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National Society for the Prevention of Cruelty to Animals ("NSPCA") v Minister of Agriculture, Forestry and Fisheries and Others (44001/2012) [2012] ZAGPPHC 329 (15 November 2012)

78 Reportability
Constitutional Law
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Brief Summary

Constitutional Law — Separation of powers — Performing Animals Protection Act No. 24 of 1935 — NSPCA challenged constitutionality of magistrates issuing licenses and certificates — NSPCA argued that such functions are executive and should not be performed by the judiciary — Court considered the implications of the separation of powers doctrine. The National Society for the Prevention of Cruelty to Animals (NSPCA) applied for a declaration that sections 2 and 3 of the Performing Animals Protection Act, which assign licensing functions to magistrates, are unconstitutional. The NSPCA contended that these functions should be performed by the executive, not the judiciary. The first respondent, the Minister of Agriculture, Forestry and Fisheries, initially indicated an intention to oppose but failed to deliver an answering affidavit, leading to the matter being heard on an unopposed basis. The court held that the licensing functions assigned to magistrates under the Act are unconstitutional as they violate the separation of powers principle, which delineates the roles of the executive and judiciary.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were a motion application in the North Gauteng High Court, Pretoria, in which the applicant sought a declaration of constitutional invalidity concerning provisions of the Performing Animals Protection Act 24 of 1935. The dispute centred on whether the Act’s allocation of a licensing and certification function to magistrates is consistent with the Constitution’s separation of powers and the independence of the judiciary.


The applicant was the National Society for the Prevention of Cruelty to Animals (NSPCA). The first respondent was the Minister of Agriculture, Forestry and Fisheries (the executive authority responsible for the administration of the Performing Animals Protection Act). The second and third respondents were the Deputy Director-General: Court Services, Department of Justice and Constitutional Development and the Minister of Justice and Constitutional Development, respectively.


Procedurally, the matter was initiated and enrolled on the unopposed motion roll. After service, the first respondent filed a notice of intention to oppose but did not deliver an answering affidavit. The matter was re-enrolled on the unopposed roll and was postponed on 18 October 2012 with directives aimed at securing participation by the first respondent, particularly because the relief sought included an interim arrangement that potentially implicated executive authority. The first respondent failed to comply with that order, later filed a notice of withdrawal and an indication to abide, and did not appear when required. Further postponements followed to address the implications of the interim relief and the first respondent’s non-compliance. Ultimately, an interim arrangement was placed before the court on the basis of an agreement between the parties.


The general subject-matter of the dispute was the constitutionality of statutory provisions requiring magistrates (judicial officers) to perform licensing and certification functions regarding performing animals and safeguarding dogs, and what interim measures (if any) could be ordered pending confirmation by the Constitutional Court.


2. Material Facts


It was common cause that the Performing Animals Protection Act 24 of 1935 provides that persons who intend to exhibit or train animals for exhibition, or who use dogs for safeguarding, must hold the relevant licence and certificate. Sections 2 and 3 of the Act require applications to be made to the magistrate of the district, and empower the magistrate to issue licences and certificates, to refuse renewals on certain grounds, and to amend certificates.


The material procedural facts were largely undisputed and were relevant to costs and to the court’s insistence on participation by the first respondent. The first respondent filed a notice of intention to oppose on 10 August 2012, leading to removal of the matter from the unopposed roll. No answering affidavit followed, and the applicant re-enrolled the matter for 18 October 2012. On that date, there was no appearance for the first respondent, and no notice of withdrawal was on file. The court postponed the matter and ordered the first respondent to file heads of argument and an affidavit explaining its inaction by 26 October 2012, with costs reserved.


None of those directives was complied with. A notice of withdrawal and intention to abide was only filed on 31 October 2012. The court nevertheless required an explanation and an appearance, given the implications of the interim relief sought. On 1 November 2012 there was again no appearance, and the matter was stood down to secure the attendance of the responsible State Attorney. The matter was postponed again to 7 November 2012 to enable compliance and to obtain submissions regarding the interim relief.


The NSPCA’s cause of complaint, as framed in the founding affidavit and accepted by the court as the essential basis for the constitutional challenge, was that the statutory licensing and certification tasks imposed on magistrates are executive/administrative functions, not judicial functions, and that the current constitutional order requires a distinct separation between executive, legislative, and judicial functions.


The disputed aspect concerned the appropriateness and competence of the court to grant the applicant’s proposed interim relief, which sought to have the NSPCA itself perform the licensing function pending Constitutional Court confirmation. The court treated this as raising separation-of-powers concerns in the remedial stage and considered it separately from the declaration of invalidity.


3. Legal Issues


The central legal question was whether sections 2 and 3 of the Performing Animals Protection Act 24 of 1935 are unconstitutional to the extent that they require magistrates to issue licences and certificates, given the constitutional principle of separation of powers and the constitutional protection of judicial independence.


