6 Jurisdiction, Powers and Procedures of the CourtPowers.pdf · 6 Jurisdiction, Powers and Procedures of the Court ... 1 Section 241(8) ... the court declares it to be inconsistent

6 Jurisdiction, Powersand Procedures of

the CourtCheryl Loots

Gilbert Marcus

Page

6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6--1

6.2 Jurisdiction under the interim Constitution . . . . . . . . . . . . . . . . . . 6--1(a) The Constitutional Court . . . . . . . . . . . . . . . . . . . . . . . . . 6--1(b) The Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6--3

(i) The Appellate Division . . . . . . . . . . . . . . . . . . . . . . . 6--4(ii) Provincial and local divisions . . . . . . . . . . . . . . . . . . . 6--4

(c) Other courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6--7(d) Interim relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6--10(e) Transitional provisions . . . . . . . . . . . . . . . . . . . . . . . . . 6--12

6.3 Powers of the courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6--15(a) Validity of legislation . . . . . . . . . . . . . . . . . . . . . . . . . . 6--16(b) Constitutionality of executive or administrative act . . . . . . . . . . 6--16(c) Constitutionality of a Bill . . . . . . . . . . . . . . . . . . . . . . . . 6--16(d) Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6--16

6.4 Procedure under the interim Constitution . . . . . . . . . . . . . . . . . 6--18A(a) Procedure for dealing with issues beyond the jurisdiction of a court . 6--19

(i) Issues arising in the Supreme Court . . . . . . . . . . . . . . . 6--19(aa) A potentially decisive issue . . . . . . . . . . . . . . . . 6--19(bb) The exclusive jurisdiction of the Constitutional Court . . 6--21(cc) The interests of justice . . . . . . . . . . . . . . . . . . . 6--22

(ii) Issues arising in lower courts . . . . . . . . . . . . . . . . . . . 6--24(b) Procedure in the Supreme Court . . . . . . . . . . . . . . . . . . . . 6--25(c) Access to the Constitutional Court . . . . . . . . . . . . . . . . . . . 6--25

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Page(d) Referral of issues of public importance to the Constitutional Court . . 6--26(e) Intervention by government . . . . . . . . . . . . . . . . . . . . . . 6--27(f) Appeals from a decision of the Supreme Court . . . . . . . . . . . . 6--28(g) Appeals from decisions of other courts . . . . . . . . . . . . . . . . . 6--29(h) Review of the decisions of inferior courts . . . . . . . . . . . . . . . 6--29

6.5 Jurisdiction under the final Constitution . . . . . . . . . . . . . . . . . . 6--30(a) The Constitutional Court . . . . . . . . . . . . . . . . . . . . . . . . 6--31(b) The Supreme Court of Appeal . . . . . . . . . . . . . . . . . . . . . 6--32(c) The High Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6--33(d) The magistrates’ courts and other courts . . . . . . . . . . . . . . . . 6--34(e) The Labour Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 6--34A

6.6 Powers of the courts under the final Constitution . . . . . . . . . . . . . 6--34A(a) Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6--34A(b) Other powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6--34A

6.7 Procedure under the final Constitution . . . . . . . . . . . . . . . . . . . 6--35(a) The inherent power of the Constitutional Court to regulate its own

process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6--35(b) Procedure for dealing with issues beyond the jurisdiction of a court . 6--36

(i) Issues arising in the superior courts . . . . . . . . . . . . . . . 6--36(ii) Issues arising in the lower courts . . . . . . . . . . . . . . . . . 6--37

(c) Procedure in the High Court . . . . . . . . . . . . . . . . . . . . . . 6--38(d) Direct access to the Consitutional Court . . . . . . . . . . . . . . . . 6--38(e) Intervention by government . . . . . . . . . . . . . . . . . . . . . . 6--39(f) Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6--39(g) Review of decisions of inferior courts . . . . . . . . . . . . . . . . . 6--40

6.8 The application of the interim and final Constitutions to pending proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6--40(a) Proceedings pending on 4 February 1997 . . . . . . . . . . . . . . . 6--40(b) Matters arising after 4 February 1997 . . . . . . . . . . . . . . . . . 6--44

CONSTITUTIONAL LAW OF SOUTH AFRICA

6.1 INTRODUCTION

1REVISION SERVICE 2, 1998The introduction of the Constitution of the Republic of South Africa, Act 200 of 1993 (‘theinterim Constitution’ (IC)) gave rise to a variety of jurisdictional problems. The firstconcerned the competence of the courts to deal wih disputes which arose before 27 April1994.1 The second problem was a function of the exclusive jurisdiction of the ConstitutionalCourt to declare an Act of Parliament to be unconstitutional.2 It related to the proceduralrequirements for submitting a dispute to the Constitutional Court.3 With the coming intooperation of the Constitution of the Republic of South Africa, Act 108 of 1996 (‘the finalConstitution’ (FC)) some of the old jurisdictional problems still persist and new ones havebeen created.

Under the final Constitution the courts have been renamed and their jurisdiction altered.What was formerly known as the Supreme Court is now known as the High Court and whatwas formerly known as the Appellate Division of the Supreme Court is now known as theSupreme Court of Appeal. All the superior courts now enjoy the jurisdiction to declare anAct of Parliament to be unconstitutional. The final Constitution deals with the transitionfrom the interim Constitution. Proceedings which were ‘pending’ when the final Constitu-tion took effect on 4 February 1997 must be disposed of ‘as if the new Constitution had notbeen enacted, unless the interests of justice require otherwise’. Accordingly the jurisdictionaland procedural requirements which pertained under the interim Constitution will continueto be operative in relation to pending proceedings. This chapter therefore deals withjurisdictional and procedural requirements under both the interim Constitution and thefinal Constitution.

6.2 JURISDICTION UNDER THE INTERIM CONSTITUTION

(a) The Constitutional Court

The interim Constitution provides for the establishment of a Constitutional Court consistingof a President and ten other judges.4 Jurisdiction is conferred upon the Constitutional Courtby IC s 98(2),5 which provides that it shall have jurisdiction in the Republic as the court offinal instance over all matters relating to the interpretation, protection and enforcementof the provisions of the Constitution, including:

1 Section 241(8) of the interim Constitution was thought to cater for this problem. It was a provision, however,which gave rise to intense litigation and, in the result, left certain questions unanswered. See below, § 6.2(d).

2 The only exception to the exclusive jurisdiction of the Constitutional Court to declare an Act of Parliament tobe unconstitutional was the procedure created by s 101(6), in terms of which the parties could, by agreement, conferjurisdiction upon a provincial or local division of the Supreme Court to hear matters falling outside their additionaljurisdiction, including the jurisdiction to declare an Act of Parliament to be unconstitutional.

3 The procedure for referring a dispute concerning the validity of an Act of Parliament from a provincial or localdivision of the Supreme Court to the Constitutional Court was contained in s 102(1). It the first two years of itsexistence the Constitutional Court devoted more time to this provision than any other. See below, § 6.4(a).

4 Section 98(1). The President of the court is appointed in terms of s 97(2)(a). Section 99 provides for thecomposition of the court and the appointment of judges.

5 The jurisdiction of the Constitutional Court derives solely from s 98. It has no inherent jurisdiction. Du Plessis& others v De Klerk & another 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at para 52.

JURISDICTION, POWERS AND PROCEDURES OF THE COURT

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(a) any alleged violation or threatened violation of any fundamental right entrenched inChapter 3 of the Constitution;

(b) any dispute over the constitutionality of any executive or administrative act or conductor any threatened executive or administrative act or conduct of any organ of state;

(c) any inquiry into the constitutionality of any law, including an Act of Parliament,irrespective of whether such law was passed or made before or after the commencementof the Constitution;

(d) any dispute over the constitutionality of any Bill before Parliament or a provinciallegislature;

(e) any dispute of a constitutional nature between organs of state at any level ofgovernment;

(f) the determination of questions as to whether any matter falls within its jurisdiction;and

(g) the determination of any other matters as may be entrusted to it by the Constitution orany other law.

2 Section 98(3) provides that the Constitutional Court shall be the only court havingjurisdiction over a matter referred to in s 98(2), save where otherwise provided in ss 101(3)and (6) and 103(1) and in an Act of Parliament.1 Reference to these sections and the relevantActs of Parliament2 reveals that the Constitutional Court has exclusive jurisdiction withregard to an inquiry into the constitutionality of an Act of Parliament;3 a dispute over theconstitutionality of any Bill before Parliament; and a dispute of a constitutional naturebetween organs of state at national level. A decision of the Constitutional Court shall bindall persons and all legislative, executive and judicial organs of state.4

In Du Plessis v De Klerk5 Kentridge AJ concluded that the Constitutional Court had nojurisdiction under s 98(2) to apply and to develop the common law and that s 35(3) did notgive it that jurisdiction.6 Thus the Appellate Division remains the court with ultimateresponsibility for the interpretation of statutes and the application and development of thecommon law. The powers of the Constitutional Court in this respect are limited to an oversightfunction. It must determine what the spirit, purport and objects of Chapter 3 are, and it must

1 Section 101(3) and (6) deal with the Supreme Court’s jurisdiction to hear constitutional issues (see below,§ 6.2(b)). Section 103(1) provides that the jurisdiction of other courts shall be as prescribed by or under a law.

2 Section 110 of the Magistrates’ Courts Act 32 of 1944 is the only relevant provision at present. See below, § 6.4.3 In Zantsi v Council of State, Ciskei, & others 1995 (4) SA 615 (CC), 1995 (10) BCLR 1424 (CC) the

Constitutional Court confirmed that its exclusive jurisdiction covered all Acts of the South African Parliament,irrespective of whether they were passed before or after 27 April 1994. The court a quo had suggested that the Actsof Parliament contemplated by s 101(3) of the Constitution were only those passed by Parliament constituted inaccordance with the Constitution. On this basis the court had reached the conclusion that the Supreme Court hasjurisdiction to inquire into the validity of Acts passed by the South African Parliament prior to 27 April 1994.

4 Section 98(4).5 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at paras 63--4. See also the judgment of Mahomed DP at

paras 85--7.6 See also Shabalala v AG, Transvaal 1996 (1) SA 725 (CC), 1995 (12) BCLR 1593 (CC), 1995 (2) SACR 761

(CC) at para 9 and Gardener v Whitaker 1996 (4) SA 337 (CC), 1996 (6) BCLR 775 (CC) at para 16. Section 35(3)provides that ‘in the interpretation of any law and the application and development of the common law, a court shallhave due regard to the spirit, purport and objects of [the Bill of Rights]’. The section is discussed below, Woolman‘Application’, § 10.3(a)(v) and Kentridge & Spitz Interpretation’ § 11.3(c).


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ensure that in the interpretation of laws and the application and development of the commonlaw other courts, including the Appellate Division, have taken due regard of the spirit, purportand objects. The precise extent of this oversight function remains, as yet, uncertain.1 It willbecome clear only once the approach of the court to the substantive meaning of s 35(3) hasbeen established. If, as Kentridge AJ and Mahomed DP stated in Du Plessis v De Klerk,2

there is little difference of substance between direct horizontal application of the Bill ofRights to the private common law and indirect application through s 35(3), the oversightfunction of the court with respect to s 35(3) ought closely to parallel the judicial reviewfunction that it exercises with respect to s 33(2) over legislation. Where legislation unjusti-fiably limits fundamental rights, the court declares it to be inconsistent with the Constitution,but cannot rewrite it, for that is the task of Parliament. Similarly, where the common lawdetermines private rights in a manner which cannot be justified in terms of Chapter 3, it issubmitted that the court should declare it to be inconsistent with the Constitution, but not engagein the task of reformulating it because that is the task of the Supreme Court. Thus a declarationthat a rule of the common private law is inconsistent with the Constitution should be followedby the remission of the matter to the Supreme Court for the rule to be redeveloped with dueregard to the spirit, purport and objects of the Bill of Rights. In the course of remitting thematter the Constitutional Court will give some guidelines to the Supreme Court of the rangewithin which any redeveloped rule must fall if it is to be consistent with the Constitution.3 If,however, the rule as ultimately redeveloped by the Supreme Court remains inconsistent withthe Constitution, the process will have to be repeated.4

(b) The Supreme Court

3The interim Constitution provides that there shall be a Supreme Court of South Africa,consisting of an Appellate Division and such provincial or local divisions as may beprescribed by law.5

1 See Du Plessis v De Klerk (supra) at paras 63 and 87 and Gardener v Whitaker (supra) at para 16.2 Supra at paras 60 and 72--3 respectively.3 An example of such guidelines is to be found in the order granted by the Constitutional Court in Shabalala v

AG, Transvaal 1996 (1) SA 725 (CC), 1995 (12) BCLR 1593 (CC), 1995 (2) SACR 761 (CC) at para 72. The casedealt with the constitutionality of the common-law rules of state privilege as set out in R v Steyn 1954 (1) SA 324(A). Although the case involved the direct application of the Constitution to the common law, Mahomed DPemphasized at para 9 that it was not the task of the Constitutional Court, but that of the Supreme Court, to developnew common-law rules of privilege to replace those which the Constitutional Court had declared to be inconsistentwith the Constitution.

4 This might appear cumbersome, but is no more cumbersome than the approach taken to legislation which limitsfundamental rights in a manner which cannot be justified in terms of s 33(1). The court leaves it to Parliament torewrite the legislation to remove the violation of the right. If the rewritten legislation does not address theconstitutional problem satisfactorily, the court will once more declare it to be inconsistent with the Constitution. Itwill not, however, rewrite the legislation itself.

5 Section 101(1). This section is subject to ss 241 and 242 by virtue of an amendment effected by s 4(a) of theConstitution of the Republic of South Africa Third Amendment Act 13 of 1994. Section 241 provides for transitionalarrangements with regard to the judiciary. Section 242 requires the rationalization of court structures to beundertaken as soon as possible after the Constitution comes into operation.



(i) The Appellate Division

The Appellate Division is deprived of jurisdiction to hear constitutional issues by s 101(5),which provides that it shall have no jurisdiction to adjudicate any matter within thejurisdiction of the Constitutional Court. In Du Plessis v De Klerk,1 however, the Constitu-tional Court held that s 101(5) did not affect the jurisdiction of the Appellate Division tointerpret laws and to apply and to develop the common law with due regard to the ‘spirit,purport and objects’ of the Bill of Rights, as required by s 35(3).2 Kentridge AJ reasoned that‘a court’ in s 35(3) meant any court, including the Appellate Division. Section 101(5) did notpreclude this conclusion because the interpretation of law and the application and develop-ment of the common law were not matters which fall within the jurisdiction of theConstitutional Court in terms of s 98(2).3

4 Section 35(3) requires that binding pre-constitutional Appellate Division decisions mayhave to be reconsidered in the light of the spirit, purport and objects of the Bill of Rights.4

There is a compelling argument that s 35(3) would, in appropriate cases, also require thereconsideration of Appellate Division decisions made after the Constitution came into effectbut before the Constitutional Court judgment in Du Plessis v De Klerk was handed down.Prior to Du Plessis v De Klerk the Appellate Division appears not to have regarded itself ashaving any jurisdiction in terms of s 35(3) and at no stage did it endeavour to exercise suchjurisdiction.5 It would be anomalous if the doctrine of stare decisis meant that the failure ofthe Appellate Division to exercise a jurisdiction which it did not know that it possessed shouldact as a barrier to its exercise of that jurisdiction once it was clear that this was competent.

(ii) Provincial and local divisions

The provincial and local divisions of the Supreme Court6 have a constitutional jurisdictionwhich extends beyond s 35(3). Section 101(2) declares that:

1 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) per Kentridge AJ at paras 63--4 and per Mahomed DP atparas 85--7.

2 The effect of s 35(3) is discussed more fully below, Woolman ‘Application’ § 10.3(a)(v) and Kentridge & Spitz‘Interpretation’ § 11.3(c).

3 The Constitutional Court retains an oversight function in respect of s 35(3). See § 6.2(a) above.4 Such reconsideration can be undertaken by provincial and local divisions of the Supreme Court. See, for

example, Gardener v Whitaker 1995 (2) SA 672 (E), 1994 (5) BCLR 19 (E) and Holomisa v Argus Newspapers Ltd1996 (2) SA 588 (W). In both these cases the court exercised s 35(3) jurisdiction to depart from previously bindingAppellate Division decisions with respect to the common law of defamation.

5 See, for example, B v S 1995 (3) SA 571 (A), a case involving the claim of a father to access to his illegitimatechild. In assessing whether the common law should be developed to afford the father an automatic right of accessthe Appellate Division made no mention of s 35(3).

6 There was some difference of judicial opinion as to whether the courts of the former TBVC states (Transkei,Bophuthatswana, Venda and Ciskei) are to be regarded as provincial and local divisions of the Supreme Court forthe purposes of the Constitution. In S v Majavu 1994 (4) SA 268 (Ck) at 291H--J it was held that the Ciskei GeneralDivision fell within the category of a ‘provincial or local division’ and was therefore endowed with additionaljurisdiction by s 101(3). In Sithole & others v Minister of Defence & another 1995 (1) SA 205 (Tk), 1994 (4) BCLR68 (Tk), on the other hand, it was held that courts established in the former national states lack the additionaljurisdiction provided for in s 101(3). The issue has now been settled by the Constitution of the Republic of SouthAfrica Third Amendment Act 13 of 1994, which inserted s 241(1A) and (1B) into the Constitution. The effect ofthese subsections is that the Supreme Courts of the former TBVC states and any General Divisions of such courtsare treated as provincial or local divisions of the Supreme Court for the purposes of the Constitution.



‘Subject to this Constitution, the Supreme Court shall have the jurisdiction, including the inherentjurisdiction, vested in the Supreme Court immediately before the commencement of this Constitu-tion, and any further jurisdiction conferred upon it by this Constitution or by any law.’

5 Section 101(3) confers jurisdiction on the provincial and local divisions of the SupremeCourt in respect of the following constitutional issues:

(a) any alleged violation or threatened violation of any fundamental right entrenched inChapter 3 of the Constitution;

(b) any dispute over the constitutionality of any executive or administrative act or conductor any threatened executive or administrative act or conduct of any organ of state;

(c) any inquiry into the constitutionality of any law applicable within its area of jurisdic-tion, other than an Act of Parliament,1 irrespective of whether such law was passed ormade before or after the commencement of the Constitution;

(d) any dispute of a constitutional nature between local governments or between a localand a provincial government;

(e) any dispute over the constitutionality of any Bill before a provincial legislature;(f) the determination of questions as to whether any matter falls within its jurisdiction;

and(g) the determination of any other matters as may be entrusted to it by an Act of Parliament.

