CASE NO: 09/09
In the matter between:
THE MINISTER OF HOME AFFAIRS Applicant
and
WILLEM STEPHANUS RICHTER First Respondent
THE ELECTORAL COMMISSION Second Respondent
THE MINISTER OF FOREIGN AFFAIRS Third Respondent
APPLICANT’S HEADS OF ARGUMENT IN THE APPLICATION FOR LEAVE TO APPEAL
INTRODUCTION
1. The applicant seeks leave to appeal against the order granted by Ebersohn J in terms of which the learned judge ordered the applicant to amend the Elections Regulations, 2004 by deleting certain words from the regulations.
2. The applicant submits that the order is impermissible in law in view of the fact that:
2.1. The judge in the Court a quo issued the order without providing any factual or legal basis for doing so;
2.2. The regulation was not declared to be inconsistent with the Constitution.
There was therefore no basis to order the applicant to sever words from the regulation. The remedy of severance, being a constitutional remedy, may only follow upon a declaration of constitutional invalidity.
THE ORDER GRANTED
3. The learned Ebersohn J granted the following order which is the subject of this application for leave to appeal:
“6. The second respondent is ordered to amend the Election Regulations, 2004, made under the power vested in it by section 100 of the Electoral Act, 75 of 1998, as follows:
6.1 By deleting Regulation 6(b) in totality;
6.2 By deleting the words:
6.2.1 “temporary”
6.2.2 “for the purposes of a holiday, a business trip, attendance of a tertiary institution or an educational visit or participation in an international sports event;
6.2.3 “intended”
In Regulation 6(e).
6.3 By deleting Regulation 9 in totality;
6.4 By deleting the following words in Regulation 11:
6.4.1 “temporary”
6.4.2 “intended”
6.5 By deleting the following words in Regulation 12:
6.5.1 “temporary”
6.5.2 “for the purposes of a holiday, a business trip, attendance of a tertiary institution or an educational visit or participation in an international sports event”
6.6 By deleting the “temporary” in Regulation 13
6.7 By correcting the forms contained in appendix 1 thereto, to bring the same in accordance with the above relief.”
4. The effect of the order by Ebersohn J is twofold:
4.1. He compels the applicant to delete portions of the regulations; and
4.2. He directs which portions of the regulations should be severed.
5. These orders were given in a context where the regulations were not declared unconstitutional. Furthermore the proposed severance is entirely unreasoned in the judgment.
THE LEGAL POSITION Severance
6. Section 172 of the Constitution provides for the powers of Courts in constitutional matters. Section 172(1) (a) provides that a Court must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency. Section 172(1)(b) provides that a Court may make any order that is just and equitable.
7. The remedy of severance has been held by this Court to be a remedial measure which can be utilised consequent upon a declaration of invalidity. In Van Rooyen and Others v The State and Others (General Council of the Bar of South Africa Intervening)1 this Court held that:
“(L)egislation must be construed consistently with the Constitution and thus, where possible, interpreted so as to exclude a construction that would be inconsistent with judicial independence. If held to be unconstitutional, the appropriate remedy ought, if possible, to be in the form of a notional or actual severance, or reading in, so as to bring the law
within acceptable constitutional standards. Only if this is not possible, must a declaration of complete invalidity of the section or subsection be made.2”
8. In S v Lawrence, S v Negal, S v Solberg 1997 4 SA 1176 (CC) this Court held that a Court may sever or read down provisions of legislation which has been declared unconstitutional. This Court however emphasised that a Court may not legislate.
9. We therefore accept the severance is a legitimate remedial tool which may be utilised once legislation has been declared unconstitutional.
10. However, in the absence of a declaration of invalidity, severance of legislative provisions by a Court amounts to the Court usurping the role of the legislature (or in this case, the executive) by purporting to legislate. Severance can therefore not be employed as a remedial tool except if there has been a preceding declaration of invalidity.
11. In the present matter, the Judge in the Court a quo did not declare the relevant provisions of the Elections Regulations to be unconstitutional. He was therefore not permitted to utilise the remedial tool of severance to sever words from the regulations.
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12. The situation is worsened by the fact that the learned judge, instead of ordering the severance of the words from the regulations, opted to order the applicant to sever the said words. In doing so, the learned judge compromised the separation of powers doctrine by ordering the applicant to delete words from the Regulation:
12.1. without having established the legal basis for such an order;
12.2. without affording the applicant the latitude to remedy the purported defect in a way she deems fit.
13. The order is therefore based on a material misdirection and should be set aside.
Conclusion
14. The order of severance granted by the learned Judge in the Court a quo is not only unreasoned, but is materially flawed insofar as the learned Judge does not first declare the regulations to be inconsistent with the Constitution.
15. In these circumstances it was impermissible for the learned Judge to utilise the remedial tool of severance.
16. The leave to appeal should thus be granted in relation to order 6 which should be set aside in its entirety.
P M Mtshaulana SC H Maenetje
K Pillay