A second legal question arose at the level of remedy: whether the High Court was competent to order, as an interim measure pending Constitutional Court confirmation, that the NSPCA be tasked with the licensing and certification function, or whether such an order would impermissibly intrude into the domain of the executive.


The dispute thus concerned a question of law (constitutional validity of statutory provisions), together with the application of constitutional remedial powers to the facts, including an evaluative judgment about the appropriate interim arrangement pending confirmation and legislative correction.


4. Court’s Reasoning


The court approached the constitutional challenge through the lens of the Constitution’s structural allocation of state power. It emphasised that judicial authority is vested in the courts under section 165(1) of the Constitution, and that the performance of non-judicial tasks by judicial officers risks compromising and frustrating judicial authority and independence. On this basis, legislation that undermines or confuses the separation of powers or functions among the three arms of government is inconsistent with the Constitution.


Applying these principles, the court characterised the issuing of licences and certificates under sections 2 and 3 as executive or administrative functions rather than functions connected to the core adjudicative role of magistrates. The court reasoned that these functions “have nothing to do with the core judicial functions of magistrates” and that obliging magistrates to perform them undermines judicial independence protected by section 165. The court also located the broader constitutional structure by referring to the distinct competencies envisaged by the Constitution and the allocation of authority in sections 44, 85, and 165, emphasising that administrative implementation and enforcement fall within the executive domain.


Having concluded that the impugned provisions offend against separation of powers, the court held that they should be declared inconsistent with the Constitution. However, it also considered the consequences of such a declaration and the court’s constitutional remedial powers. The court noted that, under section 172(2) of the Constitution, an order of constitutional invalidity made by the High Court has no force unless confirmed by the Constitutional Court. It further noted that under section 172(1)(b)(ii) the court may suspend a declaration of invalidity and impose conditions to allow the competent authority to correct the defect, a mechanism which avoids courts stepping into the shoes of the executive or legislature.


The court then dealt with the applicant’s proposed interim relief, which sought to task the NSPCA with the licensing function pending confirmation. The court treated this as problematic because licensing was described (including by the applicant) as a core government function to be performed by the executive. The NSPCA was not an executive organ and had not been authorised by the executive to perform the function. The court reasoned that it was for the executive, specifically the minister responsible for the Act, to decide how licensing should be administered and by whom, and that a court order placing the NSPCA in charge would risk usurping executive powers. The court concluded that it was not competent to grant the interim relief in the form originally sought, and that exceptional circumstances justifying such an intrusion were not present.


In contextualising the NSPCA’s role, the court referred to the NSPCA’s establishment under the Societies for the Prevention of Cruelty to Animals Act 169 of 1993, its governance structure, and its objectives. The court distinguished those functions from the licensing function in the 1935 Act, describing the NSPCA’s role under the 1935 Act as essentially policing/monitoring compliance (ensuring that licensed activities do not involve ill-treatment of animals), rather than considering applications and issuing licences or certificates.


The court also addressed institutional participation in constitutional litigation. It stressed that where the constitutional validity of an Act of Parliament is impugned, the minister responsible for its administration must be a party, since separation-of-powers concerns and public interest considerations arise, and the court benefits from the state organ’s perspective on legislative purpose, factual context, impact, and remedial issues such as suspension and conditions. In support of this approach, the court referred to Van der Merwe v Road Accident Fund [2006] ZACC 4; 2006 (4) SA 230 (CC).


In light of its concern regarding interim relief but also the practical need to regulate licensing pending confirmation and correction, the court recorded that the parties had reached an agreement during the postponement period. The agreement provided for an interim committee-based mechanism to exercise the licensing function, with representation from the NSPCA, the first respondent, and the South African Veterinary Council, and with a review procedure to a retired judge appointed by the first respondent. The court considered this arrangement appropriate and made an order in those terms pending confirmation and correction of the defect.


On costs, the court accepted that constitutional matters often attract a more cautious approach to costs, but it evaluated the first respondent’s conduct in the litigation as having caused unnecessary delays through non-appearance and non-compliance with court orders, particularly given the importance of the relief and the first respondent’s eventual substantive contribution to an interim solution. The court concluded that the first respondent’s explanations were unsatisfactory and that its conduct warranted a wasted costs order for postponements on 18 October 2012 and 1 November 2012, on the opposed motion scale.


5. Outcome and Relief


The court declared sections 2 and 3 of the Performing Animals Protection Act 24 of 1935 to be constitutionally invalid insofar as they relate to magistrates. The declaration of invalidity was ordered to have no effect until confirmed by the Constitutional Court.


The court granted the first respondent six months from the date of Constitutional Court confirmation to correct or cure the constitutional defect in sections 2 and 3.


