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[2015] ZAWCHC 184
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Economic Freedom Fighters and Others v Speaker of the National Assembly and Others (5554/2015) [2015] ZAWCHC 184; [2016] 1 All SA 520 (WCC) (8 December 2015)
Republic
of South Africa
IN THE HIGH
COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 5554/2015
Before: The Hon. Mr Justice Binns-Ward
Hearing: 16
November 2015
Judgment
delivered: 8 December 2015
In the matter between:
ECONOMIC FREEDOM FIGHTERS
AND
60
OTHERS
Applicants
and
SPEAKER
OF THE NATIONAL
ASSEMBLY
First Respondent
and
10
OTHERS
Third to Eleventh
Respondents
JUDGMENT
BINNS-WARD J:
[1]
Economic Freedom Fighters, which is a political
party represented in the national and provincial legislatures, and
the 60 of its
members who have seats in those legislatures have
applied for an order declaring that the provisions of the
Parliamentary and Provincial Medical Aid Scheme Act 28 of
1975, as amended, (hereafter referred to as ‘the PARMED Act’)
that –
i.
make membership of the Parmed Medical Aid Scheme (‘PARMED’)
compulsory for certain office bearers, including judges of certain of
the superior courts and members of the national and certain
provincial legislatures, and
ii.
provide for deductions to be made from their monthly salaries
in
respect of their contributions to the scheme
are inconsistent with the Constitution. The applicants have
alleged that the impugned provisions give rise to infringements
of
the freedom of association and property clauses in the Bill of
Rights.
They have sought consequential
relief in the form of an order directing Parliament to adopt amending
legislation within 12 months
to make membership of PARMED voluntary,
as well as an order directing that, pending the contemplated
amendment, the current legislation
should be read in a way that would
render membership of the scheme as voluntary with immediate effect.
[2]
This judgment is concerned only with some
preliminary matters in the pending constitutional challenge
proceedings.
[3]
The Speaker of the
National Assembly and the Chairperson of the National Council of
Provinces have been joined as the first and
second respondents,
respectively, in the application. The Speakers of eight of the
provincial legislatures were also joined
as respondents, as was
PARMED itself. The Speakers of the Gauteng, Limpopo and
KwaZulu-Natal Provincial Legislatures have
delivered notices of
intention to abide the court’s judgment.
[4]
The joinder of the first and second respondents is
stated in the founding papers to have been in terms of s 23(2)(a)
of the
Powers, Privileges and Immunities of Parliament Act 4 of 2004,
read with
s 2
of the
State Liability Act 20 of 1957
. The
deponent to the founding affidavit averred that they had been cited
‘
as nominal respondent
[s]
on behalf of
’
the
respective houses of the national legislature. The joinder of
the speakers of the provincial legislatures is described
as having
been in terms of s 29 of the Act 4 of 2004 read with s 2 of
Act 20 of 1957 and also because they have
‘
a
direct interest in the subject matter of
[the]
application
’
.
The joinder of PARMED is not expressly explained in the founding
papers, but was clearly indicated on account of its readily
identifiable direct and substantial interest in the orders sought.
[5]
I have set out the allegations concerning the
basis for the joinder of the first and second respondents in some
detail because,
as will be described presently, the preliminary
points to be determined in this judgment arise from a plea
non-joinder. The
first and second respondents have contended in
their answering papers that the President, the Chief Justice and the
Minister of
Finance are necessary parties to the proceedings.
They maintain that the applicants’ challenge cannot competently
be
entertained until those persons have been joined.
[6]
The non-joinder points came up for separate
determination together with certain other interlocutory issues in the
circumstances
described below. A separation of issues for the
purpose of hearing is exceptional in motion proceedings; even more
so, I
would venture, when it happens before the papers are complete.
How that exceptional course appears to have been taken in the
current
matter suggests that it might be useful to rehearse some relevant
general principles because the circumstances in which
the court was
called upon to separately determine the non-joinder point were less
than ideal, and a repetition should be discouraged.
[7]
The application was served on the first and second
respondents (to whom I shall for convenience hereafter refer simply
as ‘the
respondents’) on 24 April 2015. In
terms of rule 6(5) of the Uniform Rules of Court, the respondents
were required,
if they intended to oppose the application, to give
notice of their intention by 19 May 2015. Having initially
indicated
an intention to abide the judgment, they gave notice on 15
May 2015 of their intention to oppose the application. In terms
of the rules their answering affidavits therefore fell to be
delivered by 4 June 2015.
[8]
PARMED also indicated its intention to oppose the
application. PARMED’s attorneys contended in
correspondence with the
applicants’ attorneys at the outset
that the applicants were obliged, in terms of rule 10A of the Uniform
Rules, to have
joined certain other parties (i.e. the Minister of
Finance and the Speaker of the Provincial Legislature of the Western
Cape) as
respondents in the proceedings.
[9]
The applicants responded to PARMED’s
complaint by bringing an application for the joinder of the Minister
and the Western
Cape Speaker as respondents. The applicants’
attorneys agreed with PARMED’s attorneys at the time that
PARMED
could defer delivering its answering papers in the principal
application until after the joinder of the additional parties had
been effected. An agreement of that nature is permitted in
terms of rule 27(1). On becoming aware of the pending joinder
application and the related arrangement with PARMED’s
attorneys, the State Attorney, who represents the respondents, made
arrangements with the applicants’ attorneys for the delivery of
the respondents’ answering affidavits to be similarly
deferred. It appears that one of the considerations informing
those arrangements was the reported unavailability of the
respondents’ counsel during the July court recess.
[10]
It subsequently
transpired that the applicants withdrew their application to join the
two proposed additional respondents. The
withdrawal followed on
the objection by the National Treasury to the proposed joinder of the
Minister of Finance and the discovery
that the Western Cape
legislature had not resolved, as contemplated by s 1(e) of the
PARMED Act, that the Act should apply
to its members. PARMED
thereafter purported to invoke rule 30A to apply for an order
compelling the applicants to effect
the joinder of the Minister. It
contended that the joinder of the Minister was necessary despite the
Treasury’s objection.
PARMED’s rule 30A application
has also since been withdrawn.
[11]
After the applicants’ joinder application
had been withdrawn, their attorneys advised the State Attorney that
the respondents’
answering papers had to be delivered by
17 July 2015. The State Attorney demurred, claiming the
benefit of the previously
concluded extension agreement and
reiterating that the respondents’ counsel would not be
available before 20 July 2015.
The applicants’ attorney
thereupon made an application to a judge in chambers in accordance
with the relevant practice in
this Division for an order compelling
the respondents to deliver their answering papers within five days,
failing which, according
to the terms of the order that was
subsequently granted, they would be barred from filing papers in the
application. The
order was served on the respondents on
28 August 2015, after they had failed to comply with an
undertaking to deliver
answering papers by 21 August 2015.
Accordingly, if they were not to be barred, the respondents had to
deliver their answering
papers by 4 September 2015.
