitutional amendment. The practical effect of the judgment
was that floor
crossing could take place in the local government sphere, but not
in the national or provincial government
spheres. |
| [5] | The Court then considered
the order to be made. When the Court dealt with the matter on an urgent basis
on 4 July 2002, it issued
an interim order to stabilise the situation until the
main matter could be resolved. The relevant part of the order was paragraph
13
which provided: |
“Pending the determination of the constitutionality of the constitutional
amendments and the legislation referred to in paragraph
3 [the four Acts already
mentioned]:
(a) anyone who was a member of the National Assembly, a provincial legislature,
or a municipal council immediately prior to the order
made by the Cape High
Court on 20 June 2002 and who has since then or may hereafter cease to be a
member of a party of which he or
she was then a member shall not by reason of
that fact cease to be a member of such assembly, legislature or municipal
council, or
be denied any rights and privileges attaching to such membership.
(b) anyone who, subsequent to the order made by the Cape High Court on 20 June
2002, has been removed from membership of the National
Assembly, a provincial
legislature, or a municipal council by reason directly or indirectly of anything
done by such person to take
advantage of the constitutional amendments and
legislation referred to in paragraph 3, shall be restored to such membership
with
all rights and privileges attaching thereto, and any person who has
replaced such person as a member of the national assembly, provincial
legislature, or municipal council shall cease to be a member of such
body.
(c) no resolution shall be taken in the National Assembly, a provincial
legislature or a municipal council that will have the effect
of shifting the
control of the executive authority of such bodies from the political party or
parties exercising such control as
at the 20th June 2002, to any
other party or parties.
(d) no member of a political party shall from now onwards attempt to rely on the
provisions of the floor-crossing legislation to
become a member of another
political party.”
| [6] | This order was still in
force when the Court gave its judgments on 4 October 2002. By then, the
fifteen-day period prescribed by
the First Amendment Act for floor crossing in
the local government sphere had elapsed without councillors having been able to
cross
the floor. To address this problem, the Court’s order provided that
the window period referred to in the Local Government
Amendment Act, which had
in effect been suspended by the interim orders, should commence on 8 October
2002. The Court also ordered[9] that
paragraphs 13(a), (b) and (c) of the interim order would be kept in force until
the expiry of the fifteen-day window period.
This was
to |
“ensure that no prejudice is suffered as a result of the orders that have
been made by the High Court and this Court before
an adequate opportunity has
been allowed for the consideration of the terms of this judgment . .
.”.[10]
| [7] | On 11 October 2002, the
Minister for Justice and Constitutional Development (the Minister) published the
Constitution of the Republic
of South Africa Fourth Amendment Bill, 2002 in the
Government Gazette for comment. The Bill aims to amend the Constitution to
allow
members of the National Assembly and provincial legislatures to retain
their seats despite having changed party allegiance. It allows
floor crossing
only during a fifteen-day period during the second and fourth year after an
election as well as during a once-off
fifteen-day period immediately following
the commencement of the legislation. Section 7(3) of the Bill
provides: |
“Any person who, during the period from 22 October 2002 until the date of
the commencement of this Schedule, has been removed
from membership of a
legislature by reason directly or indirectly of anything done by such person in
anticipation of the enactment
of provisions substantially similar in content to
this Schedule, shall be restored to such membership with all rights and
privileges
attaching thereto, and any person who has replaced such person as a
member of the legislature shall cease to be a member of such
legislature.”
| [8] | This case relates largely to
the position of five individuals who were members of the KwaZulu-Natal
Provincial Legislature. These
five individuals changed their party allegiance
on 21 June 2002 - that is after the initial floor-crossing legislation had been
passed.
They allege that they did so in ignorance of the fact that a judge in
the Cape High Court had suspended the commencement of the
legislation. They
retained their membership of the provincial legislature initially due to orders
of the Natal High Court and then
due to the interim order of this Court. On 20
October 2002, the African National Congress (ANC) approached the Natal High
Court
for an order concerning the status of these five individuals. Pending the
finalisation of an application to be brought to this Court,
the ANC asked for an
order interdicting the Speaker of the Legislature from swearing in new members
to replace the five individuals
and interdicting the five individuals from
participating in debates or sitting and voting in the Provincial Legislature.
