TOXT-
011 4036524:# 2IN THE CONSTITUTIONAL COURT OF SOU I'M AFRICA
In the matter between:
CASO NO.: CCT27/95
EXECUTIVE COUNCIL OF THE WESTERN CAPE
LEGISLATURE First Applicant THE PREMIER OF THE WESTERiN CAPE Second Applicant THE MINISTER OF LOCAL GOVERNMENT (WESTERN CAPE) Third Applicant STAFFORD PETERSEN Fourth Applicant LESLEY HELENE ASHTON . Fifth Applicant and
THE PRESIDENT OF THE REPUBUC OF SOUTH AFRICA First Respondent THE MINISTER FOR PROVINCIAL AFFAIRS AVD
CONSTITUTIONAL DEVELOPMENT THE MINISTER OF JUSTICE
KAMALASEN CHKTTY C B HERAND1EN
Second Respondent Third Respondent Fourth Respondent Fifth Respondent
FIRST TO THIRD RESPONDENTS' FURTHER NOTE PERTAINING TO THE PROPOSED ATTACK ON THE VALIDITY OF SECTION 16A
OF THE LOCAL GOVERNMENT TRANSITION ACT, 209 OF 1993
1. This note is filed at the invitation" of the court, m response, to the notice of
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intention IO amend furnished to us at 2 pm. on Wednesday, 30 August 1995.
2. On 16 August 1995, the date on which this matter was set down to be heard, it was postponed to 30 August 1995 in order to enable the parties to file consolidated (and abridged) written arguments. This had become necessary because the applicants (in supplementary heads of argument filed on the previous day) elected to attack the validity of s. J6A of the Local Government Transition Act, 209 of 1993 ("the Transition Act"), with reference to the procedural reqviirements laid down in ss. 6] and 62 of the interim Constitution.
3. The founding affidavit in this matter implicitly accepted the validity of s. 16A (see rficjoid pp. 12-14 paras. 30 and 33). As Conradie J records (judgment p.9(20-30)), the applicants expressly disavowed in the CPD proceedings any attack on s. 16A itself. Notwithstanding the basis on which the postponement to 30 August 1995 was granted, the applicants made it clear enough in their written argument dated 22 August 1995 that il was npj contended that the validity of s. 16A was challenged.
4. That amendment has been opposed for the reasons canvassed in our immediate oral response (together with pp. 9-11, paras. 16-18 of our written argument dated 24 August 1995). We stress that no proper explanation has been offered for the equivocation traced above, in relation to proceedings instituted over two months ago. The implications of allowing the amendment
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at this late stage are profound:
4. i Apart from Proclamation R129 of 1994 issued under s. 235(8) of the interim Constitution, the Transition Act has been amended by six subsequent Proclamations,
4.2 In terms of these Proclamations ss. 3, 4, 7, 8, 9, 10, 11, 13, 16 and 16B and Schedules 1 and 4 of the Transition Act were amended, some of them more than once.
4.3 In addition ss. 7 A, 10A and 16B as well as Part VA were inserted.
4.4 The importance of some of the amendments are perhaps best iliustrated by the fact that the criteria determining entitlement to be included in the voters' roll of a local government have been inserted in Schedule 4 by Proclamation R35 of 1995.
5. Against this background, the court has -
5.1 requested us to advise it as to the time which Parliament will require (assuming ihe court finds the Proclamations to be invalid) to correct whatever tbe court may find to be defective;
5.2 afforded us an opportunity to submit this further note relating to the
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proposed amendment,
(1) The perigd within which Parliament would be able to correct any defects
affecting thg.
6. OUT instructions are that Parliament is scheduled to adjourn on 35 September 1995 and to reconvene on 9 February 1996. The select committees of the National Assembly and the Senate responsible for constitutional affairs are scheduled to convene on 6 September 1995 to consider a bill designed to amend the interim Constitution inter alia to enable the local government elections to be held on different dates. The expectation is that a joint session of both Houses will be convened for the purpose of passing the bill on 7 September 1995. We repeat that although the possibility of introducing amending legislation in anticipation of an adverse finding by the court was coasidered, the most important reason why that course of action was not followed was because the first to third respondents did not want to interfere with the judicial process or be perceived as interfering with the due process of law. Moreover, as events have shown, the applicants persist in their attack based on Constitutional Principle XXII. Thus any endeavour to achieve the results reached through Proclamations R58 and R59 (and all the equally affected proclamations indicated above) would have resulted in considerable delay, both in drafting and in legislative passage, but inevitably have led to the same challenge as that mounted in this matter on the basis of CP XXII
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(2)
7. The nature of the attack on the validity of s. 16A of the Transition Aci can be summarised as follows;
7.1 The commencement of the interim Constitution substituted constitutional supremacy for the doctrine of parliamentary sovereignty (s. 4 of the interim Constitution).