Pending confirmation and the curing of the defect, the court ordered an interim arrangement in terms of the parties’ agreement. A committee was to be appointed to exercise the licensing function, consisting of two representatives appointed by the NSPCA, two representatives appointed by the first respondent, and one representative appointed by the South African Veterinary Council. A review procedure was provided against committee decisions to a retired judge appointed by the first respondent.


The court ordered the first respondent to pay wasted costs caused by the postponements on 18 October 2012 and 1 November 2012, with such costs to be on the opposed motion scale.


Cases Cited


Van der Merwe v Road Accident Fund [2006] ZACC 4; 2006 (4) SA 230 (CC).


Legislation Cited


Constitution of the Republic of South Africa, 1996 (sections 44, 85, 165, 172).


Performing Animals Protection Act 24 of 1935 (sections 1, 2, 3).


Societies for the Prevention of Cruelty to Animals Act 169 of 1993 (sections 2(1), 2(3), 8).


Veterinary and Para-Veterinary Act 19 of 1983.


Rules of Court Cited


No specific rules of court were cited in the judgment.


Held


The High Court held that the statutory conferral on magistrates of the power to issue licences and certificates under sections 2 and 3 of the Performing Animals Protection Act 24 of 1935 constitutes an allocation of executive/administrative functions to judicial officers and is inconsistent with the Constitution’s structural requirements, including the separation of powers and the protection of judicial independence. It therefore declared the provisions invalid to that extent, subject to Constitutional Court confirmation.


The High Court further held that it was not competent, on the terms originally sought by the applicant, to task the NSPCA unilaterally with a core executive licensing function. Nevertheless, pending confirmation and legislative correction, it made an interim order (by agreement between the parties) establishing a representative committee to perform the licensing function with an internal review mechanism to a retired judge.


The court held that the first respondent’s conduct in relation to postponements and non-compliance justified an award of wasted costs on the opposed scale for specified hearing dates.


LEGAL PRINCIPLES


The judgment applied the principle that the Constitution contemplates a separation of powers among the legislature, executive, and judiciary, and that legislation which assigns executive/administrative functions to judicial officers may undermine that separation and threaten judicial independence protected by section 165 of the Constitution.


It applied the principle that High Court declarations of constitutional invalidity have no force until confirmed by the Constitutional Court, consistent with section 172(2) of the Constitution, and that courts may craft remedies including suspending or conditioning declarations of invalidity to allow the competent authority to correct constitutional defects, consistent with section 172(1)(b)(ii).


It applied the principle that when an Act of Parliament is challenged for constitutional invalidity, the responsible minister should participate as a party because the court ordinarily should not decide validity and remedy without the benefit of the state organ’s explanation of purpose, context, impact, and remedial considerations, as reflected in Van der Merwe v Road Accident Fund [2006] ZACC 4; 2006 (4) SA 230 (CC).

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[2012] ZAGPPHC 329
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National Society for the Prevention of Cruelty to Animals ("NSPCA") v Minister of Agriculture, Forestry and Fisheries and Others (44001/2012) [2012] ZAGPPHC 329 (15 November 2012)

REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
Case
no: 44001/2012
Date:15/11/2012
In
the matter between:
NATIONAL
SOCIETY FOR THE PREVENTION
OF
CRUELTY TO ANIMALS (‘NSPCA')
…......................................
APPLICANT
and
MINISTER
OF AGRICULTURE,
FORESTRY
AND
FISHERIES
.........................................................
1st RESPONDENT
DEPUTY
DIRECTOR GENERAL:
COURT
SERVICES DEPARTMENT OF
JUSTICE
AND CONSTITUTIONAL
DEVELOPMENT
...................................................................................
2nd
RESPONDENT
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
...................................................................................
3rd
RESPONDENT
JUDGEMENT
Judgment
reserved:
Judgment
handed down:
LEGOD1 J.
[1]
The issue before me is whether the issuing of licences and
certificates by magistrates in terms of sections 2 and 3 of
Performing
Animals Protection Act No. 24 of 1935 is unconstitutional.
[2]
The issue was raised in an application that was brought by National
Society for the Prevention of Cruelty to Animals in the
unopposed
motion roll.
[3]
Subsequent to the service of papers on the respondents, the first
respondent, Minister of Agriculture, Forestry and Fisheries
filed
notice of intention to oppose. The other two respondents filed notice
to abide.
[4]
The first respondent having filed notice of intention to oppose
failed to deliver an answering affidavit. As a result the applicant