Combrinck
J dismissed the ANC’s application on 22 October 2002. On 23
October 2002, the Speaker of the Legislature swore in four new
members of the
Legislature with one seat remaining vacant. |
| [9] | On 22 October 2002, the ANC
applied for direct access to this Court as a matter of urgency. It asked for an
order: |
“That the provisions of paragraph 4 of the Order in the judgment handed
down by the Constitutional Court on 4 October 2002
. . . shall be extended so as
to expire on the rejection by Parliament or promulgation of the Constitution of
the Republic of South
Africa Amendment Bill.”
| [10] | The Minister, who was cited
as the fourth respondent by the ANC, applied to intervene in the matter and
asked for an order as follows: |
“4 Declaring that the order made in UDM v President of the Republic of
South Africa (1) limited the retrospective effect of
the declaration of
invalidity of the Loss or Retention of Membership Act, 22 of 2002 (“the
Membership Act”) to 22 October
2002;
5 Alternatively, and in the event that this was not the intention of this
Court, declaring that the order of invalidity of the Membership Act operates
prospectively from 22 October 2002 and that all acts performed or decisions
taken in terms of the Membership Act shall not be rendered
invalid by reason of
the declaration of invalidity;
6 Extending the limitation of the retrospective effect of the declaration of
invalidity of the Membership Act to 31 March
2003;
7 Keeping in force paragraphs 4(a), (b) and (c) of the order made on 4 October
2002, insofar as they relate to the National Assembly
and provincial
legislatures, pending the finalization of the application for variation of the
order made on 4 October 2002; . . .”.
| [11] | The relief sought in the
two applications was opposed by the second respondent (the Inkatha Freedom
Party), the third respondent (the
Democratic Party), the eighth respondent (the
Pan Africanist Congress of Azania) and the ninth respondent (the Premier of the
Province
of KwaZulu-Natal). It was also opposed by four individuals who sought
leave to intervene in the proceedings. These were the four
individuals who had
been sworn in as new members of the Legislature on 23 October 2002. I will
refer to those who oppose the ANC’s
application and the Minister’s
application as “the
respondents”. |
The application by the
Minister to intervene as an applicant
| [12] | The Minister is a party to
the proceedings. There is accordingly no need for him to intervene. He seeks
an order different to that
claimed by the ANC. That he is entitled to do. His
application is in effect a counter-application. Rule 6(7)(a) of the Uniform
Rules adopted by Rule 28 of the Rules of this Court permits such
applications.[11] |
Direct
Access and Urgency
| [13] | The relief sought by the
ANC and the Minister concerns the variation of an order made by this Court in a
matter involving an amendment
to the Constitution. This is the only Court with
jurisdiction to deal with such a matter, and it was therefore competent for the
ANC and the Minister to approach this Court directly for the relief they sought.
The matter is one of importance and there has been
full argument on the merits.
It is in the interests of justice that the dispute be resolved by this Court
expeditiously. |
The Relief Claimed by the
ANC
| [14] | This Court has previously
drawn attention to the limited power that a court has to vary its orders after
they have been made. In
Minister of Justice v
Ntuli[12] it was
held: |
“The principle of finality in litigation which underlies the common law
rules for the variation of judgments and orders is
clearly relevant to
constitutional matters. There must be an end to litigation and it would be
intolerable and could lead to great
uncertainty if Courts could be approached to
reconsider final orders made in judgments declaring the provisions of a
particular statute
to be invalid.”
| [15] | The common law principles
are referred to in paragraphs 22 and 23 of the judgment in Ntuli where it
was said: |
“The general principles of the common law applicable to the variation of
orders of Court were summarised by Trollip JA in Firestone South Africa (Pty)
Ltd v Genticuro AG as follows:
‘The general principle, now well established in our law, is that, once a
court has duly pronounced a final judgment or order,
it has itself no authority
to correct, alter, or supplement it. The reason is that it thereupon becomes
functus officio: its jurisdiction in the case having been fully and
finally exercised, its authority over the subject-matter has ceased.’