Section 101(6) enables parties, by agreement, to confer jurisdiction upon a provincial orlocal division to hear a matter falling outside this additional jurisdiction, provided that suchagreement may not confer jurisdiction in respect of an appeal against a decision of aprovincial or local division made in respect of a matter referred to in s 101(3).2 It seemsstrange in principle that the parties should be able to confer jurisdiction with regard tosubject-matter upon a court. The Magistrates’ Courts Act3 enables parties to confer increasedvalue jurisdiction or territorial jurisdiction upon the court by agreement, but not subject-matter jurisdiction.4 Where the legislature deprives a court of subject-matter jurisdiction itusually has a good reason for doing so. In the case of the validity of Acts of Parliament, anobvious reason for reserving jurisdiction to the Constitutional Court is that its pronounce-ment of invalidity will have effect throughout the country, whereas that of a provincial orlocal division would have effect only within its area of territorial jurisdiction, giving rise toinconsistency in the law.

1 In Zantsi v Council of State, Ciskei, & others 1995 (4) SA 615 (CC), 1995 (10) BCLR 1424 (CC) theConstitutional Court ruled that Acts of the TBVC legislatures were not Acts of Parliament within the meaning ofs 101(3) and thus fell within the jurisdiction of the Supreme Court.

2 Such appeals lie to the Constitutional Court: s 102(12). In S v Shangase & another 1994 (2) BCLR 42 (D) at44F it was held that the word ‘parties’ in s 101(6) includes an accused in criminal proceedings, provided that he islegally represented and has been fully advised of his rights.

3 Act 32 of 1944.4 See s 45.



6 The Constitutional Court has repeatedly emphasized that the Supreme Court is obligedto exercise the constitutional jurisdiction conferred upon it by s 101.1 In S v Zuma & others2

Kentridge AJ stated:‘Even if a rapid resort to this court were convenient that would not relieve the judge from makinghis own decision on a constitutional issue within his jurisdiction. The jurisdiction conferred onjudges of the provincial and local divisions of the Supreme Court under section 101(3) is not anoptional jurisdiction. The jurisdiction was conferred in order to be exercised.’

The Supreme Court under the interim Constitution exercises the jurisdiction vested in theSupreme Court of South Africa immediately before the commencement of that Constitution.Because s 241 treats Supreme Courts of the former TBVC territories as provincial divisionsof the Supreme Court for jurisdictional purposes,3 the subject-matter jurisdiction of thesecourts is now determined by the Supreme Court Act 59 of 1959 and not by the instrumentsin terms of which they were established. Therefore a Full Bench of a TBVC Supreme Courtnow has jurisdiction over criminal and civil appeals from superior court decisions within itsarea of jurisdiction.4

Subsections (1A) and (1B) of s 241 deal with subject-matter jurisdiction. Section 241does not affect the reach of the civil and criminal process of the Supreme Court.5 In termsof s 2296 this continues to be governed by the different statutes applying to the South Africanand TBVC Supreme Courts. These statutes did not have extra-territorial force. Thus the civiland criminal process of the South African courts did not run to the TBVC states7 and thecivil and criminal process of the TBVC courts ran only within their respective areas of

1 See S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC), 1995 (7) BCLR 851 (CC), in which the ConstitutionalCourt overruled S v Lombard en ’n ander 1994 (3) SA 776 (T), 1994 (2) SACR 104 (T) and S v Vermaas 1994 (4)BCLR 18 (T), which had held that s 102(2) allows a judge of the Supreme Court to refrain from deciding a matterwithin the jurisdiction of the Supreme Court and to refer it to the Constitutional Court. See also S v Mhlungu &others 1995 (7) BCLR 793 (CC) at para 1 of the judgment of Mahomed J and at paras 55--8 of the judgment ofKentridge AJ; S v Mbatha 1996 (2) SA 464 (CC), 1996 (3) BCLR 293 (CC), 1996 (1) SACR 371 (CC) at para 28;Bernstein & others v Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at para 2; Nel v LeRoux NO & others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) at para 26; Brink v Kitshoff NO 1996 (4) SA197 (CC), 1996 (6) BCLR 752 (CC) at para 7.

2 1995 (2) SA 642 (CC) at 649D--F (para 10), 1995 (4) BCLR 401 (SA).3 See s 241(1A)(b) and (1B).4 See the obiter comments of Comrie J in Steelchrome (Pty) Ltd v Jacobs & others 1995 (8) BCLR 944 (B) at

948A--950B. In terms of s 241(1A)(a) the Appellate Division of the Supreme Court of South Africa also now hasappellate jurisdiction over TBVC superior court decisions. The Appellate Divisions of the TBVC Supreme Courtswere abolished by s 241(1)(a).

5 Any doubt in this regard is removed by s 241(1A)(b), which provides that the jurisdiction of the courts inquestion shall be exercised in respect of the area of jurisdiction for which they were established. The point wasraised, but not decided, in Stadsraad van Lichtenburg en ’n ander v Premier van die Noordwes Provinsie en ’n ander1995 (8) BCLR 971 (B).

6 The section states that ‘all laws which immediately before the commencement of this Constitution were inforce in any area which forms part of the national territory, shall continue in force in such area, subject to any repealor amendment of such laws by a competent authority’. In the Western Cape Legislature case the ConstitutionalCourt said that this section ‘provides a constitutional foundation for the continuation of the ‘‘old laws’’ after thecoming into force of the Constitution’, but pointed out that ‘the continuity given by s 229 is applicable only to theareas in which such laws were in force prior to the commencement of the Constitution’: Executive Council, WesternCape Legislature, & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10)BCLR 1289 (CC) at para 87.

7 See, for example, S v Wellem 1993 (2) SACR 18 (E).



territorial jurisdiction. No legislation has yet been drafted to rationalize the South Africanand TBVC Supreme Court Acts and Criminal Procedure Acts. The anomalous result is thatan order of a division of the Supreme Court in what was previously South Africa cannot beexecuted in parts of the national territory which previously formed part of the TBVC states,and an order of a Supreme Court in what was previously a TBVC state cannot be executedin any part of the national territory which did not form part of the relevant state. It is clearthat this state of affairs should be rectified by legislation as soon as possible.1

(c) Other courts

7IC s 103(1) provides that the establishment, jurisdiction, composition and functioning of allother courts shall, subject to ss 241 and 242,2 be as prescribed by or under a law. The interimConstitution does not confer any jurisdiction to determine issues of a constitutional natureupon courts other than the Constitutional Court and the Supreme Court, and it seems clearthat the original drafters of the Constitution did not intend other courts to have suchjurisdiction. In response to criticism of the lack of constitutional jurisdiction on the part ofthe magistrates’ courts, the Constitution of the Republic of South Africa Third AmendmentAct 13 of 1994 effected certain amendments which contemplate other courts having juris-diction to determine constitutional issues.3

Section 103(2), (3) and (4) originally directed ‘other courts’ before which the constitu-tionality of any law was challenged either to assume the validity of such law or, if thepresiding officer was of the opinion that it was in the interest of justice to do so, to postponethe proceedings to enable the challenge to be taken on application to the Supreme Court.Section 103(2) has now been amended, with the effect that the aforesaid two options shouldbe pursued only where the court does not have the competency to inquire into the validity ofsuch a law or provision.4 The magistrates’ courts do have the competency to inquire into thevalidity of certain subordinate legislation. Section 110 of the Magistrates’ Courts Act 32 of1944 confers jurisdiction upon magistrates’ courts to pronounce upon the validity of any

1 With respect to matters of criminal procedure in all courts and civil procedure in the magistrates’ courts, thesituation will be regularized by the proclamation of the Justice Laws Rationalization Act 18 of 1996. The Act waspassed on 10 April 1996, but had not been proclaimed at the time of writing (31 August 1996). Section 2(1) of theAct, read with Schedule I, extends the operation of inter alia the Criminal Procedure Act 56 of 1955, the CriminalProcedure Act 51 of 1977 and the Magistrates’ Courts Act 32 of 1944 to cover the entire national territory. Section 3,read with Schedule II, repeals the TBVC criminal procedure legislation and magistrates’ courts legislation whichwas hitherto in force. However, the Act does not rationalize the existing laws relating to the Supreme Courts ofSouth Africa and the TBVC territories. So the limited reach of the civil process of the different divisions of theSupreme Courts is unaffected by the Act. It appears that a decision was taken to postpone the rationalization oflegislation relating to the Supreme Court pending the investigations of the Hoexter Commission of Inquiry into theRationalization of the Provincial and Local Divisions of the Supreme Court (see para 6 of the Memorandum onthe Objects of the Justice Laws Rationalization Bill, 1996, Justice Laws Rationalization Bill, No B2B-96, p 102).

2 The phrase ‘subject to sections 241 and 242’ was inserted by s 4 of the Constitution of the Republic of SouthAfrica Third Amendment Act 13 of 1994. Section 241 deals with transitional arrangements. Section 242 providesfor the rationalization of court structures.

3 Sections 3 and 5(b) of the Constitution of the Republic of South Africa Third Amendment Act 13 of 1994.4 Section 103(2) as amended by s 5(b) of the Constitution of the Republic of South Africa Third Amendment

Act 13 of 1994.



statutory regulation, order or by-law.1 This would qualify as a law conferring jurisdictionupon a court, as contemplated by s 103(1).8 In order to enable magistrates’ courts or other courts to assume jurisdiction in respect ofconstitutional issues conferred upon them by legislation it was also necessary to amendIC s 98(3). Previously s 98(3) provided that the Constitutional Court would be the only courthaving jurisdiction over constitutional matters except where such jurisdiction was conferredon the Supreme Court by s 101(3) and (6). The exception has now been amended to includereference to jurisdiction conferred upon other courts as provided by s 103(1) and in terms ofan Act of Parliament.2 No Act of Parliament has been enacted which expressly empowersthe magistrates’ courts or any ‘other’ court to hear constitutional matters.

In Qozeleni v Minister of Law and Order & another3 it was held that s 103(2) and (3),which require a magistrate to assume the validity of a law or provision or allow such issueto be referred to the Supreme Court, apply only to statutory enactments, and do not preventa magistrate from applying the provisions of the Constitution in the exercise of his ordinarysubstantive jurisdiction. Froneman J, Kroon J concurring, drew a distinction between a claimfor relief which was beyond the jurisdiction of the court and the application by the court ofthe law in deciding a matter which was within its jurisdiction. He said:

‘Prior to the commencement of the new Constitution, lower courts, such as the magistrates’ courts,did not have powers of review in respect of unlawful administrative action. They nevertheless hadto apply the existing law of the land when exercising their normal substantive jurisdiction and, ifthis entailed disregarding administrative action found to be unlawful in the course of, for example,an action for damages, they were entitled and compelled to do so, at least in this Division (Majolav Ibhayi City Council 1990 (3) SA 540E at 534E--544G).’

The court expressed the view that it would be inconceivable that the provisions of Chapter 3 ofthe interim Constitution, which were meant to safeguard the rights of citizens, should not beapplied in the courts where the majority of people would have their initial and only contact.4

In Bate v Regional Magistrate, Randburg, & another5 Stegmann J held that the decisionin the Qozeleni case could not be reconciled with IC s 98(3), the effect of which was thatthe magistrates’ courts had no jurisdiction to adjudicate upon any alleged violation orthreatened violation of any fundamental right entrenched in Chapter 3.6 In this casethe applicant, who had been charged with attempted murder in a regional court, applied tothe magistrate for an order that the prosecution be dismissed and/or that the state be refusedthe opportunity to proceed with the prosecution. The basis of the application was that theaccused had been denied the right, which he had in terms of IC s 25(3)(a), to a trial withina reasonable time after having been charged. The magistrate held that he had no jurisdictionto hear the application. On review, counsel for the applicant and the respondent agreed,apparently relying on the Qozeleni case,7 that the magistrate had erred in declining to assumejurisdiction. Stegmann J disagreed, referring to IC s 7(4)(a), which provided that, where an

1 Section 110 provides that a magistrate’s court shall not be competent to pronounce upon the validity ofprovincial legislation or a statutory proclamation of the State President.

2 Section 3 of the Constitution of the Republic of South Africa Third Amendment Act 13 of 1994.3 1994 (3) SA 625 (E) at 635D--638C. See also Da Silva Mendes & another v Kitching & another 1995 (12)

BCLR 1672 (E), 1995 (2) SACR 634 (E); Municipality of the City of Port Elizabeth v Prut NO & another 1996 (3)BCLR 379 (SE).

4 At 637E. 5 1996 (7) BCLR 974 (W).6 At 986C--E. 7 At 985C--D.



infringement of a right was alleged, application could be made to a ‘competent court’ forrelief. He found that, in terms of IC s 98(3) and s 101(3), the Supreme Court was the onlycompetent court from which such relief could be claimed. It is submitted that the decisionof Stegmann J was correct, but that his criticism of the judgment in the Qozeleni case waswrong, because he did not take into account that the defendant in that matter did not applyfor relief consequent upon an infringement of a constitutional right, but simply requested thecourt to make a procedural ruling in line with his constitutional right.9 The same mistake was made by a Full Bench of the Eastern Cape Provincial Division inPort Elizabeth Municipality v Prut NO & another.1 The background facts in this case werethat the applicant municipality had issued a summons against the first and second respondentsin a magistrate’s court claiming payment of amounts owing by them in respect of rates. Inresponse to an application for summary judgment the respondents raised the defence that, inbreach of their constitutional right to equality, they had been unfairly discriminated againstbecause the municipality had failed to write off their debt, whereas it had written off similardebts owed by ratepayers who lived in the formerly black townships. In consequence of thisdefence the proceedings were stayed by agreement between the parties pending the outcomeof an application to declare, inter alia, that the municipality’s conduct did not constitute unfairdiscrimination. The judge who heard that application held that the granting of relief to theapplicant would, in effect, decide the issues which, in terms of the affidavit filed by therespondents in the summary judgment application, the magistrate would have to decide inthe action pending in the lower court. He held that relief should not be granted if themagistrate was competent to decide on the issues involved and, applying the Qozeleni case,concluded that the magistrate was competent to adjudicate upon the issues raised by therespondent. In an appeal against that judgment the Full Bench held that the judge shouldhave dealt with the merits of the application and referred the matter back to him. The FullBench was correct in doing this, because a magistrate’s court is not competent to grant anorder declaring that conduct does not constitute an infringement of a constitutional right, but,unfortunately, in coming to its decision, it held that the judgment of the court in the Qozelenicase was incorect. This is wrong because in the Qozeleni case no application had been madefor relief consequent upon an alleged infringement of a constitutional right.

It is submitted that Froneman J was indeed correct when, in the Qozeleni case, he heldthat the interim Constitution did not prevent a magistrate from applying its provisions in theexercise of his ordinary substantive jurisdiction. In the Prut case the Full Bench of the EasternCape Provincial Division held that the Qozeleni case was incorrect in so far as it wasinconsistent with its decision that magistrates’ courts are not competent to deal with analleged violation or threatened violation of a constitutionally guaranteed right.2 The courtconcluded its judgment, however, by holding that the mere fact that a magistrate’s court hasno power to pronounce upon the constitutional matters referred to in IC s 98(2) did not meanthat it did not have power to apply the Constitution. The court held that the contrary is indeedthe case as there is no doubt that it is the duty of magistrates’ courts to ensure thatconstitutionally guaranteed rights are observed in the proceedings conducted before them.3

1 1996 (4) SA 318 (E) at 326G--329D.2 At 328E--H.3 At 329B--C.



In the light of this statement it is submitted that there is no inconsistency between theQozeleni case and the Prut case. In the Prut case the magistrate would have had jurisdictionto consider the defence raised in response to the summary judgment application, but oncethe plaintiff wanted a declaratory order to the effect that its conduct was not unconstitutional,the matter had to be determined by the Supreme Court. In the Qozeleni case the magistratewas simply ensuring that the proceedings before him were being conducted in accordancewith the Constitution. This is entirely in line with the dictum of the Constitutional Court inS v Zuma & others,1 in which Kentridge AJ said that all courts hearing criminal trials wereto conduct such trials in accordance with the Constitution.

It is important to draw a distinction between matters in which the court is requestedto grant relief consequent upon an alleged infringement or threatened infringement ofconstitutionally guaranteed rights, and matters in which it is simply required to apply theprovisions of the Constitution in order to determine a matter before it in respct of which ithas jurisdiction. It is submitted that in the former case a magistrate’s court is not a ‘competentcourt’, as referred to in IC s 7(4)(a), but that in the latter case it is competent. On this basisit is submitted that the decision in Walker v Stadsraad van Pretoria,2 in which it was heldthat a magistrate had no jurisdiction to decide a matter in which a defence of unequal anddiscriminatory treatment was raised, is wrong. The issue of the jurisdiction of the magistrates’courts remains unresolved.

(d) Interim relief

10The interim Constitution initially did not expressly empower the Supreme Court to grantinterim relief pending determination by the Constitutional Court of an issue which is beyondthe jurisdiction of the Supreme Court.3 This gave rise to problems during the period after theConstitution had come into operation but before the Constitutional Court had beenestablished. In a number of matters parties who wished to challenge the validity of an Actof Parliament applied to the Supreme Court for interim relief pending a determination ofthe validity issue by the Constitutional Court. The question which arose in these caseswas whether the Supreme Court had jurisdiction to grant such relief. The Cape4 and

1 1995 (2) SA 642 (CC) at 625D.2 1997 (4) SA 189 (T), 1997 (3) BCLR 416 (T). In S v Lawrence; S v Negal; S v Solberg 1997 (4) SA 1176 (CC),

1997 (10) BCLR 1348 (CC) the Constitutional Court gave consideration to the question of the appropriate court toreceive evidence on the constitutionality of a statutory provision. In the course of this discussion Chaskalson Preferred with approval to Walker v Stadsraad van Pretoria (at para 15n19) but in the context of the receipt of evidencein the magistrate’s court on a constitutional issue beyond the jurisdiction of the magistrate’s court. Save for thisreference, no consideration was given to the question of whether or not the magistrate’s court ought to have exercisedjurisdiction on the merits of the matter before it.

3 Section 101(7) now addresses this issue.4 Wehmeyer v Lane NO & others 1994 (4) SA 441 (C) at 448H; S v Sixaxeni 1994 (3) SA 733 (C) at 736F--738A;

but see contra Japaco Investments (Pty) Ltd & others v The Minister of Justice & others 1995 (1) BCLR 113 (C),in which Wehmeyer v Lane NO & others was held to have been wrongly decided and was overruled. In Stevens vJonker & another 1994 (3) SA 806 (C) interim relief was granted without the issue as to whether the court hadjurisdiction to grant such relief being raised.



Eastern Cape courts1 and a Full Bench of the Witwatersrand Local Division2 held that the factthat the Constitution deprives the Supreme Court of jurisdiction to inquire into the validityof an Act of Parliament does not derogate from the Supreme Court’s inherent jurisdiction togrant interim relief to prevent the infringement of a fundamental right guaranteed in termsof IC Chapter 3. The Transvaal,3 Northern Cape4 and Natal5 courts decided that they did nothave such jurisdiction. The basis of these decisions was that it was not possible to grant suchrelief without considering and inquiring into the constitutionality of the statute and that theSupreme Court had no jurisdiction to embark upon such an inquiry since the ConstitutionalCourt has exclusive jurisdiction with regard to any inquiry into the validity of an Act ofParliament.6

11 The matter was resolved by the insertion of IC s 101(7),7 which grants provincial andlocal divisions of the Supreme Court ‘jurisdiction to grant an interim interdict or similarrelief, pending the determination by the [Constitutional] Court of any matter referred to insection 98(2) of the Constitution, notwithstanding the fact that such interdict or relief mighthave the effect of suspending or otherwise interfering with the application of the provisionsof an Act of Parliament.’