[12]
The respondents duly delivered an answering
affidavit on 4 September 2015. It described itself as the
‘first and second
respondents’ provisional answering
affidavit’. The only points taken in the affidavit were
ones of non-joinder.
They contended that the President, the
Chief Justice and the Minister of Finance were necessary parties to
the proceedings.
[13]
At the same time, the respondents also delivered
an application, purportedly in terms of rule 6(5)(e) and rule 27(1)
of the Uniform
Rules of Court, in which they sought orders granting
them leave to supplement their answering papers within 30 days after
the later
of - (i) ‘the final determination’ of the
points
in limine
taken
in their aforementioned provisional answering affidavit and (ii) ‘the
final determination’ of PARMED’s application
in terms of
rule 30A.
[1]
The application was allocated for hearing before
me on 16 November 2015.
[14]
The applicants opposed the respondents’
interlocutory application. They contended that the respondents
were not permitted
to advance their answer to the main application on
a piecemeal basis. They asserted that the respondents had been
obliged,
in addition to the dilatory defence of non-joinder, also to
have set forth their substantive grounds of opposition in a single
set of answering papers. They sought the dismissal of the
respondents’ application, together with a punitive costs order.
The applicants also delivered a replying affidavit in the main
application, in which they responded, to the extent considered
necessary, to the respondents’ allegations in support of the
non-joinder points.
[15]
When the matter was called I was informed that the
parties had come to an agreement in respect of the disposal of the
respondents’
application for leave to supplement its answering
papers. I made an order giving effect to their agreement by
directing the
respondents to deliver an answering affidavit in the
main application within 15 days and standing the costs over for
determination
in the main application.
[16]
The parties then sought to argue the non-joinder
points. When I cavilled at that, my attention was drawn to an
order that
had been obtained from the vacation duty judge during the
spring recess. The order provided for the set down of the first
and second respondents’ non-joinder points in the main
application for hearing together with the aforementioned application
in terms of rule 6(5)(e) and 27(1), as well as the then still pending
application by PARMED in terms of rule 30A. According
to its
tenor, it had been taken ‘[b]y agreement between the parties’.
I had been unaware until then of the existence
of the order; and
counsel, who had not been involved in taking it, were unable to
inform me of the circumstances in which it had
been obtained. I
had also not been provided with a set of the papers in PARMED’s
application in terms of rule 30A,
which it will be recalled had by
then been withdrawn.
[2]
[17]
It is not evident on what basis the vacation duty
judge was persuaded to make an order directing the separate hearing
of one of
the issues in the principal proceedings. The papers
in the main application were not complete at that stage. Indeed,
the applicants only delivered their reply to the respondents’
limited answering affidavit a month after the order was taken.
Moreover, the issue of whether the respondents would be permitted to
deliver additional answering papers and, by implication, the
applicants a further reply, was contentious and, at that stage,
undetermined. It is difficult to conceive in that context
how
it could have been considered that it would be convenient for a court
at a single hearing to entertain and determine both the
respondents’
interlocutory application and the non-joinder points in the main
proceedings.
[18]
It also was not apparent how it could have been
thought to be clear that the respondents’ non-joinder points
might conveniently
fall to be determined together with PARMED’s
application in terms of rule 30A. I do not have to determine
the question,
but it strikes me as far from certain that bringing an
application in terms of rule 30A, as distinct from raising a
non-joinder
point
in limine
in its answering affidavit, is the appropriate
manner in which a respondent should deal with an alleged
non-compliance with rule
10A. Rule 10A is in a sense peculiar
because it gives expression to a principle of mixed substantive and
procedural legal
character, rather than providing the purely
procedural regulation of proceedings at which most of the other
Uniform Rules are directed.
As I seek to explain below, it
would often be inconvenient to deal separately with questions of
non-joinder in motion proceedings
before the papers are complete.
Allowing rule 30A to be used to raise non-compliance with rule 10A -
which is nothing but
a non-joinder point - would tend to conduce to
such inconvenience.
[19]
No consideration appears to have been given when
the order was taken to the incidence of the general rule that
piecemeal litigation
is discouraged and that it is well-established
that in motion matters, even when a special defence is raised, a
respondent should
ordinarily deal in a single set of answering papers
with all of the grounds upon which it intends to rely in opposition
to the
application. The principle was expounded by Corbett J
in
Bader and Another v Weston and
Another
1967 (1) SA 134
(C), at
136E-137C, in a passage that has been endorsed in a number of
subsequently reported judgments.
[3]
Moreover, in
Democratic
Alliance and Others v Acting National Director of Public Prosecutions
and Others
2012 (3) SA 486
(SCA), at
para 49, it was observed in the context of litigation in motion
proceedings that ‘[c]ourts should be circumspect
when
suggestions are made about the procedure to be followed on the basis
that it might shorten rather than lengthen litigation’.
[20]
As noted, the separation of issues is unusual in
motion proceedings, but if it is to be done, it should be informed by
the same
principles that apply in terms of rule 33(4) in respect of
actions. A court that is asked to make a separation order
should
not accede to the application unless it is able to form a
clear view that it would indeed be convenient for the issues to be
separated;
cf.
Denel (Edms) Bpk v
Vorster
2004 (4) SA 481 (SCA), at
para 3, where Nugent JA remarked that ‘
even
where the issues are discrete, the expeditious disposal of the
litigation is often best served by ventilating all the issues
at one
hearing, particularly where there is more than one issue that might
be readily dispositive of the matter. It is only after
careful
thought has been given to the anticipated course of the litigation as
a whole that it will be possible properly to determine
whether it is
convenient to try an issue separately
’
.
[21]
It goes without saying that legal practitioners
who seek separation orders by agreement, especially from overburdened
duty judges,
[4]
should do so only after equally careful thought.
In my view they are under a duty to alert the judge that the order
they propose
is of an exceptional nature and to draw attention to the
jurisprudence that emphasises that a judge should make such an order
only
after forming a clear view in favour of its supposed advantages.
[22]
In the current case, not only was there the
difficulty inherent in a court being called upon to decide in a
single hearing whether
there should be further affidavits in the
principal case, and also an issue in that inchoate case, but there
was the further consideration
that the additional evidence that the
respondents might at that hearing be permitted to adduce in
affidavits to be delivered subsequently
in support of their
substantive opposition to the application could conceivably be of
assistance in assessing and determining the
contested non-joinder
issue. Indeed, it appears from the affidavit in support of the
respondents’ interlocutory application
that the further
evidence they would seek to adduce will, in part, relate to how the
impugned provisions work in the context of
a broader legislative
framework. It could conceivably have assisted in elucidating
the incidence or absence of the allegedly
direct and substantial
interest in the relief sought in the principal case of the parties
the respondents maintain must be joined
as necessary parties.
[23]
It is not unprecedented for non-joinder points
that are not at first apparent to reveal themselves later in the
context of the playing
out of the case; see, for example,
Home
Sites (Pty) Ltd v Senekal
1948 (3) SA
514
(A), where the necessity to join a further party became evident
only when a party relied for first time in argument in an appeal
on
the effect of a statutory provision that had not been called in aid
before the court of first instance.