enrolled the application for hearing on the unopposed motion roll.
[5]
On the 18 October 2012 when the matter was called, I indicated to
counsel for the applicant that I cannot just make an order
as prayed
for without giving reasons, especially having regard to the nature of
the relief sought and more so that the written
heads of argument by
the applicant were only handed in from the bar on the 18 October
2012.
[6]
The relief sought is set out in the notice of motion as follows:
'1.
Directing that sections 2 and 3 of the Performing Animals Protection
Act no 24 of 1935 are unconstitutional.
2.
Directing that the licencing function tasked to Magistrates under the
impugned sections 2 and 3 be tasked to the NSPCA as an
interim
measure pending confirmation by the Constitutional Court of the order
sought in paragraph 1.
3.
Further and or alternative relief.'
[7]
On the 18 October 2012 counsel for the applicant agreed that the
matter ought to be postponed seen in the light of the fact
that
written heads of argument were only handed in when the matter was
called. The court then took the advantage to deal with the
first
respondent’s default and failure to appear in court on the 18
October 2012
[8]
As a way of background to the default, on the 10 August 2012 the
first respondent through the office of the State Attorney Pretoria,

served notice of intention to oppose. The application was originally
set down for hearing on the 4 September 2012 to be heard on
the
unopposed motion roll.
[9]
Upon service of notice of intention to oppose, the matter was removed
from the roll. When the first respondent failed to deliver
the
answering affidavit, the applicant re-enrolled the matter on the
unopposed motion roll for the 18 October 2012- The notice
of
enrolment was served on the first respondent's attorneys on the 14
September 2012. On the 18 October 2012 there was no appearance
on
behalf of the first respondent. As on the 18 October 2012 the notice
of withdrawal of the notice to oppose was not filed.
[10]
It was in the light of all of the above that I made an order as
follows:
'1.
The matter is postponed to the 1 November 2012 to be heard at 09:h00
2.The
first respondent to file written heads of argument on the relief
sought by the applicant not later that the 26 October 2012.
3.
The first respondent is hereby ordered to file an affidavit not later
than the 26 October 2012 in which explanation is given
as to why
nothing was done since the notice to oppose was served.
4.
Costs occasioned by the postponement reserved;
[11]
None of the terms of the court order was complied with. Instead, the
first respondent's attorney filed a notice of withdrawal
of the
notice of intention to oppose and in the notice it was also indicated
that the first respondent will abide by the decision
of the court.
Immediately upon filing of the notice of withdrawal on the 31 October
2012, I directed the Registrar to inform the
State Attorney, in
particular Mr Lekoalana who is dealing with the matter, that an
explanation in terms of paragraph 2 of the court
order of the 18
October 2012 quoted above would still be required and that it has to
be filed by 15:h00 on the 31 October 2012.
Secondly, the Registrar
was directed to inform the first respondent’s attorneys that
there has to be an appearance on behalf
of the first respondent to
deal with any issue that might arise regarding prayer 2 quoted in
paragraph 6 of this judgement.
[12]
There was no appearance on behalf of the first respondent on the 1
November 2012 when the matter was called. There was also
no
explanation as required in terms of paragraph 2 of the order of the
18 October 2012. I stood down the matter and requested the
attorney
for the applicant to communicate with Mr Lekoalana and to inform him
that the court was waiting for him. When the court
resumed, Mr
Lekoalana was there. He appeared to have thought that having filed
the notice of withdrawal on the 31 October 2012
he did not have to do
anything regarding both the order of the 18 October 2012 and the
directive that was conveyed to him by the
Registrar.
[13]
To ensure that there is no laxity in the future and not paying
attention to matters entrusted with the State Attorney and also
to
ensure that court orders when made are taken seriously and complied
with, the matter on the 1 November 2012 was again stood
down until
the 7 November .2012.The postponement was meant to enable Mr
Lekoalana to comply with the order of the 18 October 2012
and also to
file written heads of argument regarding prayer 2 of the applicant’s
notice of motion.
[14]
On the 7 November 2012 the matter was therefore again laid before me.
Starting with failure to appear on the 18 October 2012
and failure to
do anything after having filed notice of intention to oppose, the
explanation is briefly as follows;
14.1
that the notice of intention to oppose was delivered to enable the
first respondent to investigate the matter after it was
served on the
1 August 2012,
14.2
that Counsel was instructed to deal with matter Upon consultation the
first respondent instructed State Attorney to file notice
of
withdrawal and to abide.
14.3
that the notice of withdrawal and to abide was given to a messenger
to serve and file before the 18 October 2012 and
14.4
that as a result, on the 18 October 2012, there was no appearance in
court as it was thought that it was not necessary,
[15]
As on the 18 October 2012, there was no such withdrawal on file,
neither was the applicant served with any such withdrawal.
It was
only on the 31 October 2012 that such a notice landed in the court’s
file. It is not dated to show when it was drafted,
settled and filed
or served before the 18 October 2012. It looks like it was only after
the order of the 18 October 2012 that attempts
were made to come up
with a notice of withdrawal of the notice to oppose.
15.1
To abide by the decision of the court also does seem to have been
made in haste. I say so because prayer 2 could not have been

