South Africa: Constitutional Court

Kruger v President of the Republic of South Africa and Others (CCT 57/07) [2008] ZACC 17; 2009 (1) SA 417 (CC); 2009 (3) BCLR 268 (CC) (2 October 2008)

JUDGMENT

SKWEYIYA J:

Introduction

1. The applicant, Mr Kruger, an attorney, has approached this Court to secure confirmation of the Pretoria High Court’s order declaring a proclamation issued by the President on 11 July 2006 and published in Government Gazette No 29041 to be “null and void and of no force and effect.” Because the issuing of the Proclamation concerned the “conduct of the President”,¹ the High Court referred its order to this Court for confirmation in terms of section 172(2)(a) of the Constitution.²

2. We also have before us an application by the Road Accident Fund (the Fund) which was established as a juristic person by section 2(1) of the Road Accident Fund Act 56 of 1996 (the Principal Act).³ The object of the Fund is payment of compensation in accordance with the provisions of the Principal Act.⁴ The Fund applies for direct access to this Court to obtain certainty about the status of another Proclamation which was issued by the President on 28 July 2006 and published in Government Gazette No 29086. It seeks an explicit order on its effect in this regard because of what it refers to as the uncertainty created by the order made in the Pretoria High Court. More particularly, it seeks an order declaring that the Second Proclamation lawfully brought sections 1 to 5 of the Road Accident Fund Amendment Act 19 of 2005 (the Amendment Act) into force and operation on 31 July 2006. The Fund’s legal representatives were given leave to file written submissions in this matter and were also allowed to present oral argument in this Court.

3. The matter concerns the constitutional validity of the two Proclamations, both of which were issued by the President with the intention of bringing into operation certain sections of the Amendment Act which would result in the amendment of a number of sections of the Principal Act.

4. The one, Proclamation R27, was published in the Government Gazette on 19 July 2006 (the First Proclamation) and the other, Proclamation R32, was published in the Government Gazette on 31 July 2006 (the Second Proclamation). They both bear the signatures of the President and the Minister of Transport, Mr JT Radebe, as required by section 101 of the Constitution.

5. Section 101 of the Constitution, which deals with decisions by members of the executive arm of government, provides that:

“(1) A decision by the President must be in writing if it—

1. is taken in terms of legislation; or

2. has legal consequences.

(2) A written decision by the President must be counter-signed by another Cabinet member if that decision concerns a function assigned to that other Cabinet member.

(3) Proclamations, regulations and other instruments of subordinate legislation must be accessible to the public.

(4) National legislation may specify the manner in which, and the extent to which, instruments mentioned in subsection (3) must be—

1. tabled in Parliament; and

2. approved by Parliament.”

5. The publishing of proclamations in the Government Gazette facilitates easy and quick access by the public to formal orders and decisions by legal authorities. In the present matter such authority is the President who is the head of State and head of the National Executive. The authority is vested in him and he exercises such authority with other members of Cabinet.⁵

6. For ease of reference the full text of each of the two Proclamations, as they appear in the respective Government Gazettes, is set out below:

Order

80. In the circumstances, the following order is made:

    1. The applicant’s application for condonation of the late filing of the record is granted.

    2. The application for leave to appeal is granted.

    3. The application for direct access by the third respondent is granted.

    4. The order handed down by the Pretoria High Court on 14 June 2007, declaring that Proclamation R27 of 2006 is null and void and of no force and effect, is confirmed with effect from 31 July 2006.

    5. Proclamation R32 of 2006 is declared to be invalid with effect from 31 July 2006.

    6. The President must issue a Proclamation bringing sections 1, 2, 3, 4 and 5 of the Road Accident Fund Amendment Act, 2005 (Act No. 19 of 2005) into effect, with effect from 31 July 2006, within 30 days of the date of this order.

    7. Notwithstanding the declarations of invalidity contained in paragraphs (d) and (e) of this order, the Fund may continue to act for 30 days from the date of this order as if sections 1, 2,3,4 and 5 of the Amendment Act were brought into force on 31 July 2006.

    8. Notwithstanding the declarations of invalidity contained in paragraphs (d) and (e) of this order, everything that has been done by the Fund since 31 July 2006 on the basis that sections 1,2,3,4 and 5 of the Amendment Act were brought into force on 31 July 2006 shall—

       1. not be invalid on the ground that the First and Second Proclamations have been declared to be invalid in this order; and

       2. be deemed valid as if sections 1,2,3,4 and 5 of the Amendment Act had been lawfully brought into force on 31 July 2006.

    9. The first and second respondents are ordered to pay the costs of the applicant in both courts, jointly and severally, the one paying the other to be absolved, including the costs of two counsel.

    Langa CJ, O’Regan ADCJ, Kroon AJ, Madala J, Mokgoro J, Ngcobo J, Nkabinde J and Van der Westhuizen J concur in the judgment of Skweyiya J.

JAFTA AJ:

80. I have read the judgment prepared by my colleague Skweyiya J. Regrettably I disagree with the conclusion which he has come to regarding the invalidity of both Proclamations. Proclamation R32 was issued in order to correct the error in Proclamation R27 which came into operation at midnight on 30 July 2006. When read together, the two Proclamations convey and put into force the President’s correct decision in relation to bringing into operation certain sections of the Road Accident Fund Amendment Act 19 of 2005 ( the Amendment Act). I come to this finding for reasons which now follow.

81. The facts are set out in the judgment of Skweyiya J. For ease of reading, I will refer only to facts which are relevant to my reasons and findings. In 2005, Parliament enacted the Amendment Act. This Act was signed into law by the President on 23 December 2005. It was published on 5 January 2006. However, it did not come into operation upon being assented to by the President or upon publication in the Government Gazette.¹ Section 13 of the Amendment Act provides that it will come into force “on a date determined by the President by proclamation in the Government Gazette.”

82. In July 2006, the President decided to bring into operation certain sections of the Amendment Act which did not require that measures be put in place before implementation of the Act. The sections which the President decided to bring into operation dealt with administrative matters. They were sections 1, 2, 3, 4 and 5 of the Amendment Act which amended sections 4, 6, 10, 11 and 12 of the Road Accident Fund Act 56 of 1996 (the Principal Act).