It seems that there will be very limited direct access to the Constitutional Court sincethe rules8 provide for such access only in exceptional circumstances. Where a challengeto the validity of legislation is the only issue in a matter it will, in the ordinary course, benecessary to bring an application to the Supreme Court as a first step, requesting that courtto refer the matter to the Constitutional Court in terms of s 101(2).9 It is inevitable that therequirement of a preliminary application will give rise to the need for interim relief in manycases. IC s 101(7) gives the Supreme Court the power to grant such interim relief.

1 Matiso v Commanding Officer, Port Elizabeth Prison, & another 1994 (3) SA 899 (E) at 902J--903B.2 Ferreira v Levin NO & others 1995 (2) SA 813 (W), overruling Rudolph & another v Commissioner for Inland

Revenue & others NNO 1994 (3) SA 771 (W). In Ferreira v Levin NO & others the court recognized a new test tobe applied in applications for interim interdicts involving constitutional issues. Heher J, relying on AmericanCyanamid Co v Ethicon Ltd [1975] 1 All ER 504 (HL), 2 WLR 316, AC 396, held that in such applications interimrelief should be granted where an applicant can show that there is ‘a serious question to be tried’ in respect of thevalidity of the legislation. See below, Klaaren ‘Judicial Remedies’ § 9.3(i).

3 De Kock & another v Prokeur-Generaal, Transvaal 1994 (3) SA 785 (T); Podlas v Cohen NO & others 1994(4) SA 662 (T) at 671G--672F.

4 Schoeman v Die Balju vir die Landdroshof, Vryburg, en andere 1995 (2) BCLR 192 (NC).5 Bux v Officer Commanding, Pietermaritzburg Prison, & others 1994 (4) SA 562 (N).6 Bux v Officer Commanding, Pietermaritzburg Prison, & others (supra) at 565G.7 Section 101(7) was inserted into the Constitution by s 3 of the Constitution of the Republic of South Africa

Second Amendment Act 44 of 1995. Prior to Act 44 of 1995 the provisions of s 101(7) had been contained withins 16 of the Constitutional Court Complementary Act 13 of 1995, which was enacted to solve the problem of interimrelief.

8 Rule 17(1) of the Rules of the Constitutional Court published in GN R5 GG 16204 of 6 January 1995 (Reg Gaz5450). See the discussion of rule 17(1) below, Chaskalson & Loots ‘Court Rules and Practice Directives’ § 7.3(b).

9 It is obviously envisaged that there may be proceedings in which the only issue arising is within the exclusivejurisdiction of the Constitutional Court because s 102(17) provides that in such circumstances a refusal on the partof the provincial or local division to refer such issue to the Constitutional Court shall be appealable to theConstitutional Court. See Brink v Kitshoff NO 1996 (4) SA 197 (CC), 1996 (6) BCLR 752 (CC) at para 6.



(e) Transitional provisions

Section 241 of the interim Constitution contains provisions concerning the transitionalarrangements with regard to courts, the judiciary and Attorneys-General. The courts existingbefore the commencement of the Constitution are deemed to have been constituted in termsof the Constitution, or the laws in force after its commencement, and continue to function inaccordance with the applicable laws until changed by a competent authority.1 Judicial officersand Attorneys-General continue in office subject to the terms and conditions which appliedto their service prior to the commencement of the Constitution until changed by a competentauthority.2 The laws and other measures which immediately before the commencement ofthe Constitution regulated the jurisdiction of courts of law, court procedures, the power andauthority of judicial officers, and all other matters pertaining to the establishment andfunctioning of courts of law shall continue in force subject to any amendment or repealthereof by a competent authority.3

12 A provision which gave rise to some interpretation difficulties was s 241(8).4 The sectionstates:

‘All proceedings which before the commencement of this Constitution were pending before anycourt of law, including any tribunal or reviewing authority established by or under any law,exercising jurisdiction in accordance with the law then in force, shall be dealt with as if thisConstitution had not been passed: Provided that if an appeal in such proceedings is noted or reviewproceedings with regard thereto are instituted after such commencement such proceedings shall bebrought before the court having jurisdiction under this Constitution.’

It was argued in a number of Supreme Court cases that the effect of this provision is thatthe interim Constitution has no application to any cases which were pending at the time ofits commencement. The Appellate Division, when faced with this argument, held that thesection was capable of more than one interpretation, but declined to express an opinion onthe correct interpretation, leaving it to the Constitutional Court to decide the issue.5 Some courtsaccepted the argument,6 but others held that the intention of the drafters of the subsectionwas simply to make provision for the continued territorial jurisdiction of the courts in pendingproceedings.7 A third interpretation was that the subsection limits the application ofprocedural rights but not of substantive rights,8 while a fourth interpretation held that the

1 Section 241(1).2 Section 241(2)--(6).3 Section 241(10).4 When the interpretation of s 241(8) finally came before the Constitutional Court in S v Mhlungu & others 1995

(3) SA 867 (CC), 1995 (7) BCLR 793 (CC), Kriegler J observed at para 86 that this issue had been considered bymany courts and commented that it ‘would hardly be an exaggeration to say that the cases produced as many answersas there were judgments’.

5 S v Makwanyane en ’n ander 1994 (3) SA 868 (A) at 873D.6 S v Lombard en ’n ander 1994 (3) SA 776 (T) at 782H--783F; S v Vermaas 1994 (4) BCLR 18 (T) at 62C--64D;

S v Coetzee & others 1994 (4) BCLR 58 (W); Mulaudzi & others v Chairman, Implementation Committee, & others1994 (4) BCLR 97 (V). In S v Saib 1994 (4) SA 554 (D) at 560F--J the court accepted this interpretation, which wasaccepted as a correct assumption in S v Ndima & others 1994 (4) SA 626 (D) at 631J.

7 Qozeleni v Minister of Law and Order & another 1994 (3) SA 625 (E) at 638D--640A, 1994 (1) BCLR 75 (E);S v Sixaxeni 1994 (3) SA 733 (C) at 736F--737E; S v Smith & another 1994 (3) SA 887 (E) at 892D--F; S v Majavu1994 (4) SA 268 (Ck) at 292E; S v Shuma & another 1994 (4) SA 583 (E) at 589G--590A.

8 S v Williams and Five Similar Cases 1994 (4) SA 126 (C) at 136F--138G, 1994 (2) BCLR 135 (D).



section applied only to the particular proceedings within a case which were pendingimmediately before the Constitution came into effect.1

When the meaning of IC s 241(8) came before the Constitutional Court in S v Mhlungu& others2 the court divided. A minority held that the wording of s 241(8) unambiguouslydemanded that the interim Constitution could have no application to cases which werepending when it came into effect.3 The majority disagreed. All of the majority judges soughtto avoid an interpetation of s 241(8) which denied persons the protection of constitutionalrights simply because the proceedings in which those rights were invoked had commencedbefore 27 April 1994.4 All of the majority judges found that the language of s 241(8) wasflexible enough not to require such an interpretation. Mohamed J, in whose judgmentLanga J, Madala J, Mokgoro J and O’Regan J concurred, held that s 241(8) had no bearingon the substantive law which was to be applied in proceedings; its function was simply topreclude an attack on the authority of the courts to continue dealing with proceedings whichwere pending before the commencement of the interim Constitution. This function wasnecessary because s 241(1) provided for existing courts to exercise jurisdiction in casescommencing after 27 April 1994, but did not address the authority of courts to continue tohear cases which were pending when the interim Constitution came into operation.5

Kriegler J agreed that subsec (8) of s 241 did not relate to the law to be applied by a court,but held that the authority of courts to continue dealing with pending proceedings wasadequately provided for by s 241 in subsecs (1)--(3) and (10). He concluded that s 241(8)related not to a question of authority but rather to the more mundane question of the forumin which cases pending on 27 April 1994 would be heard:13 ‘The subsection is concerned with the administrative channelling, handling and hierarchical

disposition of cases that were on the rolls of courts of the old South Africa . . . In the context,I suggest, there can be little doubt that the subsection simply and only means that the tribunal havingjurisdiction under the old order has to deal with a pending case.’6

Sachs J held that the plain meaning of s 241(8) related to the substantive law which wasto be applied in pending proceedings. This plain meaning set up a clear tension betweens 241(8) and IC Chapter 3, a tension which should be resolved purposefully by reading s 241(8)subject to Chapter 3. Such a reading would preserve the functional core of s 241(8), whichwas to provide for continuity in the administration of justice whilst causing the minimumdisturbance to fundamental rights enshrined in Chapter 3.7 Thus, while there was no majorityof judges which agreed on a precise meaning of s 241(8), a majority did concur in theconclusion that s 241(8) does not preclude a litigant from invoking fundamental rights in atrial which was pending on 27 April 1994, and this can be accepted as a ratio decidendi ofthe court in Mhlungu.

1 Shabalala & others v Attorney-General of the Transvaal & others 1995 (1) SA 608 (T), 1994 (6) BCLR 85 (T);Jurgens v The Editor, Sunday Times Newspaper, & another 1995 (1) BCLR 97 (W).

2 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC).3 See the dissenting judgment of Kentridge AJ, in which Chaskalson P, Didcott J and Ackermann J concurred.4 See, for example, paras 7--9 of the judgment of Mahomed J, paras 91, 92 and 100 of the judgment of Kriegler J,

paras 102 and 134 of the judgment of Sachs J.5 See in particular paras 21--3 of the judgment of Mahomed J.6 Judgment of Kriegler J at para 95.7 See in particular paras 116 and 130 of the judgment of Sachs J.



A number of important additional issues relating to the temporal reach of the Constitutionwere addressed obiter by the majority judges. Mahomed J and Sachs J emphasized that theinterim Constitution did not have any application in respect of decisions taken before it cameinto effect. Thus trials which were completed before 27 April 1994 could not be re-openedfor the purposes of raising constitutional points.1 Similarly, even in trials pending at thecommencement of the interim Constitution no constitutional challenge could be made to adecision which had been taken prior to the commencement of the Constitution.2 Mahomed Jalso stated that constitutional issues could not be raised on appeal unless those particularissues had been decided by the trial court after the commencement of the interim Constitu-tion. This was because an appeal inherently contains the complaint that the court a quo haderred in terms of the law which was then of application to it and not in terms of a law whichsubsequently came into operation.3

14 Several passages in the majority and minority judgments in Mhlungu appeared to conflatethe issue of whether the interim Constitution applied in proceedings which were pending on27 April 1994 with the related, but different, issue of whether the interim Constitution appliedwith retrospective effect.4 As a result, Mhlungu was widely assumed to have decided thatthe interim Constitution applied retrospectively.5 In Du Plessis v De Klerk,6 however, theConstitutional Court clarified that this was not the case. Kentridge AJ declared that‘the Constitution does not turn conduct which was unlawful before it came into force intolawful conduct. It does not enact that as at a date prior to its coming into force ‘‘the law shallbe taken to have been that which it was not’’.’7 Mahomed J confirmed that the legal validityof acts must be determined by the law in force at the time that they were performed and thatthe interim Constitution would not, in the usual course of events, affect the legal status of

1 See para 39 of the judgment of Mahomed J and paras 131 and 132 of the judgment of Sachs J.2 See para 39 of the judgment of Mahomed J and paras 131 and 132 of the judgment of Sachs J. Cf the judgment

of Kriegler J at paras 98 and 99, where it is stated that a litigant in proceedings which were pending on 27 April1994 has a right to the reconsideration of interlocutory orders made in those proceedings prior to the commencementof the Constitution. The order given in Mhlungu seems to be more consistent with the judgment of Kriegler J thanwith the judgments of Mahomed J and Sachs J. The order ‘invalidates any application of section 217(1)(b)(ii) ofthe Criminal Procedure Act, 1977 in any criminal trial, irrespective of whether it commenced before, on or after27 April 1994, and in which the final verdict was or may be given after 27 April 1994’. The order focuses on thedate of conclusion of criminal trials and not on the date of judicial decisions on the admissibility of confessions. Inso doing it invalidates judicial decisions on the admissibility of confessions which were taken prior to 27 April 1994where these decisions were taken in a trial in which a final verdict had not been delivered on 27 April 1994. Thelogic of the judgments of Mahomed J and Sachs J would suggest that such decisions should not have been affectedby the declaration of invalidity of s 217(1)(b)(ii).

3 Judgment of Mahomed J at para 41. Kriegler J and Sachs J did not address this issue. The minority judgesclearly believed that if s 241(8) did not preclude reliance on the Constitution in pending proceedings, it would notpreclude reliance on the Constitution in appeals from decisions taken prior to 27 April 1994. See para 83 of thejudgment of Kentridge AJ.

4 See, for example, the judgment of Kentridge AJ at para 68 and the judgment of Mahomed J at paras 38 and 46.It was only the judgment of Kriegler J which distinguished clearly between the two issues (at para 99).

5 See, for example, the judgments of Cameron J and Froneman J respectively in Holomisa v Argus Ltd 1996 (2)SA 588 (W) at 598G--J and S v Melani 1996 (2) BCLR 174 (E) at 184E--G.

6 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC). See also Key v Attorney-General & another 1996 (4) SA 187(CC), 1996 (6) BCLR 788 (CC) at paras 3--6; Rudolph & another v Commissioner for Inland Revenue 1996 (4) SA552 (CC) at para 15.

7 At para 20.



acts performed prior to its commencement.1 Thus it is not ordinarily open to a litigant to relyon the interim Constitution to found a cause of action or a defence in respect of events whichtook place prior to 27 April 1994. The Constitutional Court did, however, leave open thepossibility that, where rights vested prior to 27 April 1994 were abhorrent to the values ofthe interim Constitution, it might refuse to enforce them. It is clear, however, that it is onlyin extreme cases that the court will apply this exception to the principle that the interimConstitution has no retrospective operation.2

15REVISION SERVICE 3, 1998The decision in Du Plessis v De Klerk on the non-retrospectivity of the interim Constitu-tion is limited to cases involving the direct application of the Constitution. The questionremains whether developments of the common law in accordance with IC s 35(3) take placewith retrospective effect. As was pointed out by Kentridge AJ in Du Plessis v De Klerk,3 theordinary development of the common law does take place with retrospective effect. Wherea judgment changes a common-law rule as it has hitherto been understood, the law maintainsa fiction that the new rule has not been changed by the court, but has merely been found.Kentridge AJ raised the possibility that the ordinary rule of retrospective development of thecommon law may have to be reconsidered in the context of changes brought about bythe Constitution, which itself does not apply retrospectively.

It is submitted that in cases involving IC s 35(3) there is no reason to depart from theordinary common-law rule of retrospective development. The principal objection to retro-spective development of the common law is that it impairs existing legal rights. However,this objection ignores the nature of the rights which are impaired. The common law changesonly to keep in step with legal policy. So any rights which are affected by such changes arerights which are inimical to prevailing legal policy and thus not deserving of protection. Aright which is detrimentally affected by the development of the common law in accordancewith IC s 35(3) is, by definition, a right which depends on aspects of a discredited old legalorder and one which is incompatible with the new legal order based on fundamental humanrights. It would be most anomalous if the need to protect such rights should, in the face ofthe ordinary common-law practice, be privileged over competing claims founded on thespirit, purport and objects of the Bill of Rights.

6.3 POWERS OF THE COURTS4

The interim Constitution confers certain specific powers on the Constitutional Court withregard to legislation or administrative acts found to be unconstitutional.5 The same powers

1 At para 68.2 Kentridge AJ suggested at para 20 that a court might refuse to enforce such rights on the grounds that to do

so would be contrary to public policy. Mahomed J alluded to the possibility of exercising the court’s jurisdictionunder s 98(6) to invalidate something which was not unlawful prior to the commencement of the Constitution.(Section 98(6) is discussed below, Klaaren ‘Judicial Remedies’ § 9.5.)

3 At paras 65--6. It is for the Supreme Court of Appeal to decide whether IC s 35(3) or FC s 39(2) can be invokedin cases where the cause of action arose before the Constitutions were in force. See Amod v Multilateral MotorVehicle Accidents Fund 1998 (10) BCLR 1207 (CC) at para 23

4 Many of the issues canvassed in this section are discussed in more detail below, Klaaren ‘JudicialRemedies’ ch 9.

5 Section 98(5), (6), (7), (8), and (9).



are made applicable to the provincial and local divisions of the Supreme Court.1 There areno similar provisions in respect of other courts.