appropriately dealt with without the involvement of the first
respondent as set out in paragraph 41 hereunder. The first respondent

cannot just sit back and leave it up to the courts to strike down or
impugn its legislation and also to impose certain restrictions
or
conditions as it deems fit.
15.2
It was a haste decision to abide because upon further insistence by
the court to make an appearance and to file .written heads
of
argument, the first respondent argued for an alternative as set out
in the settlement agreement
referred
to in paragraph 38 hereunder. This should be seen in the light of the
first respondent’s obligation as responsible
Minister to assist
the court when an order of constitutional invalidity is made. In this
regard what is stated in paragraph 41
of this judgement is relevant.
15.3
Therefore any suggestion by the first respondent's attorney to have
thought that notice to abide and or notice of withdrawal
would have
excused appearance on behalf of the first respondent has to be seen
in context. The thought of notice to abide and withdrawal
of the
notice of intention to oppose seems to have been prompted by the
order that was made by this court on the 18 October 2012.
[16]
Regarding failure to appear on the 1 November 2012 and to deal with
prayer 2 of the applicant's notice of motion, the explanation
is
given as follows in paragraph 12 of Mr Lekoalana's affidavit:
12
'I
did not attend court on the 01 November 2012 for the following few
reasons.'
12.1
16.1
I believed that after the Honourable Judge had seen the two notices
which was served on the applicant's attorneys and Wed In
the court
file would be satisfied that the second respondent Is abiding by the
decision of the above Honourable court.
12.2
16.2
it was also an oversight on the pert of the respondent's attorneys
not to have the heads of argument reedy in that I thought
that now
could I file heads if there was to affidavit fifed and it became
clear on the 01 November 2012 that the court only needs
the heads of
arguments misting to prayer 2 of the applicants notice of motion
since that will help the court In dealing with this
matter"
[17]
Mr Lekoalana was obviously mistaken In thinking that it was not
necessary to give an explanation for failure to appear on the
01
November 2012 after the court had made an order demanding such an
explanation especially seen in the tight of the nature of
the relief
sought. Secondly it was like no proper attention was ever paid to the
implication of prayer 2. I deal with such Implication
in paragraphs
28 to 37 of this judgement. Therefore the explanation for failure to
make an appearance on the 01 November 2012 is
also not satisfactory.
This will have a bearing on the wasted costs caused by the
postponements on both occasions.
[18]
Coming back to the issue identified in paragraph 1 of this judgement
being the relief sought in prayer 1, I find it prudent
to have regard
to what I consider to be the applicant's bone of contention, refer to
it as the cause of action. In paragraphs 22.1
to 22.6 of the founding
affidavit, it is stated as follows;
‘
22.1
The 1935 Act gives Magistrates the job of licencing people and
certifying
22.2
However licences and certificates a/p executive functions that should
property be performed by members of the executive. They
should mi be
performed by Magistrates who are patently not members of the
executive (Magistrates are member of the judiciary).
22
3 Whilst ft may have once-upon 3 lime been acceptable (and even
lawful) for members of the judiciary to perform executive functions

rite licensing, it is no longer appropriate for them to continue to
do so unfertile current constitutional order
22.4
If them is one thing that the Constitution clearly did, it was to
create a distinct divide between executive, judicial and
legislative
functions. There are a number of Constitutional Court judgements
which condemn a transgression of a separation of powers
doctrine. A
transgression would occur where, for example, art Official belonging
within the executive arm of government performs
a judicial function
or, conversely, where a member of the judiciary performs an executive
function.
22.5
Whilst them was no clear separation of powers doctrine prevalent in
1935 when the statute was promulgated, there most certainly
is one
post-l994.
22.6
it is therefore no longer constitutionally acceptable for e
Magistrate to perform executive functions like licensing and
certification.'
[19]
I cannot agree more. The judicial authority of the Republic which is
vested in the courts as envisaged in section 165 (1) of
the
Constitution, would be compromised and frustrated if judicial
officers are going to be obliged to perform duties which make
no
distinction between judicial and administrative functions.
[20]
Any legislation that tends to undermine or confuse separation of
powers and or functions amongst the three arms of government
would be
inconsistent with the Constitution.
[21]
The applicant in paragraph 33.1 of its founding affidavit simply
deals with the distinct separation of powers as follows:
“
33
1 Functionally, government has three separate spheres of competency.
The Legislature (who makes laws, the Executive (who administers,

