MEMBER OF THE EXECUTIVE COUNCIL FOR LOCAL GOVERNMENT AND DEVELOPMENT PLANNING OF
THE WESTERN CAPE PROVINCE First Appellant
THE WINELANDS DISTRICT COUNCIL Second Appellant
and
PAARL POULTRY ENTERPRISES CC
t/a ROSENDAL POULTRY FARM Respondent
RESPONDENT’S ADDITIONAL HEADS
1. These additional Heads are filed in response to the Honourable Court’s Additional Directions dated 13 November 2001.
THE EFFECT OF SECTION 10N(2)
2. Section 10N(2), it is submitted, must be read in conjuction with section 10(1).
3. Section 10(1) granted wide legislative powers to an MEC within a defined area, namely
“… the area of jurisdiction of the province for which he or she is appointed, …”
Section 10N(2), in turn, revoked all legislative powers within certain defined areas, described as
.. the area of jurisdiction of a local council, metropolitan council, metropolitan local council, rural council or representative council …”.
Thus it is clear that the revocation was not intended to be a revocation or limitation in respect of topics on which the MEC could legislate but a complete revocation of all his (her) legislative powers in certain areas. It is also clear that the areas of District Councils overlapped the areas of the councils mentioned above, except for some bits and pieces which were termed
“remaining areas” in the Act, i.e. those areas under the jurisdiction of District Councils which did not form part
“… of the area of jurisdiction or area of a transitional local council, a transitional representative council or a transitional rural council;”
Because section 10N(2) did not mention “remaining areas” the legislative power of an MEC remained, as it were by default, in respect of all such
“remaining areas” as might have existed. It is submitted what such
“remaining areas” as existed could not have been of significant importance for they would otherwise have been brought under the jurisdiction of some council.
4. Accordingly, it is submitted, an MEC could not legislate after the commencement of section 10N on 22 November 1996, (apart from making amending proclamations with the concurrence of the Minister under section 10N(4)) except insofar as the legislation dealt with “remaining areas”. It is admittedly difficult to discern the rationale behind such a dispensation and it may be that the failure to refer to “remaining areas” in section 10N(2) is simply an example of a casus omissus.
5. Appellant’s submission that section 10N(2) had the effect of leaving the MEC a free hand to legislate in respect of District Councils, while his power to legislate in respect of all other councils was admittedly revoked, is with respect unpersuasive and unsound. The reason why Parliament revoked the MEC’s power to legislate was clearly that Parliament had now made its own provisions for the various organs of local government in sections 10B to 10M.
But as these provisions also applied in respect of District Councils (section 10D) there was consequently no reason to place District Councils on a different footing from other councils.
6. Appellant’s construction involves the notion that the MEC’s legislative powers in relation to District Councils was actually tacitly increased by Parliament, as the MEC no longer needed the concurrence of a provincial committee, that body being disestablished by section 10N(1). When regard is had to section 10N(4), however, which provides that the MEC may amend existing Proclamation only with the concurrence of the Minister, it appears that Parliament never intended to give the MEC a free hand. Thus in the overall
picture the disestablishment of provincial committees is a further indication that, apart from the making of amendments under section 10N(4), the legislative powers of MEC’s had come to an end.
7. Appellant’s contention in paragraph 18 of their supplementary Heads that District Councils were designedly not mentioned in section 10N(2) because amendments to one or more proclamations were envisaged in order to regularise the membership of those councils loses sight of the fact that section 10N(4) expressly provides machinery for the amendment of existing proclamations. This could therefore not have been a reason for omitting mention of District Councils in 10N(2).
8. In the final analysis, Appellants’ argument relies purely on the grammatical wording of section 10N(2) but in this respect if also falls down because the operative word in section 10N(2) is area. Appellants’ reading involves, in effect, the eliding of the phrase “of the area of jurisdiction” from section 10N(2) as is made clear in paragraph 15 of their supplementary Heads. This offends against the rule that words in a statute should not be lightly regarded as meaningless or tautologous (Wellworths Bazaars Ltd v. Chandlers Ltd &
another 1947 (2) SA 37 (A) at 43. Respondent’s contention, on the other hand, not only fits the grammatical meaning of section 10N(2) but is also in better accord with the overall system created by Parliament as set out in paragraph 5 above.
SECTION 8 OF PROCLAMATION 152 OF 1995
9. Existing Proclamations dealing with District Councils were kept in force by section 10N(3), but only insofar as they were not inconsistent with the Act (Section 10N(5)).
10. Accordingly, section 8 of Proclamation 152 of 1995 remained in force after 22 November 1996, but only until 1 July 1997 when the new section 9D(1)(b)(i) became operative. At that date section 8 of the Proclamation became inconsistent with the Act and ceased having any validity. It is respectfully pointed out, in any event, that the only question before this Honourable Court is whether section 10 of Proclamation 52 of 1998 is valid. The validity of section 8 of Proclamation 152 of 1995 is not in issue.
11. In light of all the above Respondent therefore makes the following submissions:
(a) Section 10N(2) had the effect of divesting the MEC of his power to legislate generally, except in respect of “remaining areas”.
(b) Accordingly the MEC, Mr McKenzie, was not empowered to enact section 10 of Proclamation 52 of 1998 on 11 December 1998 as that was clearly not legislation in regard to any “remaining areas”.
(c) As far as section 8 of Proclamation 152 of 1995 was concerned, it remained operative only until 1 July 1997.
CHAMBERS ……….
CAPE TOWN W G BURGER SC
22 NOVEMBER 2001 COUNSEL FOR RESPONDENT