7.2 Since ss. 59-63 all prescribe certain procedural requirements relating to the legislative process and since they are entrenched. Parliament is not capable of delegating its law-making capacity (even to a limited extent and for a limited purpose) to another authority which by definition is incapable of complying with these procedural require- ments.
8. It is submitted that even if the amendment calling for the invalidation of s.
I6A is permitted at this stage, the issue it raises does not require resoiution in view of the first to third respondents' principal reliance on s. 235(8) as the legislative authority for Proclamations R58 and R59.
9. ID this regard we have already argued that the very nature of the subject
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matter with which that section deais necessitated the allocation of wide- ranging legislative competences to the President (as to which see Basson op cit 308-309) and calls for a purposive find generous construction in respect of the scope of such powers, having regard to the background which is to be found in the sources identified by us at pp. 26-27 (para. 46) of our written argument of 24 August 1995. That such a course would coincide with the legislative scheme provided for in s. 235 is confirmed by, for example, the provisions oi s. 235(5)(b), s. 235(6)(b)(u) and s. 235(9)(b). Cf. Basson op cit 307-308.
10. While it is submitted that the applicants' new attack on s. 16A does not require determination, their argument in this regard has however a wider significance for the present case, with which we must deal. This is that, if the applicants are correct, the Constitution imposes an entirely unqualified manner and form constraint on legislation (in the panicular respects set out in ss. 59-63), irrespective of the fact that the Constitution had to legislate for transitional requirements iri general and in particular in relation to the key statutes of which the Transition Act is probably the most important. We have already submitted that s. 235(8) illustrates that the darners of the interim Constitution were acutely aware of the fact that the challenges (anticipated or otherwise) associated with the transitional constitutional dispensation necessitated a high degree of legislative and administrative flexibility. In other words, we submit that the new argument, if anything, highlights the
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improbiibiiitv thai the Cuiiaiiiuiioa intends the inexorable application of ss.
59-65, evui in relation in urgent transitions) arrangements. Rather, it is submitted, the scheme of the Constitution is to enable the transition to take place in the difficult circumstances set out by the applicants thcmseJvcs in Justifying the very need tor s. 16A (in the third applicant's founding affidavit at re&H^i PP- 12-14 paras. 30 and 33). The interim Coastitution must have contemplated an exemption within the constraints of s. 235(8) to permit legislative steps to he taken speedily to achieve the transition.
11. Those constraints are dear;
11.1 The President may only amend a law when the administration thereof is assigned or subsequent to such assignment. The fact of assignment is therefore a sine qua non for the exercise of the President's legislative capacity.
11.2 The amendment must be considered necessary for tfic efficient carrying out of the assignment.
13.3 The amendment must relate to the regulation of the application of the law Itself (not, it is to be noted, only the regulation of the
of the law).
11.4 Parliament has the capacity to undo anything which the President
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does in the exercise the legislative capacity provided for in s. 235(8), The legislative supremacy1 of Parliament is left unimpeded. The exigencies of the transitional process are in this way balanced with ihe higher constitutional vaiue. Tlie ordinary manner and form provisions axe mechanisms which serve that vaiue; they are not, we submit, constitutional ends in themselves.
12. S. 235(8) accordingly does nut provide for offensive suspending and dispensing powers which lie at the he;in of tin*: complaint against the notion of Parliament being divested of us legislative competence in favour of the executive (cf. O Hood Pftiiiips's Constitutional and Administrative Law (7th ed. by 0 Hood Phillips Si Paul Jackson, 1987) 42-45).
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To sum up. We submit that the amendment cannot fairly be aUowed, bur that even ifit is, the argument that s. 16A itself offends agai&st inexorable manner and form requirements for a!! legislative acts under the interim Constitution underscores the artificiality of the applicants' argument in relation to s.
235(8). The conclusion would then have to be that - notwithstanding the interim nature of the Constitution, the circumstances of its conception and the uige.it demands ai transition - thft only legislative power outside the sweep of ss, 59-62 is s. 23.5(8), arid thai iiuit powei is itself to be narrowly restricted to the ambn of the assignment only. We subniii, in contrast, that the tr^o st
of .s. 235(ti) CiriL-rges froili ihs wouis 'amend or adapt .such iuw in order U regulate its HppllcatlKJi or DUPrprclatiori'' in s. 23S(8;(bxO» r t t < K i w''l'n C1'1'1) ("'
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other matter .. z* a r«ault of the aistgnrnrtu"), and the amplitude of subsection (9). This uonliri^, purposivciy construed, supports (we submit) the broader coastimtionai scheme designed to achieve a rapid and far-reaching transition.
Chambers Cape Town
1 September 1995
J J GVJNTLETr S.C.
JCHKUNIS
Counsel for firsr It> third respondents