83. But when Proclamation R27 was drafted in order to carry out the President’s decision, it referred erroneously to sections 6, 10, 11 and 12 instead of sections 1, 2, 3, 4 and 5 of the Amendment Act. However, it correctly referred to section 4 of that Act. The Proclamation was published on 19 July 2006 with this error. The President had determined 31 July 2006 as the date on which sections 1, 2, 3, 4 and 5 of the Amendment Act would come into operation. The Proclamation purported to bring into force on that date sections 4, 6, 10, 11 and 12.

84. Before 31 July 2006, the President became aware that Proclamation R27 did not correctly reflect his decision in that it referred to four incorrect sections, namely, sections 6, 10, 11 and 12. In order to rectify this error the President issued Proclamation R32, which was published on 31 July 2006. Evidently, the latter was intended to amend the former, insofar as it referred to the wrong sections. Both Proclamations are fully set out in Skweyiya J’s judgment.

    In the High Court

85. On 31 July 2006, the applicant instituted a review application in the Pretoria High Court, seeking an order declaring Proclamation R27 to be null and void and of no force and effect. At the time he instituted the application, he was not aware that the President had sought to rectify the error by amending Proclamation R27. It was pointed out in the answering affidavit, filed on behalf of the second respondent, that the President had issued Proclamation R32 so as to amend the first one. In reply, the applicant contended that the law did not authorise the President to rectify the error in Proclamation R27 by issuing a Second Proclamation. He contended that the error could only be corrected by an Act of Parliament or an application to court for a review of the impugned Proclamation.

86. The applicant persisted in his challenge on the ground that Proclamation R27 had been erroneously issued. He formulated his challenge in the following terms:

“The Proclamation [R27] was issued in error. What the President actually intended was to bring into operation sections 1, 2, 3, 4 and 5 of the amending Act, which respectively amends sections 4, 6, 10, 11 and 12 of the principal Act.

The Department of Transport, which operates under the direction of the Minister of Transport, has acknowledged that the Proclamation was issued in error. It has stated that the Proclamation will be withdrawn, and a new Proclamation will be issued in its place.

I submit that the President does not have the power to withdraw a Proclamation which he has issued, bringing an Act or a section of an Act into operation. The result is that Proclamation R27 of 2006 continues in effect, notwithstanding any notice of its purported withdrawal.

The consequence of the erroneous bringing into operation of sections 4, 6, 10, 11 and 12 of the amending Act is that parts of the principal Act are incapable of operation.”

88. The President did not file opposing papers in the High Court. But the Minister of Transport filed an affidavit deposed to by Ms Nonkululeko Msomi, the Deputy Director General: Transport Regulation and Public Entity Oversight Division. She disputed that Proclamation R27 was issued in error and contended that it was properly issued even though it contained the error of referring to wrong sections. She explained:

“Although the Proclamation was correctly issued, it referred to wrong sections of the amending Act which were to be put into operation, and should have referred to sections 1, 2, 3, 4, and 5 of the amending Act. As a result of this error of having referred to incorrect sections of the amending Act, a second Proclamation was issued, namely, Proclamation No.R.32 of 2006 which corrected the erroneous reference to sections 4, 6, 10, 11, and 12 referred to above and in that Proclamation the correct reference of the sections that were put into operation was made, namely, 1, 2, 3, 4, and 5 of the Amendment Act of 2005.”

89. The High Court (per Preller J) held that the applicant had the requisite locus standi to challenge the validity of Proclamation R27. It also upheld the applicant’s argument to the effect that this Proclamation was erroneously issued by the President. Regarding Proclamation R32, the High Court found that the President had no authority to issue the Second Proclamation, the effect of which was to amend the first one. It reasoned:

“Because new laws often require regulations and the taking of other administrative steps in order to operate effectively, the practice has developed over many years for Parliament to leave it to the executive to decide when everything necessary is in place for a new law to function. In such case there is a provision in the Act which empowers the President to bring the Act into operation (and nothing more) by proclamation when the time is ripe. The provision certainly does not empower the President to later revoke the proclamation if he no longer likes the Act, thereby effectively repealing it.

Taking this argument to its logical conclusion would mean that the President would have the power to revoke by proclamation any Act that he or his predecessors have previously brought into operation by publishing a proclamation to that effect in the Gazette. One can hardly imagine the consequences if e.g. the statutes protecting land tenure, the labour legislation or even the Criminal Procedure Act should be revoked in terms of this hypothetical extended power. Such a regime will simply be government by decree which is the antithesis of the Rule of Law which is one of the cornerstones of our Constitution.

My conclusion is therefore that the President’s power to bring an Act into operation by way of a proclamation does not include the power to either amend or revoke that proclamation.”

89. Following the above reasoning and findings, the High Court issued the following order:

“1. It is declared that Proclamation R27 of 2006 is null and void and of no force and effect.

2. The second respondent is ordered to pay the applicant’s costs.

3. The order in paragraph 1 above is referred to the Constitutional Court for confirmation in terms of Section 172(2)(a) of the Constitution.”

The issues

90. This Court must be satisfied that the declaration of invalidity was properly made before it can confirm the High Court’s order. The first issue for consideration is whether the entire Proclamation R27 was invalid ab initio. If it was not, the next issue will be whether the President had the power to rectify the error in Proclamation R27 by issuing Proclamation R32 which sought to amend the First Proclamation. I address these issues in turn. Before doing so, however, I must mention that in this Court, counsel for the Minister did not persist in the argument that the applicant lacked locus standi. I am willing to accept that the applicant’s nature of practice constitutes sufficient interest for him to have locus standi in this matter.

    Was the entire Proclamation R27 invalid from the outset?

91. The answer to this question lies in the consideration of the ground on which the applicant relies in challenging the validity of Proclamation R27. This Proclamation is attacked on the sole ground that it refers to sections which the President did not intend to put into force. It is common cause that the President had decided to put into force sections 1 to 5 of the Amendment Act. But the Proclamation referred to sections 4, 6, 10, 11 and 12 instead of sections 1, 2, 3, 4 and 5. Section 4 was the only section to which a correct reference was made. Insofar as reference was made to the other sections, it did not reflect the President’s true decision; otherwise the Proclamation was correct in all other respects.