(Citation omitted.)
Certain exceptions to this general principle have been recognised and are
referred to in the Firestone judgment. They are variations in a judgment
or order which are necessary to explain ambiguities, to correct errors of
expression,
to deal with accessory or consequential matters which were
‘overlooked or inadvertently omitted’, and to correct orders
for
costs made without having heard argument thereon.
Trollip JA was prepared to assume in the Firestone case that the list of
exceptions might not be exhaustive and that a Court might have a discretionary
power to vary its orders in
other appropriate cases. He stressed, however, that
the
‘. . . assumed discretionary power is obviously one that should be very
sparingly exercised, for public policy demands that
the principle of finality in
litigation should generally be preserved rather than eroded . . .’”
(Citation omitted.)
| [16] | It was assumed in
Ntuli’s case that |
“in an appropriate case an order for the suspension of the invalidity of
the provisions of a statute may subsequently be varied
by a Court for good
cause. But if this is so, such a power, like the discretionary powers assumed
in the Firestone case, would be one that ‘should be very sparingly
exercised’.”[13]
| [17] | The ANC does not contend
that the order is obscure, ambiguous or otherwise uncertain. Nor does it
contend that the order fails to
make provision for the relief that it now claims
due to oversight or inadvertent omission. It accepts that the order has
retrospective
effect and that once the limited protection given to sitting
members by paragraph 4 of the order expired, members who had ceased
to be
members of the parties by which they were nominated, ceased to be members of the
KZN legislature. |
| [18] | The relief that it claims
is that these persons be reinstated as members of the KZN legislature because of
the notice given by the
Minister of the Bill to amend the Constitution to make
provision for floor crossing in the National Assembly and provincial
legislatures.
This, it contends, constitutes changed circumstances which allow
for the variation of the order made. |
| [19] | Sections 74(5), (6) and (7)
of the Constitution deal with the procedure to be followed when a Bill amending
the Constitution is to
be introduced into the National Assembly. The relevant
provisions are as follows: |
“(5) At least 30 days before a Bill amending the Constitution is
introduced in terms of section 73(2), the person or committee
intending to
introduce the Bill
must–
a) publish in the national Government Gazette, and in accordance with the
rules and orders of the National Assembly, particulars of the proposed amendment
for public comment;
b) submit, in accordance with the rules and orders of the Assembly, those
particulars to the provincial legislatures for their views;
and
c) submit, in accordance with the rules and orders of National Council of
Provinces, those particulars to the Council for a public
debate, if the proposed
amendment is not an amendment that is required to be passed by the
Council.
(6) When a Bill amending the Constitution is introduced, the person or committee
introducing the Bill must submit any written comments
received from the public
and the provincial legislatures–
(a) to the
Speaker for tabling in the National Assembly; and
(b) in respect of amendments referred to in subsection (1), (2) or (3)(b) to the
Chairperson of the National Council of Provinces
for tabling in the Council.
(7) A Bill amending the Constitution may not be put to the vote in the National
Assembly within 30 days
of–
(a) its introduction, if the Assembly is sitting when Bill is introduced; or
(b) its tabling in the Assembly, if the Assembly is in recess when the Bill is
introduced.”
| [20] | As required by section
74(5), the Minister caused the Bill amending the Constitution to be published in
Government Gazette 29341 of
11 October 2002. It is not necessary to refer in
any detail to the provisions of the Bill. They are dealt with briefly in the
memorandum
accompanying the Bill, which is also published in that Government
Gazette. After referring to the decision of this Court in the
UDM
matter, the memorandum continues in paragraph 2 as
follows: |
“2.1 The objects of the Bill are to amend the Constitution in order to
enable a member of the National Assembly or a provincial
legislature to become a
member of another party whilst retaining membership of that legislature; to
enable an existing party to merge
with another party, or to subdivide into more
than one party, or to subdivide and any one subdivision to merge with another
party.
