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[2012] ZASCA 38
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Phillips v South African Reserve Bank and Others (221/2011) [2012] ZASCA 38; [2012] 2 All SA 518 (SCA); 2012 (7) BCLR 732 (SCA); 2013 (6) SA 450 (SCA) (29 March 2012)
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SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE NO: 221/2011
Reportable
In the matter between:
ANDREW LIONEL PHILLIPS
….............................................................
APPELLANT
and
SOUTH AFRICAN RESERVE BANK
….......................................
1
ST
RESPONDENT
MINISTER OF FINANCE
….........................................................
.2
ND
RESPONDENT
PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA
….................................................................
3
RD
RESPONDENT
Neutral citation:
Andrew Lionel Phillips v
South African Reserve Bank
& Others
(221/11)
[2012] ZASCA
38
(29 March 2012).
Coram:
Mthiyane
DP, Farlam, Majiedt JJA et Petse, Ndita AJJA
Heard:
02
March 2012
Delivered:
29
March 2012
Summary: Costs –
Uniform Rules of Court – Interpretation of Rule 16A –
Whether the findings and order for the
appellant to pay the
respondents’ wasted costs are appealable – whether
presumption of regularity applies where no
evidence that Rule 16A
notice was dealt with by registrar under Rule 16(A)(1)(
c
)
and (
d
)
- practice to be followed where Rule 16A applies – whether
general rule as to costs in constitutional matters applies to
ancillary orders in such cases.
ORDER
On appeal from:
Gauteng North High Court,
Pretoria (Makgoba J, sitting as court of first instance):
The appeal is upheld with costs, including the costs of
two counsel.
The costs order of the court below is set aside.
_______________________________________________________________
JUDGMENT
FARLAM JA (MTHIYANE DP concurring)
Introduction
[1] The appellant in this matter instituted proceedings
in the North Gauteng High Court, Pretoria, against the first
respondent,
the South African Reserve Bank, the second respondent,
the Minister of Finance, and the third respondent, the President of
the
Republic in January 2009. The relief he sought was:
an order reviewing and setting aside a decision by the
first respondent, the South African Reserve Bank, not to return
certain
foreign currency seized from him at Oliver Tambo
International Airport on 10 February 2008; and
orders declaring that the Exchange Control Regulations
promulgated in Government Notice R 1111 of 1 December 1961, as
amended,
alternatively certain provisions in the Regulations are
inconsistent with the Constitution and invalid.
[2] The third respondent, from whom no relief was sought, did not
participate in the proceedings.
Judgment of the court a quo
[3] On 1 June 2010, the date on which the application was set down
for hearing, it was postponed sine die by Makgoba J, who ordered
the
appellant to pay the first and second respondents’ wasted costs
(including in the case of both respondents, those occasioned
by the
employment of two counsel). The learned judge made this order because
in his view, the appellant had not complied with rule
16A of the
Uniform Rules of Court.
[4] Rule 16A(1) reads as follows:
‘
(a)
Any
person raising a constitutional issue in an application or action
shall give notice thereof to the registrar at the time of
filing the
relevant affidavit or pleading.
(b)
Such notice shall contain a clear and succinct description
of the constitutional issue concerned.
(c)
The registrar shall, upon receipt of such notice,
forthwith place it on a notice board designated for that purpose.
(d)
The notice shall be stamped by the registrar to indicate
the date upon which it was placed on the notice board and shall
remain
on the notice board for a period of 20 days.’
[5] The court a quo found that there was no indication that the rule
16A notice which the appellant’s attorney had prepared
when the
application was instituted was filed or, if it was filed with the
registrar, that it was put on the notice board as required
by the
rule.
[6] The learned judge also found that it was the responsibility of
the appellant to satisfy himself that the registrar had caused
the
notice to be put on the notice board and that the notice which the
appellant’s attorney had prepared did not adequately
set out
the basis on which the constitutionality of the Exchange Control
Regulations was challenged.
[7] He motivated this part of his judgment as follows:
‘
If one were to look at the purported notice
which does not in itself comply with the rule in that as Mr. Lüderitz
[one of the
counsel for the first respondent] correctly said or
argued no particularities of the constitutional challenge had been
set out
fully. Much as in a notice of appeal a litigant is expected
to set out the grounds of appeal both on facts and on law it is
likewise
in this particular matter that the grounds of constitutional
challenge should be succinctly set out for the interested party to
know what the case is all about.’
[8] He had earlier referred to what Ackermann J said in
Shaik v
Minister of Justice and Constitutional Development & others
[2003] ZACC 24
;
2004 (3) SA 599
(CC) at 610H–I (para 24) about the purpose of
rule 16A. The passage to which he referred reads as follows:
‘
The purpose of the Rule is to bring to the
attention of persons (who may be affected by or have a legitimate
interest in the case)
the particularity of the constitutional
challenge, in order that they may take steps to protect their
interests.’
He proceeded:
‘
I underline the particularity of the
constitutional challenge.’
[9] He proceeded to hold that non-compliance with rule 16(A)(1)
cannot be condoned and that if the appellant wished to proceed
with
the constitutional challenge the matter would have to be postponed
for the rule to be complied with and that the appellant
would have to
bear the wasted costs occasioned by the postponement.
[10] The conclusion that the costs of the postponement had to be
borne by the appellant was based on a finding that the postponement
had been brought about ‘by the conduct of the [appellant] and
nobody else and it is only fair that [he] should bear the costs
thereof’.
[11] During the proceedings in the court a quo a notice in terms of
rule 16A, which bore the registrar’s stamp but did not
have the
case number written on it, was handed in from the bar. The
registrar’s stamp indicated that it was filed with the
registrar on 28 January 2009.
Facts
[12] The notice reads as follows:
‘
BE PLEASED TAKE NOTICE
that the Applicant herein has raised a constitutional issue in the
application filed under the above case number.