92. I have difficulty in accepting that the error, which is limited in extent, has the effect of nullifying the entire Proclamation R27. In determining the validity of the Proclamation it is important to recall that it is not the President’s decision that is under attack here but the incorrect recordal of that decision in the Proclamation. In other words, the Proclamation’s validity is challenged on the basis that it does not represent the whole of the President’s correct decision. Self-evidently the Proclamation contains good and bad parts. The question that arises is whether the bad part can be severed from the good.

    Severability

93. Severability is a tool commonly used to remedy unconstitutional legislative provisions.² Under the common law, severance is employed to sever the bad part of a document in order to save it from invalidity.³ There is no reason against the application of severance to a proclamation which brings an Act of Parliament into force, provided the test for severance is met. This test entails two stages. During the first stage the focus is on determining whether the good can be severed from the bad. If so, then one has to determine whether what remains gives effect, in the present context, to the purpose which the President sought to achieve. In Coetzee,⁴ Kriegler J outlined the test as follows:

“Although severability in the context of constitutional law may often require special treatment, in the present case the trite test can properly be applied: if the good is not dependent on the bad and can be separated from it, one gives effect to the good that remains after the separation if it still gives effect to the main objective of the statute. The test has two parts: first, is it possible to sever the invalid provisions and, second, if so, is what remains giving effect to the purpose of the legislative scheme?”⁵ (Footnote omitted.)

94. The application of severance, as it appears above, does not depend on whether the entire objective is achieved by executing what remains after severance. The question is whether giving effect to the remaining part will achieve the intended objective, albeit partially. In applying the test to the present case, the enquiry is first, whether reference to the incorrect sections 6, 10, 11 and 12 can be severed from the rest of Proclamation R27 and if so, second, whether giving effect to what remains of the Proclamation, would achieve partially the President’s objective.

95. There can be no doubt that the wrong sections can be severed from the correct one. Section 13 of the Amendment Act empowers the President to choose the sections he decides to put into force at any given time. The number of the sections to be put into operation falls within his discretion. It can be one or more sections which he identifies for this purpose. The coming into operation of section 4 of the Amendment Act⁶ does not depend on the implementation of the severed sections 6, 10, 11 and 12. As a result, putting section 4 into force would achieve the President’s objective. In fact it seems to me that this section came into operation on 31 July 2006. According to section 13 of the Interpretation Act 33 of 1957, Proclamation R27 came into operation on the expiration of 30 July 2006.⁷

96. However, sections 6, 10, 11 and 12 did not, contrary to the view held by the applicant,⁸ come into force because they did not form part of the President’s decision. The fact that these sections appeared in the Proclamation did not make them part of the sections which the President had intended to put into operation. This is common cause. It is the decision of the President that put section 4 into operation and not the Proclamation which was just a means of executing the President’s decision. The power conferred on the President by section 13 of the Amendment Act can only be exercised if the President applies his mind to the relevant issues. He has to consider whether the necessary framework for implementing the Act is in place before putting into force parts of the Act which require the existence of such framework. In this case, the President had decided to put into force those sections of the Act which did not require any measures to be in place. It is this exercise of public power which is required to meet the threshold of rationality.

97. In invoking the decision of this Court in Pharmaceutical Manufacturers,⁹ counsel for the applicant argued that Proclamation R27 was invalid because it was irrational and was issued in error. He submitted that the present case “is for practical purposes on all fours with the Pharmaceutical Manufacturers case.” In my view the present case is distinguishable from that case in two respects. First, in Pharmaceutical Manufacturers, the President became aware of the error after the relevant Act had been put into operation. Thus he had no power to withdraw a proclamation which had already become effective and put the relevant Act into force. In the present case, the President became aware and took remedial action before the Proclamation became effective.

98. Secondly and most importantly, in Pharmaceutical Manufacturers, the error influenced the exercise of public power by the President. He was made to believe incorrectly that the regulatory framework necessary for the implementation of the Act was in place before he took the decision to bring it into force. His true decision there was to bring the relevant Act into force. Had he been given the true facts he could not have made the decision and therefore issued the Proclamation. It was in that context that the Court said:

“Rationality in this sense is a minimum threshold requirement applicable to the exercise of all public power by members of the Executive and other functionaries. Action that fails to pass this threshold is inconsistent with the requirements of our Constitution and therefore unlawful. The setting of this standard does not mean that the Courts can or should substitute their opinions as to what is appropriate for the opinions of those in whom the power has been vested. As long as the purpose sought to be achieved by the exercise of public power is within the authority of the functionary, and as long as the functionary’s decision, viewed objectively, is rational, a Court cannot interfere with the decision simply because it disagrees with it or considers that the power was exercised inappropriately. A decision that is objectively irrational is likely to be made only rarely but, if this does occur, a Court has the power to intervene and set aside the irrational decision.”¹⁰ (Footnote omitted.)

100. As observed in the above dictum, the requirement of rationality applies to the exercise of public power. In the present case, the President had properly and appropriately exercised the power by deciding to put into operation only those sections which did not require any measures to be put in place before implementation. The error came into existence after the decision had been taken and when it was recorded in the Proclamation. The invocation of rationality in the present circumstances is, in my view, misplaced. The partial invalidity of the Proclamation flows from the fact that it did not reflect the correct decision of the President. It follows that the President’s decision, which is not challenged in these proceedings, remains intact. The question that arises at this stage is whether the President could rectify the error in Proclamation R27. This is the issue which I will discuss in turn below.

The concession made by the Minister’s counsel

101. Before I address the question whether the President was empowered to issue the Second Proclamation, I must comment on the concession made by the Minister’s counsel to the effect that Proclamation R27 was a nullity from the outset. In their written argument, counsel for the Minister submitted:

“We accept the essence of the applicant’s contentions about the First Proclamation:

1. It was objectively irrational because the provisions of the Amendment Act which it purported to put into operation, were an arbitrary selection which resulted from an underlying mistake.

2. It is appropriate for this court to confirm the High Court’s order declaring the First Proclamation to be invalid. There is no reason to limit the retrospective operation of the order of invalidity.

3. Under the doctrine of objective invalidity, the First Proclamation is regarded as having been a nullity from the outset.

3. It follows that the First Proclamation never brought into operation the provisions to which it erroneously referred. It had no effect in law at all.”