(a) Validity of legislation

With regard to validity of legislation, a court finding that any law or provision thereof isinconsistent with the Constitution shall declare such law invalid to the extent of its inconsis-tency.2 A proviso follows to the effect that the court may, in the interest of justice and goodgovernment, require Parliament or any other competent authority, within a period specifiedby the court, to correct the defect in the law or provision, which shall then remain in forcepending correction or the expiry of the period so specified.3

16 The effect of a declaration of invalidity differs depending upon whether the relevantlaw or provision existed at the commencement of the interim Constitution or was passed aftersuch commencement.4 The declared invalidity of a law which was in existence when theinterim Constitution commenced will not automatically invalidate anything done or permit-ted in terms thereof before such declaration became effective.5 Where a law passed after thecommencement of the Constitution is declared invalid, everything done or permitted in termsthereof is ordinarily invalidated.6 These prescribed effects are subject to any specific orderwhich a court may make in the interest of justice and good government.7

(b) Constitutionality of executive or administrative act

In the event of a court declaring an executive or administrative act or conduct of an organ ofstate to be unconstitutional, it may order the relevant organ of state to refrain from such actor conduct or, subject to such conditions and within such time as may be specified by it, tocorrect such act or conduct in accordance with the Constitution.8

(c) Constitutionality of a Bill

A court may exercise its jurisdiction to determine a dispute over the constitutionality of anyBill before Parliament or a provincial legislature only at the request of the Speaker of theNational Assembly, the President of the Senate, or the Speaker of a provincial legislature,who shall make such a request to the court upon receipt of a petition by at least one-third ofthe members of the relevant legislative body requiring him or her to do so.9

(d) Costs

With regard to costs, it is provided that the court may make such order as it may deem justand equitable in the circumstances.10 It accordingly seems that neither the ConstitutionalCourt nor the Supreme Court, when deciding constitutional issues, is bound by the usual rule

1 Section 101(4). 2 Section 98(5). 3 Proviso contained in s 98(5). 4 Section 98(6). 5 Section 98(6)(a). The section is discussed below, Klaaren ‘Judicial Remedies’ § 9.5. 6 Section 98(6)(b). 7 Section 98(6). 8 Section 98(7). 9 Section 98(9). The section is discussed above, Klaaren & Chaskalson ‘National Government’ § 3.1(d).10 Section 98(8).



that costs follow the outcome of the proceedings. This is important because the threat of anadverse order of costs may serve as a substantial deterrent to many potential litigants. Thiswould be particularly unfortunate in the early stages of constitutional litigation, wherevirtually every case is in the nature of a test case.1

17REVISION SERVICE 5, 1999It is instructive to refer to s 17(12)(a) of the Labour Relations Act 28 of 1956, whichempowers the Industrial Court to make an order as to costs ‘according to the requirementsof the law and to fairness’. In National Union of Mineworkers v East Rand Gold and UraniumCo Ltd 2 the Appellate Division, in enunciating the considerations to be taken into accountwhen awarding costs in terms of this section, held that the general rule of our law that, in theabsence of special circumstances, costs follow the event is a relevant consideration, but willyield where considerations of fairness require it. A consideration of fairness which the courtindicated should be taken into account was that parties, particularly individuals, should notbe discouraged from approaching the court and consideration should be given to avoidingtheir being so discouraged, especially where there was a genuine dispute and the approachto the court was not unreasonable.3

The Constitutional Court’s most extensive discussion of the matter of costs came inFerreira v Levin NO & others (2), where the parties were ordered to pay their own costs.According to Ackermann J’s judgment, the flexible approach to costs developed by theSupreme Court offered a starting point. ‘If the need arises, the rules may have to besubstantially adapted; this should, however, be done on a case by case basis.’4 Ackermann Jformulated the Supreme Court’s approach as follows:

‘[It] proceeds from two basic principles, the first being that the award of costs, unless expresslyotherwise enacted, is in the discretion of the presiding judicial officer and the second thatthe successful party should, as a general rule, have his or her costs. Even this second principle issubject to the first. Without attempting either comprehensiveness or complete analytical accuracy,depriving successful parties of their costs can depend on circumstances such as, for example, theconduct of parties, the conduct of their legal representatives, whether a party achieves technicalsuccess only, the nature of the litigants, and the nature of proceedings.’5

In Ferreira the applicants were only partially successful with respect to one of the fivematters referred. This did not meet the threshold of ‘successful in substance’ to award coststo the applicants, according to Ackermann J. Further factors against awarding the applicants

1 In Ferreira v Levin NO & others (2) 1996 (2) SA 621 (CC), 1996 (4) BCLR 441 (CC) Ackermann J referredat para 10 to the possible ‘chilling effect’ that an adverse order as to costs would have on private individuals invokingtheir constitutional rights as a ‘very important policy issue which deserves anxious consideration’, but left itsconsideration ‘to the appropriate case and occasion’. See also Ex parte Gauteng Provincial Legislature: In reDispute Concerning the Constitutionality of Certain Provisions of the School Education Bill, 1995 (Gauteng) 1996(3) SA 165 (CC), 1996 (4) BCLR 537 (CC), where the Constitutional Court held that the usual Supreme Court ruleof the losing party paying costs was not its general rule in petitions concerning the constitutionality of bills broughtto the court under s 98(9). Mahomed DP stated at para 36: ‘A litigant seeking to test the constitutionality of a statuteusually seeks to ventilate an important issue of constitutional principle. Such persons should not be discouragedfrom doing so by the risk of having to pay the costs of their adversaries, if the court takes a view which is differentfrom the view taken by the petitioner.’ Compare, however, Du Plessis & others v De Klerk & another 1996 (3) SA 850(CC), 1996 (5) BCLR 658 (CC) at para 149, where Kriegler J suggests that constitutional litigants who proceed onthe basis of private interest as opposed to public motive should expect to be mulcted in costs if they are unsuccessful.

2 1992 (1) SA 700 (A) at 738F--740A. 3 At 739B--C.4 1996 (2) SA 621 (CC), 1996 (4) BCLR 441 (CC) at para 3.5 Ferreira v Levin NO & others (2) (supra) at para 3.



costs were that the applicants had not been obliged to come to the Constitutional Court forthe relief requested and that, as the referral had accordingly been improper, the ConstitutionalCourt had heard the matter only ‘by way of direct access as an indulgence’.1 With respectto the respondents, the court began from the premise that they were successful in opposingthe applicants’ relief, but noted that the respondents had not opposed the referrals from theSupreme Court. The court indicated that respondents ‘should oppose inappropriate referralsat the time when they are sought; they should not sit back and raise their opposition for thefirst time in this court after the referral has been made’.2

18 Where counsel appears at the request of the court ‘it is not customary to make an orderfor costs against the losing party’. Similarly, ‘the intervention of an amicus curiae does notordinarily result in an order for costs either for or against the amicus’.3

Where the issues raised are ‘genuine constitutional questions which raised matters ofbroad concern’ and where the litigation was not ‘spurious or frivolous’, lack of success shouldnot attract an adverse order of costs.4

In constitutional proceedings arising out of a criminal matter, and where it is alleged thatthe state breached an accused’s constitutional right to a fair trial, an adverse order of costswill not ordinarily be appropriate where the complaint is ‘genuine’ and relates to a ‘point ofsubstance’.5

Where a court of first instance has made a punitive order of costs and where theConstitutional Court refuses an appeal to set aside that order, it does not follow that a similarorder (of punitive costs) should be made on appeal.6

1 At para 7.2 At para 9. See also Nel v Le Roux NO & others 1996 (2) SA 562 (CC), 1996 (4) BCLR 592 (CC) at para 26;

Key v Attorney-General & another 1996 (4) SA 187 (CC), 1996 (6) BCLR 788 (CC); Bernstein & others v Bester& others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at para 124.

3 Minister of Justice v Ntuli 1997 (3) SA 772 (CC), 1997 (6) BCLR 677 (CC) at para 43.4 African National Congress & another v Minister of Local Government and Housing, KwaZulu, & others 1998

(4) SA 1 (CC), 1998 (4) BCLR 399 (CC) at para 34. See also Oranje Vrystaatse Vereniging van StaatsondersteundeSkole & another v Premier, Province of the Free State, & others 1998 (3) SA 692 (CC), 1998 (6) BCLR 653 (CC),where a party who had withdrawn an appeal to the Constitutional Court because the matter had become moot wasnot required to pay costs. In President of the Republic of South Africa & others v South African Rugby FootballUnion & others 1999 (2) SA 14 (CC), 1999 (2) BCLR 175 (CC) the Constitutional Court emphasized that it adoptsa more flexible approach to costs order than do other courts. This means that ‘frequently an unsuccessful party isnot ordered to pay costs’ (at para 54). This approach does not mean that in appropriate cases the successful partywill not be entitled to costs. See, for example, August & another v Electoral Commission & others 1999 (3) SA 1(CC), 1999 (4) BCLR 363 (CC) at para 41.

5 Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC), 1997 (12) BCLR 1675 (CC) at para 44.6 Premier, Mpumalanga, & another v Executive Committee, Association of State-Aided Schools, Eastern

Transvaal 1999 (2) SA 91 (CC), 1999 (2) BCLR 151 (CC) at para 55--6.



6.4 PROCEDURE UNDER THE INTERIM CONSTITUTION

In Zantsi v Council of State, Ciskei, & others Chaskalson P stated the following:‘In the United States of America, and as long ago as 1885, Matthews J said:

‘‘Never . . . anticipate a question of constitutional law in advance of the necessity of deciding it. . . [N]ever formulate a rule of constitutional law broader than is required by the precise factsto which it is to be applied.’’

. . . This rule allows the law to develop incrementally. In view of the far-reaching implicationsattaching to constitutional decisions, it is a rule which should ordinarily be adhered to by this andall other South African Courts before whom constitutional issues are raised.’1

18AAs pointed out elsewhere in the Zantsi judgment,2 the rule that questions of constitutionallaw should not be anticipated underpins IC ss 102 and 103, and it is in the light of this rulethat these procedural provisions are best approached.3

1 1995 (4) SA 614 (CC), 1995 (10) BCLR 1424 (CC) at paras 2--5. See also S v Mhlungu & others 1995 (3) SA867 (CC), 1995 (7) BCLR 793 (CC) at para 59.

2 At para 3.3 The rule has been emphasized in several other judgments of the Constitutional Court. See S v Mhlungu & others 1995

(3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para 59; S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC), 1995(7) BCLR 851 (CC) at para 13; Bernstein & others v Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR449 (CC) at para 2; Brink v Kitshoff NO 1996 (4) SA 197 (CC), 1996 (6) BCLR 752 (CC) at para 9; Luitingh vMinister of Defence 1996 (2) SA 909 (CC), 1996 (4) BCLR 581 (CC) at para 11. See also Ynuico Ltd v Minister ofTrade and Industry & others 1995 (11) BCLR 1453 (T) at 1465B--E; S v Eckert 1996 (2) BCLR 208 (SE); S v Melani& others 1996 (2) BCLR 174 (E) at 180A--H, 1996 (1) SACR 335 (E); Schlinkel v Minister of Justice & another1996 (6) BCLR 872 (N).


[REVISION SERVICE 5, 1999] 6--18A

18B

(a) Procedure for dealing with issues beyond the jurisdiction of a court

(i) Issues arising in the Supreme Court

19REVISION SERVICE 2, 1998IC s 102(1)--(3) determine how a case should proceed where an issue within the exclusivejurisdiction of the Constitutional Court arises before a provincial or local division of theSupreme Court. IC s 102(1) states the following:

‘If, in any matter before a provincial or local division of the Supreme Court there is an issue whichmay be decisive for the case, and which falls within the exclusive jurisdiction of the ConstitutionalCourt in terms of section 98(2) and (3), the provincial or local division concerned shall, if it considersit to be in the interest of justice to do so, refer such matter to the Constitutional Court for its decision. . ..’

IC s 102(1) applies whenever issues within the exclusive jurisdiction of the ConstitutionalCourt originate in cases before the superior courts. The procedures of the section are to befollowed even when the issue within the exclusive jurisdiction of the Constitutional Court isthe only issue in the case.1

The wording of IC s 102(1) sets out three requirements for a valid referral of an issue tothe Constitutional Court:2 (1) what is referred must be an issue in the matter which ispotentially decisive for the case; (2) the issue must be within the exclusive jurisdiction of theConstitutional Court; and (3) the referral of the issue must be in the interests of justice. Thesethree requirements will be considered in turn.

(aa) A potentially decisive issue

An issue can be referred to the Constitutional Court under IC s 102(1) only if it is one raisedin the matter before the Supreme Court and is potentially decisive of the case. Thus inFerreira v Levin NO & others3 the Constitutional Court refused to entertain argument on anumber of issues which had not been issues before the Supreme Court but which the courthad purported to refer to the Constitutional Court under IC s 102(1).4 The requirement thatthe issue be potentially decisive of the case was considered by the Constitutional Court inLuitingh v Minister of Defence.5 Didcott J held that a referral may be competent not onlywhen the entire case will turn on the issue referred but also when ‘some individual and

1 This is clear from the provisions of ss 102(2) and 102(17). See Brink v Kitshoff NO (supra) at para 6. Anapplication for direct access in terms of Constitutional Court rule 17 should not be seen as a substitute for theprocedure set out in s 102(1) in these cases. See below, Chaskalson & Loots ‘Court Rules and Practice Directives’§ 7.3(b).

2 The requirements of s 102(1) have now been considered in many cases. See generally S v Mhlungu & others1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para 59; Ferreira v Levin NO & others 1996 (1) SA 984 (CC),1996 (1) BCLR 1 (CC) at paras 6 and 8; Bernstein & others v Bester & others NNO 1996 (2) SA 751 (CC), 1996(4) BCLR 449 (CC) at para 2; Luitingh v Minister of Defence 1996 (2) SA 909 (CC), 1996 (4) BCLR 581 (CC) atparas 4 and 6; Brink v Kitshoff NO 1996 (4) SA 197 (CC), 1996 (6) BCLR 752 (CC) at paras 8 and 9; Tsotetsi vMutual and Federal Insurance Co Ltd 1997 (1) SA 585 (CC), 1996 (11) BCLR 1439 (CC) at para 4; S v Bequinot1996 (12) BCLR 1588 (CC).

3 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at paras 11--13 and 16--18.4 See also Batista v Commanding Officer, SANAB, SAP, Port Elizabeth 1995 (4) SA 717 (SE), 1995 (8) BCLR

1006 (SE), where the Supreme Court refused to refer the question of the validity of a statute to the ConstitutionalCourt on the grounds that it was not an issue in the case.

5 1996 (2) SA 909 (CC), 1996 (4) BCLR 581 (CC).



self-contained part of the case will be directly affected’.1 However, where the pleadingsdisclose a possibility that the referred issue will not even arise on the evidence the issuecannot be described as one potentially decisive of the case.2 Similarly, where the decisivenessof the referred issue depends on a finding of common law which has not yet been made bythe referring court the referral is improper.3 Where the sole issue is one which falls withinthe exclusive jurisdiction of the Constitutional Court, a referral is competent. In suchcircumstances the issue and the matter before the provincial or local division of the SupremeCourt are co-extensive. The question arose in a case concerning the constitutionality of thePublications Act.4 The applicants were the publishers and distributors of magazines, issuesof which had been banned and copies of which had been seized in raids by the police. Theysought to have the constitutional validity of the Act referred to the Constitutional Court foradjudication. The application was refused by the Supreme Court on the basis that there wasno case before the court involving the question of the validity of the Act. This approachwas held to be wrong. Didcott J, on behalf of a unanimous court, observed:20 ‘In the light of section 7(4) it seems hardly imaginable that the framers of the Constitution intended,

when they provided for referrals, to differentiate between cases in which the questions calling forour consideration were the sole ones raised and those where others that did not concern usaccompanied them, excluding the former from the process and confining it to the latter. No soundreason for such a distinction occurs to me in principle or in pursuit of some policy.’5

The competence of a referral requires an analysis of the ‘issue’ before the Supreme Court.Even where the Supreme Court has disposed of a matter on a non-constitutional basis theremay still be an ‘issue’ before it which falls within the exclusive jurisdiction of the Constitu-tional Court. In Fraser v Children’s Court, Pretoria North, & others6 the appellant hadsuccessfully obtained an order reviewing and setting aside the adoption of his son. The basisof the relief was that the appellant had not received a proper hearing.7 Although the originalapplication succeeded on the basis of the common law, the appellant in his original notice ofmotion had sought an order declaring s 18(4)(d) of the Child Care Act8 to be unconstitutional.

1 At para 9. See also Brink v Kitshoff NO 1996 (4) SA 197 (CC), 1996 (4) SA 197 (CC), 1996 (6) BCLR 752(CC) at para 10.

2 Luitingh v Minister of Defence (supra) at para 9. S v Mbatha 1996 (2) SA 464 (CC), 1996 (3) BCLR 293 (CC),1996 (1) SACR 371 (CC) involved the presumption of possession in s 40(1) of the Arms and Ammunition Act 75of 1969. At para 29 Langa J observed that it was not clear whether the conviction of Mbatha depended upon thepresumption. Accordingly, the issue was not one which was decisive of the case and the referral was improper. Seealso S v Eckert 1996 (2) BCLR 208 (SE) at 210F--211G, where the court refused to refer the constitutionality of astatutory presumption at a stage when it was unclear whether or not the state intended to rely on the presumption.

3 Brink v Kitshoff NO (supra) at paras 14--15. The case involved the constitutionality of s 44 of the InsuranceAct 27 of 1943, which deals with the rights of creditors of a deceased husband’s estate to the proceeds of lifeinsurance policies taken out by the deceased in favour of his wife. It is not clear at common law whether the operationof s 27 takes place on the death of the deceased or on the date of concursus creditorum. The deceased had died priorto 27 April 1994, while the concursus creditorum took place only after the Constitution had come into effect. Thusclarity on the common-law rule was necessary to establish whether it was even possible to apply the Constitutionto the facts of the case.

4 Act 42 of 1974.5 JT Publishing (Pty) Ltd & another v Minister of Safety and Security & others (1996) 12 BCLR 1599 (CC)

at para 9.6 1997 (2) SA 261 (CC), 1997 (2) BCLR 153 (CC).7 See Fraser v Children’s Court, Pretoria North, & others 1997 (2) SA 218 (T).8 Act 74 of 1983.



At issue in the Constitutional Court, therefore, was whether or not there was an issue whichmay be decisive for the case. The Constitutional Court held that there was. Mahomed DP, onbehalf of a unanimous court, held that the appellant ‘had a separate and substantive interest’in obtaining an order concerning the constitutionality of the section. Setting aside theadoption order without dealing with the constitutionality of the provision in terms of whichit was granted would have given the appellant a new opportunity of being properly heard,but ‘would not have given to him the advantage of a veto on the adoption’.1

21 An unusual situation arose in South African Tea, Coffee and Chicory Association & othersv Ynuico Ltd & others.2 The appellant had sought to have the question of the constitutionalvalidity of s 2(1)(b) of the Import and Export Control Act3 referred to the ConstitutionalCourt. It was argued that this section contravened IC s 26. Magid J was unpersuaded by thisargument. He added, however, that even if the point were arguable, there was ‘an absolutebar’ to granting the order for referral. The issue of the constitutional validity of the sectionhad already been dealt with by the Constitutional Court in Ynuico Ltd v Minister of Tradeand Industry & others.4 When the matter came before the Constitutional Court counsel (whoappeared in both cases) expressly and unequivocally disavowed reliance upon IC s 26 as aground for invalidity.5 Although Magid J recognized that the abandonment by counsel of a legalpoint which arises on the papers is not a bar to raising the same legal point on appeal, thepresent situation was ‘totally different’. He considered that it was not in the interests of justice‘for a litigant, which has had a constitutional point referred to the Constitutional Court andhas expressly abandoned it there, to be afforded a further opportunity to advance theabandoned point in that Court’.6

(bb) The exclusive jurisdiction of the Constitutional Court

The second requirement for a valid referral is that the issue referred be one within theexclusive jurisdiction of the Constitutional Court. The Constitutional Court has stressed thatthe provincial and local divisions of the Supreme Court must decide constitutional issueswhich are within their jurisdiction.7 This is necessary to ensure that the Constitutionpermeates the entire legal system. It is also necessary for the proper development of ourconstitutional law, which will be impeded if the Constitutional Court always finds itselfsitting as a court of first instance.8 Thus the Constitutional Court has refused to considerreferrals which involve issues which are not within its exclusive jurisdiction.9

1 At para 17. 2 1997 (8) BCLR 1101 (N).3 Act 45 of 1963. 4 1996 (3) SA 989 (CC), 1996 (6) BCLR 798 (CC).5 At para 3. 6 At 1112F--H.7 See, for example, S v Zuma & another 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (SA) at para 10; S v Mbatha

(supra) at para 28; Bernstein & others v Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) atpara 2; Nel v Le Roux & others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) at para 26; Brink v Kitshoff NO(supra) at para 7.