[5]
Thus, any supposition that a non-joinder point
self-evidently lends itself to separate determination
in
initio
in motion proceedings before the
papers are complete is not well founded. It might not always be
possible, but considerations
of convenience militate in favour of the
determination of non-joinder questions in a single hearing as a
general rule, as opposed
to in a series of hearings as a case
develops, which is a risk that will be more inherent if they are
dealt with before the papers
are complete.
[24]
Fortuitously, the first of the aforementioned
difficulties has since been addressed by the parties’
settlement of the interlocutory
application at the doors of the court
and the withdrawal of PARMED’s rule 30A application. The
second disadvantage
inherent in the exceptional course adopted
remains.
[6]
[25]
Despite my reservations about the convenience or
appropriateness of doing so, I nevertheless entertained the
non-joinder points.
I did this in less than ideal circumstances
because of the deference that I considered was indicated to the terms
of the order
made earlier by a colleague; because I had read the
voluminous papers; and because the parties (the applicants being
represented
by out of town counsel) appeared anxious that it should
be heard. If in the circumstances I appear to have laboured the
point
about the less than satisfactory consequences of the separation
order, it has been in the hope that the exposition might encourage
the practitioners involved, and any others to whose notice this
judgment might come, to be more circumspect about adopting a similar
course in future matters of this sort.
[26]
I turn now to deal with the separated issues.
[27]
Any consideration of necessary joinder must
obviously occur with regard to the context of the case; more
particularly, the nature
and effect of the relief that is sought or
may be granted. In the current matter, which it will be
recalled, concerns a challenge
to the constitutionality of the
compulsory medical aid scheme membership requirements of the PARMED
Act, it is convenient to begin
by looking at the impugned provisions.
[28]
Section 1 of the PARMED Act provides:
Compulsory
membership of Parmed Medical Aid Scheme of certain persons
Every
person who is or becomes-
(a)
while not being a member of either the National Assembly
or the Senate, an Executive Deputy President or a Minister;
(b)
a judge of the Constitutional Court;
(c)
a judge of the Supreme Court of South Africa in a
permanent capacity;
(d)
a member of the National Assembly or of the Senate;
(e)
a member of a provincial legislature in a case where the
provincial legislature concerned has resolved that this Act shall
apply
to its members;
(f)
any other office-bearer in the service of the Republic
approved by the President for the purposes of this Act and made known
by
proclamation in the
Gazette
,
shall, for as long as he or she holds that office or
post, be a member of the Parmed Medical Aid Scheme, subject to the
rules of
that medical aid scheme as registered in accordance with the
provisions of the Medical Schemes Act, 1967 (Act 72 of 1967):
Provided
that…
The statute is an ‘old order’ enactment and its
subsequent amendment has resulted in s 1 containing an awkward
mixture of old order and new order terminology. So, when the
provision refers to ‘the Senate’, it must be read
as
referring to the National Council of the Provinces; and when it
refers to ‘a judge of the Supreme Court of South Africa’,
that is a reference to a judge of the Supreme Court of Appeal or of
the High Court. It is common ground that the President
has not
published notice in terms of s 1(f) concerning the application
of the Act to any other office-bearers. It therefore
follows
that the categories of office-bearer affected by the compulsory
membership provisions are (i) the Deputy President
and any
member of the Cabinet who is not a member of Parliament; (ii) all
the judges of the Constitutional Court, the Supreme
Court of Appeal
and the High Court; (iii) all the members of Parliament in both
houses; and (iv) all the members of those
provincial
legislatures which have decided that the provisions of the Act should
apply to its members. (It is not apparent
on the papers which,
if any, of the provincial legislatures has resolved to adopt the
Act.)
[29]
In terms of their notice of motion, the applicants
have sought declaratory relief only in respect of s 1 of the
PARMED Act.
However, as pointed out by Mr
Breitenbach
SC, who (together with Mr
Magardie
)
appeared for the respondents, the effect of the relief sought
necessarily implicates s 2 as well. Section 2 provides
for
the deduction at source from the monthly salary of every
office-bearer who is compulsorily a member of PARMED of an amount
equal to the sum that is payable by such person in respect of
contributions in terms of the rules of the Parmed Medical Aid Scheme,
and for the payment of the amount so deducted to the manager of the
Scheme. The effect of granting the applicants the relief
sought
in terms of paragraph 3 of the notice of motion, in respect of
what they would wish the wording of the Act to be deemed
to be
pending its required amendment if their constitutional challenge were
to be successful, would entail that the relevant accounting
officers
would not make any such deductions in respect of those office-bearers
who chose no longer to remain as members of PARMED,
or who, upon
appointment, elected not to become members.
[30]
It is a fundamental principle of law that a court
should not at the instance of any party grant an order whereby any
other party’s
interests may be directly affected without formal
judicial notice of the proceedings having first been given to such
other party.
This is so that all substantially and directly
interested parties may be heard before the order is given, which is a
matter
of fairness. And also so that the order may be binding
on all parties whose interests its terms should affect, and not just
some of them, which is a matter of sound judicial policy. The
excursus in
Amalgamated Engineering
Union v Minister of Labour
1949 (3) SA
637
(A) is the locus classicus on the subject in our
jurisprudence.
[7]
It is thus mandatory for a party that institutes
proceedings to join every other party that has what is called ‘a
direct and
substantial interest’ in the relief sought. If
the parties do not themselves raise a point of non-joinder when it is
indicated, the court should do so
mero
motu
.
[31]
Furthermore, in a
matter like the present, in which the constitutionality of
legislation is impugned, rule 10A of the Uniform Rules
of Court
prescribes that ‘
the party challenging the validity
of the law must join the provincial or national executive authorities
responsible for the administration
of the law in the proceedings
’.
Rule 5 of the Constitutional Court’s rules is to the same
effect. The rationale for these rules has been
explained in a
number of judgments of the Constitutional Court.
[8]
It was summarized in
Van der Merwe v Road Accident Fund
[2006] ZACC 4
;
2006
(4) SA 230
(CC) at para 7 and 8, as follows:
…
when the constitutional validity of an Act of Parliament
is impugned the Minister responsible for its administration must be a
party
to the proceedings inasmuch as his or her views and evidence
tendered ought to be heard and considered. Rudimentary fairness in
litigation dictates so. There is another important reason. When the
constitutional validity of legislation is in issue, considerations
of
public interest and of separation of powers surface. Ordinarily
courts should not pronounce on the validity of impugned legislation
without the benefit of hearing the State organ concerned on the
purpose pursued by the legislation, its legitimacy, the factual
context, the impact of its application, and the justification, if
any, for limiting an entrenched right. The views of the State
organ
concerned are also important when considering whether, and on what
conditions, to suspend any declaration of invalidity.
…
It is indeed trite that the contentions and evidence, if
any, advanced by the State functionary charged with the
administration
of legislation under scrutiny are vital, if not
indispensable, for proper ventilation and ultimate adjudication of
the constitutional
challenge to the validity of legislation.
