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[2017] ZASCA 60
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Lourens v Premier of the Free State Province and Another (566/2016) [2017] ZASCA 60 (25 May 2017)
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 566/2016
In the matter between:
CORNELIUS
JOHANNES ALEXANDER LOURENS
APPELLANT
and
PREMIER OF THE FREE
STATE PROVINCE
FIRST RESPONDENT
PAN SOUTH AFRICAN
LANGUAGE BOARD
SECOND RESPONDENT
Neutral citation:
Lourens v Premier of the Free State
Province & another
(526/16)
[2017] ZASCA
60
(25 May 2017)
Coram:
Maya AP and Fourie and Schippers AJJA
Heard
:
19 May 2017
Delivered:
25 May 2017
Summary:
Contempt of court: failure to comply with
court order: no proof of non-compliance, wilfulness or mala fides:
s
16(2)
(a)
(i) of the
Superior Courts Act 10 of 2013
: issues on appeal having no practical
effect: appeal dismissed with costs.
ORDER
On
appeal from: Free State Division of the High Court, Bloemfontein
(Ebrahim J sitting as court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Schippers
AJA (
Maya AP and Fourie AJA
concurring
):
[1]
This is an appeal
against the dismissal of the appellant’s application for an
order that the first respondent, the Premier
of the Free State
Province (the Premier), be held in contempt of an order issued by the
court a quo on 7 November 2013 (the order);
that he be imprisoned for
90 days; and that he pay costs on an attorney and client scale.
[2]
The matter arises from
the following facts. In 2013 the appellant applied to the court a quo
for a declaratory order that the Premier
failed to comply with s 6(4)
of the Constitution, read with item 21(1) of Schedule 6 thereto,
[1]
by failing to regulate and monitor, through legislative and other
measures, and within a reasonable time, the use of official languages
in the Free State Province (the Province). The appellant also sought
an order that within nine months of the grant of the declaratory
order, the Premier be directed to put in place and finalise
legislative and other measures regulating the Free State Provincial
Administration’s use of official languages in legislation and
policy documents. Subsequently the parties agreed to the order,
the
relevant part of which reads:
‘
First
Respondent shall, as far as it is within his authority and powers,
give effect to the provisions of section 6(4) of the Constitution
of
the Republic of South Africa, 1996, read with item 21(1) of Schedule
6 to the Constitution, by putting in place legislative
and other
measures to regulate and monitor the use of official languages by the
Free State Provincial Administration on or before
31 March 2014.’
[2]
(My translation)
[3]
On the same day that
the order was granted, the Premier wrote to the Member of the
Executive Council for Sports, Arts, Culture and
Recreation (the MEC),
responsible for language matters in the Province. He requested the
MEC to ensure that his department approved
a language policy and
language bill; that those documents were submitted timeously to the
executive council; and that they were
tabled before the Free State
Legislature (the Legislature) on or before 31 March 2014. This was
done. On 26 March 2014 the executive
council approved the Free State
Provincial Government Language Policy (the Language Policy) for
implementation in 2014/2015 and
directed that the Use of the Free
State Official Languages Bill, 2014 (the Language Bill) be tabled
before the Legislature. The
MEC wrote to the speaker of the
Legislature on 26 March 2014 and asked her to table the Language Bill
or refer it to a committee,
whichever process was quickest. On 28
March 2014 the Language Bill was published in the Provincial Gazette,
and was thus in the
domain of the Legislature to be dealt with
according to its rules and orders.
[4]
On 28 March 2014 the
appellant was informed in writing of these developments and told that
the Premier had discharged his duties
as envisaged in the order. The
appellant however disagreed and took the view that the Premier was in
control of the legislative
process and that he could expedite it. By
letter dated 22 April 2014 the appellant was again informed that the
Premier, as the
executive authority of the Province, had discharged
his duties under the order insofar as it was within his
responsibilities and
powers, and that the legislative authority of a
province vests in its provincial legislature in terms of s 104 of the
Constitution.
[5]
The Language Bill
however lapsed and was not passed by the Legislature due to the
general elections held in 2014. In a letter dated
9 October 2014, the
secretary of the Legislature explained the position to the appellant,
in summary, as follows. The term of the
Legislature came to an end as
a result of the general elections in 2014 and all outstanding
proposed legislation also lapsed. Rule
141 of the Standing Rules and
Orders of the Legislature states that the proceedings on any bill
which lapsed owing to the dissolution
of the Legislature, may be
introduced in the new legislature, after which it must be referred to
the relevant committee of the
Legislature for consideration. This
entails a briefing by the responsible department to the committee; a
public participation process
facilitated by the committee;
consideration of inputs by the public and a report to the House,
which then considers the report
and the bill in terms of s 114 of the
Constitution; and if passed by the Legislature, the Premier assents
to and signs the bill,
in terms of s 121 of the Constitution. The
appellant was also told that once the Language Bill was tabled by the
MEC, the Legislature
would ensure that it was considered and
finalised without delay.