8 Bernstein & others v Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at para 2.9 S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC), 1995 (7) BCLR 851 (CC); Ferreira v Levin NO & others

1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at paras 11--13 and 16--18.



(cc) The interests of justice

22The final requirement for a valid referral under s 102(1) is that the referral must be in theinterests of justice.1 The Constitutional Court has held that this requires at least that theremust be a reasonable prospect that the law or provision referred is unconstitutional andinvalid.2 A consideration of the prospects of success requires the referring court to ‘anticipatethe type of success’ likely to be achieved, including whether or not the Constitutional Courtwill make an order of retrospectivity.3 In Bernstein v Bester NO4 Ackermann J stated thatcounsel requesting a referral from the Supreme Court should be called upon to justify whythe law to be referred is unconstitutional. This would enable the Supreme Court to furnishcomprehensive reasons for a referral, which would assist the Constitutional Court to developour constitutional jurisprudence.5

Even where there is a reasonable prospect that the law will be held to be invalid it will oftennot be in the interest of justice for a trial to be interrupted so that the Constitutional Court canconsider the validity of the law. In S v Mhlungu & others6 Kentridge AJ stated the following:

‘The reasonable prospect of success is, of course, to be understood as a sine qua non of a referral, notas in itself a sufficient ground. It is not always in the interest of justice to make a reference as soon as therelevant issue has been raised. Where the case is not likely to be of long duration it may be in theinterest of justice to hear all the evidence or as much of it as possible before considering a referral.Interrupting and delaying a trial, and above all a criminal trial, is in itself undesirable, especially ifit means that witnesses have to be brought back after a break of several months. Moreover, oncethe evidence in the case is heard it may turn out that the constitutional issue is not after all decisive.I would lay it down as a general principle that where it is possible to decide any case, civil orcriminal, without reaching a constitutional issue, that is the course which should be followed.’

1 Although the section appears to confer upon the Supreme Court a discretionary power to assess the interestsof justice, the Constitutional Court has made clear that it has an overriding power to determine whether or not areferral will be in the interests of justice. Luitingh v Minister of Defence 1996 (2) SA 909 (CC), 1996 (4) BCLR581 (CC) at para 12.

2 S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para 59. See also Fereirra v Levin NO(supra) at para 7; Brink v Kitshoff NO 1996 (4) SA 197 (CC), 1996 (6) BCLR 752 (CC) at para 9 and Luitingh vMinister of Defence (supra) at para 6. This conclusion was first reached in S v Williams and Five Similar Cases1994 (4) SA 126 (C) at 139F, 1994 (2) BCLR 135 (D). See also S v Sonday & another 1995 (1) SA 497 (C) at506D--H, 1994 (2) SACR 810 (C).

In Prinsloo v Van der Linde & another 1997 (3) SA 1012 (CC), 1997 (6) BCLR 759(CC) the court was concernedwith the presumption of negligence in s 84 of the Forest Act 122 of 1984. An order referring the validity of thissection to the Constitutional Court was made by Van der Walt DJP at the commencement of the trial and before anyevidence had been led. He considered that the referral was in the interests of justice, inter alia because it woulddetermine the issue of the onus and the duty to begin. A different conclusion had been reached by Wright J in Stevensv Stevens 1996 (3) BCLR 384 (O), who concluded that a referral of the section at the outset of a trial was not in theinterests of justice since either of the parties would be able, without the assistance of the presumption, to prove ordisprove the negligence of the defendant. The Constitutional Court nevertheless entertained the dispute on the basisthat full argument had been heard on the issue and the court was in a position to deal with it definitely and finally(at para 8). It is submitted that this was a somewhat more lenient attitude to referral than had been evidenced inother cases.

3 O’Meara NO v Padayachi & others; O’Meara NO & another v Govender & others 1997 (2) BCLR 258 (D) at265J--266F.

4 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at para 2.5 See also Nel v Le Roux NO & others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) at para 26 and Luitingh

v Minister of Defence (supra) at paras 5--6. The requirement to furnish reasons for a referral is imposed by rule 22(2)of the Rules of the Constitutional Court.

6 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para 59.



The Constitutional Court has confirmed that it is ordinarily not in the interests of justice formatters to be heard piecemeal and that cases should be decided without referrals ofconstitutional issues wherever possible.1 In order to discourage the improper referral of issuesit has developed a practice of refusing to award costs where bad referrals are struck off itsroll unless the party claiming costs also opposed the referral in the Supreme Court.2 TheConstitutional Court has also held that ‘a litigant cannot, by refusing to pursue a non-constitutional remedy, compel a referral; allowing such a device to succeed would not be inthe interests of justice’.3 Even where a court is satisfied that an impugned law will be declaredunconstitutional, but the law is subject to amendment ‘in the foreseeable future’, it has beenheld not to be in the interests of justice for a referral to be made to the Constitutional Court.4

23REVISION SERVICE 3, 1998In S v Lawrence; S v Negal; S v Solberg the Constitutional Court stated that it will not, asa rule, permit disputes of fact or expert evidence to be raised for the first time on appeal.5

Accordingly, evidence relevant to the determination of a constitutional issue ought to beheard by either the magistrate’s court or the High Court. The Constitutional Court empha-sized that ‘it cannot be expected that 11 judges should sit to hear disputed evidence’.6 Thecourt discussed a variety of possibilities for the hearing of disputed evidence before the matterreaches the Constitutional Court. In some cases there will be no need for any evidence todecide the referred constitutional issue. The justification of a limitation of fundamental rights,however, will frequently require evidence to be led.7 So too will the inquiry into the interestsof justice and good government for the purposes of IC s 98(5) and (6), which will affect anyorder made by the Constitutional Court.8 In Brink v Kitshoff NO9 Chaskalson P emphasizedthat a party wishing to place any evidence on record for the purposes of deciding a referredissue must do so at the referral phase and not after the referral has been made.

IC s 102(2) provides that if the Supreme Court refers an issue to the ConstitutionalCourt in terms of IC s 102(1), it must suspend further proceedings in the matter until theConstitutional Court has decided the referred issue. If the Supreme Court refuses to refer an

1 S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC), 1995 (7) BCLR 851 (CC) at para 13; Bernstein & othersv Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at para 2; Brink v Kitshoff NO (supra) atpara 9; Luitingh v Minister of Defence (supra) at para 11. See also Stevens v Stevens 1996 (3) BCLR 384 (O);Schlinkel v Minister of Justice & another 1996 (6) BCLR 872 (N). This is not a rigid rule. The interests of justicemay well justify a referral in the midst of legal proceedings. Thus in S v Mbatha 1996 (2) SA 464 (CC), 1996 (3)BCLR 293 (CC), 1996 (1) SACR 371 (CC) the Supreme Court referred certain issues concerning reverse onusprovisions after the state had closed its case but before the accused were put on their defence. The referral at thatpoint in the trial was justified because the incidence of the onus was crucial to the decision whether the accusedshould testify or not. A similar approach was adopted in S v Coetzee & others 1997 (3) SA 527 (CC), 1997 (4)BCLR 437 (CC).

2 Ferreira v Levin NO & others (2) 1996 (2) SA 621 (CC), 1996 (4) BCLR 441 (CC) at para 9; Nel v Le RouxNO & others (supra) at para 26; Key v Attorney-General & another 1996 (4) SA 187 (CC), 1996 (6) BCLR 788(CC) at para 17.

3 Motsepe v Commissioner for Inland Revenue 1997 (2) SA 898 (CC), 1997 (6) BCLR 692 (CC) at para 23.4 Raloso v Wilson & others 1998 (1) BCLR 26 (NC). 5 1997 (4) SA 1176 (CC), 1997 (10) BCLR 1348 (CC).6 At para 20. 7 See below, Chaskalson ‘Evidence’ § 26.1(c).8 Section 98(5) gives the court a discretion to sustain an unconstitutional statute in force for a period of time in

which the legislature is given an opportunity to amend or replace it. Section 98(6) gives the court a discretion todetermine whether a declaration of invalidity of a statute has prospective or retrospective effect on the validity ofacts performed under that statute. In both case the discretion must be exercised in the interests of justice and goodgovernment. The provisions are discussed in more detail below, Klaaren ‘Judicial Remedies’ §§ 9.3(e), 9.4(d) and 9.5.

9 1996 (4) SA 197 (CC), 1996 (6) BCLR 752 (CC) at para 12.



issue in terms of IC s 102(1), it must decide whatever issues are within its jurisdiction and makefindings of fact relevant to the adjudication of the issue within the exclusive jurisdiction of theConstitutional Court which it has chosen not to refer.1 If a decision on that issue remainsnecessary to dispose of the case, it will be considered by the Constitutional Court on appeal,after the Appellate Division has disposed of any appeal on the non-constitutional issues inthe case.2

(ii) Issues arising in lower courts

24The procedure to be followed where the validity of a law or provision is challenged beforea court other than a Supreme Court on the ground that it is unconstitutional is regulated byIC s 103. If the court before which the matter is being heard does not have the power toenquire into the validity of such law or provision, it may either decide the matter on theassumption that the law or provision is valid3 or, if the presiding officer believes that it is inthe interest of justice to do so, postpone the proceedings to enable the party who has raised theissue to apply to a provincial or local division of the Supreme Court for relief.4 On hearingsuch an application the provincial or local division may decide the issue, if it is within itsjurisdiction, or refer it to the Constitutional Court if it is an issue in respect of which thatcourt has exclusive jurisdiction.5 Such relief should be granted only if the provincial or localdivision to which the application is made is of the opinion that the decision regarding thevalidity of the law or provision is material to the adjudication of the matter before the courtfrom which it was referred, that there is a reasonable prospect that the relevant law orprovision will be held to be invalid, and that it is in the interest of justice to do so.6 Ifthe provincial or local division does decide to grant the relief applied for, it should suspend theproceedings before the court which referred the matter to it.7 If it decides not to grant suchrelief, the matter will presumably proceed in the court of first instance on the assumptionthat the law or provision is valid (there is no provision to this effect). In Scagell & others vAttorney-General, Western Cape, & others8 the court gave consideration to the requirementin IC s 103(4) that a decision regarding the validity of a law is material to the adjudication of thematter. In that case the accused had been charged with contravening certain sections of theGambling Act 51 of 1965. At the commencement of the trial the applicants feared that, inorder to facilitate the proof of the charges, the prosecution would rely upon various reverseonus clauses contained in the Act. They accordingly applied to the magistrate to postponecriminal proceedings against them in terms of s 103(3) so that they could apply to theSupreme Court for an order in terms of s 103(4). O’Regan J, on behalf of a unanimous court,stated that the charge sheet suggested that the prosecution intended relying on the evidentiaryprovisions in question. Each of the challenged provisions, with one exception, could assistthe prosecution in establishing the offence with which the accused were charged. Hencethe referral was held to be competent.9

1 IC s 102(3). 2 See IC s 102(4)--(6), discussed below, § 6.4(f).3 Section 103(2). 4 Section 103(3).5 Section 103(4)(a). 6 Section 103(4).7 Section 103(4)(b). 8 1997 (2) SA 368 (CC), 1996 (11) BCLR 1446 (CC).9 At para 4.



(b) Procedure in the Supreme Court

The general rule that questions of constitutional law should not be anticipated1 is not confinedto those within the exclusive jurisdiction of the Constitutional Court. Thus where theSupreme Court considers a case in which there are constitutional issues which it can decide,it should decide those issues only if the case cannot be disposed of on non-constitutionalgrounds.25REVISION SERVICE 2, 1998It has been held that constitutional issues which are to be raised in motion proceedingsbefore the Supreme Court should be canvassed in the papers. In Prokureursorde vanTransvaal v K 2 it was held that it is undesirable that constitutional points should be raisedin motion proceedings without their having been raised and pertinently canvassed in thepapers. In AK Entertainment CC v Minister of Safety and Security & others3 the courtrefused to refer an issue to the Constitutional Court where it had not been properly canvassedon the papers.

(c) Access to the Constitutional Court

The routes of access to the Constitutional Court in respect of constitutional issues arising inmatters before another court are described above.4 Section 100(2) of the interim Constitutionprovides that the Rules of the Constitutional Court may make provision for direct access tothe court where it is in the interest of justice to do so in respect of any matter over which ithas jurisdiction. The rules5 provide that the court shall allow direct access in exceptionalcircumstances only, which will ordinarily exist only where the matter is of such urgency, orotherwise of such public importance, that the delay necessitated by the use of the ordinaryprocedures would prejudice the public interest or prejudice the ends of justice and goodgovernment. The implication of this provision is that, in the ordinary course, where the onlyissue in a matter is an issue in respect of which the Constitutional Court has exclusivejurisdiction, procedure should be by way of an application to the Supreme Court to refer thematter to the Constitutional Court.6

The interim Constitution itself contains provisions which limit access to the ConstitutionalCourt in respect of disputes between organs of state at national level regarding the questionwhether or not any executive or administrative act or conduct or any threatened executiveor administrative act or conduct of one of those organs is consistent with the Constitution.7

IC s 102(13)--(16) provide that the organ disputing the validity of the act or conductmay8 apply to a provincial or local division to refer such question of validity to the

1 See above, § 6.4.2 1994 (4) BCLR 48 (T); Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T).3 1994 (4) BCLR 31 (E) at 45I.4 See above, § 6.4(a).5 Rule 17(1) of the Rules of the Constitutional Court published in GN R5 GG 16204 of 6 January 1995 (Reg Gaz

5450). The issue of direct access is discussed in more detail below, Chaskalson & Loots ‘Court Rules and PracticeDirectives’ § 7.3.

6 See Brink v Kitshoff NO 1996 (4) SA 197 (CC), 1996 (6) BCLR 752 (CC) at para 6.7 This is a matter falling within the court’s exclusive jurisdiction: IC s 98(2)(e) read with s 101(3)(d).8 Despite the use of the word ‘may’, it is submitted that the intention is that an organ wishing to raise such a

dispute is obliged to bring the preliminary application to the Supreme Court and cannot approach the ConstitutionalCourt directly.



Constitutional Court. If the provincial or local division is of the opinion that the act or conductmay be unconstitutional, it shall refer the matter to the Constitutional Court. Where evidenceis necessary for the purpose of deciding such matter the provincial or local division shall hearsuch evidence and make a finding thereon before referring the matter to the ConstitutionalCourt. A decision not to refer such a matter to the Constitutional Court is appealable to theConstitutional Court.

(d) Referral of issues of public importance to the Constitutional Court

26IC s 102(8) entitles any division of the Supreme Court which disposes of a matter in whicha constitutional issue has been raised to refer the issue to the Constitutional Court in certaincircumstances. There are three requirements for IC s 102(8) referrals: (1) the issue referredmust be a constitutional issue which was raised in the proceedings; (2) the matter in whichthe issue was raised must have been disposed of by the referring court; and (3) the courtreferring the issue must be of the opinion that the issue is of sufficient public importance towarrant a decision by the Constitutional Court.1

The characterization of a constitutional issue for the purposes of the first requirementposed some difficulties in early referrals under the section. In Shabalala & others v Attorney-General of the Transvaal & another2 the Constitutional Court was asked on referral underIC s 102(8) to declare what the rules of stare decisis were in constitutional matters and to setout the common law of police docket privilege under the Constitution. It refused to entertainthe referrals on these terms on the grounds that neither of the referred issues was aconstitutional issue within the meaning of IC s 102(8).3 Another question posed by the firstrequirement is whether an issue raised mero motu by the Supreme Court may properly bethe subject of a referral under IC s 102(8). It is submitted that the words ‘in which aconstitutional issue has been raised’ should be held to include any relevant issue raised in theproceedings mero motu by the court before the matter was disposed of.

In Du Plessis v De Klerk the Constitutional Court considered when an issue can be saidto be ‘disposed of’ for the purposes of IC s 102(8). Kentridge AJ stated the following:

‘I find a useful analogy in the decisions of the Supreme Court on the appealability of judgmentsdismissing or upholding exceptions. The test applied is whether the order made has a final anddefinitive effect.4 Generally, the dismissal of an exception is not regarded as final, whereas theupholding of an exception to a pleading on the ground that it is bad in law is regarded as final andappealable. The reasons given for this distinction are instructive. In Trakman NO v Livshitz & others5

a procedural application had been made in the court below and had been dismissed. The AppellateDivision held that the order dismissing the application was appealable because it ----

1 Zantsi v Council of State, Ciskei, & others 1995 (4) SA 615 (CC), 1995 (10) BCLR 1424 (CC) at para 1;Shabalala & others v Attorney-General of the Transvaal & another 1996 (1) SA 725 (CC), 1995 (12) BCLR 1593(CC), 1995 (2) SACR 761 (CC) at para 5.

2 1996 (1) SA 725 (CC), 1995 (12) BCLR 1593 (CC), 1995 (2) SACR 761 (CC) at paras 5--9.3 The constitutionality of the common law of docket privilege rules as articulated in R v Steyn 1954 (1) SA 324

(A) was a constitutional issue and the referral was narrowed down to address this issue. The precise rules whichshould replace those articulated in R v Steyn could not be considered by the court because the development of thecommon law was apparently considered not to be a constitutional issue.

4 South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 549--50(footnote 35 in the original judgment of Kentridge AJ).

5 1995 (1) SA 282 (A) at 289 (footnote 36 in the original judgment of Kentridge AJ).



‘‘. . . was final and not susceptible of alteration by the court a quo; it was definitive of the parties’rights in respect of the application for review; and it disposed of all the relief claimed in suchapplication’’.’1

Thus IC s 102(8) allows issues upon which an order is made with final and definitive effectto be referred to the Constitutional Court even if the broader proceedings in which that orderwas made have not yet been completed.2 IC s 102(8) referrals can take place even if therelevant issue is not the subject of an appeal and has become moot.3

27 The section provides an exception to the appeal structures provided in the Constitutionand to the general principle that constitutional issues should not be anticipated. It is thereforepremised on the fact that the issue referred is of compelling public importance.4 Althoughthe section is framed to leave the question of the public importance of the issue within thediscretion of the Supreme Court referring the matter, it seems clear that the ConstitutionalCourt may choose not to entertain a referral under the section if it believes that the issue isof insufficient importance to warrant a decision on a moot issue.5

As an issue referred under IC s 102(8) may be moot, the President of the ConstitutionalCourt may request the Minister of Justice to appoint counsel to argue the issue.6 Provisionis also made for the Registrar of the Constitutional Court to establish whether the parties tothe proceedings in which the issue arose wish to argue it when it is heard by the ConstitutionalCourt.7

There is no provision equivalent to IC s 102(8) regulating matters decided in other courts.It is submitted that if a matter were to come before the Supreme Court on appeal or reviewfrom a lower court or a tribunal, the Supreme Court could exercise its power in terms ofIC s 102(8) to refer a constitutional issue to the Constitutional Court.