101. The difficulty with the concession is that it departs from the wrong premise, namely, that all the sections to which the First Proclamation refers were incorrect. It overlooks the fact that section 4 had been correctly referred to. As a result it makes no distinction between the erroneously referred-to-sections and section 4. Its reliance on the doctrine of objective invalidity is mistaken. The doctrine of objective invalidity cannot apply to that part of the Proclamation which was not affected by the error and thus not invalid. In the light of this finding the question that arises is: what is the effect of the concession on the determination of the issue? I proceed to address this question.

102. Ordinarily a court accepts, without deciding, factual concessions made by the parties because the effect thereof is that the conceded issue is no longer placed in dispute. This rule extends to legal concessions but only to the extent that a court is satisfied that a concession was properly made. If the court is of the view that a legal concession was improperly made, it is entitled to reject it and decide the issue as if it remained in dispute. In Matatiele Municipality,¹¹ Ngcobo J, writing for the majority, said:

“Here, we are concerned with a legal concession. It is trite that this Court is not bound by a legal concession if it considers the concession to be wrong in law. Indeed, in Azanian Peoples Organisation (AZAPO) and Others v President of the Republic of South Africa and Others, this Court firmly rejected the proposition that it is bound by an incorrect legal concession, holding that, ‘if that concession was wrong in law [it] would have no hesitation whatsoever in rejecting it’. Were it to be otherwise, this could lead to an intolerable situation where this Court would be bound by a mistake of law on the part of a litigant. The result would be the certification of law or conduct as consistent with the Constitution when the law or conduct in fact is inconsistent with the Constitution. This would be contrary to the provisions of section 2 of the Constitution which provides that the ‘Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid’.”¹² (Footnote omitted.)

The President’s power to rectify the error in Proclamation R27

103. When the President became aware of the error in the Proclamation he sought to rectify it. But because the Proclamation had already been published, he deemed it appropriate to correct it by means of issuing a Second Proclamation amending, to the extent necessary, the first one. Both in the High Court and in this Court, the applicant argued that the President was not empowered to amend Proclamation R27 in the manner he did. Relying on Pharmaceutical Manufacturers,¹³ counsel for the applicant argued that the only options which were available to the President were to institute a review application or approach Parliament to enact an amendment. He submitted that section 13 of the Amendment Act does not authorise the President to amend a proclamation. Were it to be construed as empowering him to do so, continued the argument, the President would be able to repeal provisions in an Act of Parliament by simply amending his original Proclamation which brought such provisions into force. This would, concluded the argument, be a far-reaching and startling power which could cause the law to change from time to time as the President determined.

105. When taken at face value, the above argument is seductively persuasive. The High Court upheld it and rejected the assertion that the President had amended Proclamation R27. It reasoned that were the President to have the power to amend, he could “revoke by proclamation any Act that he or his predecessors had previously brought into operation by publishing a proclamation to that effect in the Gazette.” If this were to happen, the High Court reasoned, it would constitute “government by decree which is the antithesis of the Rule of Law which is one of the cornerstones of our Constitution.”¹⁴

106. However, the demise of the above argument lies in its foundation. It is based on the wrong premise, which is that the President sought to amend the Proclamation which had brought into force sections 6, 10, 11 and 12 of the Amendment Act, when this was clearly not the position. These sections were never brought into operation because, as stated earlier, they did not form part of the President’s decision and were not intended to come into force. In the present case, the President sought to rectify an error which had no legal force and effect. As mentioned above, only section 4 came into operation on 31 July 2006. To the extent that Proclamation R32 refers to section 4 as one of the substituted sections, it has no legal force. In fact the inclusion of section 4 in Proclamation R32 was irrational and creates an unnecessary confusion. It is indeed meaningless for Proclamation R32 to replace section 4 in Proclamation R27 with the same section 4.

107. The issue that requires consideration in this regard is whether the President was empowered to rectify the error which arose in the present matter. Reference to Pharmaceutical Manufacturers is not helpful to this enquiry because the error we are concerned with here is of a different kind. In determining this issue, the starting point must be the Constitution, which is the genesis of the President’s power to bring Acts of Parliament into operation. Section 81 of the Constitution provides:

“A Bill assented to and signed by the President becomes an Act of Parliament, must be published promptly, and takes effect when published or on a date determined in terms of the Act.”

108. The constitutional power to bring an Act of Parliament into force can be exercised by the President only if the Act authorises it. In other words, the exercise of the power and the manner of doing it depends on the terms of the Act to be brought into operation. If an Act of Parliament is silent on the issue, it comes into operation automatically upon publication. But a number of Acts of Parliament require antecedent measures to be put in place before they can be implemented. In that event, the practice is for Parliament to authorise the President, once the measures are in place, to bring the Act into force. This is normally done by adding a section to this effect in the Act itself.

109. In the present case, section 13 of the Amendment Act authorises the President to bring its provisions into force on a date determined by him and it requires him to do this by publishing a proclamation in the Government Gazette. The duty imposed on the President is to bring the Act into force when circumstances are conducive for it to be implemented. The Act confers a discretion on him to determine when circumstances are conducive for bringing the Act into operation and to decide whether to bring into force the entire Act or only parts of it. Once this determination is made, the President is under the duty to bring the Act or its part into operation. However, he is obliged to discharge this duty by publishing a proclamation in the Government Gazette which sets out his decision. It is in this context that the question whether the President had the power to amend Proclamation R27 must be considered.

110. Although neither the Constitution nor the Amendment Act confer express power on the President to amend proclamations containing errors such as the present, the power to amend to this limited extent is implied. It is implied because it is necessary for the President to have it in order to properly discharge his duty to bring the determined parts of the Act into operation. The facts of the present case demonstrate this point. It cannot be argued that the President lacks the power to correct proclamations drafted in a manner that does not correctly reflect his decision. To hold otherwise would defeat the very purpose for which the power was conferred on the President.

111. It is a well-established principle of our law to interpret a provision which expressly confers a particular power as impliedly including in its ambit the authorisation of taking steps reasonably necessary to achieve the main purpose.¹⁵ The latter is taken as being incidental or ancillary to the expressly conferred power. In Matatiele Municipality Ngcobo J said:

“It is trite that the power to do that which is expressly authorised includes the power to do that which is necessary to give effect to the power expressly given. The power of Parliament to redraw provincial boundaries therefore includes the power that is reasonably necessary for the exercise of its power to alter provincial boundaries.”¹⁶ (Footnote omitted.)