TAKE NOTICE FURTHER
that the Applicant seeks an order:
Declaring that paragraphs (a), (c) and (d) of Regulation 3(1) of the
Exchange Control Regulations as promulgated by Government
Notice
R1111 of 1 December 1962 and as amended (“the Exchange Control
Regulations”) are inconsistent with the Constitution
and are
invalid.
Declaring that all of the provisions of Regulation 3(3) of the
Exchange Control Regulations, following the semi colon at the
end of
paragraph (b) of that sub-regulation, are inconsistent with the
Constitution and invalid.
Declaring that Regulation 3(5) of the Exchange Control Regulations
is inconsistent with the Constitution and are invalid.
In the alternative to prayers 1 to 3 above, declaring that the
Exchange Control Regulations in their entirety are inconsistent
with
the Constitution and are invalid.
AND TAKE NOTICE FURTHER
that any interested party in any of
the aforementioned constitutional issues may, with the written
consent of all the parties to
the proceedings, given by no later than
20 days after filing of the Plaintiff’s Affidavit, be admitted
therein as
amicus curiae
, upon such terms and conditions as
may be agreed upon in writing by the parties.
KINDLY
forthwith place this notice on the notice board
designated for this purpose and ensure that same remains on such
notice board for
a period of 20 days, whereafter you shall endorse
the notice to state on which day the notice was placed on the notice
board and,
on expiry of the 20 day period, place such endorsed notice
in the court file.’
[13] At no stage prior to 17 May 2010 did either the first or the
second respondent raise the contention that rule 16A had not
been
complied with.
[14] On 17 May 2010 the second respondent filed his heads of
argument, in which the following was said:
‘
We submit that both the content and the
context of the challenge address a constitutional issue. In the
circumstances the applicant
ought to have issued the required Rule
16A notice, putting all participating parties, and any prospective
parties with an interest
in the legislation that is challenged
herein, on terms regarding the orders that it seeks. Its failure to
do so has compromised
its ability to proceed with the constitutional
challenge to the legislation.’
[15] By this time it was, of course, too late for the appellant to
comply with the rule before the date on which the application
was set
down for hearing.
[16] At some stage after 8 April 2010 when the appellant’s
attorney met with the first respondent’s attorney to reach
agreement on the index and record for the high court hearing the
court file was misplaced in the registrar’s office. The
appellant’s attorney has reconstructed the record in the main
application but he had not retained a copy of the bundle of
additional non-contentious documents, which included the original
rule 16A notice, and so was only able to produce the copy of
the
notice to which I have referred.
[17] When the case was called before the court a quo both the first
and the second respondents argued that rule 16A had not been
complied
with and that the appellant was left, as counsel for the first
respondent put it, ‘with a choice of either abandoning
[his]
constitutional challenge or seeking a postponement of the hearing of
the application’. Counsel for the first respondent
went on to
submit that whatever course he adopted the appellant should ‘be
held responsible for the wasted costs occasioned
by his failure to
comply with the rules of Court’. Counsel for the second
respondent did not go so far as regards costs because
it was only in
the event of the appellant’s choosing to ask for a postponement
that they submitted that the appellant should
tender the respondents’
costs.
Application for leave to appeal
[18] The appellant applied for leave to appeal against the costs
order to the full bench of the North Gauteng High Court. Because
he
was seeking leave to appeal against a costs order he set out in the
founding affidavit filed on his behalf the exceptional circumstances
which indicated why, in his submission, it was in the interests of
justice for leave to appeal to be granted against the costs
order: cf
s 21A(3) of the Supreme Court Act 59 of 1959, as amended.
[19] Makgoba J refused the application for leave to appeal with
costs, including those occasioned by the employment of two counsel
by
both first and second respondent.
[20] In his judgment refusing leave, Makgoba J held that his decision
that rule 16A had not been complied with was a ruling which
was not a
final order, that his costs order had not been given in what he
called ‘proceedings…wholly of a constitutional
nature’
(so that the general rule that adverse costs orders should not be
made against parties seeking to assert constitutional
rights unless
there are exceptional circumstances did not apply) and that the
appellant had been ‘rather lackadaisical in
conducting the
proceedings’. In his main judgment the judge had justified this
finding on the basis that the appellant’s
attorney, who was
aware of the requirements of rule 16A(1) and that they had to be
complied with before the matter could properly
be before the court,
had only gone ‘as far as just filing the notice’ and had
‘never satisfied himself that the
registrar [had] duly
publicised the…notice and endorsed [it]’.
[21] The judge appears to have been of the view that exceptional
circumstances as referred to in s 21A(3) were not present because
he
said:
‘
In the circumstances I am not persuaded
that another court will come to a different finding, especially if I
also have to regard
to the provisions of section [21A] of the Supreme
Court Act, as [counsel for the second respondent] has presented that
the appeal
in this matter will not take this matter any further
whatsoever.’
[22] On petition this court granted the appellant leave to appeal to
it against the whole of the order made by the court a quo
on 1 June
2010. Its order also contained the following:
‘
The affidavits that were filed by the
parties in the application for leave to appeal to this court are
admitted as evidence in the
appeal and must be included in the
record.’
Issues
[23] The following issues were debated during the hearing of the
appeal:
(a) whether Makgoba J’s findings and order are appealable;
(b) whether the notice compiled by the appellant’s attorney
complied with rule 16A(1);
(c) whether the appellant or the registrar bore the duty to ensure
that a rule 16A notice is placed on the notice board for a period
of
20 days;
(d) whether it is appropriate for an organ of state to raise any
alleged non-compliance with rule 16A at a time and in a manner
that
prevents the defect being corrected and then to require an applicant
either to pay the costs of a postponement to have his
or her matter
proceed on the merits or to abandon his or her constitutional
challenge in order to allow the matter to proceed immediately;
(e) whether the appellant could have avoided the problem by moving
for a separation of issues under rule 33(4) and proceeding only
with
the review, leaving the constitutional challenge to be decided later
if the review did not succeed; and
(f) whether the general rule in constitutional litigation that an
unsuccessful litigant in proceedings against the State ought
not to
be ordered to pay costs applies also to costs orders relating to what
were called ancillary matters, such as the question
which arose in
the present matter.