Rule
10A of the Uniform Rules was introduced after the Constitutional
Court had remarked in
Parbhoo v Getz NO and Another
1997 (4)
SA 1095
(CC), at para [5], that -
Despite the fact that an order of constitutional
invalidity has no force unless it is confirmed by this Court, it
appears undesirable
for any court to make an order under s 172(2)(a)
concerning the invalidity of an Act of Parliament or a provincial
Act, where a
relevant organ of State is not a party to the
proceedings, unless that organ has had an opportunity to interfere in
such proceedings.
It might be necessary for the court first seized of
the matter to hear evidence for purposes of deciding the issue of
invalidity.
That is the appropriate stage for the relevant organ of
State to be afforded an opportunity of adducing such evidence,
otherwise
the issue might only arise when the order of invalidity is
before this Court for confirmation. This would cause unnecessary
delay
and inconvenience.
[32]
Mr
Breitenbach
submitted that in matters such as this,
in which constitutional rights are sought to be enforced by way of
proceedings for orders
in rem
,
[9]
the interests of justice afforded a further basis
for directing the joinder of a party. He called the judgments
of the Constitutional
Court in
Gory v
Kolver NO and Others (Starke and Others Intervening)
2007
(4) SA 97
(CC), at para 12-13,
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and Others
2013 (3) BCLR 251
(CC), at para 41, and
Mukaddam
v Pioneer Foods (Pty) Ltd and Others
2013
(5) SA 89
(CC), at para 35-40, in aid in support of that
contention. Reference to these judgments has been of
assistance, but
they are distinguishable. They concerned
standing to institute or intervene in constitutional litigation.
None of them
dealt with the situation that arises in the current
case, where a party that has been joined as a respondent contends
that it is
necessary for other persons to be joined as respondents
before the matter can be competently adjudicated.
Giant
Concerts
was concerned with the ambit
of standing conferred in terms of s 38 of the Constitution.
The question in
Mukkadam
was
about who might qualify to institute a class action of a sort to
which standing in terms of s 38 of the Constitution does
not
apply, and the peculiar requirements that anyone seeking to do so
should have to satisfy. I shall come back to
Gory
later. It concerned an
application for leave to intervene in an application in which the
constitutionality of certain legislation
was being impugned.
While some of the considerations applicable to necessary joinder
apply also to applications to intervene,
there is a material
difference between the concepts.
[10]
[33]
The respondents contend that the joinder of the
President and the Chief Justice as necessary parties is required
because ‘
they are the proper
representatives of two classes of persons with a direct and
substantial interest in the relief sought
’
,
namely:
1.
in
the case of the President, as the representative of the other members
of the Cabinet or at least any of its members who are not
members of
Parliament;
and
2.
in
the case of the Chief Justice, as the representative of the judges of
the Constitutional Court, the Supreme Court of Appeal and
the High
Court.
It was submitted that the President and the Chief Justice are
necessary parties, being ‘the constitutionally-identified
heads’ of two of the ‘classes’ in paragraphs (a) to
(e) of s 1 of the PARMED Act. The argument proceeded
that
as the respondents had been joined as ‘heads’ of the
‘classes’ identified in paragraphs (d) and (e)
of s 1
of the Act, so too should the President and the Chief Justice as
‘heads’, respectively, of the ‘classes’
identified in paragraph (a) and paragraphs (b) and (c).
[34]
Quite what inheres in the notions of the ‘head
of the judiciary’ or the ‘heads’ of the houses of
Parliament
raises interesting questions. But even if one were
for the moment to accept the basis of characterisation propounded by
the
respondents’ counsel, one would not reach the issue of
whether the President and the Chief Justice should be joined as
representative
parties without first deciding whether the individual
members of the categories of office-bearers that they would represent
have
a direct and substantial interest in the relief sought by the
applicants. For if the interests of the individual members are
not implicated in a sufficiently direct sense to require their
joinder, no point is served by considering in what manner they should
be joined, whether personally, or through a ‘class’
representative.
[35]
It is not altogether easy to define precisely what
constitutes a direct and substantial interest in the relevant sense.
In
Amalgamated Engineering Union
supra,
at p. 657, it was held that the question of joinder should not depend
on the nature of the subject matter of the suit, but
on the manner in
which, and the extent to which, the court’s order
may
affect the interests of third parties.
[11]
The criterion is the realistic possibility, not
the certainty, that the interests of third parties might be
substantially and directly
affected; hence the stress placed in the
Appellate Division’s judgment on the effect of the word ‘may’
in the
relevant context. Mr
Breitenbach
acknowledged, correctly I think, that
the phrase ‘the
interests
of third parties’ denoted the rights of such
parties. This much seems to be illustrated by the two examples
given by
Fagan AJA at pp. 657 - 659 of the judgment with
reference to
Collin v Toffie
1944 AD 456
and
Home
Sites (Pty) Ltd v Senekal
1948 (3) SA
514
(A), and by the basis of distinction often made between a mere
interest in the outcome and a direct and substantial interest by
describing the latter as ‘a legal interest’.
[12]
[36]
At p. 661 of the judgment in
Amalgamated
Engineering Union
, Fagan AJA gave two
tests as being useful to determine whether a direct and substantial
interest exists. The learned judge
did, however, emphasise that
he was not dealing with cases involving judgments
in
rem
.
[13]
The first was the equal
locus
standi
test. By that test if
another party had equal standing in its own right to have instituted
the proceedings, that would, of
itself, vouch for the existence of
its direct and substantial interest in the relief sought. That
that test would, however,
not necessarily be determinant in the
context of proceedings for an order
in
rem
is illustrated in the reasoning by
which a non-joinder point was adversely disposed of by the Appellate
Division in
Ngcwase and Others v
Terblanche, NO and Others
1977 (3) SA
796
(A), at 806H-807A. The second test was what might be called
the
res judicata
test.
That entails asking whether the order sought would not be binding on
a party that had not been joined, in the sense
that that party could
not be barred in subsequent proceedings from obtaining a potentially
conflicting judgment on the same matter.
The second test is
also not workable when the case involves an order
in
rem
.
[37]
That some degree of flexibility in the application
of the principle of joinder of necessity may be permissible on
pragmatic grounds
finds support in the full court judgment of
Mohamed J in
Wholesale Provision
Supplies CC v Exim International CC and Another
1995
(1) SA 150
(T), at p. 158, where the future Chief Justice
remarked that ‘
the rule which
seeks to avoid orders which might affect third parties in proceedings
between other parties is not simply a mechanical
or technical rule
which must ritualistically be applied, regardless of the
circumstances of the case
’
.
Compare also
Mukaddam
supra,
at para 39.
[38]
In the context of the principles that may be
distilled from the jurisprudence to which I have had reference, I
think it is clear
that the respondents are entitled to require the
joinder of the other members of PARMED (or, as Mr
Breitenbach
argued, their representatives) only if it is
evident that those members have a sufficiently direct and substantial
interest in the
litigation in the sense that any order made in it may
prejudicially affect their rights. In litigation of the nature
involved
in the current case, considerations of practicality will
also play a role.