111. For these reasons, I conclude that the President had the power to rectify the error in Proclamation R27 by issuing Proclamation R32. It follows that, to the extent described above, both Proclamations are valid. The High Court erred in declaring the First Proclamation invalid.

     Costs

112. The general rule applicable to the issue of costs should be followed in this matter. Consequently, each party must bear its own costs.

113. Accordingly I would make the following order:

     1. The declaration of invalidity made by the High Court is not confirmed.

     2. The order of the High Court is set aside and replaced with the following order:

     (i) The application is dismissed.

YACOOB J:

Introduction

115. This case is concerned with the validity of two Proclamations issued by the President of the Republic of South Africa as head of the National Executive¹ purportedly in accordance with the provisions of section 13 of the Road Accident Fund Amendment Act² (the amending Act). The first of these Proclamations was issued on 11 July 2006 (the first Proclamation) and the second, around two weeks later on 28 July 2006 (the second Proclamation). I have read the judgments of Skweyiya J and Jafta AJ and find myself unable to agree with their reasoning and their conclusions. My colleague Skweyiya J analyses and determines separately the validity of each of the two Proclamations whose validity is in issue in this case and concludes that:

     1. each is invalid;

     2. the first Proclamation was invalid ab initio;

     3. the second Proclamation was aimed at validating the first Proclamation;

     4. it did not do so;

     5. both Proclamations are therefore invalid; and

     6. it would be just and equitable to allow the President to correct the defect and to ensure that the first Proclamation is treated as if it had brought the correct legislative provisions into force.

116. Jafta AJ holds that:

     1. the first Proclamation is valid in part and invalid in part;

     2. the part that is valid can and should be severed from the part that is not;

     3. the part that is good can be amended by the President and has been amended by the second Proclamation; and

     4. the second Proclamation validly amended the first.

117. The approach in this judgment is to read both Proclamations together and to:

     1. find the first Proclamation invalid;

     2. hold that it is not just and equitable for the invalidity to take effect until the date of this judgment;

     3. find that the second Proclamation did not successfully amend the first;

     4. sever those parts of the first Proclamation which are bad; and

     5. read in the amendments intended by the President when issuing the second Proclamation.

118. The fundamental difference between the judgment of Skweyiya J and this judgment is, in my view, that this judgment expressly focuses on whether it is just and equitable to declare both Proclamations invalid, whereas the judgment of Skweyiya J does not conduct this enquiry but concludes that the first Proclamation was invalid from the date of its publication.

119. I agree with Skweyiya J that the application for condonation must be granted. So too must the application for direct access made by the Road Accident Fund (the Fund) established in terms of section 2(1) of the Road Accident Fund Act (the main Act).³ However, I would allow the application on the basis that the validity of the second Proclamation for which the Fund contends is interwoven with the validity of the first and that both Proclamations need to be read and considered together. I nevertheless ultimately conclude that no order should be made pursuant to the application for direct access because there is no need to do so in the light of the order that is motivated in respect of the first Proclamation.

120. In my judgement, the applicant has standing as an attorney engaged in work aimed at ensuring that people who are injured in motor collisions are properly compensated by the Fund. In doing so the attorney would need to understand the compensation regime, to advise clients and to operate the system in order that clients are properly compensated. A compensation law that is irrationally brought into force would undoubtedly affect this ability.

     The Legislation and the two Proclamations

121. The amending Act amended the main Act. Section 13 of the amending Act provided that the amending legislation would come into force on a date “determined by the President by proclamation in the Gazette”. The President, intending to bring sections 1, 2, 3, 4 and 5 of the amending Act into operation, published⁴ the first Proclamation on 19 July 2006⁵ reading as follows:

“[I] hereby determine 31 July 2006 as the date on which sections 4, 6, 10, 11 and 12 will come in operation.”

122. It is apparent therefore that the President brought sections 4, 6, 10, 11 and 12 of the amending Act into operation but intended to bring into operation sections 1, 2, 3, 4 and 5 of that Act. It follows that section 4 of the amending Act was rightly brought into operation while the others were not.⁶ The basis of this error emerged easily enough: Sections 1, 2, 3, 4 and 5 of the amending Act amended sections 4, 6, 10, 11 and 12 of the main Act respectively. The President in fact had in mind bringing into force the amended sections 4, 6, 10, 11 and 12 of the main Act. Amendments were effected by sections 1, 2, 3, 4 and 5 of the amending Act.⁷

123. This error was apparently realised before 28 July 2006 and, on that date, the President issued the second Proclamation which reads:

“[I] hereby, amend Proclamation No. R. 27 of 2006, by the substitution for the reference to section 4, 6, 10, 11 and 12 in the said Proclamation for the reference to section 1, 2, 3, 4 and 5 of the Amendment Act, 2005 (Act No. 19 of 2005).” ⁸

123. The second Proclamation was issued by the office of the President some days before 31 July 2006 when the incorrect sections would erroneously have been brought into force. This Proclamation was however published on the same day as that on which the incorrect sections were brought into force. The second Proclamation was evidently aimed at correcting the errors in the first and both were published at the time the challenge to the validity of the first Proclamation was made before the High Court. It is therefore appropriate to have regard to both Proclamations together in an effort to determine if the office of the President had succeeded in putting right the error which was known to exist. Although all the parties before us conceded that the first Proclamation was invalid it remains nonetheless necessary to examine this question. The answer is not straight-forward but, if it is not in favour of the President, the first Proclamation must be invalid. I proceed to examine this issue.

     Amendment of Proclamation by President?

124. I have already pointed out that the President sought to amend the first Proclamation by the second Proclamation. Two inter-related questions arise. The first is whether and in what circumstances it is competent for the President to amend a proclamation. And the second is whether the President successfully amended the first Proclamation in this case.