implements and enforces those laws and the judiciary (who resolves
disputes"
[22]
This distinction should be seen in the light of the authority or
power that is bestowed on the legislature, executive and judiciary
in
terms of the provisions of the Constitution in sections 44, 85 and
165 respectively.
[23]
It is the executive that initiates laws. Legislature makes laws and
the judiciary through courts interpret those laws and give
effect to
the intention of the Legislature unless such intention in the
legislation
is inconsistent with the constitution, in which case, such a
provision of statute will be struck down.
[24]
‘The do it all' principle by judicial officers in the lower
courts is a thing of the past, Just as a reminder to the
past,
magistrates used to do all sorts of administrative functions in
addition to their judicial functions. For examplel they used
to deal
with accounts, used to attend to acquisition of tools of trade, leave
applications and other operational issues and functions
that were
legislated to be performed by them.
[25]
Such a mixture of functions and responsibilities which makes no
distinction between administrative and judicial functions by
judicial
officers cannot be allowed in a constitutional dispensation.
[26]
Coming back to the impugned sections of Performing Animals Protection
Act no 24 of 1935, they provide as follows;
“
2
Magistrate may issue licence for exhibiting and training of
performing animals and for use of dogs for safeguarding.
Any
person intending to exhibit or train for exhibition any animal, or
who uses a dog for safeguarding, may apply in writing in
the
professional form to the Magistrate of the district In which such
person resides, performs or comes on business, for a licence
to do sq
who shelf grant the same: provided that:-
(a)
The magistrate is satisfied that such person is a fit and proper
person;
(b)
Such licence shall be granted for a calendar year and expire on the
thirty first December in every year;
(c)
The magistrate may, if in his opinion there is good and sufficient
mason, refuse, to renew such licence; and
(d)
The Minister may by regulation proscribe the form of an application
for a licence and the form of the licorice, the conditions
subject to
which such licence shell be held, and the fee which shall be paid for
such licence and for the renewal thereof.
3 Certificates in respect of
licenced Animals.
(1)
The holder of a licence referred to in section 2 shall not exhibit or
train any animal or cause it to be exhibited or trained
for
exhibition or use any dog for safeguarding unless he is in possession
of a Certificate authorising such exhibition, training
or use of all
animals in respect of which such licence is held.
(2)
The certificate referred to in subsection (1) shall be issued by the
magistrate in the prescribed form after submission to him
of the
prescribed information by the licence holder
(3)
Upon such certificate shaft be specified the form of training,
exhibition and use, as the case may be, of the animal or animals
in
respect of which it is issued
(4)
It shall be competent for a magistrate upon the application of the
holder of a certificate to amend such certificate by either-
(a)
Deleting these from animals which are no longer in the possession or
custody of the holder; or
(b)
Adding other animals which have since the issue or renewal of the
licence come into the possession or custody of the holder,
or
(c)
Modifying the form of training, exhibition or use specified thereon,
and for such amendment no charge shall be made”
[27]
The provisions of sections 2 and 3 should be seen in the light of
section 1 which provides that no person shall exhibit or
train or
cause' or permit to be exhibited or trained for exhibition any animal
of which he is the owner or has the lawful custody
or use any dog for
safeguarding unless such person is the holder of a licence. It is
clear from the provisions of sections 2 and
3 that magistrates are
required to perform executive or administrative functions. It is the
function of the executive to do so,
in the instant case, the first
respondent. The functions of issuing of licences and certificates as
envisaged in sections 2 and
3 are executive or administrative
functions which have nothing to do with the core judicial functions
of magistrates. The existence
of these sections in my view, offend
against the principle of separation of powers as envisaged in the
Constitution. They tend
to undermine the independence of the
judiciary as enshrined in section 165 of the Constitution by obliging
the magistrates to perform
executive or administrative functions.
They should therefore be found to be in conflict with the
Constitution. This finding has
a bearing on prayer 1 of the notice of
motion as quoted in paragraph 6 of this judgement.
[28]
Prayer 2 of the applicant’s notice of motion seeks to empower
or authorise the applicant to perform functions as envisaged
in the
impugned sections 2 and 3. This raises the issue whether this court
is competent to make such an order. For this reason
I insisted that
the attorney or Counsel for the first respondent ought to be in court
on the 1 November 2012 despite the late indication
that the first
respondent will abide by the decision of this court.
[29]
Just as a start, in paragraph 35 of the founding affidavit amongst
others, the applicant states as follows:
'...licencing
is a core government function that must be performed by members of
the executive'
[30]
I tend to agree with the statement. Firstly, the applicant is not an
official of the executive nor is it authorised by the
executive to
perform the functions as envisaged in the impugned sections 2 and 3.
Secondly, the executive, (the first respondent)
in the instant case,
as the initiator of legislations for his or her department will have
to decide how it wishes to run and oversee
the activities of issuing
of licences and certificates in terms of the Act. In other words, it
has to decide as to who should be
tasked or assigned to consider
applications, to issue licences as envisaged in section 2 and to
issue certificates envisaged in
section 3. One needs to be careful
not to fail into the trap of doing what is intended to be avoided
here. That is, not to usurp
the powers of the executive in deciding
who should be given the responsibilities of dealing with the issuing
of licences and certificates
for exhibition and training of
performing animals and for use of dogs for safeguarding. In my view,
it does not matter whether
the relief sought is temporary or not. It
is the underlining principle in it. I am therefore at pains in
granting the relief sought
in prayer 2. I do not think that this
court is competent to do so. Exceptional circumstances, if they were
to be a consideration
do not exist.
[31]
By the way, the applicant is a statutory body established in terms of
Section 2(1) of Societies for the Prevention of Cruelty
to Animals
Act no. 169 of 1993. It is a national Council of Societies whose
objects amongst others, are to prevent the ill-treatment
of animals
by promoting their good treatment by man and to take cognizance of
the application of laws affecting animals and societies
and to make
representations in connection therewith to the appropriate authority.
[32]
The Council, (the applicant) operates through a board established in
terms of Section 2 (3) which board consists of directors
elected in
accordance with the constitution of the Council and a director
nominated to the board by the Minister. The Council or
applicant is
tasked to ensure that animals are not ill-treated and secondly that
societies which are established in terms of section
8 of the 1993
Act, comply with the rules of the applicant. Its function in terms of
the 1993 Act should not be confused with its
role in terms of the
provisions of Performing Animals Protection Act 24 of 1935.
[33]
The applicant's main function In terms of the 1935 Act is limited to
policing. That is, to ensure that those who have been
granted
licences to use animals specified in the certificates so issued, do
so without ill-treating such animals.
[34]
Put simply, the applicant in terms of the 1935 Act has nothing to do
with consideration of applications for licences and certificates
in
terms of sections 2 and 3 of the 1935 Act. It does however have an
interest. The authority to perform licencing function has
to be
legislated or regulated by the first respondent.
[35]
It looks like the applicant is more concerned about the vacuum that
might be occasioned by declaration of constitutional invalidity
of
sections 2 and 3. Remember, in terms of section 172 (2) of the
Constitution, an order of constitutional invalidity of the Court,
has
no force unless it is confirmed by the Constitutional Court.
Secondly,
in terms of section 172 (i)(b)(ii) this court may order the
suspension of the declaration of invalidity for any period
of time
and on any conditions to allow the competent authority to correct the
defect in the 1935 Act. The latter avoids courts
from stepping into
the shoes of the executive or legislative authority.
[36]
What this court can do under section 172 (1) of the Constitution has
been raised with both counsel for the applicant and the
first
respondent. Firstly, as I said earlier in this judgement, this Court
is not competent to put the applicant in charge of the
issuing of
licences and certificates as envisaged in sections 2 and 3 of the
1935 Act. Secondly, the fact that there would be a
vacuum should be
seen in the light of the Court's willingness to give the first
respondent the opportunity to cure the defect,
[37]
It is not for this court to pre-empt what would be the first
respondent's resolution to the defect in sections 2 and 3 of the
1935
Act. Perhaps it suffices to mention that any licences and
certificates issued prior to the making of this order under sections