Discussion
(a) Is the order appealable?
[24] Counsel for both respondents contended that the order was not
appealable because it is not definitive of the rights of the
parties
and not dispositive of at least a substantial portion of the relief
claimed in the main proceedings. In this regard reliance
was placed
on what was said by this court in, inter alia,
Zweni v Minister of
Law and Order
1993 (1) SA 523
(A) at 536B-C.
[25] It must be remembered, however, that, as Hefer JA said in
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
1996
(3) SA 1
(A) at 10F, the passage in
Zweni
:
‘
does not purport to be exhaustive or to
cast the relevant principles in stone.’
[26] The question of appealability in a case such as this, where a
party seeks to attack on appeal an order made in judicial proceedings
which have not yet terminated, was discussed by Nugent JA in a
judgment with which the other members of the court concurred in
NDPP
v King
2010 (2) SACR 146
(SCA) at 166e–167c (paras 50–51),
where he said the following:
‘
There will be few orders that significantly
affect the rights of the parties concerned that will not be
susceptible to correction
by a court of appeal. In
Liberty
Life Association of Africa Ltd v Niselow
(in
another court), which was cited with approval by this court in
Beinash v Wixley
[1997] ZASCA 32
;
1997
(3) SA 721
(SCA), I observed that when the question arises whether an
order is appealable what is most often being asked is not whether the
order is capable of being corrected, but rather whether it should be
corrected in isolation and before the proceedings have run
their full
course. I said that two competing principles come into play when that
question is asked. On the one hand justice would
seem to require that
every decision of a lower court should be capable not only of being
corrected but of being corrected forthwith
and before it has any
consequences, while on the other hand the delay and inconvenience
that might result if every decision is
subject to appeal as and when
it is made might itself defeat the attainment of justice.
In this case it was said on behalf of Mr King that the
order is not appealable because it is interlocutory. Whether that is
its
proper classification does not seem to me to be material. I
pointed out in
Liberty Life
that while the classification of
the order might at one time have been considered to be determinative
of whether it is susceptible
to an appeal the approach that has been
taken by the courts in more recent times has been increasingly
flexible and pragmatic.
It has been directed more to doing what is
appropriate in the particular circumstances than to elevating the
distinction between
orders that are appealable and those that are not
to one of principle. Even the features that were said in
Zweni v
Minister of Law and Order
to be characteristic, in general, of
orders that are appealable was later said by this court in
Moch v
Nedtravel (Pty) Ltd
not to be exhaustive nor to cast the relevant
principles in stone. As appears from the decision in
Moch
, the
fact that the order is not ‘definitive of the rights about
which the parties are contending in the main proceedings’
and
does not ‘dispose of any relief claimed in respect thereof’,
which was one of the features that was said in
Zweni
to
generally identify an appealable order, is far from decisive.’
[27] The matter was further discussed in
two recent decisions of this court
Health
Professions Council of South Africa v Emergency Medical Supplies and
Training CC t/a EMS
2010 (6) SA 469
(SCA) at
473C – 475E (paras 14 – 19) and
Government
of the RSA v Von Abo
2011 (5) SA
262
(SCA) at 270B - D (para 17), where Snyders JA (with whom the rest
of the court concurred) said:
‘
It is fair to say that there is no checklist of
requirements. Several considerations need to be weighed up, including
whether the
relief granted was final in its effect, definitive of the
rights of the parties, disposed of a substantial portion of the
relief
claimed, aspects of convenience, the time at which the issue
is considered, delay, expedience, prejudice, the avoidance of
piecemeal
appeals and the attainment of justice.’
[28] In the present case the order made by Makgoba J
will stand, unless upset on appeal in these proceedings, until at the
earliest
the main case is dealt with on appeal. If it was wrongly
made (as I believe it was, for reasons set out later in this
judgment)
it may well give rise to considerable inconvenience and
prejudice and impede the attainment of justice in cases involving
constitutional
issues where arguments arise as to whether rule 16A(1)
has been complied with. In my view that in itself affords sufficient
reason
to allow an appeal at this stage.
[29] A further aspect which was argued in
the context of appealability was whether exceptional circumstances
within the meaning
of s 21A(3) of the Supreme Court Act 59 of 1959
are present so as to permit an appeal to be brought solely against a
costs order.
In my view the obtaining of a decision by this court on
the interpretation of rule 16A(1)(
b
)
as well as the other issues relating to the question as to whether
the rule was complied with satisfies this requirement.
(b) Did the notice comply with the rule?
[30] The Constitutional Court and this
court have repeatedly in recent years stressed the need to interpret
the Constitution and
other statutory provisions purposively (see, eg,
Department of Land Affairs v Goedgelegen
Tropical Fruits
[2007] ZACC 12
;
2007 (6) SA 199
(CC) at 217F
– 218A (para 51) and
Standard Bank
Investment Corporation v Competition Commission; Liberty Life
Association of Africa Ltd v Competition Commission
[2000] ZASCA 20
;
2000
(2) SA 797
(SCA) at 810D – 812E (paras 16 to 22)).
[31] Rule 16A(1)(I) has accordingly to be
interpreted in the light of the purpose for which it was enacted,
viz. to bring cases
involving constitutional issues to the attention
of persons who may be affected by or have a legitimate interest in
such cases
so that they may take steps to protect their interests by
seeking to be admitted as amici curiae with a view to drawing the
attention
of the court to relevant matters of fact and law to which
attention would not otherwise be drawn (
Shaik
v Minister of Justice and Constitutional Development
,
supra, at 610H–I (para 24) and
In re
Certain Amicus curiae Applications: Minister of Health v Treatment
Action Campaign
2002 (5) SA 713
(CC) at 715F – G (para 5)).