(e) Intervention by government

IC s 102(10) provides that if the validity of a law is in dispute in any matter and a relevantgovernment is not a party to the proceedings, it shall be entitled to intervene as a party beforethe court in question, or shall be entitled to submit written argument to the court. The ‘relevantgovernment’ contemplated in IC s 102(10) may be the national government or a provincialgovernment, depending on who is responsible for the law in question.8 The section shouldalso have provided for the giving of notice to the relevant government. In the absence of sucha provision in the Constitution it will be necessary for the rules of the various courts to require

1 Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at para 27 (emphasis in the judgment ofKentridge AJ).

2 The earlier decision to the contrary in S v Shuma & another 1994 (4) SA 583 (E) has clearly been overruledby Du Plessis v De Klerk.

3 For a discussion of mootness as a barrier to constitutional litigation, see below, Loots ‘Access to the Courts andJusticiability’ § 8.4.

4 Du Plessis v De Klerk (supra) at para 29.5 See Zantsi v Council of State, Ciskei, & others 1995 (4) SA 615 (CC), 1995 (10) BCLR 1424 (CC) at

paras 6--7. See also the approach of the Constitutional Court in Luitingh v Minister of Defence 1996 (2) SA909 (CC), 1996 (4) BCLR 581 (CC) at para 12 to the comparable discretion of the Supreme Court as to the ‘interestsof justice’ in terms of s 102(1).

6 Section 102(9). 7 Constitutional Court rule 24(2).8 See JT Publishing (Pty) Ltd v Directorate of Publications & another (Minister of Home Affairs Intervening)

1995 (1) SA 735 (T) at 738A--E.



such notice if the right of intervention is to be made practically effective.1 It is important tonote that the fact that the government is entitled to intervene does not mean that it is anecessary party to litigation concerning the constitutional validity of an Act.2

28 The right of parties other than the state to intervene in proceedings is governed by therules of court.3

(f) Appeals from a decision of the Supreme Court

An appeal from a decision of a provincial or local division on a constitutional issue liesdirectly to the Constitutional Court under the interim Constitution. The parties may not agreethat such appeal be heard by a Full Bench.4 The Appellate Division has no jurisdiction todetermine constitutional issues.5 If, in any matter before a provincial or local division, theonly issue raised is a constitutional issue within the exclusive jurisdiction of the Constitu-tional Court, a refusal to refer such issue to the Constitutional Court shall be appealable tothe Constitutional Court.6

Where both constitutional and non-constitutional issues arise in a matter before aprovincial or local division that court shall, if it does not refer an issue to the ConstitutionalCourt, hear the matter, make findings of fact which may be relevant to a constitutional issuewithin the exclusive jurisdiction of the Constitutional Court, and give a decision on suchissues as are within its jurisdiction.7 An appeal lies, in the first instance, to the AppellateDivision against a decision so made.8 If the Appellate Division is able to dispose of such anappeal without dealing with any constitutional issue which has been raised, it shall do so.9

Only if it is necessary for the constitutional issue to be decided shall the Appellate Divisionrefer that issue to the Constitutional Court.10

The Chief Justice and the President of the Constitutional Court are empowered jointly tomake rules to facilitate the procedure for dealing with appeals in which there are bothconstitutional and other issues, which rules may provide for the constitutional issues to be

1 Rule 4(8) of the Rules of the Constitutional Court published in GN R5 GG 16204 of 6 January 1995 (RegGaz 5450) requires notice to be given to the relevant executive authority where there is a dispute over theconstitutionality of any executive or administrative act or conduct or an inquiry into the constitutionality of any law.A similar rule should be included in the uniform rules of the provincial and local divisions of the Supreme Court.In Canada all provinces have enacted statutes that require notice to be given to the Attorney-General of the provinceand/or the Attorney-Geneneral of Canada of any proceedings in which the constitutionality of any statute is in issue toenable the Attorney-General to intervene: P W Hogg Constitutional Law of Canada 3 ed (1992) sec 56.19.

2 Morgan v Salisbury Municipality 1935 AD 167 at 173; Cresto Machines (Edms) Bpk v Afdeling Speuroffisier,SA Polisie, Noord-Transvaal 1972 (1) SA 376 (A) at 393C. See also Suid-Afrikaanse Vereniging van MunisipaleWerknemers v Stadsraad van Pietersburg 1986 (4) SA 776 (T), in which it was held that the fact that a Ministeradministered an Act and had an interest in the correct interpretation thereof was not sufficient to give him the rightto participate in the proceedings.

3 See Constitutional Court rule 9 and the Uniform Rules for the Provincial and Local Divisions of the SupremeCourt rule 12.

4 Section 102(12) and the proviso to s 101(6). 5 Section 101(5). 6 Section 102(17). 7 Section 102(3). 8 Section 102(4). An appeal to the Constitutional Court before the Appellate Division has disposed of any

grounds of appeal within its jurisdiction is competent only when the exceptional procedures of rule 23(3) apply. Inother circumstances the Constitutional Court may refuse to hear such an appeal. See Gardiner v Whitaker 1996 (4)SA 337 (CC), 1996 (6) BCLR 775 (CC).

9 Section 102(5). 10 Section 102(6).



referred to the Constitutional Court before or after any such appeal has been heard by theAppellate Division.1 IC s 102(11) states that appeals to the Appellate Division andthe Constitutional Court shall be regulated by law, including the rules of such courts, whichmay provide that leave of the court from which the appeal is brought, or to which the appealis noted, shall be required as a condition for such appeal.

(g) Appeals from decisions of other courts

29The interim Constitution makes no provision with regard to appeals from other courts. Itseems clear that a magistrate’s court decision with regard to the validity of subordinatelegislation2 will be appealable to the Supreme Court in the usual way in terms of s 83 of theMagistrates’ Courts Act.3 What is not clear is whether the Supreme Court can consider onappeal a constitutional challenge to legislation where the lower court has assumed the validitythereof in terms of IC s 103(2). The right of appeal from the magistrates’ courts is againstthe decision of the court. If the court assumes the validity of the legislation, it makes nodecision thereon and there is therefore no decision on that issue to appeal. The interimConstitution is not clear on this question, but it is submitted that the intention is that wherea matter in which the magistrate has assumed the validity of legislation is taken on appeal itis open to the Supreme Court to inquire into the validity of the legislation, if within itsjurisdiction, or to refer that issue to the Constitutional Court.

(h) Review of the decisions of inferior courts

It has been held that the Supreme Court has the power to review an act or decision of aninferior court which has the effect of denying a person any fundamental right guaranteed interms of IC Chapter 3.4 Such power has been held to be a wide power, not limited by theprovisions of s 24 of the Supreme Court Act,5 which sets out specific circumstances in whichthe proceedings of an inferior court may be brought under review before a provincial or localdivision.6 In hearing such a review the Supreme Court ‘possesses not only the powers of acourt of review in the legal sense, but it has the functions of a court of appeal with theadditional privileges of being able, after setting aside the decision arrived at by the lowertribunal, to deal with the whole matter upon fresh evidence as a court of first instance’.7

1 Section 102(7).2 See s 110 of the Magistrates’ Courts Act 32 of 1944 and IC s 103(2).3 Act 32 of 1944. The Constitution of the Republic of South Africa Third Amendment Act 13 of 1994 as first

introduced [B4-94] contained a section (4(b)) which purported to give the Supreme Court jurisdiction to determineany appeal from a court referred to in s 103(1), or review the proceedings of such a court, with regard to aconstitutional matter dealt with by such a court by virtue of jurisdiction conferred on it by or under a law referredto in the said section. This was deleted in the final Bill [B4D-94], as amended by the National Assembly and theSenate at a joint sitting, presumably because it was realized that the Supreme Court already had such jurisdiction.

4 Magano & another v District Magistrate, Johannesburg, & others 1994 (4) SA 172 (W).5 Act 59 of 1959.6 Magano & another v District Magistrate, Johannesburg, & others (supra) at 177B.7 Johannesburg Consolidated Investment Company v Johannesburg Town Council 1903 TS 111 at 116, as quoted

in Magano & another v District Magistrate, Johannesburg, & others (supra) at 175--6.



6.5 JURISDICTION UNDER THE FINAL CONSTITUTION

The Constitution of the Republic of South Africa, Act 108 of 1996 vests the judicial authorityof the Republic in the courts. Section 166 provides that the courts are ----

(a) the Constitutional Court;(b) the Supreme Court of Appeal;(c) the High Courts, including any High Court of Appeal that may be established by an

Act of Parliament to hear appeals from High Courts;(d) the magistrates’ courts; and(e) any other court established or recognized in terms of an Act of Parliament, including

any court of a status similar to either the High Courts or the magistrates’ courts.

30 Item 16 of Schedule 6 of the Constitution makes provision for transitional arrangementswith regard to the courts. Item 16(1) provides that every court, including courts of traditionalleaders, existing when the final Constitution took effect continues to function and to exercisejurisdiction in terms of the legislation applicable to it. The courts, apart from courts oftraditional leaders, existing when the final Constitution took effect on 4 February 1997 werethe Constitutional Court created by the 1993 Constitution,1 the Supreme Court of SouthAfrica (including the Appellate Division and the provincial and local divisions),2 themagistrates’ courts,3 and various specialized courts.4 In terms of item 16(3)(a) the formerAppellate Division is now called the Supreme Court of Appeal and the former provincial andlocal divisions of the Supreme Court (including the Supreme Courts and General Divisionsof the independent states)5 have become High Courts.

The final Constitution requires that, as soon as practicable after it comes into operation,all courts should be rationalized with regard to structure, composition, functioning andjurisdiction, with a view to establishing a judicial system suited to its requirements.6 TheMinister of Justice is responsible for managing the rationalization, after consultation withthe Judicial Service Commission.7

1 See above.2 Established in terms of the Supreme Court Act 59 of 1959.3 Established in terms of the Magistrates’ Courts Act 32 of 1944.4 These include water courts established in terms of the Water Act 54 of 1956; the Special Court for Hearing

Income Tax Appeals created by the Income Tax 58 of 1962; small claims courts established by the Small ClaimsCourt Act 61 of 1984; the industrial court established in terms of the Labour Relations Act 28 of 1956, which hasnow been replaced by the Labour Court established in terms of the Labour Relations Act 1995; the Land ClaimsCourt established in terms of the Land Reform (Labour Tenants) Act 3 of 1996.

5 The Constitution of the Republic of South Africa Third Amendment Act 13 of 1994 provided that the SupremeCourts of the former independent states (Transkei, Bophuthatswana, Venda and Ciskei) and any General Divisionof such courts should be treated as provincial or local divisions of the Supreme Court of South Africa for the purposesof the Constitution.

6 Item 16(6)(a) of Schedule 6.7 Item 16(6)(b) of Schedule 6.



(a) The Constitutional Court

REVISION SERVICE 5, 1999The Constitutional Court, which was created by the interim Constitution, continues to existunder the final Constitution. It consists of a President, a Deputy President, and nine otherjudges.1 A matter before the Constitutional Court must be heard by at least eight judges.2

The Constitutional Court has jurisdiction over the whole of the Republic as the court of finalinstance in respect of all constitutional matters.3 It may decide only constitutional matters,and issues connected with decisions on constitutional matters.4 The Constitutional Courtmakes the final decision where there is uncertainty as to whether a matter is a constitutionalmatter or whether an issue is connected with a decision on a constitutional matter.5

Section 167(7) defines a constitutional matter as one which includes any issue involving theinterpretation, protection or enforcement of the Constitution.31 The dividing line between constitutional and non-constitutional issues may be difficult todefine. In Mphahlele v First National Bank of South Africa Ltd 6 the applicant had petitionedthe Chief Justice for leave to appeal against the dismissal by a provincial division of anapplication brought by him. The petition was dismissed by two judges of appeal withouthearing argument and without referring the application to the court for consideration. Theapplicant requested reasons for the refusal of the petition and was informed that it was notthe practice of the Supreme Court of Appeal to furnish formal reasons for the refusal of apetition. The Constitutional Court doubted whether the dismissal of the petition withoutfurnishing reasons raised a constitutional question.7

In President of the Republic of South Africa & others v South African Rugby FootballUnion & others8 the Constitutional Court unanimously held that an application for recusaldirected to members of the Constitutional Court was a ‘constitutional matter’ within themeaning of s 167(3) of the Constitution. This conclusion was based, inter alia, upon s 34 ofthe Constitution, which guarantees the right to have any dispute decided in a fair publichearing before a court or, where appropriate, another independent and impartial tribunal orforum. Thus, ‘a judge who sits in a case in which she or he is disqualified from sitting because,seen objectively, there exists a reasonable apprehension that such judge might be biased, actsin a manner that is inconsistent with section 34 of the Constitution, and in breach of therequirements of section 165(2) and the prescribed oath of office’. Hence, an application forrecusal raised a ‘constitutional matter’ and it was the duty of the Constitutional Court ‘togive collective consideration to the question whether the judges concerned should recusethemselves’.9

1 Section 167(1). 2 Section 167(2).3 Section 167(3)(a). 4 Section 167(3)(b).5 Section 167(3)(c).6 1999 (2) SA 667 (CC), 1999 (3) BCLR 253 (CC), 1999 (1) SACR 373 (CC).7 At para 7. The court nevertheless approached the matter as if a constitutional issue had been involved, but held

that there was no breach of the Constitution.8 1999 (7) BCLR 825 (CC).9 At paras 28--30.



In terms of s 167(4) the Constitutional Court has exclusive jurisdiction with regard to thefollowing matters:

(a) disputes between organs of state in the national or provincial sphere concerning theconstitutional status, powers or functions of any of those organs of state;

(b) the constitutionality of any parliamentary or provincial Bill;1

(c) applications envisaged in s 80 or s 122 of the Constitution;2

(d) the constitutionality of any amendment to the Constitution;(e) a decision as to whether Parliament or the President has failed to fulfil a constitutional

obligation;(f) certification of a provincial constitution in terms of s 144 of the Constitution.

32 Where the Supreme Court of Appeal, a High Court, or a court of similar status makes anorder of invalidity in respect of an Act of Parliament, a provincial Act or conduct of thePresident, such order must be confirmed by the Constitutional Court.3

(b) The Supreme Court of Appeal

The Supreme Court of Appeal was previously the Appellate Division of the Supreme Courtof South Africa. It consists of a Chief Justice, a Deputy Chief Justice, and the number ofjudges determined by an Act of Parliament.4 A matter before the Court must be decided bythe number of judges determined by an Act of Parliament. The Supreme Court Act5

dictates the number of judges that constitutes a quorum for the hearing of various matters,but does not determine the number of judges that may be appointed. Where the validity ofan Act of Parliament is in issue the quorum is eleven.6 Since eleven is the largest quorumrequired, it stands to reason that there should always be at least eleven judges of the SupremeCourt of Appeal.

Section 168(3) of the Constitution empowers the Supreme Court of Appeal to decideappeals in any matter and provides that it is the highest court of appeal except in constitutionalmatters. It may hear only appeals, issues connected with appeals and any other matter thatmay be referred to it in circumstances defined by an Act of Parliament.7 Under the interim

1 Section 167(4)(b) provides that the Court may decide on the constitutionality of a Bill only in the circumstancesanticipated in s 79 or s 121. These sections provide that the President (in respect of a national Bill) or premier of aprovince (in respect of a provincial Bill) may refer a Bill to the Constitutional Court if s/he has reservations aboutits constitutionality. See above, § 6.3(c) and Chaskalson & Klaaren ‘National Government’ § 3.3(h).

2 Section 80 provides that members of the National Assembly may apply to the Constitutional Court for an orderdeclaring that all or part of an Act of Parliament is unconstitutional. Such application must be supported by at leastone-third of the members of the National Assembly and must be made within thirty days of the date on which thePresident assented to and signed the Act. Section 122 gives members of the provincial legislature the same rights withregard to provincial Acts, requiring the application to be supported by 20 per cent of the members of the legislature.

3 Section 167(5).4 Section 168(1). There is at present no legislation which determines the number of judges of appeal.5 Section 12 of Act 59 of 1959. This section, which determined the constitution of the Appellate Division, now

applies to the Supreme Court of Appeal in terms of item 16(5)(b) of Schedule 6 to the Constitution, which providesthat all references in legislation to the Appellate Division must be construed as a reference to the Supreme Courtof Appeal.

6 Section 12(b) of the Supreme Court Act 59 of 1959.7 Section 168(3).



Constitution the Appellate Division had no jurisdiction to hear appeals with regard toconstitutional issues. It is clear that in terms of the final Constitution the Supreme Court ofAppeal does have such jurisdiction1 and that, where a constitutional issue is decided by theSupreme Court of Appeal, there will be a further appeal with regard to that issue tothe Constitutional Court.

(c) The High Courts

33The South Africa Act of 1909 created the Supreme Court of South Africa and provided thatall superior courts which had existed independently before Union were to become divisionsof the Supreme Court. The sections of the South Africa Act dealing with the Supreme Courtwere superseded by the Supreme Court Act,2 in terms of which six provincial and three localdivisions of the Supreme Court existed within the Republic of South Africa. Under theapartheid regime further courts were created at Supreme Court level in the independent statesof Transkei, Bophuthatswana, Venda, and Ciskei. All these courts have now become HighCourts in terms of the final Constitution.3 They will continue to have the same area ofjurisdiction that they previously had until the rationalization of the courts, which is referredto in item 16(6) of Schedule 6, has taken place.4

Section 169 of the Constitution provides that the High Courts have jurisdiction to decideany matter, including constitutional matters, save for those which are reserved for theexclusive jurisdiction of the Constitutional Court5 and those matters assigned to another courtby an Act of Parliament. If a High Court declares an Act of Parliament, a provincial Act, orconduct of the President invalid as being unconstitutional, the order of invalidity will haveforce only if it is confirmed by the Constitutional Court.6 It is submitted that the effect of theconfirmation will be that the declaration of unconstitutionality will apply throughoutthe Republic. Without such confirmation the decision of a provincial or local division of theHigh Court would be binding only within its own jurisdiction, according to the South Africanrules of stare decisis.

In the past the provincial divisions and the Witwatersrand Local Division heard appealsfrom the magistrates’ courts, and Full Benches of these courts (three judges) heardappeals from certain decisions of single judges of the Supreme Court. The High Courts willpresumably continue to have the appellate jurisdiction which they previously enjoyed untilthe legislation from which that jurisdiction is derived is amended or repealed.7

1 This is clear from s 167(5), which provides that if the Supreme Court of Appeal declares an Act of Parliament,a provincial Act, or conduct of the President unconstitutional, any consequent order of invalidity which it makesmust be confirmed by the Constitutional Court.

2 Act 59 of 1959. 3 Item 16(4)(a) of Schedule 6.4 Item 16(4)(a) of Schedule 6. Item 16(6)(a) requires that, as soon as possible after the comming into effect of

the final Constitution, there must be a rationalization of all courts, including their structure, composition, functioningand jurisdiction, and all relevant legislation, with a view to establishing a judicial system suited to the requirementsof the final Constitution.