2 and 3 would remain valid for the period of their duration.
[38]
However, even if I was to be wrong with regards to what is said in
the preceding paragraphs, the parties now have reached an
agreement
as to what ought to be done in the interim, The relevant terms of the
agreement pending the decision of the Constitutional
Court are as
follows:
38.1
A committee shall be appointed to exercise the licensing function as
set out in the impugned provisions.
38.2
The committee shall be comprised of two representatives appointed by
the Applicant, two representatives appointed by the First
respondent
and a representative appointed by the South African Veterinary
council.
38.3
A review procedure shall lie against the decisions of the committee
to a retired judge, who shall be appointed by the First
Respondent.
[39]
The agreement seems to be in line with the written heads of argument
filed on behalf of the first respondent subsequent to
the order this
court made on the 1 November 2012- The submission is made as follows;
8
“
As
regards prayer 2 thereof, the first respondent' veterinary section as
well as the brand marketing section, are suitably qualified
to be
tasked with the licensing functions,
9
It
is noted that the applicant is similarly qualified but the first
respondent is of the view that it should not be tasked with
the
licencing function to the exclusion of any other relevant end
similerty qualified institution or body.
10
The
veterinary Council established in terms of the Veterinary and Para-
Veterinary Act 19 of 1983, consists of qualified, trained
and skilled
members. They, in addition, have experience in the prevention of
cruelty to animals. To this extent is humbly submitted
that there
members are suitably qualified to be tasked with the licencing
functions as an interim measure.
The
Veterinary council fails under the Minister of Agriculture, Forestry
and Fisheries and “countable to him”
[40]
The participation of the first respondent in these proceedings was
always necessary since the launching of the application.
At the risk
of repeating myself I must say, the first respondent was mistaken in
thinking that this matter could be finalised without
its involvement.
It did not matter whether or not the relief sought was opposed.
[41]
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 ought to be heard and
considered. This is so because 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 participation, if any, for limiting
an entrenched
right. The views of state organ concerned are also important when
considering whether, and on what conditions, to
suspend any
declaration of invalidity (See Van der Merwe v Road Accident
[2006] ZACC 4
;
2006 (4)
SA 230
cc at 241 par 7).
[42]
When the matter was postponed on the 1 November 2012 to the 7
November 2012, I urged Counsel for the applicant and Mr Lekoalana
to
use the time to see if they cannot come up with a compromise position
regarding prayer 2. I am pleased that this was taken seriously
and as
a result settlement agreement referred to in paragraph 38 of this
judgement was reached. I have no reason not to make an
order along
the basis as suggested in the settlement agreement.
[43]
I now turn to deal with the question of costs. As correctly stated by
Counsel on behalf of the applicant, in constitutional
matters, courts
often tend to be lenient in making an order for costs. However, the
view expressed on behalf of Counsel for the
applicant was that the
first respondent should be ordered to pay the wasted costs of the 18
October 2012 and the 1 November 2012.
Two reasons for the view were
given. Firstly on the 18 October 2012 when the matter was postponed,
the first respondent had not
withdrawn its notice of intention to
oppose. For this it was submitted that the matter should be seen as
having still been opposed
as on the 18 October 2012. I cannot agree
with this view. The applicant placed the matter on the unopposed
motion roll. This should
be seen as having been on the assumption
that the first respondent elected not to oppose the relief sought.
This assumption was
consistent with the attitude of the first
respondent when it ultimately filed notice of withdrawal of the
notice of intention to
oppose and the indication to abide by the
decision of this court. The second reason for seeking wasted cost
order was that on the
1 November 2012 there was no compliance with
the order of the 18 October 2012 and as a result the matter was
postponed to the 7
November 2012 for compliance therewith.
[44]
I have indicated earlier in this judgement that the first
respondent’s default on the 18 October 2012 and 1 November
2012
was wanting. It had in a way caused unnecessary delays. Having regard
to the nature of the relief sought and the ultimate
proposal that the
first respondent made, it is dear that the first respondent failed to
pay proper attention to the matter, particularly
taking Into account
the implications that might arise from declaration of constitutional
invalidity of sections 2 and 3 of the
1935 Act
[45]
Having regard to ail of the above, I come to the conclusion that the
first respondent must be ordered to pay the wasted costs
of the 18
October 2012 and 1 November 2012 and that such costs should be on the
opposed scale. I come to this conclusion taking
into account the
conduct of the first respondent through its attorney as explained
earlier in this judgement.
[46]
Consequently an order is hereby made as follows;
46.1
Sections 2 and 3 of Performing Animals Protection Act 24 of 1935 are
hereby declared constitutionally invalid insofar as they
relate to
the Magistrates.
46.2
The declaration of constitutional invalidity referred to in 46,1
above has no effect until it is confirmed by the Constitutional