[39]
The relief sought by the applicants would not,
were it to be granted, have the effect of depriving any other members
of the categories
of office-bearer referred to in s 1 of the
PARMED Act of the
right
to
be members of the PARMED Medical Aid Scheme; on the contrary, it
might appear, in fact, to have the effect rather of relieving
them of
an
obligation
to
belong to it. That might in turn appear to be sufficient to
dispose of the contention that the interests of the other members
of
the Scheme would be prejudicially affected by the order sought by the
applicants and, adopting the approach in cases such as
Tshandu
v Swan and Another
1946 AD 10
and
Aaron
v Johannesburg Municipality
1904 TS 696
(both of which are discussed in
Amalgamated
Engineering Union
), support a
conclusion they are therefore not necessary parties. In my
view, however, a more nuanced and contextual assessment
is indicated
to determine whether the interests of the other members might
nevertheless be prejudicially affected. It is
only upon such an
assessment that the manner in which, and the extent to which, the
court’s order
may
affect the interests of third parties can properly
be established; cf.
Rosebank Mall (Pty) Ltd and Another v
Cradock Heights (Pty) Ltd
2004 (2) SA 353
(W), at para 37
.
[40]
In
Rosebank Mall
the dispute
involved concerned the breach of ‘a co-operation agreement’
related to the development of a shopping precinct
in Johannesburg’s
northern suburbs. Insofar as currently relevant, the relief
sought entailed a mandatory interdict
sought by the respondents in
the appeal for the demolition by the appellants of certain structures
erected in breach of the agreement
and an interdict restraining the
appellants from using a certain area for any purposes other than an
unimpeded pedestrian thoroughfare
and right of way of the general
public. It was held that notwithstanding that the tenants
occupying the areas to be affected
by the proposed demolition order
and restraining interdict (which included a restaurant known as the
Clockwise Restaurant) were
not parties to the co-operation agreement
and were in occupation only in terms of rights obtained
aliunde
the rights that were the subject matter of the litigation, the direct
and prejudicial effect of a demolition order on their rights
of
possession would be such that they had to be regarded as necessary
parties to the litigation on the basis of having a sufficiently
direct and substantial interest in the orders that could be made.
[41]
Cilliers AJ, writing for a full court, distinguished the nature of
the interest of the tenants in the
Rosebank Mall
case from
those of parties whose rights are merely derivative from the rights
in contention in the proceedings, when the resultant
interest is
generally characterised as being of an indirect nature despite its
often significant financial or commercial importance
to the affected
parties. In this respect the learned acting judge, having
quoted the
dicta
of Corbett J concerning the purely
derivative nature of the interest of a sub-tenant in a dispute
concerning the principal
lease in
United Watch & Diamond Co
(Pty) Ltd and Others v Disa Hotels Ltd and Another
1972 (4) SA
409
(C) at 417A-C, proceeded as follows (at para 37):
There
is a distinction between the case of a party whose rights are derived
purely from 'the right which is the subject-matter of
the litigation'
and in which he has no legal interest, on the one hand, and the case
where the third party has a right acquired
aliunde
the right
which is the subject-matter of the litigation and which would be
prejudicially affected if the judgment and order made
in the
litigation to which he was not a party were carried into effect.
and
concluded (at para 41)
The
relief sought in prayers 2 and 3 of the amended notice of motion
involves the demolition of the steel and glass structure at
the
entrance of the Rosebank Mall Shopping Centre and the exterior walls
and windows of the area occupied by the Clockwise Restaurant
as well
as the canopy on the exterior of those premises. These orders
directly affect, in addition to the appellants, the competing
rights
of the lessee of the Clockwise Restaurant. …. The relief
sought and obtained under prayer 5 of the amended notice
of motion is
to the effect that the appellants are interdicted from using and
permitting the use of any sections of the road portion
indicated as
pedestrian areas on the plan otherwise than as a right of way in
favour of the general public. This would in effect
interdict the
appellants from affording the lessees of those areas the use of such
areas for purposes conflicting with such right
of way. Such interdict
would thus directly (and substantially) affect the competing rights
of such lessees. It follows that the
lessee of the premises referred
to as the Clockwise Restaurant …. should have been joined as
necessary parties in respect
of the relief sought under prayers 2 and
3 of the amended notice of motion. ….
[42]
Mr
Breitenbach
stressed in his argument that the medical aid
benefits conferred by membership of the PARMED Medical Aid Scheme by
virtue of the
PARMED Act constituted an inherent component of the
remuneration and benefits to which the office-bearers to which the
Act applies
are currently entitled in terms of their conditions of
appointment. He submitted that the PARMED Act fell to be seen
as ‘part
of the fabric’ of the statutory framework that
governs the remuneration of the affected office-bearers.
[43]
In this regard the respondents’ counsel
referred, amongst other provisions, to
s 9
of the
Remuneration
of Public Office Bearers Act 20 of 1998
. According to its long
title the Act provides a framework for determining the salaries and
allowances of various categories
of public office-bearers.
These include those referred to in paragraphs (a) and (d) of s 1
of the PARMED Act.
Section 9 of the Act provides that an
office-bearer falling under the auspices of the Act is entitled to
belong to a duly registered
medical aid scheme and provides further
that in respect of the office-bearers falling under paragraphs (a)
and (d) of the PARMED
Act the State shall make a payment in an amount
to be determined annually by the Minister of Finance towards the
office-bearer’s
medical aid scheme membership contributions.
The provision makes no reference to PARMED or the PARMED Act,
however. It
also applies indiscriminately to some categories of
office-bearer that are not subject to the PARMED Act. I am not
persuaded
in the circumstances that the operation of s 9 of Act
20 of 1998 would in any way be affected by the relief sought by the
applicants. The determination of the amount of the State’s
payment towards the office-bearers’ medical aid contributions
in terms of the provision does not seem to me to bear any
relationship to the identity of the medical aid scheme to which they
might belong. It is merely a fixed sum of money. The only
requirement is that the scheme must be duly established and
registered in terms of a law.
[44]
The infelicitously titled
Judges’
Remuneration and Conditions of Employment Act 47 of 2001
[14]
which, amongst other matters, regulates the
remuneration of the office-bearers referred to in paragraphs (b) and
(c) of s 1
of the PARMED Act contains no equivalent provision to
s 9
of the
Remuneration of Public Office Bearers Act. The
respondents, however, annexed a copy of the Government Gazette in
which the most recent determination of judicial remuneration
determined by the President in terms of s 2(a)(i) of the Act
provides that ‘the total remuneration package shall include
the
following elements: (1) A cash annual salary component of 72,24%, and
(2) A non-cash component of 27,76% (which includes motor
allowance
and
employer
(sic)
medical contribution
(sic)’.
I am similarly unpersuaded that the determination bears any
demonstrable relationship to involuntary membership
by judges of the
PARMED medical aid scheme, as distinct from any other registered
medical aid scheme to which judges might belong
if they had freedom
of choice.