[32] In the
Shaik
case, as appears from the
passage quoted above in para 8 of this judgment, Ackermann J said
that the purpose of the rule was to
bring to the attention of the
persons affected ‘the particularity of the constitutional
challenge’. This passage was
stressed by the judge in his
judgment and he relied on it in coming to his conclusion that the
appellant’s notice did not
comply with the rule. But Ackermann
J’s reference to particularity related to the desirability of
specifically identifying
any statutory provision being attacked on
the ground of its constitutional invalidity. In the
Shaik
case, although the notice said that the applicant contended that
s
28(6)
of the
National Prosecuting Authority Act 32 of 1998
was
unconstitutional and invalid because it violated the rights
entrenched in certain sections of the Bill of Rights, the
constitutional
attack in the High Court and the Constitutional Court
focused on the alleged constitutional inadequacy of s 28(8) of the
Act. In
the present case the notice correctly and specifically
identifies the constitutional provisions under attack.
[33] The question arising in this case is thus different
from the question in the
Shaik
case. It is this: does a notice
which correctly specifies the statutory provisions being attacked
comply with the rule if it simply
states that the attack is based on
inconsistency with the Constitution without specifying the grounds of
the alleged inconsistency?
[34] What is an ‘issue’? Among the
definitions
of the word ‘issue’
in the
Shorter Oxford English Dictionary
are ‘a point on
the decision of which something depends or is made to rest’ and
‘a point or matter in contention’.
[35] What is the point on the decision of which the
appellant’s case depends, and which is in contention in this
case? The
answer is clear: the constitutional invalidity of the
Exchange Control Regulations. Is it necessary for the point to be
elaborated
by specifying, as the judge held, the grounds of the
challenge? I think not. When one bears in mind the purpose of the
Rule as
stated above it is clear that while the wording in the Rule
might in another context be interpreted so as to require the grounds
of the constitutional challenge to be stated this is not the case
here because the role of the prospective amici to whom the notice
is
directed is ‘to draw the attention of the court to relevant
matters of law and fact to which attention would not otherwise
be
drawn...[He or she] must raise new contentions’ (
In re
Certain Amicus curiae Applications
, supra at 715F - G (para 5).)
[36] All a prospective amicus needs to know in a case
such as this is what provision is being attacked. He or she can then
examine
the court file to see whether the matters of law and fact he
or she considers relevant are contained in the applicant’s
papers.
If not, he or she may wish to raise such matters to assist
the court correctly to decide the issue before it.
[37] Indeed it is difficult to conceive of a case where
the perusal of the founding affidavit (or where appropriate the
answering
affidavit in which a constitutional issue is raised) would
not be required. After all an amicus curiae may only be admitted if
his or her participation would draw the attention of the court to
relevant matters of law and fact to which attention would not
otherwise be drawn, i.e. if he or she raised new contentions.
[38] Counsel for the second respondent contended that it
should not be necessary and would in fact be unduly burdensome for a
prospective
amicus to have to peruse the court file to ascertain
whether to apply to be admitted as an amicus. I cannot agree. It is
difficult
to see how a description of the issue can be ‘succinct’
if it is not such as to require an examination of the file.
Furthermore it should be apparent after a relatively brief perusal of
the founding affidavit in such a case what contentions are
being
relied on by the applicant. But such a perusal will in almost all
cases be required by a prospective amicus who wants to
see if there
is something new to be put before the court.
[39] Support for this approach in the matter may in my
opinion be found in the decision of the Constitutional Court in
Nyathi v MEC, Department of Health, Gauteng
2008 (5) SA 94
(CC).
[40] In that case, as appears from the judgment of the
court a quo reported at
[2007] JOL 19612
(T), the rule 16A notice
before the court read as follows:
‘
Be pleased to take note that the above Applicant
has lodged an application with this Honourable Court for, inter alia,
an order
declaring
s 3
of the
State Liability Act, no. 20 of 1957
unconstitutional. In terms of the aforesaid section no execution,
attachment or like process shall be issued against the Defendant
or
Respondent in any action or proceedings or against any property of
the state. Applicant contends that the provisions of the
aforesaid
sections [are] inconsistent with the Constitution of South Africa and
should be declared unconstitutional.’
[41] The court a quo (Davis AJ) held that that notice
complied with the rule. When the case came before the Constitutional
Court
the court clearly agreed because it allowed the appeal to
proceed without more. As the purpose of the rule is to alert
prospective
amici the Constitutional Court was under a duty to
satisfy itself that the Rule had been complied with. It was obviously
aware
of Davis AJ’s finding regarding rule 16A. The only
inference one can draw is that it also was satisfied that the rule
had
been complied with. The fact that the respondents did not raise
the point is of no moment because as I have said the Constitutional
Court was obliged to satisfy itself on the point.
[42] In the course of argument reference was also made
to a case before the Constitutional Court in which the present
appellant
featured as one of the appellants, viz
Phillips v
National Director of Public Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC).
The appellant and his co-applicants unsuccessfully sought leave from
the Constitutional Court to appeal against a judgment
of this court
dealing with the powers of the High Court to rescind orders made in
terms of
s 26(1)
of the
Prevention of Organized Crime Act 121 of
1998
. This court’s interpretation of
s 26(10)
of that Act was
sought to be attacked by the appellant on the ground that it did not
advance the values enshrined in the Bill of
Rights and was
inconsistent with the Constitution. The constitutional complaints
raised by the appellant in the Constitutional
Court had not been
argued in this court and no notice had been give to interested
parties of the intention to argue them. In para
43 of the judgment of
the Constitutional Court (at 520A–C) Skweyiya J said:
‘
It is not ordinarily permissible to attack
statutes collaterally. The constitutional challenge should be
explicit, with due notice
to all affected. This requirement ensures
that the correct order is made; that all interested parties have an
opportunity to make
representations; that the relevant evidence can,
if necessary, be led and that the requirements of the separation of
powers are
respected.’
[43] The passage does not support the arguments of the
respondents in this case. The constitutional challenge here was
explicit
and the screening of the notice on the notice board (a topic
I deal with below) constitutes due notice to all affected.
[44] In all the circumstances I am satisfied that the
notice drawn up by the appellant’s attorney complied with the
rule.