Court.
46.3
The first respondent is hereby given six months within which to
correct or cure the defect of constitutional invalidity in
sections 2
and 3 from date of confirmation by the Constitutional court.
46.4
Pending confirmation and curing of the defect, it is ordered as
follows:
46.4.1
a committee shall be appointed to exercise the licensing function as
set out in the impugned provisions.
46.4.2
This committee shall be comprised of two representatives appointed by
the Applicant, two representatives appointed by the
First respondent
and a representative appointed by the South African Veterinary
council.
46.4.3
A review procedure shall lie against the decisions of the committee
to a retired judge, who shall be appointed by the First
Respondent.
46.5
The first respondent is hereby ordered to pay wasted costs caused by
the postponements on the 18 October 2012 and 1 November
2012 and such
costs to be on the opposed motion scale.
M.F.
LEGODI
JUDGE
OF THE HIGH COURT
MARSTON
&TAUAARD ATTORNEYS :1
st
RESPONDENT ATTORNEYS
APPLICANTS
ATTORNEYS :THE STATE ATTORNEY
BOUNDRY
PLACE : 255 SALU BUILDING
18
RIVONIA ROAD :CNR FRANCIS BAARD STREET
(CNR
BOUNDARY ROAD) : AND THABO SEHUME STREET
ILLOVO :GROUND
FLOOR, PRETORIA
JOHANNESBURG :TEL:
(012) 309 1507
TEL:
(011) 268-2528 :FAX. (012) 309 1649
FAX:
(011) 268 2541 :REF: 6508/12/Z76/jb

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