5 See s 167(4), discussed above, § 6.5(a). 6 Section 167(5).7 See item 16(1) of Schedule 6. This provision is in terms of item 16(1)(b) subject to the exercise of jurisdiction

being consistent with the final Constitution. There may be some inconsistency in that s 166(c) of the Constitutionrefers to High Courts of Appeal being established in terms of an Act of Parliament to hear appeals from HighCourts. It was probably intended that the High Courts should retain their previous appellate jurisdiction untilHigh Courts of Appeal are established by an Act of Parliament.



(d) The magistrates’ courts and other courts

34Under the interim Constitution there was considerable uncertainty as to whether magistrates’courts could take account of or decide constitutional issues.1 The final Constitution providesthat magistrates’ courts and all other courts may decide any matter determined by an Act ofParliament, but prohibits courts of a status lower than a High Court from enquiring into orruling on the constitutionality of any legislation or any conduct of the President.2 This doesnothing to resolve the uncertainty about whether these courts have jurisdiction to considerconstitutional issues other than valididity of legislation and conduct of the President. Withregard to magistrates’ courts, it does not help to look to the provisions of the Magistrates’Courts Act3 because, with one exception, it determines what types of claim those courts mayor may not hear, not what type of issue they may decide.4 For instance, it is clear that amagistrate’s court would have jurisdiction to hear a claim for payment of money in terms ofa contract. But if the defendant raised the defence that the contract was unenforceable becauseit was unconstitutional, would the magistrate be able to decide that issue?

In Qozoleni v Minister of Law and Order & another5 it was held that a magistrate couldapply the provisions of the Constitution in the exercise of his ordinary substantive jurisdic-tion. Some courts have agreed with this decision, others have held it to be incorrect.6 Theinterim Constitution dictated that when a magistrate did not have competency to enquire intoa law or provision s/he should either assume the validity thereof or postpone the matter toallow the issue to be taken to the Supreme Court on application. In the Qozoleni case theword ‘law’ was interpreted as referring only to legislation, whereas in the cases which heldit to be incorrect it was assumed that it referred all law. Thus in the Qozoleni case it was heldthat it was only constitutional issues which involved validity of legislation that could not bedecided by magistrates’ courts, whereas the courts which disagreed held that no constitutionalissue could be considered.

The position under the final Constitution is different from that under the interim Constitu-tion because there is no doubt that the constitutional issues which are expressly excludedfrom the jurisdiction of the magistrates’ courts are those involving validity of legislation andconduct of the President. It is reasonable to suppose that the drafters intended that otherconstitutional issues can be decided by the magistrates’ courts provided that the claim iswithin the jurisdiction of the court in terms of the Magistrates’ Courts Act.7 It is importantto note, however, that there are some kinds of claims which are clearly not within

1 See above, § 6.2(c).2 Section 170.3 Act 32 of 1944.4 The only exception is s 46(2)(a), which provides that a magistrate’s court has no jurisdiction in matters in which

the validity or interpretation of a will or other testamentary document is in question. The other provisions of s 46exclude certain types of claim from the jurisdiction of the magistrates’ courts. Section 29 authorizes magistrates’courts to hear certain types of claims by way of action. There are also sections, such as 30 and 30bis, which authorizemagistrates’ courts to hear certain types of claim by way of application.

5 1994 (3) SA 625 (E) at 635D--638C.6 See the cases discussed above, § 6.2(c).7 Act 32 of 1944. See the submissions made above, § 6.2(c).



the jurisdiction of the magistrates’ courts, although they are not expressly excluded by theMagistrates’ Courts Act.1 For instance, a magistrate may not make a declaratory order orreview administrative action.2

(e) The Labour Court

34AThe Labour Relations Act of 19953 expressly confers constitutional jurisdiction on theLabour Court. In terms of s 151(2) of the Act, the Labour Court is established as a superiorcourt with the authority, inherent powers and standing in relation to matters under itsjurisdiction equal to that which a court of a provincial division of the Supreme Court has inrelation to the matters under its jurisdiction. As far as constitutional matters are concerned,s 157(2) of the Act4 provides that the Labour Court has concurrent jurisdiction with theHigh Court in respect of any alleged or threatened violation of any fundamental right arisingfrom ----

‘(a) employment and from labour relations;(b) any dispute over the constitutionality of any executive or administrative act or conduct, or any

threatened executive or administrative act or conduct, by the State in its capacity as anemployer;

(c) the application of any law for the administration of which the Minister is responsible.’5

6.6 POWERS OF THE COURTS UNDER THE FINAL CONSTITUTION

(a) Costs

Unlike the interim Constitution, the final Constitution makes no express reference to thepower of the superior courts to award costs in constitutional cases. It seems, however, thatthe power to award costs is embraced by the general power in terms of s 172(1)(b), whichprovides that a court, when deciding a constitutional matter within its power, ‘may make anyorder that is just and equitable’. This vests the courts with a broad and equitable jurisdiction.On this basis, therefore, costs may be awarded or withheld according to the yardstick ofjustice and equity. This was precisely the same yardstick which applied under the interimConstitution. The principles which have evolved concerning the award of costs under theinterim Constitution, therefore, will continue to be of application under the final Constitution.

(b) Other powers

The other powers of the courts under the final Constitution are discussed in a separate chapterbelow.6

1 Act 32 of 1944 s 46.2 See Qozeleni v Minister of Law and Order & another 1994 (3) SA 625 (E) at 636I--637A.3 Act 66 of 19954 As amended by s 14 of the Labour Relations Amendment Act 127 of 1998.5 In Carephone (Pty) Ltd v Marcus NO & others 1999 (3) SA 304 (LAC), 1998 (10) BCLR 1326 (LAC) the

Labour Appeal Court held that the Labour Court, when reviewing arbitration awards, was required to apply theconstitutional standard of justifiability in terms of the guarantee of administrative justice.

6 See below, Klaaren ‘Judicial Remedies’ ch 9. With respect to the powers of abstract judicial review of Bills,see also above, Chaskalson & Klaaren ‘National Government’ § 3.3(h).



34B

6.7 PROCEDURE UNDER THE FINAL CONSTITUTION

REVISION SERVICE 3, 1998The final Constitution contains no procedural provisions equivalent to those which were tobe found in ss 102 and 103 of the interim Constitution. Instead, it contemplates that mattersof procedure will be governed by national legislation. Section 171 states that all ‘courtsfunction in terms of national legislation, and their rules and procedures must be provided forin terms of national legislation’.

At the time of going to print the only legislation enacted to regulate procedural issuesarising out of the final Constitution was the Constitutional Court Complementary ActAmendment Act,1 which took effect on 5 December 1997. This Act contains only twosubstantive provisions. It inserts a new s 8 into the Constitutional Court Complementary Act2

to regulate the process by which a High Court order of invalidity of an Act of Parliament, aprovincial Act, or conduct of the President is referred to the Constitutional Court forconfirmation. It also inserts a new s 16 into the Constitutional Court Complementary Act toconfer on the President of the Constitutional Court the power to make rules for the court inconsultation with the Chief Justice. New rules of court to govern procedure under the finalConstitution came into force on 29 May 1998.3

(a) The inherent power of the Constitutional Court to regulate its process

35The absence of any new procedural legislation beyond the Constitutional Court Complemen-tary Act Amendment Act created a range of procedural problems, some of which have nowbeen remedied by the new rules. To address some of these problems the Constitutional Courtresorted to its ‘inherent power’ under s 173 of the Constitution ‘to protect and regulate’ itsown process. Whilst emphasizing that the s 173 power is one which has to be exercised withcaution,4 the court made it clear that the absence of legislation or rules contemplated byss 167(6) and 171 would not be allowed to prevent a person from approaching the Constitu-tional Court to uphold or protect his or her constitutional rights.

In S v Pennington & another5 the court created a procedure to regulate appeals from theSupreme Court of Appeal to the Constitutional Court. The court held that it would requireleave for the noting of an appeal before it6 and the procedure to be followed in an applicationfor leave to appeal was set out.7

1 Act 79 of 1997. 2 Act 13 of 1995.3 Rules promulgated pursuant to the interim Constitution remained in force under the final Constitution by reason

of item 16(1) of Schedule 6. These rules have now been repealed and replaced by new rules published in GN R757,Reg Gaz 6199 of 29 May 1998. The new rules are discussed in detail below, Chaskalson & Loots ‘Court Rules andPractice Directives’ ch 7.

4 S v Pennington & another 1997 (4) SA 1076 (CC), 1997 (10) BCLR 1413 (CC) at para 22.5 1997 (4) SA 1076 (CC), 1997 (10) BCLR 1413 (CC).6 This procedure requires a consideration of the merits of the appeal. See para 27.7 At para 52. The directions given by the Constitutional Court were as follows:‘(a) Appeals in such matters may only be brought with the leave of this Court.(b) Applications for leave to appeal must be brought in terms of rule 10 within 14 days of the decision of the

Supreme Court of Appeal and shall set out sufficient information to enable this Court to determine whetheror not the issue is one of substance on which a ruling by this Court is desirable and whether there is areasonable prospect that this Court will reverse or materially alter the decision.

(c) If leave to appeal is granted the provisions of rule 19 shall be applied mutatis mutandis to such appeals.(d) The procedure shall be followed for as long as there is no legislation or rule governing such appeals.’



In Parbhoo & others v Getz NO & another1 the Constitutional Court was again requiredto exercise its inherent powers under s 173. At issue was an order by Southwood J declarings 415(3) and part of s 415(5) of the Companies Act 61 of 1973 to be unconstitutional. Havingdeclared the sections to be unconstitutional, Southwood J directed the Registrar of the HighCourt to refer his judgment, together with the entire record of the application, to theConstitutional Court for confirmation. The Constitutional Court held that the procedurefollowed by Southwood J should be sanctioned pending the enactment of legislation andrules.2

36 These issues are now regulated by the new rules. Nevertheless, a lacuna still remains.There are still cases which arose under the interim Constitution which have not yet reachedthe Constitutional Court. The new rules govern the new constitutional scheme and do notcater for referrals from the High Court or Supreme Court of Appeal to the ConstitutionalCourt. In these and other cases not covered by the new rules it is likely that procedural issueswill continue to be dealt with in terms of the inherent powers possessed by superior courts.

(b) Procedure for dealing with issues beyond the jurisdiction of a court

(i) Issues arising in the superior courts

The final Constitution extends constitutional jurisdiction to the Supreme Court of Appealand empowers both the High Court and the Supreme Court of Appeal to consider disputesconcerning an Act of Parliament. Thus it will no longer be necessary for the High Court orSupreme Court of Appeal to refer questions of the validity of an Act of Parliament to theConstitutional Court before making an order relating to the relief claimed in the proceedingsbefore them. However, there remains a limited range of constitutional issues which fallbeyond the jurisdiction of the superior courts,3 and in respect of which a need for referralswill arise.4 Some, but not all, such issues are regulated by the new rules. In the absence ofspecific rules or legislation the inherent jurisdiction of the High Court and the ConstitutionalCourt to regulate their own process5 should be sufficient to develop common-law rulesrelating to referrals.

It is submitted that in relation to referrals of issues within the exclusive jurisdiction of theConstitutional Court these rules should follow the rules which were developed in relation tos 102(1), (5) and (6) of the interim Constitution and which were guided by the generalprinciple that a constitutional issue should not be anticipated in advance of the necessity ofdeciding it.6 A referral should therefore be allowed only where the issue to be referred is

1 1997 (4) SA 1095 (CC), 1997 (10) BCLR 1337 (CC).2 At para 5. In fact, the procedure has now been enshrined in s 8(1)(a) of the Constitutional Court Complementary

Act 13 of 1995, as amended by s 2 of Act 79 of 1997. See below, § 6.7(b)(i).3 See the discussion of the exclusive jurisdiction of the Constitutional Court above, § 6.5(a).4 It is undesirable that there should be direct access to the Constitutional Court in any case where there is an issue

which falls within its exclusive jurisdiction. There will frequently be a need for another court to hear evidence insuch cases. Moreover, the Constitutional Court has stressed that the development of constitutional jurisprudence isnot helped by processes which require it to sit as a court of first instance. See, for example, Bernstein & others vBester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at para 2 and Nel v Le Roux NO & others1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) at para 26.

5 Section 173. 6 See above, §§ 6.4(a)(i) and 6.4(f).



potentially decisive of the case and where it is in the interests of justice for the referral to take place.Where it is not in the interests of justice for a referral to take place and where there are otherissues within the jurisdiction of the superior courts which may be decisive for the case, an appealon these issues should proceed from the High Court to the Supreme Court of Appeal beforethere is any referral of an issue within the exclusive jurisdiction of the Constitutional Court.1

36AAlthough the superior courts have jurisdiction to make orders of constitutional invalidityrelating to an Act of Parliament, a provincial Act, or any conduct of the President, s 172(2)(a)provides that no such orders have any force unless they are confirmed by the ConstitutionalCourt. This raises a need for those orders to be brought from the High Court or the Supreme Courtof Appeal to the Constitutional Court for confirmation or variation. Section 8(1)(a) of theConstitutional Court Complementary Act2 states that ‘whenever the Supreme Court ofAppeal, a High Court or a court of similar status declares an Act of Parliament, a provincialAct or conduct of the President invalid as contemplated in section 172(2)(a) of the Constitu-tion . . . that court shall, in accordance with the rules, refer the order of constitutionalinvalidity to the Court for confirmation’.3 Thus it will not be necessary for parties wantingconfirmation or variation of an order of unconstitutionality of an Act or any conduct of thePresident to follow the ordinary route of first appealing to the Supreme Court of Appealbefore reaching the Constitutional Court.

An order by the High Court declaring the provisions of an Act of Parliament to beunconstitutional is inchoate as the finality of the invalidation is dependent upon the Constitu-tional Court. Hence it was held in S v Ntsele4 that where in a criminal case the High Court

1 In such cases any referral will therefore be made to the Constitutional Court by the Supreme Court of Appealand not by the High Court.

2 Act 13 of 1995, as amended by s 2 of Act 79 of 1997.3 The procedure for confirmation of an order of constitutional invalidity is now regulated by rule 15.4 1997 (11) BCLR 1543 (CC).



36B

declares the statutory provision with which the accused is charged to be invalid pendingconfirmation by the Constitutional Court, it is not appropriate for the High Court to makeany finding regarding the merits of the conviction until the Constitutional Court haspronounced upon the matter.1 In terms of s 172(2)(b) of the Constitution a court making anorder of constitutional invalidity has ancillary powers. It may grant a temporary interdict orother temporary relief to a party pending a decision of the Constitutional Court on the validityof the Act. In S v Ntsele2 the High Court, having found the statutory provision with whichthe accused was charged to be unconstitutional, made an interlocutory order immediatelyreleasing the accused pending confirmation by the Constitutional Court. The ConstitutionalCourt endorsed this approach as it was ‘intended to prevent the irreparable harm the accusedwas likely to suffer by being kept in prison pursuant to a verdict that was probably going tobe voided’.3

37 Section 172(1) of the Constitution also confers a discretion upon the High Court to makeany order that is ‘just and equitable’, including an order limiting the retrospective effect ofthe declaration of invalidity and an order suspending the declaration of invalidity for anyperiod and on any conditions to allow the competent authority to correct the defect. In S vNtsele4 the Constitutional Court considered it an open question whether it is prudent for theHigh Court to deal with retrospectivity, prospectivity or suspension of the order of invalida-tion. The view was expressed that the Constitutional Court ‘is generally better placed to makean assessment of such issues of policy, especially as an order consequent upon suchassessment would, after confirmation of an invalidation order, affect the entire country’.5 Thecourt envisaged, however, that it would be competent for the High Court to make an order dealingwith retrospectivity, prospectivity or suspension, but where it does so it is desirable that fullreasons be given for the benefit of the Constitutional Court when it has to consider suchancillary orders in the confirmation proceedings.6 The court cautioned, however, thatquestions of retrospectivity, prospectivity and conditional suspension often present difficultchoices and are dependent upon factors in respect of which evidence is necessary, for example,regarding the likely impact on the administration of justice or the financial consequences forthird parties. Such evidence should be received and evaluated by the court of first instance.Moreover, the High Court is required to consider whether notice of the proposed invalidationshould not be given to organs of state and possibly others concerned with the administrationof the provision in question or who are likely to be affected by its demise.7

(ii) Issues arising in the lower courts

As was pointed out above, the final Constitution contains no equivalent to IC s 103. In thiscontext the absence of new procedural legislation contemplated by FC s 171 creates particu-lar problems in the lower courts. The lower courts do not have the inherent jurisdiction todevelop their own rules relating to referral of issues beyond their statutory powers. Thusthere is no obvious mechanism for referrals from the lower courts. In the absence of legisla-

1 At para 10. 2 Supra.3 At para 11. 4 Supra.5 At para 12. 6 At para 11.7 At para 13.



tion making provision for such referrals,1 s 50 of the Magistrates’ Courts Act2 may providea partial solution to the problem in civil proceedings. The section allows a defendant in a magistrate’scourt to apply for proceedings to be transferred to the High Court and could be used in caseswhere there is a constitutional issue which is beyond the jurisdiction of the court.38 Section 50, however, does not apply to criminal proceedings, and there is no provision ofthe Criminal Procedure Act3 which entitles an accused person to apply for proceedings to beremoved from the magistrate’s court to the High Court. Section 117 of the CriminalProcedure Act provides that where an accused person pleads not guilty in the magistrate’scourt and a ground of his or her defence is the invalidity of a provincial ordinance or aproclamation of the State President, the trial of the accused must take place in the High Court.This provision would be of no assistance to an accused person who wishes to challenge theconstitutionality of an Act of Parliament and probably does not even cover a challenge to theconstitutionality of a provincial Act.4 In such cases an accused could apply to the Attorney-General to exercise his or her discretion in terms of s 75(1)(c) of the Criminal Procedure Actto move the proceedings to the High Court.5 It may also be open to the accused to applydirectly to the High Court for a declaratory order that the conduct with which he or she ischarged does not disclose an offence because the legislation creating such an offence isunconstitutional. However, the High Court is generally reluctant to grant declaratory ordersrelating to a person’s conduct which may constitute an offence if criminal proceedings inrespect of such conduct have already been initiated.6

(c) Procedure in the High Court

This topic is discussed above with reference to the interim Constitution.7 The situationremains unchanged under the final Constitution.

(d) Direct access to the Constitutional Court

The final Constitution provides that national legislation or the Rules of the ConstitutionalCourt must allow a person to apply directly to the Constitutional Court when it is in the

1 It is not clear that any such legislation will be enacted in the foreseeable future. Section 1 of the Magistrates’Courts Amendment Act 80 of 1997 substituted s 110 of the Magistrates’ Courts Act 32 of 1944 to conform with theprovisions of FC s 170. Section 110(1) now restates that lower courts may not pronounce on the validity of any lawor conduct of the President. In proceedings in which there is a challenge to the validity of any law or conduct of thePresident, s 110(2) enjoins lower courts to decide the matter on the assumption that the relevant law or conduct isvalid. The section allows the lower courts to admit evidence relevant to the validity of the relevant law or conductbut does not make provision for referrals to the High Court.