2.2 The provisions of the Bill are modelled largely on the amendments effected
to the Constitution by the Constitution of the Republic
of South Africa
Amendment Act, 2002, that inserted the provisions related to the “crossing
of the floor” in the local
government sphere in the Constitution. By
adhering to the principles embodied in those provisions, the Bill will give
effect to
the Legislature’s clearly stated objective, as stated in the
Preambles to the Acts in question, of ensuring that uniformity
exists within the
three spheres of government regarding loss or retention of membership of the
National Assembly, any provincial
legislature or any municipal council in the
event of a change of party membership, or mergers or subdivisions or subdivision
and
merger of parties.
2.3 The provisions of the Bill are applicable to members of, and parties
represented in, the National Assembly and provincial legislatures.
The
mechanism contained in the Bill provides that a member of a legislature will be
allowed to change party membership, and allows
a party to merge or to subdivide,
or to subdivide and merge, only during the first 15 days following the
commencement of the legislation,
and thereafter –
• Only during a period of 15 days from the first to the fifteenth day of
September in the second year following the date of
an election of the
legislature; and
• During a period of 15 days from the first to the fifteenth day of
September in the fourth year following the date of an election
to the
legislature.”
| [21] | In his affidavit the
Minister says that the Bill will operate retrospectively to June 2002. In the
High Court proceedings, however,
Combrinck J expressed the opinion that the Bill
does not envisage that the constitutional amendment will have retrospective
effect.
It is neither necessary nor desirable to consider that question in this
judgment, nor whether it would be competent by means of
a constitutional
amendment to remove sitting members of the provincial legislature and replace
them with members who lost their positions
as a result of their having ceased to
be members of the parties which nominated them. |
| [22] | The relief sought by the
ANC does not arise out of any ambiguity or omission in the order made by this
Court. Though couched as an
application for variation of this Court’s
order, it is in effect a substantive application for mandatory relief by the ANC
to protect its new members who lost their seats in the KZN legislature because
of the action taken by them in the mistaken belief
that the Membership Act was
valid. |
| [23] | Counsel for
the ANC stressed that the five persons who had crossed the floor on 21 June 2002
had done so in good faith in the belief
that they were protected by the
Membership Act and that they should not be prejudiced for having done so. The
claim is not based
on any right that these members have. It is based on the
assumption that the Constitution will be amended at some time in the future
to
restore these members to the provincial legislature, and that this Court would
have given the protection claimed to the members
if it had been advised of the
Minister’s intention to seek an amendment to the Constitution at the time
it made its order.
There is no basis for such an
assumption. |
| [24] | At best for the ANC, a Bill
proposing an amendment to the Constitution has been introduced into Parliament
which, if passed, might
have such consequences. Even if it is assumed that this
will be the case, it does not constitute grounds on which the order of this
Court can be varied. There are no legal grounds on which the relief claimed can
be granted or could reasonably have been granted
at the time this Court made its
order. To do so would be to give effect to the Membership Act that was declared
invalid in the UDM main judgment. It may be unfortunate that the five
persons concerned have been prejudiced by relying on the Membership Act. But
once they had
chosen to leave the parties by which they were nominated, this is
what the Constitution demands. |
| [25] | Counsel for the ANC also
asked us to have regard to the fact that if this application fails the Executive
Council of the KZN legislature
may be reconstituted. If the composition of the
Executive Council is changed that will be the result of a political decision.
The
taking of such decisions is regulated by the Constitution and there is no
basis for this Court to prevent such decisions being taken
simply because the
Constitution may be amended. |
The relief
claimed by the Minister
| [26] | In the affidavit lodged by
him in support of the counter-application, the Minister contends that the order
made on 4 October 2002
suspended the consequences of the declaration of
invalidity until 22 October 2002. Thus members of legislatures who crossed the
floor in June in the belief that the Membership Act was valid did so lawfully
and were protected by that Act until 22 October 2002.