[45]
What does appear clear, however, is that the
medical aid benefits that accrue to the affected office-bearers by
virtue of their
compulsory membership of the restricted membership
PARMED medical aid scheme
[15]
do indeed constitute part of the benefits they
enjoy in terms of their current conditions of tenure. Whether
the value of
those benefits could be replicated or bettered at no
greater cost to the office-bearers were they to join one of the other
open
registered medical aid schemes is not clear. The
applicants have put in an affidavit by an actuary, which seems to
suggest
that they could be, but for all one knows a sufficiently
interested party might be in a position to adduce controverting
evidence.
It is also clear enough, I think, as averred by the
respondents, and indeed acknowledged by the applicants in their
founding
papers, that the viability of a restricted membership scheme
could be imperilled if an applicable system of compulsory membership
were changed to one of voluntary membership; cf. s 24(2)
[16]
read with 27(1) of the
Medical Schemes Act
131 of 1998
.
[17]
The potential effect of the relief sought by
the applicants, both in respect of declaration of unconstitutionality
and the consequential
remedies, is such that the other members’
interests may be directly and substantially adversely affected.
The interest
of the other members is more than a mere financial
interest; it is an interest in the maintenance to their common
advantage of
a restricted membership scheme supported by compulsory
membership provisions. Thus, assuming that the applicants
establish
that the impugned provisions infringe their constitutional
rights, it seems to me that it would be inappropriate for an order of
unconstitutionality to follow without an opportunity having been
afforded to the other members of the scheme to be heard on whether
their infringing effect is objectively justifiable.
[46]
The respondents appear to regard themselves to
have been properly joined as the representatives of all members of
their respective
houses of the legislature and, as mentioned, have
proposed that the President and the Chief Justice also be joined as
representatives
of members of the executive who are not members of
Parliament and of the affected judges, respectively. Mr
Breitenbach
sought
to support the notion of joining a representative for each ‘class’
of membership of the PARMED scheme rather
than all of the members
individually on grounds of convenience. He supported his
argument in this respect with a reference
to
Gory
v Kolver NO
supra, loc. cit.
[47]
As mentioned earlier,
Gory
concerned an application for leave to intervene as
respondents in proceedings before the Constitutional Court for the
confirmation
of an order made by the High Court declaring a statutory
provision to be unconstitutional. The provision was contained
in
a law of general application and liable to affect an
indeterminable number of people whom it would have been quite
impossible to
identify individually. The Court granted the
intervention application, but acknowledged that considerations of
practicality
meant that ‘in cases involving the
constitutionality of a statute, while a direct and substantial
interest in the validity
or invalidity of the statute in question
will ordinarily be a
necessary
requirement to be met by an applicant for
intervention, it will not always be
sufficient
for the granting of leave to intervene’.
This was because in many such cases the court ‘
would
not be able to function properly if every party with a direct and
substantial interest in a dispute over the constitutional
validity of
a statute was entitled, as of right as it were, to intervene in a
hearing held to determine constitutional validity
’
.
The implication of those observations for the notion of necessary
joinder in such applications seems to be that where the
interests of
a very large, and effectively indeterminable, number of persons might
be affected by the order sought, it would be
impracticable to require
that they should all be joined. A pragmatic approach has to be
adopted in such cases in identifying
who needs to be joined as a
necessary party. A material consideration is that the
constitutional invalidity of legislation
– certainly laws of
general application - falls to be determined objectively, and not
with reference to the its subjective
effect on particular
individuals.
[18]
[48]
It seems to me that rule 16A of the Uniform Rules
was introduced recognising that in matters where the constitutional
validity of
legislation is impugned it will often be impractical for
an applicant to join everyone whose interests might be affected.
Rule 16A serves in effect to provide for a surrogate joinder by means
of a legislatively ordained form of judicial notice of proceedings
to
affected parties. It gives them notice of the opportunity to
ask for a hearing. It will be a question of degree
and
practicality as to when actual or substituted service in terms of
rules 4 and 5 is required and when notice in terms of rule
16A will
be sufficient. When notice in terms of rule 16A is sufficient
it will be for the party in receipt of such notice
to show why they
should be admitted to the proceedings, either as a party or an
amicus
.
Practical considerations might require that they will have to show
more than that they have a direct and substantial interest
in the
outcome of the litigation.
[49]
The PARMED Act is not a law of general
application; it pertains only to a limited number of officers of
state. I am not persuaded
that considerations of practicality
stand in the way of the joinder of each of the other individual
members of the PARMED scheme.
They are all certainly
identifiable, and although their number is not small, it is far from
infinite. A range of means whereby
effective notice might be
given to each of them directly is readily conceivable. It might
not be necessary, and may indeed
be impractical, to cite them
individually, rather than by category as described in s 1 of the
PARMED Act, but that would not
be any reason for the applicants not
to name them individually in supplemented founding papers
[19]
and to effect service on them. It will be
for the applicants to decide how service should be effected, and, if
appropriate,
to obtain directions for that purpose from the court.
I would venture that in matters in which large numbers of respondents
are involved and service on each of them individually is impractical,
service could be addressed by means of an order in terms
of rule
4(2)
[20]
for some form of effective substituted service;
alternatively by means of the issue of a rule
nisi
.
[21]
Having regard to the closed and interactive
environments in which all of the office-bearers in the categories
affected by s 1(a)-(e)
of the PARMED Act discharge their
functions, it is unlikely that the court will be overwhelmed by a
deluge of affidavits by affected
individuals who might wish to take
an active part in the proceedings. They would be more likely to
club together and express
their views through a few of
their
chosen representatives.
[50]
The respondents’ counsel referred to a
number of provisions in the elaborate statutory framework regulating
the remuneration
of office-bearers, as well as ss 91 and 165(6)
of the Constitution, in support of their contention that the
President and
the Chief Justice would suffice as representative
respondents in respect of the classes of office-bearer referred to in
paragraphs
(a)-(c) of s 1 of the PARMED Act. I do not find
it necessary to go through them all. Suffice it to say that I
have not found anything in the provisions to which I was referred
that would justify holding that their import was to invest in
either
the President or the Chief Justice the power or responsibility to
represent the personal interests of the Deputy President,
ministers
of the Cabinet, or the judges in their membership of a medical aid
scheme.
[51]
As mentioned earlier,
[22]
the respondents were joined as parties purportedly
in terms of s 23(2)(a) of the Powers, Privileges and Immunities
of Parliament
Act 4 of 2004,
[23]
read with
s 2
of the
State Liability Act 20
of 1957
.
[24]
Those provisions are not applicable to proceedings
of the nature of the current application. They apply in civil
proceedings
against
the
Parliament, qua institution, or any House or committee of
Parliament. The
State Liability Act is
concerned with
proceedings against the State in proceedings based on contract or
delict. No relief of any sort whatsoever
is sought against
Parliament in the current application. The stated basis for the
citation of the respondents in these proceedings
is misconceived.