(c) Did the appellant or the registrar bear the duty
to ensure that the rule 16A notice was placed on the notice board for
a period
of 20 days and was it so placed?
[45] It is clear from rule 16A(1)(
c
) that it is
the duty of the registrar to see to it that the notice is put on the
notice board designated for that purpose and I
think it must follow
that it is his or her duty to see to it that it stays there for the
required period.
[46] In his replying affidavit, which neither respondent
sought to challenge, the appellant’s attorney, correcting to
some
extent what he had said in his founding affidavit, described
what happened when the papers in this application were issued as
follows:
‘
I handed several copies of the notice of motion,
the founding affidavit and the Rule 16A notice to an official in the
Registrar’s
office to be issued with a case number and stamped
with the court stamp.
The official returned the originals of all the documents
to me. I then passed the original Rule 16A notice back to her,
explained
that it was a notice in terms of Rule 16A and asked her to
exchange it for a copy because her office needed the original version
of the Rule 16A notice.
I do not recall the precise wording of her response, but
she took back the original, handed me the copy and verbally
acknowledged
that she knew what a Rule 16A notice was and that her
office was required to keep the original.’
[47] In the circumstances he was, in my view, perfectly
entitled to assume that the registrar’s staff would do what the
rule
enjoined them to do with the notice. The court a quo’s
finding that he was ‘lackadaisical’ is entirely
unfounded.
[48] I am satisfied that it can be accepted that the
notice was datestamped by the registrar’s representative and
placed on
the notice board designated for the purpose and that it
remained there for 20 days. The maxim
omnia praesumuntur rite esse
acta donec probetur in contrarium
(all [official acts] are
presumed to have been duly performed until the contrary is proved),
on which the appellant’s counsel
relied, applies, as it did,
for example, in
Cape Coast Exploration Ltd v Scholtz
1933 AD
56.
In that case one of the issues was whether the defendant had been
sent a letter from the Civil Commissioner for Namaqualand notifying
him that his diamond prospecting certificate had been withdrawn. A
copy of the letter had been found in the commissioner’s
office
but no evidence was led to the effect that the original had been
posted. Wessels CJ said (at 76):
‘
Absolute proof is well nigh impossible where the
frail recollection of men is a factor, and especially is this the
case when we
have to deal with the recollection of officials who
almost automatically do much of their routine work. Hence the
importance of
the maxim
omnia praesumuntur
rite esse acta
. See
Byers
v Chinn and Another
1928 A.D. at p. 332. We
must presume that an official will carry out the ordinary routine
work of his office, for in our experience
this is what usually
occurs. Hence we must presume that it an official letter is written
and a copy filed, that the former is dispatched
in the ordinary
course of business to the person concerned and that he has received
it.’
[49] The placing of the notice on the notice board and
seeing to it that it remained there for 20 days was part of the
ordinary
work of the registrar’s office: it must be presumed,
until the contrary is proved, that that work was done.
[50] It follows from what I have said thus far that the
point taken by the first and second respondents was incorrect and
should
not have been upheld by the court a quo. It follows further
that the appeal should be allowed and that the order of the court a
quo relating to costs should be set aside and replaced with an order
directing the first and second respondents jointly and severally
to
pay the wasted costs occasioned by the postponement, including those
resulting from the employment of two counsel. The remaining
issues
argued by counsel accordingly fall away. But in view of the
importance of two of them in future constitutional litigation
and the
fact that they were fully argued I propose setting out my views in
order to provide guidance in future cases.
(d) Did respondents act inappropriately by raising
the Rule 16A point at a late stage?
[51] The first of these issues was whether the first and
second respondents, by raising the rule 16A(1) point at a stage when
it
was not possible to remedy it and by seeking to put the appellant
to the choice of either abandoning his constitutional challenge
or
paying the costs of the necessary postponement (which it was common
cause before us exceeded the amount which the appellant
was seeking
to recover from the first respondent), had acted inappropriately.
[52] In the founding affidavit in the application to
this court for leave to appeal, the appellant’s attorney
referred to
three previous cases where the first respondent had taken
the same rule 16A point, and put the applicant concerned to the same
election as in this case and at the same stage of the proceedings. In
one of these cases the applicant abandoned his constitutional
challenge in order to avoid the threat of a large costs order. This
was not denied on behalf of the first respondent, whose attorney
in
his reply merely denied that the point had been taken belatedly.
[53] In the appellant’s attorney’s founding
affidavit to which I have referred, reference was made to other cases
in
which the rule 16A(1) point had been taken by other organs of
state ‘with a view’, so contended the appellant’s
attorney, ‘to having the relevant constitutional challenge
postponed, dismissed or abandoned.’ He concluded this part
of
his affidavit as follows:
‘
49. It is clear that various organs of state have
adopted a strategy of complaining of non-compliance with Rule 16A in
order to
contend that an applicant in a constitutional challenge is
non-suited and to dispose of the matter before the constitutional
issue
had been properly ventilated. I respectfully submit that this
practice is entirely inappropriate:
Organs of state (including the First and Second
Respondents) have a duty to respect, protect and promote the rights
and valued
contained in the Constitution, and to assist the Courts.
Their conduct in litigation – and the decision whether or not
to take a particular point and how to do so – must be
informed by the values of the Constitution and must take into
account all relevant circumstances, with a view to promoting
(rather than frustrating) the determination of constitutional
issues.
This Court has found that it is improper for an organ
of state to obstruct the ventilation of constitutional disputes:
“
when an organ or government invokes legal
processes to impede the rightful claims of its citizens, it not only
defies the Constitution,
which commands all organs of State to be
loyal to the Constitution and requires that public administration be
conducted on the
basis that ‘people’s needs must be
responded to’. It also misuses the mechanisms of the law, which
it is the
responsibility of the courts to safeguard.”
(
Permanent Secretary, Department of Welfare,
Eastern Cape v Ngxuza
2001 (4) SA 1184
(SCA)
at 1197D – E (para 15).)