They would, however, lose
their seats on that date when the declaration of invalidity took effect with
retrospective effect. The
Minister suggests that this interpretation of the
order differs from that asserted by the ANC in its founding affidavit. Because
of this difference he submits that the order needs to be
clarified. |
| [27] | The ANC’s contention
has already been referred to. It is that the effect of the order was to deprive
the members of the KZN
provincial legislature who had crossed the floor of the
protection they would have had if the Membership Act had been valid. They
were,
however, given limited protection by paragraph 4 of the order against loss of
their membership of the legislature until 22
October 2002. This is much the
same as the submissions made by the respondents. I refer more fully to these
submissions later in
this
judgment.[14] |
| [28] | The difference between the
Minister’s interpretation of the order and that of the other parties seems
to be of little if any
practical significance. Counsel who appeared for the
Minister at the hearing of the application did not suggest that the members
who
changed party allegiances in June would be entitled to remain as members of the
KZN legislature after 22 October 2002. He accepted,
correctly in my view, that
they ceased to be members on the expiry of the interim protection afforded to
them by paragraph 4 of the
order. In any event, even if there are material
differences, the mere fact that the Minister’s understanding of the order
differs from that of the other parties would not in itself be sufficient reason
to require this Court to clarify its order. |
| [29] | In the written argument
lodged on behalf of the Minister, a somewhat different approach is adopted to
that taken in his affidavit.
It is acknowledged that a literal reading of the
order of invalidity suggests that with effect from 23 October 2002 it will
operate
retrospectively to 20 June 2002. It is submitted, however, that it is
not clear that this is what the Court intended and that it
is desirable in the
circumstances for the Court to clarify its
order. |
| [30] | In support of this argument
it is contended that no apparent purpose is served by declaring the Membership
Act invalid with retrospective
effect, and at the same time extending the
protection of the interim order to members of the National Assembly and
provincial legislatures
until 23 October 2002. In their written argument
counsel for the respondents submit, correctly in my view,
that |
“[i]n practical terms, all that paragraph 4 did was to grant to those
persons who had changed political alliance and left their
original parties after
20 June 2002 as well as to the political parties affected thereby, an
opportunity to consider the judgment
and rearrange their affairs having regard
to the fact that their membership of the respective Legislatures could end
nineteen days
later if they were then no longer members of the party that had
nominated them.”
This is made clear in paragraph 118 of
the UDM judgment to which I have already
referred.[15] The breathing space
ensured that precipitate action would not be taken and allowed both the
political parties and the affected members
time to reconsider their positions in
the light of the judgment and if so advised to enter into negotiations
concerning their future
relationships. There is no ambiguity in the order that
calls for an explanation or that justifies a request to this Court to correct
or
supplement its judgment, nor is there any reason why the order should not be
given its literal meaning.
| [31] | It was also submitted on
behalf of the Minister that there is nothing in the judgment to suggest that
this Court considered the effect
of a retrospective order on the rights and
privileges of those persons who would cease to be members of the KZN
legislature, or on
the validity of decisions taken by the KZN legislature whilst
those members were protected by the interim
order. |
| [32] | The affected members have
not approached this Court for relief in this regard, nor has any decision that
might have been taken by
the KZN legislature during the relevant period been
challenged. This Court is not obliged to deal with such matters as abstract
questions at the instance of the Minister. He has not drawn attention to any
decision of the KZN legislature during the relevant
period that might affect
him, or to any matter concerning the rights and privileges of members of the KZN
legislature in which he
might have an interest. Indeed, there is nothing to
show that any material decisions were taken by the KZN legislature during this
period. Any dispute in relation to such matters can be dealt with if and when
it arises. It is not appropriate for this Court
to supplement its judgment of 4
October 2002 to deal specifically with these
matters. |
| [33] | I am not persuaded,
therefore, that there is any need for the judgment to be
clarified. |
The Minister’s alternative
contentions
| [34] | In the alternative, the
Minister sought an order |
“Extending the limitation of the retrospective effect of the declaration
of invalidity of the Membership Act to 31 March 2003;
. .
.”.