2 Act 32 of 1944. 3 Act 51 of 1977.4 It may be possible to argue that the words ‘provincial ordinance’ in s 117 include a provincial Act, but this

would be a strained interpretation of the section. A ‘provincial ordinance’ is a law which was passed by the provincialcouncils which existed between 1910 and 1986 and not a law enacted by the provincial legislatures under the interimor final Constitutions.

5 Section 75(1)(c) gives the Attorney-General the power to designate that the trial will be held in a court otherthan that at which the accused made his first appearance, provided that the court is one which has jurisdiction. Itwould enable the Attorney-General to transfer proceedings from a magistrate’s court with jurisdiction to a HighCourt with jurisdiction.

6 For a discussion of the circumstances in which the High Court will grant such declaratory orders, see Johnsonv Attorney-General, Natal 1946 AD 257 at 261--2.

7 See above, § 6.4(b).



interests of justice.1 Rule 17(1) of the new rules makes provision for direct access to thecourt. It is discussed below.2 In general, direct access will be allowed only in exceptionalcircumstances.

(e) Intervention by government

39REVISION SERVICE 5, 1999There is no provision of the final Constitution equivalent to IC s 102(10), which stated thatin any proceedings where the validity of a law is in dispute the relevant government is entitledto be a party. However, in terms of rule 6(2) of the new rules the responsible executiveauthority must be given notice of the proceedings by the party challenging the constitution-ality of the law. In Parbhoo & others v Getz NO & another3 the Constitutional Court statedthat it was ‘undesirable for any court to make an order under s 172(2)(a) concerning theinvalidity of an Act of Parliament or a provincial act, where a relevant organ of state is not aparty to the proceedings, unless that organ has had an opportunity to intervene in suchproceedings’.4

(f) Appeals

The extension by the final Constitution of constitutional jurisdiction to the Supreme Courtof Appeal has greatly simplified appeal procedure with respect to constitutional issues.Constitutional cases now follow the same lines of appeal as do non-constitutional cases frommagistrate’s court to High Court to Supreme Court of Appeal, and from High Court to FullBench of High Court5 and/or to Supreme Court of Appeal. The only difference is that whereasthe Supreme Court of Appeal is the court of final appeal with respect to non-constitutionalissues, a decision of the Supreme Court of Appeal on a constitutional issue may be appealedto the Constitutional Court.

FC s 167(6)(b) provides that national legislation or the rules of the Constitutional Courtmust allow a person, in the interests of justice and with leave of the Constitutional Court, toappeal directly to the Constitutional Court from any other court. The matter is now regulatedby rule 20.

1 Section 175(6)(a). See also s 16(2)(a) of the Constitutional Court Complementary Act 13 of 1995, as amendedby s 3 of Act 79 of 1997. The leave of the Constitutional Court must be obtained for such applications.

2 See below, Chaskalson & Loots ‘Court Rules and Practice Directives’ § 7.3.3 1997 (4) SA 1095 (CC), 1997 (10) BCLR 1337 (CC). This standpoint was reiterated in Beinash & another v

Ernst & Young & others 1999 (2) SA 116 (CC), 1999 (2) BCLR 125 (CC) at para 27, the rationale being that theMinister is best placed to advance arguments in justification of the challenged law, and to provide evidence relevantto the order that might be given in terms of s 172 of the Constitution. See also Jooste v Score Supermarket Trading(Pty) Ltd (Minister of Justice Intervening) 1999 (2) SA 1 (CC), 1999 (2) BCLR 139 (CC) at paras 7--9, in whichthe Constitutional Court suggested, without deciding, that it would consider refusing to confirm an order of invaliditysolely on the ground that notice of the proceedings in the High Court had not been given to the relevant Minister.

4 At para 5.5 The final Constitution contains no prohibition against the Full Bench of the High Court hearing constitutional

appeals from a decision of a single High Court judge. Cf s 102(12) and the proviso to s 101(6) in the interimConstitution.



(g) Review of decisions of inferior courts

This topic is discussed above with reference to the interim Constitution.1 The situationremains unchanged under the final Constitution.

6.8 THE APPLICATION OF THE INTERIM AND FINAL CONSTITUTIONS TO

PENDING PROCEEDINGS

(a) Proceedings pending on 4 February 1997

40The final Constitution came into operation on 4 February 1997. FC s 241 provides thatSchedule 6 applies to the transition to the new constitutional order established by thisConstitution, and any matter incidental to that transition. Item 17 of Schedule 6 provides:

‘All proceedings which were pending before a court when the final Constitution took effect, mustbe disposed of as if the final Constitution had not been enacted, unless the interests of justice requireotherwise.’

This transitional provision seeks to avoid the interpretational difficulties of its predecessor,IC s 241(8). Whether it achieves that result remains uncertain. One of the interpretationaldifficulties turns on the meaning of the word ‘pending’. The term was considered byKentridge AJ in the context of IC s 241(8) in S v Mhlungu & others.2 He observed that theterm ‘pending’ in relation to proceedings may have different connotations according to itscontext. In its normal meaning, however, proceedings are pending if they have begun but arenot yet finished.3 He further pointed out that what was not so clear is when a legal proceedingmay be said to have begun. Like its predecessor, item 17 of Schedule 6 applies to both civiland criminal proceedings. Kentridge AJ pointed out that in Roman law there was somecontroversy whether civil proceedings were pending only upon litis contestatio or uponservice of the summons. He indicated that modern authority favours the latter view.4 Withregard to criminal proceedings, reference was made to s 144(4) of the Criminal ProcedureAct 51 of 1977, which requires an indictment to be served on an accused at least ten daysbefore the date appointed for trial. Section 76 of the Criminal Procedure Act provides thatproceedings at a summary trial in a Superior Court shall be commenced by the serving of anindictment on the accused and the lodging thereof with the Registrar of the Court concerned.Kentridge AJ expressly left open the question of when a criminal trial can be said to bepending. He contended himself with the observation that unless a duly served indictmentwas lodged with the Registrar before 27 April, there would appear to be no basis on whichit could be contended that on 27 April 1994 the proceedings were pending in terms ofs 241(8). He added, however, that it did not follow that in the context of s 241(8) proceedings

1 See above, § 6.4(h).2 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC).3 At para 51 citing Hoffmann J in Arab Monetary Fund v Hashim & others [1992] 1 WLR 553 at 558, [1992] 1

All ER 645 (Ch) at 649j.4 At para 52n1. In support of the proposition that modern authority favours the view that a civil proceeding is

pending upon service of summons, Kentridge AJ referred to Michaelson v Lowenstein 1905 TS 324; Van As vAppollus en andere 1993 (1) SA 606 (C) at 609; S v Saib 1994 (4) SA 554 (D) at 559.



are pending as soon as the indictment is lodged. It may be that for the purposes of that sectioncriminal proceedings are pending only on plea, or when the evidence has begun.1 It seemsthat one of the objects of item 17 of Schedule 6 is to ensure a smooth transition from theinterim Constitution to the final Constitution. It seeks to avoid disruption in constitutionallitigation by ensuring a separation between the old and the new. In the context of criminaltrials the effect is likely to be minimal because the constitutional right to a fair trial embodiedin IC s 25 is substantially the same as its counterpart in FC s 35. It is submitted, however,that if one of the objectives of the transitional provision is to avoid disruption, there is muchto be said for the proposition that a criminal trial is pending only once evidence has begun,since at that point it could result in substantial disruption if the trial were to be conductedunder different legal regimes. Before the commencement of evidence, however, no problemsof disruption arise.41 Where it is clear that a matter is pending before a court when the final Constitution tookeffect, the matter must be disposed of under the interim Constitution unless the interests ofjustice require otherwise.2 The word ‘proceedings’ in item 17 has been held to include appealproceedings.3 Where application proceedings had been instituted before 4 February 1997,but affidavits raising constitutional issues had only been filed thereafter, it was held that theproceedings were pending when the new Constitution took effect.4

In another case, application proceedings instituted before 4 February 1997 were met withanswering affidavits filed therafter, embodying a counter-application for an order declaringthe provisions of a statute to be unconstitutional. It was held that the counter-application hadto be dealt with under the final Constitution.5 In S v Van Nell en ’n ander6 the two accusedhad been convicted of possessing dagga. The conviction was based on the reverse onusprovision contained in s 20 of the Drugs and Drug Trafficking Act.7 Neither of the accusedtestified in their defence and accordingly failed to rebut the presumption in question. Theywere convicted and sentenced during the period of operation of the interim Constitution. Thematter went on automatic review before the final Constitution took effect. The matter wasset down for argument after the final Constitution had come into operation. It was held that,although the criminal proceedings had been finalized before the coming into operation of

1 At para 52.2 In S v Ntsele 1997 (11) BCLR 1543 (CC) the accused had been convicted in the magistrate’s court on the basis

of the presumption in s 21(1)(b) of the Drug Trafficking Act 140 of 1992. On review, the Natal High Court declareds 21(1)(b) to be inconsistent with the Constitution. The matter was then referred to the Constitutional Court. It wasnot clear whether or not the matter was ‘pending’ when the final Constitution came into operation on 4 February1997. Even on the assumption that proceedings were pending, the Constitutional Court held that the ‘interests ofjustice’ afforded it flexibility. Since the Constitutional Court concluded that the section in question was indeedunconstitutional, it held that ‘the interests of justice require that we do not indulge in legal technicalities’ (at para 8)which might delay the setting aside of an unconstitutionally obtained conviction. Hence the court dealt with thematter under the final Constitution.

3 Properboer Bpk en ’n ander v Die Koringraad 1997 (12) BCLR 1775 (O) at 1777C, a case in which applicationproceedings had been launched before 4 February 1997, but judgment delivered only thereafter.

4 Municipality, City of Port Elizabeth v Rudman 1998 (4) BCLR 451 (SE) at 458G--459H.5 South African Post Office Ltd v Van Rensburg & another 1998 (1) SA 796 (E) at 804G--I.6 1998 (4) BCLR 506 (NC).7 Act 140 of 1992.



the final Constitution, the review proceedings became pending only when the matter camebefore the Full Bench for consideration. Hence the final Constitution was held to apply.42 In Swissborough Diamond Mines (Pty) Ltd & others v Goverment of the Republic of SouthAfrica & others1 it was held that an interlocutory application to compel discovery in termsof Rule 35 constituted ‘proceedings’ and that the final Constitution applied to such proceed-ings notwithstanding the fact that the main action had been instituted even before the cominginto operation of the interim Constitution.2

The ordinary operation of item 17 requires pending matters to be dealt with under theinterim Constitution. The ‘interests of justice’ constitute an ‘exception to the ordinaryoperation of the section’ and ‘it is for the party invoking the exception to justify itsapplication’.3

However, the Constitutional Court has now unequivocally stated that the continuedapplication of the jurisdictional provisions of the interim Constitution to cases pending beforethe Supreme Court of Appeal ‘leads to disruptions, delays and unnecessary costs in theprocess of disposing of appeals’ and hence the Supreme Court of Appeal ought to deal withpending matters under the 1996 Constitution. It is ‘in the interests of justice that in respectof constitutional issues under the interim Constitution which may in future come before it,the SCA, as the successor of the Appellate Division, should exercise the jurisdiction conferredupon it over constitutional matters by Chapter 8 of the 1996 Constitution’.4

It is submitted that there is no closed list of factors which make up the interests of justicein the context of this provision. The interests of justice would include, for example, theinterests that the parties have in finalizing litigation. Under the final Constitution the HighCourt has jurisdiction to declare an Act of Parliament to be unconstitutional. Where,therefore, a matter arises which ought in the ordinary course to be disposed of in terms ofthe interim Constitution, it may nevertheless be in the interests of justice to allow the matterto be dealt with under the final Constitution and thereby enable the High Court to deal witharguments based upon the constitutionality of a statute. This serves the purpose, inter alia,of allowing the law to develop incrementally and gives the Constitutional Court the benefitof considered judgments on the issue.5 Another factor relevant to the interests of justice mightentail the need expeditiously to curtail unconstitutional conduct on the part of the state.

1 1999 (2) SA 279 (T).2 At 317J--318G.3 Fedsure Life Assurance Ltd & others v Greater Johannesburg Transtional Metropolitan Council & others 1998

(2) SA 1115 (SCA) at 1125G--H, 1998 (6) BCLR 671 (SCA).4 Fedsure Life Assurance Ltd & others v Greater Johannesburg Transitional Metropolitan Council & others 1999

(1) SA 374 (CC), 1998 (12) BCLR 1458 (CC) at paras 112--13.5 The Constitutional Court has indicated that it should not ordinarily deal with matters as both a court of first

instance and one of last resort (Transvaal Agricultural Union v Minister of Land Affairs & another 1997 (2) SA 621(CC), 1996 (12) BCLR 1573 (CC) at para 18). See also Bernstein & others v Bester & others NNO 1996 (2) SA751 (CC), 1996 (6) BCLR 449 (CC) at para 2.



A particular difficulty which is presented by this provision is the situation where therehas been a change in the provisions of the interim Constitution and the final Constitution sothat the result may well be different depending upon which Constitution applies.1 In thisregard various situations must be distinguished. Where the constitutional violation complainedof occurred before 4 February 1997 and entailed only a violation of a right protected underthe interim Constitution, it seems that there will be little scope for contending that the finalConstitution applies. This situation is analogous to those cases in which litigants unsuccess-fully sought to invoke constitutional protection in relation to acts and events which occurredbefore the coming into operation of the interim Constitution.2 Another situation which mayarise concerns procedure in the conduct of a trial. Thus, for example, even where a criminaltrial was pending before the final Constitution came into operation but is heard after4 February 1997, it may well be in the interests of justice for an accused to rely on the rightcreated by s 35(5) of the final Constitution to have excluded evidence obtained in a mannerthat violates any right in the Bill of Rights.3

43 It is possible that legislation passed before or during the period of operation of the interimConstitution may be susceptible to constitutional challenge under both the interim Constitu-tion and the final Constitution. This flows from the jurisprudential effect of a declaration ofinvalidity by a competent court. The issue is discussed in Ferreira v Levin NO & others.4

Ackermann J held that the court’s order does not invalidate the law; it merely declares it tobe invalid. Expanding on this proposition, he stated:

‘This does not detract from the reality that pre-existing laws either remained valid or became invalidupon the provisions of the Constitution coming into operation. In this sense laws are objectivelyvalid or invalid depending on whether they are or are not inconsistent with the Constitution. Thefact that a dispute concerning inconsistency may only be decided years afterwards, does not affectthe objective nature of the invalidity. The issue of whether a law is invalid or not does not in theorytherefore depend on whether, at the moment when the issue is being considered, a particular person’srights are threatened or infringed by the offending law or not.’5

1 For example, under s 26 of the interim Constitution every person was guaranteed the right freely to engage ineconomic activity and to pursue a livelihood anywhere in the national territory. The right now embodied in s 22 ofthe final Constitution, in terms of which every citizen has the right to choose their trade, occupation or professionfreely, is worded differently and may well have a different reach. A more striking example, however, is the provisiondealing with labour relations in s 27 of the interim Constitution. Not only is the ambit of the equivalent clause ins 23 of the final Constitution substantially wider but the insulation from constitutional attack contained in s 33(5)of the interim Constitution no longer applies. The problem potentially arose in Wittman v Deutscher Schulverein,Pretoria, & others 1998 (4) SA 423 (T), 1999 (1) BCLR 92 (T) in relation to the application of the two Constitutions(IC s 7(1) and FC s 8(1)), but was not necessary to decide. The court stated, however, that ‘justice demands thatdisputes be ventilated on the bases of the law which exists when they arise (and on which the parties receive theiradvice, make their decisions to sue or oppose and base their pleadings)’ (at 455G--H). See also Port ElizabethMunicipality v Rudman & another 1999 (1) SA 665 (SE), which concerned potential differences in the powers ofthe courts under the interim and final Constitutions (at 672F--I).

2 See, for example, Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) and Key vAttorney-General & another 1996 (4) SA 187 (CC), 1996 (6) BCLR 788 (CC).

3 This was the approach adopted by McCall J in S v Naidoo & another 1998 (1) SACR 479 (N), 1998 (1) BCLR46 (D) in holding that evidence obtained in an alleged violation of an accused’s right to privacy during the periodof operation of the interim Constitution could nevertheless be excluded under FC s 35(5).

4 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC).5 At para 27. Although Ackermann J was in the minority, this paragraph was expressly approved in the majority

judgment of Chaskalson P at para 158.



On this approach the interim Constitution continues to apply and may be invoked inaddition to the final Constitution in relation to laws passed before 27 April 1994 as well aslaws passed during the currency of the interim Constitution.1

(b) Matters arising after 4 February 1997

Where it is clear that a civil or criminal matter was not pending when the final Constitutioncame into operation on 4 February 1997, the matter must be disposed of in terms of thefinal Constitution. What is meant by disposed of may well be the subject of controversy.Section 241(8) of the interim Constitution used the phrase ‘shall be dealt with’. InS v Mhlungu & others2 Mahomed J, for the majority, observed that the phrase ‘shall be dealtwith’ has different nuances, but one of its well-recognized meanings is ‘take action, act,proceed (in a matter) . . . Set to work, practise’. He observed further that the idea of disposingof the matter is in some contexts also a permissible nuance in the meaning of the phrase ‘dealwith’.3 If, therefore, the words ‘disposed of’ are to be treated as synonymous with ‘shall bedealt with’, then the likely interpretation of item 17 of Schedule 6 is that it is intended topreserve the authority of the courts established under the interim Constitution to continueto function as courts for the purposes of adjudication in pending cases.4

44 As indicated above, where a matter arises after 4 February 1997 and the issue in disputeconcerns the constitutionality of a statute passed before 4 February 1997, it is submittedthat the statute may be attacked in terms of both the interim Constitution and the finalConstitution, but would be justiciable by the High Court in terms of the structures createdby the final Constitution. Where the issue in dispute concerns the constitutional validity ofa statute passed after 4 February 1997, it is justiciable only in terms of the final Constitution.

1 It is submitted that item 2 of Schedule 6, which provides that all law that was in force when the final Constitutiontook effect continues in force subject only to any amendment or repeal and consistency with the final Constitution,does not detract from this conclusion. This is so because the reference to all law that was in force must be construedas a reference to laws that were validly in force. See S v Mapheele 1963 (2) SA 651 (A) at 655D--E. Cf Kaulumaen andere v Minister van Verdediging en andere 1987 (2) SA 833 (A) at 856H--857D.

2 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC).3 At para 26.4 At para 24.



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6 Jurisdiction, Powers and Procedures of the CourtPowers.pdf · 6 Jurisdiction, Powers and Procedures of the Court ... 1 Section 241(8) ... the court declares it to be inconsistent