125. I cannot at this stage envisage any substantial objection to the President having the power to amend a proclamation which that office realises is patently erroneous in order to correct the error (and for no other purpose) provided that the amendment is properly effected before the proclamation comes into effect. Neither the Constitution nor the provisions of section 13 of the amending Act precludes this course. Nor would a limitation of this kind be in accordance with good government and administration. Government at all levels must be encouraged to be vigilant at all times and must be given the opportunity to change their decisions if the officials concerned discover that the decisions were patently erroneous. To compel parties to approach a court to set aside a decision that is obviously in error would be inconsistent with that responsiveness with which the Constitution charges all organs of state. The energy as well as the financial and other resources that would need to be expended in order to set aside an obviously incorrect decision when that decision has been corrected before it came into force is counter-productive, overly technical and cannot be justified in our constitutional order.

126. Different considerations apply when the error is discovered and the correction made after a proclamation bringing an Act into force is published. An amendment by the President in these circumstances could well amount to repeal of legislation. We are not concerned with that situation and it need not be addressed further.

127. The situation in this case is that the decision to correct was made and the amending Proclamation was signed by the President three days before the first Proclamation came into force, but the second Proclamation was published on 31 July 2006: the same day on which the first Proclamation came into force. If the President did indeed have the power to amend there would have been, in my view, no difficulty about the validity of the amendment had the second Proclamation been published on 29 July 2006. In this regard, it seems to me to place form over substance to make a distinction between, on the one hand, withdrawal of the first Proclamation and the replacement of that Proclamation by another and, on the other hand, the amendment of the first Proclamation by the second. Each approach would produce the same result provided, of course, that the proclamation intended to implement either approach is published before the date upon which the erroneous proclamation comes into operation. It is the timing of the publication that is essential; whether the withdrawal/replacement process or the one of amendment is followed is neither here nor there.

128. It is however not necessary to decide whether it would have been competent for the President to amend the first Proclamation, had the amending Proclamation been published before the first one. This is because this case must be decided on the footing that the second Proclamation was published after the first.

129. It cannot be gainsaid that the second Proclamation was not published a day before the first Proclamation came into operation. It was published on the same day. In these circumstances, it is necessary to determine whether the second Proclamation was published at the same time as the incorrect sections of the amending Act were brought into force, or whether the second Proclamation was published only after the first Proclamation came into operation. In our law, a determination that a provision of a law would come into operation on 31 July 2006 results in the provision coming into force at midnight on 31 July 2006.⁹ It follows that the first Proclamation came into force at midnight on 31 July 2006. We know that 31 July 2006 appears as the date of publication in the Government Gazette containing the second Proclamation. But we have no idea whether the Government Gazette was in fact published a little time before midnight or some time after. It would be wrong to assume that the second Proclamation was published either before midnight or at midnight on 31 July 2006. This judgment must proceed on the basis that publication was effected after midnight.

130. As at midnight on 31 July 2006, therefore, the first Proclamation was in operation and the second Proclamation not. In these circumstances, the first Proclamation was irrational and therefore invalid.

131. The next question is whether the second Proclamation had the effect of validating the first Proclamation which had come into force in an invalid state. I do not think so. In the circumstances the parties were right in conceding that the first Proclamation was invalid. The fact that the second Proclamation did not amend the first means that it too must be declared invalid.

     Just and equitable order

132. It is appropriate to consider the just and equitable order that falls to be made consequent upon the declaration of invalidity of both Proclamations. It must be stressed at the outset of this enquiry that it does not follow from a finding of invalidity in relation to any instrument that that instrument is invalid from the moment of its promulgation. Our Constitution undoubtedly places an obligation upon a court, including this Court, to declare both Proclamations inconsistent with the Constitution and invalid.¹⁰ There is however no obligation to declare the Proclamations inconsistent with the Constitution and invalid with retrospective effect. Indeed a court is expressly given the power (and in my view obliged) to make an “order that is just and equitable”¹¹ including an order limiting the retrospective effect of the invalidity¹² and an order suspending that declaration of invalidity.¹³ I emphasise that it is the obligation of this Court to consider whether it is just and equitable that the first Proclamation be regarded as invalid from the date of its promulgation. This Court has held in relation to objective invalidity that—

“[t]he Court’s order does not invalidate the law; it merely declares it to be invalid. It is very seldom patent, and in most cases is disputed, that pre-constitutional laws are inconsistent with the provisions of the Constitution. It is one of this Court’s functions to determine and pronounce on the invalidity of laws, including Acts of Parliament. This does not detract from the reality that pre-existing laws either remained valid or became invalid upon the provisions of the Constitution coming into operation. In this sense laws are objectively valid or invalid depending on whether they are or are not inconsistent with the Constitution. The fact that a dispute concerning inconsistency may only be decided years afterwards, does not affect the objective nature of the invalidity. The issue of whether a law is invalid or not does not in theory therefore depend on whether, at the moment when the issue is being considered, a particular person’s rights are threatened or infringed by the offending law or not.

A pre-existing law which was inconsistent with the provisions of the Constitution became invalid the moment the relevant provisions of the Constitution came into effect. The fact that this Court has the power in terms of section 98(5) of the Constitution to postpone the operation of invalidity and, in terms of section 98(6), to regulate the consequences of the invalidity, does not detract from the conclusion that the test for invalidity is an objective one and that the inception of invalidity of a pre-existing law occurs when the relevant provision of the Constitution came into operation. The provisions of sections 98(5) and (6), which permit the Court to control the result of a declaration of invalidity, may give temporary validity to the law and require it to be obeyed and persons who ignore statutes that are inconsistent with the Constitution may not always be able to do so with impunity.”¹⁴

133. This was said in relation to the interim Constitution. Applied to our Constitution the passage means that, like in the interim Constitution, the default position is that laws declared invalid by this Court are to be regarded as invalid from the date of their inception. However like under the interim Constitution, this Court has the power to control retrospectivity and the effects of a declaration of invalidity.

134. In this case the President sought to rectify an error but did so a little too late. There is no point in declaring the first Proclamation to be invalid ab initio because the consequences would be to frustrate the bona fide effort of the Executive to correct the error. It would be just and equitable, in all the circumstances, to give effect to the intention of the Executive and to amend the first Proclamation by a process of severance and reading in. This would be the correct course particularly in the light of the fact that the Fund has for the past two years proceeded on the basis that this was so.