[6]
Subsequently the
Language Bill was republished in the Provincial Gazette in November
2014, resubmitted to the executive council,
referred by the Speaker
to a portfolio committee for consideration in June 2015 and all 11
Free State provincial government departments
were consulted about the
implementation of the Language Policy. The Language Bill was once
again tabled before the Legislature.
[7]
It is undisputed that
under the Rules and Orders of the Legislature, the Premier has no
power to intervene in the legislative process.
In any event, s 104(1)
of the Constitution makes it clear that the legislative authority of
a province is vested in its provincial
legislature. Despite this, in
June 2015 the appellant launched the contempt application. The
founding affidavit in that application
states that the Premier
‘deliberately failed to submit the Free State language
legislation to the Free State Legislature,
either personally or
through the MEC responsible for this function’
[3]
(my translation); and that ‘the actor in the Executive
Authority is also the actor who plays the main role in the
Legislature,
in this case, the first respondent’
[4]
(my translation).
[8]
In the light of the
facts outlined above and s 104(1) of the Constitution, it will
immediately be noted that these allegations are
simply wrong. The
Premier opposed the contempt application. He denied that he wilfully
disobeyed the order and stated that throughout,
he had acted on the
advice of experienced and senior legal advisers in his department.
The court a quo dismissed the contempt application
with costs,
because the evidence did not establish that the Premier had wilfully
and mala fide disregarded the order.
[9]
On 28 March 2017,
whilst this appeal was pending, the Legislature passed the Use of
Free State Official Languages Act, 2017 (the
Languages Act), which
will come into operation on 1 June 2017 as determined by the Premier
by Proclamation No 9 of 2017 in Provincial
Gazette No 16 of 12 May
2017. Given this development, Mr De Beer, for the appellant, rightly
conceded that the order sought on
appeal would have no practical
effect or result, and that the appeal may be dismissed on this ground
alone, as contemplated in
s 16(2)
(a)
(i)
of the
Superior Courts Act 10 of 2013
.
[5]
[10]
Consequently, the only
issue that must be decided is costs. On the authority of
Biowatch
,
[6]
it was submitted that the appellant should not be mulcted in costs
because he was asserting a constitutional right; and that he
was
substantially successful in doing so, by virtue of the promulgation
of the Languages Act.
[11]
The appellant however
is mistaken. To begin with, properly construed, the relief sought –
the committal of the Premier for
90 days for contempt of the order –
is not the assertion of a constitutional right. Further, in his
pursuit of that relief,
the appellant was not successful at all: he
failed to show that the Premier did not comply with the order; or, if
there was non-compliance,
that the Premier acted wilfully and mala
fide.
[12]
It is now settled that
an applicant must prove the requisites of contempt
(the
order, service or notice, non-compliance, wilfulness and mala fides)
beyond reasonable doubt. But once these requisites have
been proved,
the respondent bears an evidential burden of showing that
non-compliance was not wilful and mala fide.
[7]
Dis
obedience of a civil order
will constitute contempt only if the breach of the order was
committed deliberately and mala fide. Unreasonable
non-compliance,
provided that it is bona fide, does not constitute contempt.
[8]
And where, as in this case, an applicant approaches a court on notice
of motion, a dispute of fact as to whether non-compliance
was wilful
and mala fide falls to be determined on the respondent’s
version; unless the court considers that the respondent’s
allegations do not raise a real, genuine or bona fide dispute of
fact, or are so far-fetched or clearly untenable that the court
is
justified in rejecting them merely on the papers.
[9]
[13]
Applying these
principles to the facts in the instant case, it is clear from the
order that the Premier was required to give effect
to the provisions
of s 6(4) of the Constitution, ‘as far as it is within his
authority and powers’. This, the Premier
did. Immediately after
the order was issued, he ensured that the relevant department
approved the Language Policy and Language
Bill; that it was approved
by the executive council; that the Language Bill was published in the
Provincial Gazette; and that it
was tabled before the Legislature.
Once the Language Bill was before the Legislature, it alone had
legislative authority, as envisaged
in s 104(1) of the Constitution.
In terms of s 121(1) of the Constitution, the Premier then only had
the power to assent to and
sign the Language Bill, or refer it back
to the Legislature if he had reservations about its
constitutionality.
[10]
It follows that the Premier complied with the order and for this
reason alone, the contempt application had to fail.
[14]
Apart from this,
there was no wilful and mala fide non-compliance with the order. In
the answering affidavit, the Premier states
that in giving effect to
the order, throughout he had acted on the advice of his legal
advisers. There is no evidence to gainsay
this and it cannot be
suggested that the explanation is untenable. The court a quo was thus
correct in dismissing the contempt
application on the basis that the
appellant had not proved wilfulness and mala fides.
[15]
What remains is the
appellant’s reliance on
Biowatch
.