The joinder of the members of Parliament is required because the
orders
in rem
that
are being sought may affect their
personal
interests in a sufficiently direct and material
way. As in the cases of the offices of the President and the
Chief Justice,
I have found nothing in the Constitution, or the
regulatory framework canvassed in the argument of the respondents’
counsel
that would afford a proper basis to regard the respondents as
effective representatives in the cause for the possibly quite
disparate
viewpoints of the members of the respective Houses. (Quite
incidentally, the respondents have been properly joined as
individuals,
however, by virtue of their being members, respectively,
of the categories of office-bearer referred to in paragraphs (d) and
(e)
of s 1 of the PARMED Act.)
[52]
In my judgment therefore, the proceedings will
have to be stayed pending the joinder of the other office-bearers who
are compulsorily
members of PARMED. It is up to the applicants
to determine how precisely to achieve this. Insofar as the
joinder of
the judges is concerned, the applicants will have to
consider whether
s 47
of the
Superior Courts Act 10 of 2013
is
applicable. I refrain from expressing any opinion in that
regard. The stay of proceedings will not derogate from
the
effect of the agreed order in terms of which the respondents were
required to deliver their supplemented answering papers within
15
days.
[53]
I proceed now to the part of the respondents’
non-joinder objection that is founded on the requirements of
rule
10A(1)
of the Uniform Rules.
[25]
The point raised by the respondents begs the
question as to who, if anyone, might be the ‘national executive
authority
responsible for the administration of the [PARMED
Act]’.
[54]
Differing from the position in most statutes, the
PARMED Act does not give any indication of a minister in the Cabinet
or statutory
body as being responsible for its administration.
That is not surprising because, as the respondents’ counsel in
fact
conceded, it does not require administration. Its
provisions are ‘self-executing’, as Mr
Breitenbach
put it.
[26]
The Act’s provisions are twofold in effect:
firstly, they impose an obligation of all members of the categories
of office-bearer
described in s 1 to become and remain members
of the PARMED Medical Aid Scheme for as long as they hold office; and
secondly,
they impose an obligation on the relevant accounting
officers responsible for the payment of the office-bearers’
salaries
to make deductions at source in respect of the
office-bearers’ monthly membership contributions to the
Scheme. The
carrying out by a functionary of a prescribed
function in terms of a statute entails complying with the instrument;
not administering
it. It follows that there is no need for, nor
is there, an executive authority responsible for the administration
of the
Act. The applicants’ counsel contended that rule
10A(1) therefore finds no basis to apply in the circumstances.
[55]
The fact that rule
10A(1) cannot be complied with according to the letter of its
provisions in the peculiar circumstances of this
case does not mean,
however, that it is not necessary for a national executive authority
to be joined.
[27]
The rationale for rule 10A, discussed in paragraph
[31], above, remains pertinent. The national government
introduced the
legislation and it will be responsible for effecting
the required legislative amendments should the relief sought by the
applicants
be granted. It is therefore only right that the
national government be heard both on the substance of the challenge
and,
should the case get that far, the formulation of any remedial
relief.
[56]
The PARMED Act was introduced by the national
government in 1975, and it has been amended in the
post-Constitutional era at the
instance of the national government by
means of the
Parliamentary and Provincial Medical Aid Scheme
Amendment Act 8 of 1996
. Mr
Breitenbach
argued, again on the basis of various statutory
provisions concerning the remuneration of the relevant office-bearers
and the fact
that their remuneration is a direct charge on the
Consolidated Revenue Fund, that the Minister of Finance is the
national executive
authority that should be joined. In
correspondence with the applicant’s attorneys in connection
with the aforementioned
application to join the Minister that was
launched in response to PARMED’s threat of proceedings in terms
of
rule 30A
, the Director: Litigation and Law in the National
Treasury disowned any responsibility by the Minister of Finance for
the PARMED
Act. It is not necessary to treat of the reasons
given in support of the Director’s contentions. One of
them
was that no significance should be attached to the fact that the
Act had originally been introduced by the Minister of Finance in
1975
because ‘that… predate[d] the [current] constitutional
dispensation’.
[57]
The most recent amendments to the PARMED Act were
effected in terms of the
Parliamentary and Provincial Medical Aid
Scheme Amendment Act 8 of 1996
. The amendment Bill was tabled
by the Minister of Trade and Industry, but it appears from
Hansard
that the sponsor of the Bill at the second reading
debate was the Leader of the House (a position that currently carries
the title
‘leader of government business in the National
Assembly’). The President is required in terms of s 91(4)
of the
Constitution to appoint a member of the Cabinet as leader of
government business. In terms of the rule 150(a) of the Joint
Rules of Parliament, the leader of government business is responsible
for the affairs of the national executive in Parliament.
In the
absence of a Cabinet minister who is specifically responsible for the
administration of the PARMED Act, it seems to me that
the leader of
government business in the National Assembly is the most appropriate
representative of the national executive –
or, as it was put in
Parbhoo
supra,
loc.cit., ‘
the relevant organ of
State’
- to join for the purposes
discussed in paragraph [55], above.
[58]
In all the circumstances, and having regard to the
fact that the determination of the separated issues has not followed
entirely
on all the arguments of either of the protagonists in the
current round of proceedings, I consider that it would be appropriate
to direct that the costs, including the costs of two counsel, should
be costs in the cause. Whether the costs in the cause
should be
determined applying the
Biowatch
principle,
[28]
as submitted by Mr
Ngalwana
SC, who (together with Ms
Muvangua
)
appeared for the applicants, is a matter to be decided in the main
application.
[59]
The following orders are made:
a)
Without
derogation from the order made on 16 November 2015 directing the
first and second respondents to deliver their answering
papers within
15 days, further proceedings in the application are hereby stayed
until the applicants have effected the joinder
of –
i.
every person (other than the applicants) referred
to in paragraphs (a)-(e) of section 1 of the
Parliamentary and
Provincial Medical Aid Scheme Act 28 of 1975, as amended; and
ii.
the Leader of Government Business in the National Assembly in
his
official capacity as respondents in the application.
b)
The
costs of the proceedings concerning the non-joinder issues raised by
the first and second respondents shall, as between the
applicants and
the first and second respondents, be costs in the cause; and shall
include the costs of two counsel.
A.G.
BINNS-WARD
Judge of the
High Court
Before:
Binns-Ward J
Applicants’
counsel
V. Ngalwana
S.C.
N. Muvangua
(The applicants’ heads of argument having
been
drafted by T.N. Ngcukaitobi and N. Muvangua.)
Applicants’
attorneys
Webber Wentzel
Johannesburg and Cape Town
First and
second
respondents’
counsel
A.M. Breitenbach S.C.
S. Magardie
First and
second
respondents’
attorneys State
Attorney
Cape Town
[1]
The reference in the notice of
application to PARMED’s rule 30A application had obviously
been overtaken by events, as described
above (in para [10]) by
the time the matter cam before me on 16 November 2015.
[2]
A copy of the papers in the rule 30A
application was handed in from the bar when I enquired as to their
whereabouts.