135. In the result, I would sever from the first Proclamation the phrase “4, 6, 10, 11 and 12” and read in to the Proclamation in the place of the severed phrase the phrase “1, 2, 3, 4 and 5”. After this exercise, the relevant part of the Proclamation would read as follows:

“PROCLAMATION WITH REGARD TO THE COMMENCEMENT OF SECTIONS 1, 2, 3, 4 AND 5

In terms of section 13 of the Road Accident Fund Amendment Act, 2005 (Act No.19 of 2005), I hereby determine 31 July 2006 as the date on which sections 1, 2, 3, 4 and 5 will come into operation.”

136. For the purpose of clarity I would require the President to ensure that the terms of the first Proclamation that result from the reading in and severance proposed by this judgment are published in the Government Gazette within 14 days.

137. This being a minority judgment, there is no point in formulating an order.

1 Section 167(5) of the Constitution provides:

“The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court, or a court of similar status, before that order has any force.”

2 Section 172(2)(a) provides:

“The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.”

3 Section 2(1) of the Principal Act provides: “There is hereby established a juristic person to be known as the Road Accident Fund.”

4 Section 3 of the Principal Act.

5 Section 85 of the Constitution, which deals with the executive authority of the Republic, provides that:

“(1) The executive authority of the Republic is vested in the President.

(2) The President exercises the executive authority, together with the other members of the Cabinet, by—

(a) implementing national legislation except where the Constitution or an Act of Parliament provides otherwise;

(b) developing and implementing national policy;

(c) co-ordinating the functions of state departments and administrations;

(d) preparing and initiating legislation; and

(e) performing any other executive function provided for in the Constitution or in

national legislation.”

6 Section 13 of the Amendment Act reads as follows:

“This Act is called the Road Accident Fund Amendment Act, 2005, and takes effect on a date determined by the President by proclamation in the Gazette.”

7 Section 81 of the Constitution provides that:

“A Bill assented to and signed by the President becomes an Act of Parliament, must be published promptly, and takes effect when published or on a date determined in terms of the Act.”

8 Section 13(3) of the Interpretation Act 33 of 1957 provides that:

“If any Act provides that that Act shall come into operation on a date fixed by the President or the Premier of a Province by proclamation in the Gazette, it shall be deemed that different dates may be so fixed in respect of different provisions of that Act.”

9 [2002] ZACC 6; 2002 (4) SA 613 (CC); 2002 (7) BCLR 663 (CC).

10 Id at para 70-1.

11 [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC).

12 Id at para 79.

13 [2001] ZACC 10; 2002 (1) SA 447 (CC); 2001 (11) BCLR 1126 (CC).

14 Id at para 23.

15 Pharmaceutical Manufacturers above n 11 at para 79.

16 Lawyers for Human Rights and Another v Minister of Home Affairs and Another [2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) at para 14. See also para 17.

17 Above [21].

18 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC).

19 Id at para 229.

20 Above [21].

21 Rule 18(1) states:

“An application for direct access as contemplated in section 167(6)(a) of the Constitution shall be brought on notice of motion, which shall be supported by an affidavit, which shall set forth the facts upon which the applicant relies for relief.”

22 Section 167(6)(a) reads:

“National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court—

(a) to bring a matter directly to the Constitutional Court”.

23 Zondi v MEC, Traditional and Local Government Affairs and Others [2004] ZACC 19; 2006 (3) SA 1 (CC); 2005 (4) BCLR 347 (CC) at paras 12-5.

24 Concerned Land Claimants’ Organisation (Port Elizabeth) v Port Elizabeth Land and Community Restoration Association and Others [2006] ZACC 14; 2007 (2) SA 531 (CC); 2007 (2) BCLR 111 (CC) at paras 18-9.

25 Above n 3.

26 Engelbrecht v Road Accident Fund and Another [2007] ZACC 1; 2007 (6) SA 96 (CC); 2007 (5) BCLR 457 (CC) at para 23.

27 Minister of Home Affairs and Another v Fourie and Another (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others [2005] ZACC 19; 2006 (1) SA 524 (CC); 2006 (3) BCLR 355 (CC).

28 Id at para 42.

29 Above n 3.

30 Above [8]-[9].

31 Section 6 provides:

“The following section is hereby substituted for section 17 of the principal Act:

‘Liability of Fund and agents

17(1) The Fund or an agent shall—

(a) subject to this Act, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity of the owner or the driver thereof has been established; and

(b) subject to any regulation made under section 26, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity of neither the owner nor the driver thereof has been established,

be obliged to compensate any person (the third party) for any loss or damage which the third party has suffered as a result of any bodily injury to himself or herself or the death of or any bodily injury to any other person, caused by or arising from the driving of a motor vehicle by any person at any place within the Republic, if the injury or death is due to the negligence or other wrongful act of the driver or of the owner of the motor vehicle or of his or her employee in the performance of the employee’s duties as employee: Provided that the obligation of the Fund to compensate a third party for non-pecuniary loss shall be limited to compensation for a serious injury as contemplated in subsection (1A) and shall be paid by way of a lump sum.’”

32 Section 10 provides that:

“Section 23 of the principal Act is hereby amended by the substitution for subsection (3) of the following subsection:

‘(3) Notwithstanding subsection (1), no claim which has been lodged in terms of section 17(4)(a) or 24 shall prescribe before the expiry of a period of five years from the date on which the cause of action arose.’”

33 Section 11 provides that:

“The following section is hereby substituted for section 26 of the principal Act:

‘26(1) The Minister may make regulations regarding any matter that shall or may be prescribed in terms of this Act or which it is necessary or expedient to prescribe in order to achieve or promote the object of this Act.’”

34 Section 12 provides that:

“Any claim for compensation under section 17 of the principal Act in respect of which the cause of action arose prior to the date on which this Act took effect must be dealt with as if this Act had not taken effect.”

35 Ferreira v Levin above n 18 at paras 25-30. See also Gory v Kolver NO and Others (Starke and Others Intervening) [2006] ZACC 20; 2007 (4) SA 97 (CC); 2007 (3) BCLR 249 (CC) at para 39; Ingledew v Financial Services Board: In re Financial Services Board v Van der Merwe and Another [2003] ZACC 8; 2003 (4) SA 584 (CC); 2003 (8) BCLR 825 (CC) at para 20; Ex Parte Women’s Legal Centre: In re Moise v Greater Germiston Transitional Local Council [2001] ZACC 2; 2001 (4) SA 1288 (CC) at paras 12-4; Prince v President, Cape Law Society [2000] ZACC 28; 2001 (2) SA 388 (CC); 2001 (2) BCLR 133 (CC) at paras 36-7.