I respectfully submit that a responsible organ of
state involved in constitutional litigation should raise any
concerns it has
regarding Rule 16A as soon as a Rule 16A notice has
been, or ought to have been, filed. It should not wait until the
resolution
of its concerns about Rule 16A will necessitate the
postponement of a constitutional hearing; still less should it
attempt
to take advantage of this situation by using the threat of
costs orders flowing from the postponement to persuade an applicant
to abandon his/her constitutional issues.
The award of costs against the Applicant in the present
matter provides the Respondents with a perverse incentive to
continue
to invoke Rule 16A in a manner which is calculated to
suppress constitutional litigation. They have made clear that they
regard
their practice of doing so as, not only defensible, but
constitutionally appropriate.
The only way to prevent the Respondents and other
organs of state from acting in the way the Respondents have acted in
relation
to Rule 16A in the present case (and other organs of state
have acted in the cases referred to above) is to make clear that
organs
of state will have to bear their own wasted costs if they
raise Rule 16A points belatedly.’
[54] I do not think that a finding can be made on the
material before this court that the first respondent and/or other
organs of
state have adopted a practice of deliberately raising
complaints of non-compliance with rule 16A(1), at a time when the
defect
cannot be remedied and a postponement or the abandonment of
the constitutional challenge is inevitable.
(e) Suggested practice to be followed in the future
[55] Regard being had, however, to the fact that it
appears that problems (real or imagined) relating to compliance with
rule 16A
appear to arise not infrequently in constitutional cases, it
is advisable that those responsible for drafting (and settling)
founding
affidavits in constitutional cases (and, where appropriate
opposing affidavits in which constitutional issues are raised which
are not previously raised in the proceedings), should make it a
practice of inserting an allegation that a notice (a copy of which
is
annexed) has been prepared in terms of the rule, and is to be handed
to the registrar for the necessary action when the founding
(or
opposing) affidavit is filed. It is also advisable that the notice,
when removed from the notice board after the 20 day period
has
elapsed and put in the file, be included among the ‘necessary’
documents which go before the judge. The attorneys
acting for
departments or organs of state which are respondents in such cases
should also follow the practice of checking as soon
as the papers are
received that the rule has been complied with and, if it appears not
to have been, of bringing the omission to
the attention of the
applicant’s attorney. Constitutional litigation should not be a
game of forfeit and State respondents
should take timeous steps to
assist applicants to have constitutional issues raised with a minimum
of obstruction.
(f) Applicability of general principle regarding
costs in constitutional cases
[56] The other question with which I wish to deal is
whether it would have been appropriate to order the appellant to pay
the first
and second respondents’ wasted costs if there had not
been compliance with the rule. In this regard it was argued by
counsel
that the general principle applicable in constitutional
litigation that an unsuccessful litigant in proceedings against the
State
ought not to be ordered to pay costs should have been applied.
[57] This principle is extensively
considered in such cases as
Affordable
Medicines Trust v Minister of Health
[2005] ZACC 3
;
2006
(3) SA 247
(CC), especially at 296H–297H (para 138) and
Biowatch Trust v Registrar, Genetic Resources
2009 (6) SA 232
(CC) at 245C – 249E (paras
21 to 28). The rationale therefor was stated in the
Affordable
Medicines
case as being the possible
‘chilling effect’ that an award of costs may have on
litigants wishing to vindicate their
constitutional rights, where the
litigation in question is not frivolous or vexatious.
[58] It is clear in my view that this principle does not
only apply to orders on the merits in constitutional cases but also
to
what may be described as ancillary points. That that must be so
follows, inter alia, from the fact that a litigant wishing to
vindicate
a constitutional right might well be discouraged from going
to court by the fear that some technical or procedural slip on the
part of his legal representatives might result in a costs order with
financially ruinous consequences for him or her.
[59] Support for this approval may be found in the
judgment of the Constitutional Court in the
Biowatch
case at
246E (para 23), where Sachs J in giving the judgment of the court
said that:
‘
people might be deterred from pursuing
constitutional claims because of a concern that even if they succeed
they will be deprived
of their costs because of some inadvertent
procedural or technical lapse.’
[60] It follows in my view that even if the court a
quo’s finding that rule 16A(1) had not been complied with had
been correct
it would still have erred in ordering the appellant to
pay the wasted costs of the postponement. What it should have done in
the
event was to make no order as to costs.
Proposed Order
[61] I propose that the following order be made:
The appeal is allowed with costs, including those
occasioned by the employment of two counsel.
The costs order made in the court a quo is set aside
and replaced with the following order:
‘
The first and second respondents are ordered
jointly and severally to pay the applicant’s wasted costs
(including those resulting
from the employment of two counsel)
occasioned by the postponement.’
I G FARLAM
JUDGE OF APPEAL
MAJIEDT JA (PETSE AND NDITA AJJA concurring):
[62] I have read the judgment of my colleague, Farlam
JA. I am in agreement with all aspects of his judgment, save for the
question
concerning the appellant’s compliance with rule
16A(1)(
b
), ie the requirement that a notice must contain a
clear and succinct description of the constitutional issue concerned.
In view
of my conclusion on this aspect, a different order in respect
of the costs in the high court to the one proposed by Farlam JA must
inevitably follow.
[63] The factual matrix is sufficiently set out in the
judgment of Farlam JA and does not need repetition. It bears emphasis
at
the outset that the appellant’s challenge to the exchange
control regulations was in the main an attack on the
constitutionality
of the relevant regulations. The belated attempt by
counsel for the first respondent during argument in this court to
characterize
the challenge as primarily an administrative review with
the constitutional challenge as an alternative, was plainly a mere
afterthought.
The point was not raised at all in the high court or in
the heads of argument in this court. That submission failed to get
off
the ground and the matter was further exacerbated by the fact
that those portions of the papers dealing with the appellant’s
administrative review challenge were omitted from the record, I
assume designedly so. The case clearly concerned a constitutional
challenge and the requirements of rule 16A therefore had to be
complied with.