He contends that if a constitutional amendment is
passed with retrospective effect, there will be uncertainty as to the validity
of
decisions taken by the KZN Legislature in the interim. There will also be
uncertainty as to the rights and privileges of the members
who lose their seats
as a result of the constitutional amendment, and the rights and privileges of
those persons who replace them
“with retrospective effect”.
| [35] | In effect, the Minister
seeks an order which, pending the outcome of the constitutional amendment,
reinstates those persons who lost
their membership of the legislature and
removes those members who have taken their places in accordance with the
provisions of the
Constitution. There are two obstacles to the granting of such
relief. First, the period fixed for the operation of paragraph 4
of the order
has expired. Even if it is permissible to extend the order after its expiry
date – a proposition doubted but
left open in Ntuli’s
case[16] – it would have to be
exercised “very sparingly”. No circumstances exist in the present
case that would justify
the making of so drastic an order if there is indeed the
power to do so. Secondly, the cause of the concerns expressed by the Minister
is the proposal to amend the Constitution with retrospective effect, and not the
order made by this Court. There are no grounds
on which this Court can or
should amend its order to facilitate the passing of such an amendment, or to
avoid any adverse consequences
that would result from a proposed retrospective
amendment. These are matters for Parliament. |
| [36] | In the result the
Minister’s claim must also be
dismissed. |
Costs
| [37] | The respondents are
entitled to their costs. The application dealt with an important issue. The
applicant was represented by two
counsel and in my view it was not inappropriate
for the respondents to be represented in the proceedings by two counsel.
Counsel
for the respondents asked for the order to be made jointly and severally
against the ANC and the Minister and this will be
done. |
| [38] | The following order is
made: |
1. The application by the African National Congress is
dismissed.
2. The application by the Minister for Justice and Constitutional Development is
dismissed.
3. The costs of these proceedings are to be paid by the African National
Congress and the Minister for Justice and Constitutional
Development jointly and
severally and are to include the costs of two
counsel.
Langa DCJ, Goldstone J,
Kriegler J, Mokgoro J, Ngcobo J, O’Regan J, Sachs J and Yacoob J concur in
the judgment of Chaskalson
CJ.
For the Applicant:
K. Swain SC and R.J.
Seggie instructed by Von Klemperers, Pietermaritzburg.
For the Second,
Third and Ninth Respondents and First to Fourth Intervenors:
M. Pillemer SC
and A.A. Gabriel instructed by Larson Bruorton and Falconer Inc,
Durban.
For the Fourth Respondent:
D.O. Potgieter SC instructed by the
State Attorney, Johannesburg.
[1] United Democratic Movement v
President of the Republic of South Africa and Others (1) CCT 23/02 as yet
unreported.
[2] Id.
[3] President of the Republic of
South Africa and Others v United Democratic Movement CCT 23/02 as yet
unreported.
[4] United Democratic Movement v
President of the Republic of South Africa and Others (2) CCT 23/02 as yet
unreported.
[5] Constitution of the Republic of
South Africa Amendment Act 18 of 2002.
[6] Local Government: Municipal
Structures Amendment Act 20 of 2002.
[7] Constitution of the Republic of
South Africa Second Amendment Act 21 of 2002.
[8] Loss or Retention of Membership of
National and Provincial Legislatures Act 22 of 2002.
[9] UDM main judgment above n 4
at para 4 of the order.
[10] Id at para 118.
[11] Rule 6(7)(a) of the Uniform
Rules states:
“Any party to any application proceedings may bring a counter-application
or may join any party to the same extent as would
be competent if the party
wishing to bring such counter-application or join such party were a defendant in
an action and the other
parties to the application were parties to such
action.”
[12] [1997] ZACC 7; 1997 (3) SA 772 (CC); 1997 (6)
BCLR 677 (CC) at para 29. See also Ex Parte Women’s Legal Centre: in
re Moise v Greater Germiston Transitional Local Council 2001 (4) SA 1288
(CC) at para 4.
[13] Id at para 30.
[14] Below para 30.
[15] Cited above at para 6 of this
judgment:
“To ensure that no prejudice is suffered as a result of the orders that
have been made by the High Court and this Court before
an adequate opportunity
has been allowed for the consideration of the terms of this judgment, paragraphs
13(a), (b) and (c) of the
interim order of this Court will be kept in force
until the expiry of the fifteen-day window
period.”
[16] Above n 12 at paras 30 and
38.
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