36 Ferreira v Levin above n 18 at para 28.

37 Above n 6.

38 Above n 7.

39 Above [61].

40 Affordable Medicines Trust and Others v Minister of Health and Others [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) at paras 108-9.

41 Section 1(c) of the Constitution.

42 Affordable Medicines above n 40 at para 109.

43 The Fund submits that the following complications would arise. First, all of the members of the Fund’s Board were appointed by the Minister of Transport on 1 August 2006, in accordance with the procedure prescribed by the amended version of the Principal Act. If sections 1 to 5 of the Amendment Act did not come into force on 31 July 2006, all the members of the Board would have been unlawfully appointed.

Secondly, and as a consequence of the unlawful appointments of the Board members, all the decisions of the Board taken since 1 August 2006 would arguably be invalid. The Board has adopted no fewer than 93 resolutions since then. They include resolutions approving various strategic plans, quarterly reports and financial statements; revising the Fund’s policies; entering into reinsurance agreements with local and international reinsurers; entering into commutation agreements with international reinsurers; entering into insurance contracts to provide cover for directors and officers of the Fund; approving the settlement of a number of different claims in excess of R5 million each; approving the purchase of a new enterprise resource planning solution to the value of approximately R60 million; approving the purchase of a new claims management system to the value of approximately R90 million; approving salary increases for staff at management level and salary agreements with the South African Transport & Allied Workers Union; determining and approving a new executive structure for the Fund; approving contracts for the appointment of a new executive team for the Fund, including executive appointments of the CEO, Chief Financial Officer, Marketing & Communications Executive, Human Resources Executive, Information Technology Executive and Business Development Executive; and approving amendments to the Fund’s delegation of authority structure.

Thirdly, if sections 1 to 5 of the Amendment Act did not come into force on 31 July 2006, it would also raise significant doubt over decisions taken by the Fund’s executives since that date. All of the present incumbents, save for the CEO, were appointed by the Board subsequent to 31 July 2006. If the Board itself was not lawfully constituted, then arguably all of these appointments were invalid, as were all decisions made by such appointees.

Fourthly, the delegation of authority under which all of the Fund’s executives acted (including the CEO) would arguably be invalid as these delegations were adopted by the Board after 31 July 2006. This is particularly concerning in respect of decisions taken by the CEO. The Act, as amended, requires the CEO to be responsible for managing the “day to day affairs of the Fund”. This would mean that the CEO has made countless decisions concerning the Fund during the relevant period, including giving approval for all settlements with claims of more than R3 million.

In the circumstances, the Fund submits that if the Second Proclamation did not validly bring sections 1 to 5 of the Amendment Act into force on 31 July 2006, it would cause chaos and severely prejudice the Fund, the claimants who rely on it and other entities which have contracted with it.

The Fund accepts that there may be a way for courts to hold particular resolutions, decisions or contracts to be valid, notwithstanding the apparent illegalities and lack of authority described above. However, it argues that even this process would cause massive uncertainty and flux in the road accident sector. It would cause the Fund great expense in defending each decision challenged on this basis.

1 Section 81 of the Constitution outlines the process by which an Act of Parliament is put into operation. For the full text of the section see [107] below.

2 South African Liquor Traders Association and Others v Chairperson, Gauteng Liquor Board and Others [2006] ZACC 7; 2006 (8) BCLR 901 (CC) at para 31.

3 Cine Films (Pty) Ltd and Others v Commissioner of Police and Others 1972 (2) SA 254 (A) at 268D-F; [1972] 2 All SA 85 (A) at 95; and Divisional Commissioner of SA Police, Witwatersrand Area and Others v SA Associated Newspapers Ltd and Another 1966 (2) SA 503 (A) at 513A-C; [1966] 3 All SA 1 (A) at 7.

4 Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison and Others [1995] ZACC 7; 1995 (4) SA 631 (CC); 1995 (10) BCLR 1382 (CC).

5 Id at para 16.

6 Section 4 reads:

“Section 11 of the principal Act is hereby amended by the deletion in subsection (1)(a) of subparagraph (iv).”

7 Section 13(2) provides:

“Where any law, or any order, warrant, scheme, letters patent, rules, regulations or by-laws made, granted or issued under the authority of a law, is expressed to come into operation on a particular day, it shall be construed as coming into operation immediately on the expiration of the previous day.”

8 Above at [87].

9 Pharmaceutical Manufacturers Association of SA and Another In re: ex parte President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC).

10 Id at para 90.

11 Matatiele Municipality and Others v President of the Republic of South Africa and Others (1) [2006] ZACC 2; 2006 (5) SA 47 (CC); 2006 (5) BCLR 622 (CC).

12 Id at para 67.

13 Above n 9.

14 Above at [89].

15 Masetlha v President of the Republic of South Africa and Another [2007] ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (CC) at para 68; GNH Office Automation CC and Another v Provincial Tender Board, Eastern Cape and Another 1998 (3) SA 45 (SCA) at 51G; Moleah v University of Transkei and Others 1998 (2) SA 522 (Tk) at 536I.

16 Above n 10 at para 50.

1 Sections 84, 85 and 101 of the Constitution.

2 Act 19 of 2005.

3 Act 56 of 1996.

4 Proclamation R 27, GG 29041, 19 July 2006.

5 It will be remembered that the first Proclamation was issued on 11 July 2006.

6 In my view nothing turns on the fact that section 4 of the amending legislation was rightly brought into operation.

7 Reflected in the following table:

Section of amending ActSection of main Act amended1426310411512

8 Proclamation R 32, GG 29086, 31 July 2006.

9 Section 13(2) of the Interpretation Act 33 of 1957.

10 Section 172(1)(a) provides that a court “deciding a constitutional matter within its power . . . must declare that any law or conduct that is inconsistent with the Constitution is invalid”.

11 Section 172(1)(b).

12 Section 172(1)(b)(i).

13 Section 172(1)(b)(ii).

14 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC) at paras 27-8.