[3]
Exceptions to the general rule are permitted depending
on the circumstances. Applications brought on an urgent basis
are
a typical example. In such matters, respondents are
frequently permitted to take preliminary or limited points
separately
because of a lack of sufficient time to prepare full
answering papers.
[4]
The papers which it would have been
necessary for the judge to consider for the purposes of determining
the appropriateness of
making the separation order ran to 555 pages
at the time the order was taken; and the matter appears to have been
number 66 on
the motion court roll for that day. By reason of
the volume of the other work that would have been demanding
attention,
the duty judge would unavoidably have been heavily
reliant on the parties’ legal representatives for guidance.
[5]
Other examples in which non-joinder points became
evident only later in the development of the case are afforded in
the judgments
in
Schroeder v Vakansieburo
(Edms) Bpk
1970 (3) SA 240
(T) and
Toekies
Butchery (Edms) Bpk en Andere v Stassen
1974
(4) SA 771 (T)
[6]
I have not even mentioned the
further inconvenience that would have followed if it had been found
that PARMED’s resort to
rule 30A had been inappropriate; and
PARMED consequently afforded an opportunity to raise its non-joinder
point in the answering
papers it had still to deliver.
[7]
A more recent and equally helpful disquisition by
Cilliers AJ is to be found in the full court’s judgment in
Rosebank Mall (Pty) Ltd and Another v Cradock
Heights (Pty) Ltd
2004 (2) SA 353
(W), at
para 9- 41.
[8]
See e.g.
M
abaso
v Law Society, Northern Provinces
[2004] ZACC 8
;
2005
(2) SA 117
(CC), at para 12-13;
Beinash v
Ernst & Young
1999 (2) SA 116
(CC), at
para [27]; and
Jooste v Score Supermarket
Trading (Pty) Limited
1999 (2) SA 1
(CC), at
para 7–8.
[9]
That is, in the current context, orders directed at a
state of affairs, or a legal position, rather than at a particular
person
or persons.
[10]
See the discussion s.v. Rule 12 in
Van Loggerenberg,
Erasmus,
Superior Court Practice
2
nd
ed. vol 2 at D1-137 [Original
Service, 2015], and the authorities there referred to.
[11]
Cf. also
Strydom v Engen
Petroleum Ltd
2013 (2) SA 187
(SCA), at para
44, and the other authority cited there.
[12]
See, for example,
Pheko
and Others v Ekurhuleni City
2015
(5) SA 600
(CC), at para 56, and
Gordon
v Department of Health, KwaZulu-Natal
[2008] ZASCA 99
;
2008
(6) SA 522
(SCA), at para 9.
[13]
At p. 651 of the judgment.
[14]
Judges are no more ‘employees’ than are the
other public office-bearers whose remuneration is regulated by
Remuneration of Public Office
Bearers Act.
[15
]
The PARMED Medical Aid Scheme is a ‘
restricted
membership scheme
’
as defined in
s 1
of the
Medical Schemes Act 131 of 1998
.
[16]
Section 24(2)
of the
Medical Schemes Act provides
,
insofar as relevant:
No
medical scheme shall be registered under this section unless the
Council is satisfied that-
(a)
…
(b)
…
;
(c)
the medical scheme is or will be financially sound;
(d)
the medical scheme has a sufficient number of
members who contribute or are likely to contribute to the medical
scheme;
(e)
…
; and
[17]
Section 27(1)
of the
Medical Schemes Act provides
,
insofar as relevant:
The
Registrar may, with the concurrence of the Council, after
investigation and after having afforded the medical scheme, or its
legal representative an opportunity of being heard, cancel the
registration of a medical scheme-
(a)
…
;
(b)
…
;
(c)
if the medical scheme is unable to maintain a
financially sound condition as contemplated by this Act;
(d)
if the medical scheme is unable to enrol within the
period determined by the Council, or to maintain the minimum number
of members
required for the registration of a medical scheme; and
(e)
…
[18]
Cf.
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
1996 (1) SA 984
(CC), at para 25-26.
[19]
As indeed, they listed themselves as
applicants in an annexure to the notice of motion.
[20]
In my view the word ‘
impossible
’
in rule 4(2) does not denote
absolute impossibility. It would cover a situation in which
service in terms of rule 4(1) was
practicably impossible.
[21]
Compare the discussion, with
reference to the other cases cited therein, in
Ex
Parte Optimal Property Solutions CC
2003
(2) SA 136
(C) about service in matters in which a large number of
necessary parties are involved.
[22]
In paragraph [3], above.
[23]
Section 23 of Act 4 of 2004
provides:
Civil
proceedings against Parliament
(1)
In any civil proceedings against Parliament or a House or committee,
the State Liability Act, 1957 (Act 20 of 1957), applies, with the
necessary changes.
(2)
For the purposes of subsection (1), where appropriate, a reference
in
the
State Liability Act, 1957
, to the Minister of a department
must, where the proceedings are against-
(a)
Parliament or a House, be construed as a reference to the Speaker or
the Chairperson, or to both the Speaker and the Chairperson, as the
case requires;
(b)
a committee, be construed as a reference to the chairperson of the
committee.
[24]
Section 2
of Act 20 of 1957
provides:
Proceedings
to be taken against executive authority of department concerned
(1)
In any action or other proceedings instituted by virtue of the
provisions
of section 1, the executive authority of the department
concerned must be cited as nominal defendant or respondent.
(2)
The plaintiff or applicant, as the case may be, or his or her legal
representative must, within seven days after a summons or notice
instituting proceedings and in which the executive authority of
a
department is cited as nominal defendant or respondent has been
issued, serve a copy of that summons or notice on the State
Attorney.
[25]
Rule 10A(1) of the Uniform Rules
provides:
Joinder
of provincial or national executive authorities and service on Rules
Board for Courts of Law
(1)
If in any proceedings before the court, the validity of a law is
challenged, whether in whole or in part and whether on
constitutional grounds or otherwise, the party challenging the
validity of the law must join the provincial or national executive
authorities responsible for the administration of the law in the
proceedings.
[26]
The contention by the applicants’
counsel in their heads of argument that ‘it is clear that the
first and second respondents,
acting jointly as the Executive
Authority of Parliament, are responsible for the administration of
the Parmed Act’ is unsubstantiated
and, in my view,
unfounded. That the respondents might have an influential role
in the governance of PARMED is an incidence
of the rules of the
Scheme, and nothing to do with the administration of the Act.
Nothing in the Financial Management of
Parliament and Provincial
Legislatures Act 10 of 2009, cited by the applicants’ counsel,
bears on the administration of
the PARMED Act. The provision
in the parliamentary budget for the payment to PARMED of the medical
aid contributions contemplated
in terms of
s 9
of
the
Remuneration of Public Office Bearers Act 20 of 1998
read with the
PARMED Act is incidental to the obligation imposed on Parliament’s
accounting officer in terms of s 2 of
the PARMED Act.
[27]
Cf.
Mukaddam
supra,
at para 26.
[28]
Biowatch Trust v Registrar,
Genetic Resources
2009
(6) SA 232
(CC),
2009 (10) BCLR 1014.