[64] Farlam JA has already reproduced the
rule. I think it is manifestly clear on a plain reading of rule
16A(1)(
b
) that it
means what it says: a litigant raising a constitutional issue must
furnish a brief description of the relevant constitutional
issue. To
simply give notice that the impugned regulations are ‘inconsistent
with the Constitution and invalid’, begs
the very question
raised in rule 16A(1)(
b
).
Such a description does not in my view provide an answer to the
enquiry what the constitutional issue is.
[65] It is indeed correct, as Farlam JA states in paras
30 and 31, that a purposive approach is to be adopted in the
interpretation
of the Constitution and other statutes. I am also in
agreement that the purpose for which rule
16A has been enacted is to bring
constitutional issues to the attention of persons affected by them or
with a legitimate interest
in them. I, however, differ with my
colleague that what in my view is a terse, uninformative description
is compliant with the
requirements contained in rule 16A(1)(
b
).
[66] In applying the purposive approach, as
one is constrained to do, care must be taken not to violate the
lawgiver’s language
employed in the statute. As Innes CJ put it
in
Dadoo Ltd and others v Krugersdorp
Municipal Council
:
1
‘
A Judge has authority to
interpret, but not to legislate, and he cannot do violence to the
language of the lawgiver by placing upon
it a meaning of which it is
not reasonably capable, in order to give effect to what he may think
to be policy or object of the
particular measure.’
[67] A second caveat is that the starting
point in interpreting the statute ought, in my view, to be the
language used in the statute.
Harms JA put it thus in
Abrahamse
v East London Municipality and another; East London Municipality v
Abrahamse
:
2
‘
Interpretation concerns
the meaning of the words used by the Legislature and it is therefore
useful to approach the task by referring
to the words used, and to
leave extraneous considerations for later.’
The balance to be struck between the
application of a purposive approach and the weight of the words
employed in the statute is
summarized as follows by Judge Learned
Hand in
Borella et al v Borden Co
:
3
‘
We can best reach the
meaning here, as always, by recourse to the underlying purpose, and,
with that as a guide, by trying to project
upon the specific occasion
how we think persons, actuated by such a purpose, would have dealt
with it, if it had been presented
to them at the time. To say that
that is a hazardous process is indeed a truism, but we cannot escape
it, once we abandon literal
interpretation – a method far more
unreliable . . . . We do not indeed mean that here, or in any other
interpretation of
the language,
the
words used are not far and away the most reliable source for learning
the purpose of a document
;
the notion that the “policy of a statute” does not inhere
as much in its limitations as in its affirmations, is untenable
.’
(Emphasis added).
[68] The dictum of Ackermann J in
Shaik
v Minister of Justice and Constitutional Development and others,
4
referred to by Farlam JA at paras 31 to 33 above, must
be understood in its context, namely a determination of whether the
incorrect
citing of impugned provisions of the particular statute
renders the notice non-compliant or not. Ackermann J correctly says
5
that ‘the minds of litigants (and in particular
practitioners) in the High Courts are focused on
the
need for specificity by
the provisions of
Uniform Rule 16A(1)’ (emphasis supplied). In that matter the
notice, although citing the incorrect statutory
provision under
challenge, contained a properly detailed description of the
constitutional issue concerned. It read thus:
‘
Whether
s 28(6)
of the
National Prosecuting Authority Act is
unconstitutional and invalid as
a result of violating the rights entrenched in
ss 14
(privacy),
16
(freedom of expression), 33 (just administrative action), 34 (access
to courts) and 35 (fair arrest, detention, trial) of the final
Constitution.’
6
The specificity required in the present matter concerns
a brief description of the constitutional issue concerned. To the
definition
set out by Farlam JA in para 34 above can be added the
following from the Concise Oxford English Dictionary 12 ed (2011):
‘an
important topic for debate or resolution’.
[69] A brief description of the
constitutional issue concerned required, in the present matter, that
the appellant had to set out
the specific grounds on which the
exchange control regulations were said to be constitutionally
invalid, for example that they
infringed the right to privacy (more
particularly as contained in s 14(
c
)
of the Constitution - the right not to have one’s possessions
seized), the right to freedom and security of the person and
the
right not to be arbitrarily deprived of property. The notice in the
present matter is a mere recital of the order sought by
the
appellant. It does not provide any information on what the issues are
which the appellant intends to raise in his constitutional
challenge.
Any affected and interested party and any prospective amicus curiae
would be none the wiser upon a perusal of the notice
as to what the
constitutional issues are. To borrow from the example cited by the
second respondent’s counsel – a notice
that an order
would be sought to have the death penalty declared unconstitutional
because it is constitutionally invalid, does
not, without more,
adequately describe the constitutional issue concerned and is thus
not compliant with rule 16A(1)(
b
).
A brief description of the basis upon which the order is sought is
required, for example on the ground that it infringes the
right to
life. A prospective amicus curiae would then be in a position to
advance new and further contentions,
7
for example that it also infringes the right to dignity
and the right not to be subjected to cruel, inhuman or degrading
punishment.
It is therefore not sufficient to merely identify the
statutory provisions challenged. The rights under the Constitution
which
are the subject of the constitutional challenge must also be
stipulated.