The Constitutional Court in
Biowatch
affirmed the general rule laid down in
Affordable
Medicines
,
[11]
namely that in constitutional litigation between private parties and
the government, ordinarily, if the government loses, it should
pay
the costs of the other side, and if the government wins, each party
should bear its own costs.
[12]
But this rule is not unqualified: if an application is frivolous,
vexatious, manifestly inappropriate, unreasonable or unnecessary,
the
applicant may be ordered to pay costs.
[13]
[16]
The contempt
application, indirectly related to a constitutional provision, was in
the circumstances manifestly inappropriate and
unreasonable. In March
2014 and again in April and October 2014, the appellant was informed
of the steps which the Premier had
taken in giving effect to the
order; and the reasons why the Language Bill had not been passed by
the Legislature. It should then
have been clear to the appellant that
the Premier had done everything in his power to give effect to the
order; and that an application
for contempt of court was doomed to
failure from the outset. Even after the answering affidavit was
delivered, the appellant persisted
with the contempt application, to
the point of appealing the decision refusing it. Moreover, the
Premier was compelled to oppose
an application seeking his
imprisonment, and incur unnecessary costs, ultimately paid by
taxpayers. In this regard, it should be
noted that the appellant is
no ordinary litigant: he is an attorney. He thus should be familiar
with the relevant constitutional
provisions and the principles
relating to contempt of court, especially since he launched identical
proceedings in the North West
Province; and threatened to bring a
similar application in terms of s 6(4) of the Constitution, in
KwaZulu-Natal.
[17]
In the circumstances,
fairness dictates that the appellant should be ordered to pay the
costs of the appeal.
[18]
In the result, the
appeal is dismissed with costs.
______________
A
Schippers
Acting Judge of Appeal
Appearances
For Appellant:
R J de Beer
Instructed
by: Lourens Attorneys,
c/o Symington & De Kock Attorneys, Bloemfontein
For
Respondent:
J Lubbe
Instructed by:
The State Attorney, Bloemfontein
[1]
Section 6(4) of the Constitution reads:
‘The national government and
provincial governments, by legislative and other measures, must
regulate and monitor their
use of official languages. Without
detracting from the provisions of subsection (2), all official
languages must enjoy parity
of esteem and must be treated
equitably.’
Item 21(1) of Schedule 6 to the
Constitution reads:
‘Where the new Constitution
requires the enactment of national and provincial legislation, that
legislation must be enacted
by the relevant authority within a
reasonable period of the date the new Constitution took effect.’
[2]
In its original form the order reads:
‘Eerste respondent, insoverre dit
binne sy bevoegdhede, gesag en magte is, gevolg sal gee aan die
bepalings van Artikel
6(4) van die Grondwet van die Republiek van
Suid-Afrika, 1996, gelees met item 21(1) van [S]kedule 6 van die
Grondwet, deur wetgewende
en ander maatreëls in plek te stel om
die gebruik van amptelike tale deur die Vrystaatse Provinsiale
Administrasie te reël
en te monitor en wel voor of op 31 Maart
2014.’
[3]
The relevant allegation is in these terms:
‘Ek wil onmiddellik meld dat
volgens my kennis dat tot datum van aflegging van hierdie verklaring
eerste respondent gefaal
en opsetlik versuim het om die Vrystaatse
Taalwetgewing by die Vrystaatse Wetgewer in te dien hetsy persoonlik
of hetsy toe te
sien dat sy Lid van die Uitvoerende Raad, wat
hiervoor verantwoordelik is, dit doen.’
[4]
This allegation reads:
‘… die akteur in die
Uitvoerende Gesag ook die akteur, wat die hoofrol speel, in die
Wetgewer is, synde die eerste
respondent in hierdie geval.’
[5]
Section 16(2)
(a)
(i) of the
Superior Courts Act reads
:
‘When at the hearing of an appeal
the issues are of such a nature that the decision sought will have
no practical effect
or result, the appeal may be dismissed on this
ground alone.’
[6]
Biowatch Trust v Registrar, Genetic Resources & others
[2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014 (CC).
[7]
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) para
42.
[8]
Fakie
fn 7 above paras 9 and 10.
[9]
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634E-635C;
Fakie
fn 7 paras 55 and 56.
[10]
Section 121(1)
reads:
‘The Premier of a province must
either assent to and sign a Bill passed by the provincial
legislature in terms of this Chapter
or, if the Premier has
reservations about the constitutionality of the Bill, refer it back
to the legislature for reconsideration.’
[11]
Affordable Medicines Trust & others v Minister of Health &
others
[2005] ZACC 3
;
2006 (3) SA 247
(CC) para 138.
[12]
Biowatch fn 6 above para 22.
[13]
Biowatch
fn 6 above para 24, citing with approval
Wildlife
and Environmental Society of South Africa v MEC for Economic
Affairs, Environment and Tourism, Eastern Cape & others
2005
(6) SA 123
(E) at 144B-C.