[70] It is of some significance that the same attorneys
who act for the appellant in the present matter had, in an unrelated
matter
(referred to by the appellant’s attorney in his
affidavit in the present proceedings in the high court), issued a
notice
some three months after the postponement before Makgoba J,
which implicitly acknowledges the inadequacy of the notice in the
present
matter. That notice in the unrelated proceedings does not
merely state that the relevant statutory provisions are inconsistent
with the Constitution, but it goes further in clearly and succinctly
describing the constitutional issue concerned. In that matter
the
constitutionality of s 310 of the Criminal Procedure Act 51 of 1977
(which provides that the State may appeal against the decision
of a
lower court on a point of law) was challenged. The original notice
mirrored the brevity of the notice in this matter, namely
‘declaring
that
s 310
of the
Criminal Procedure Act 51 of 1977
. . . . is
inconsistent with the Constitution and invalid’. The subsequent
notice was eminently more descriptive. Its relevant
part read as
follows:
‘
2. Whether, if s 310 . .
. . does allow the State to appeal. . . ,
it is inconsistent with s
35(3)(
m
) of the Constitution which includes as part of the
fundamental right to a fair trial, the right “not to be tried
for
an offence in respect of any act or omission for which that
person has previously been either acquitted or convicted”,
it irrationally distinguishes
between accused persons who are acquitted on decisions of law
(against whom the State would have
a right of appeal) and accused
persons who are acquitted on decisions of fact (against whom the
State has no right of appeal
and must accordingly content itself
with the wrong decision by a court) and is, accordingly,
inconsistent with the founding
value of the rule of law in s 1(
c
)
of the Constitution, alternatively, the guarantee of equality
before the law in s 9(1) of the Constitution.’
[71] I respectfully disagree with my
learned colleague in his observation in para 36 above that a
prospective amicus needs only
to know what legislative provision is
being challenged and that, for the rest, he or she can then have
regard to the court file
to ascertain whether relevant matters of
fact and law are contained in the applicant’s papers. I do not
think the Legislature
intended to burden affected and interested
persons in this manner. To require of a prospective amicus to trawl
through papers which
are more often than not quite voluminous, is to
defeat the very purpose of rule 16A(1)(
b
).
The rule has, in my view, the objective of providing sufficient
information to affected and interested persons of what the
constitutional
challenge is all about, thereby obviating the need of
scouring through lengthy papers to obtain the relevant information.
[72] The use of the word ‘succinct’
in rule 16A(1)(
b
) is
in my view deliberate – it signifies the requirement of a
‘brief and clear expression’ (as defined in the
Concise
Oxford English Dictionary 12 ed (2011)) of the constitutional issue
concerned. A description can only be ‘brief and
clear’
when it has some particularity – a terse regurgitation of the
orders sought hardly leaves any room for such
a brief and clear
description. While I would not, unlike Makgoba J, elevate the
required particularity to that contained in a notice
of appeal, it
certainly denotes more than a mere repetition of the orders sought.
[73] I also respectfully disagree with
Farlam JA that the
Nyathi
decision
8
lends support to his approach. The matter was unopposed
before Davis AJ in the high court and the learned judge therefore did
not
have the benefit of argument for and against the proposition that
a notice in those terse terms would suffice for the purposes of
rule
16A(1)(
b
). This aspect
was evidently not raised as an issue in the Constitutional Court,
which would explain why there is no dictum on the
matter in that
judgment. A court is therefore, with respect, not entitled to rely on
that decision as authority for the abovementioned
proposition.
Moreover, as appears from para 39 above, the notice in
Nyathi
contained more particularity than the notice in the
present matter.
[74] Rule 19(3)(
b
)
of the Constitutional Court requires that an application for leave to
appeal must contain ‘a statement setting out clearly
and
succinctly the constitutional matter raised in the decision, and any
other issues including issues that are alleged to be connected
with a
decision on the constitutional matter’. That rule has a marked
similarity to rule 16A(1)(
b)
.
It is inconceivable that, in purported compliance with the
requirements laid down in Constitutional Court rule 19(3)(
b
),
a statement which, for example, merely declares the constitutional
matter and issues to be that of constitutional invalidity
would,
without more, pass muster. A brief and clear description of the
constitutional matter and ancillary issues is required in
my view. If
anything, since rule 16A(1) concerns a notice, the need for
particularity and detail is in all probability even more
acute than
in the case of a statement in terms of Constitutional Court rule
19(3)(
b
), but I
express no firm view on the matter.
[75] In summary therefore, I am of the view that the
notice was inadequate and did not comply with rule 16A(1)(
b
).
I concur with Farlam JA that, for the reasons enunciated by him, the
high court erred in upholding in favour of the respondents
the point
that the appellant did not provide sufficient proof that the notice
had been displayed on the notice board for the requisite
20 days. I
agree, too, with his obiter remarks in para 59 above, that, even were
a finding to be made against the appellant that
there has been
non-compliance with rule 16A(1), the high court should not have made
an adverse costs order against the appellant.
Farlam JA has fully
motivated the reasons for that conclusion and I need not burden this
judgment with anything further. Those
obiter remarks of Farlam JA are
of course apposite here, given my finding above. In the premises I
would uphold the appeal on the
costs aspect.
[76] The following order is made:
The appeal is upheld with costs, including the costs of
two counsel. The costs order of the court below is set aside
___________
S A MAJIEDT
JUDGE OF APPEAL
APPEARANCES
APPELLANT: M Chaskalson SC (with I A Goodman)
Instructed by, Shannon Little Attorneys, Pretoria.
Webbers, Bloemfontein
FIRST RESPONDENT: M Maritz SC (with W Luderitz SC)
Instructed by , Newtons Inc. Pretoria
Symington & De Kok, Bloemfontein
SECOND RESPONDENT: M R Madlanga SC (with N Maimela)
Instructed by, State Attorney, Pretoria
State Attorney, Boemfontein
1
Dadoo
Ltd and others v Krugersdorp Municipal Council
1920 AD 530
at
543.
2
Abrahamse
v East London Municipality and another; East London Municipality v
Abrahamse
1997 (4) SA 613
(SCA) at 632G-H.
3
Borella
et al v Borden Co
145 F 2d 63
(1944) at 64-5.
4
Shaik
v Minister of Justice and Constitutional Development and others
[2003] ZACC 24
;
2004 (3) SA 599
(CC).
5
At
para 24.
6
Shaik
v Minister of Justice and Constitutional Development and others
(note 4) para 9
7
As
an amicus curiae is required to do –
In re
Certain
Amicus Curiae Applications: Minister of Health v Treatment Action
Campaign
2002 (5) SA 713
(CC) para 5.
8
Nyathi
v MEC Department of Health Gauteng
2008 (5) SA 94
(CC).