Zantsi v Council of State, Ciskei and Others (CCT24/94) [1995] ZACC 9; 1995 (4) SA 615 (CC); 1995 (10) BCLR 1424 (CC) (22 September 1995)

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[1995] ZACC 9
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Zantsi v Council of State, Ciskei and Others (CCT24/94) [1995] ZACC 9; 1995 (4) SA 615 (CC); 1995 (10) BCLR 1424 (CC) (22 September 1995)

Â
IN THE
CONSTITUTIONAL COURT OF THE REPUBLIC OF SOUTH AFRICAÂ
                                          Â
Case No. CCT/24/94
In
the matter between:                                              Â
ZANOMZI PETER ZANTSI
                           Applicant
And
THE
COUNCIL OF STATE,
                         First
Respondent
Â
THE
CHAIRMAN OF THE COUNCIL OF STATE
          Second
Respondent
And
THE
MINISTER OF DEFENCE, CISKEI
               Third Respondent
Heard
on:                                        16 May 1995
Delivered
on:                              22 September 1995Â
                                                             Â
Judgment
                                                             Â
[1]Â
Chaskalson P:
I agree with the
judgment of Trengove AJ and will confine my remarks to the application of
Section 102(8) of the Constitution. This
Section provides:
If any division of the
Supreme Court disposes of a matter in which a constitutional issue has been
raised and such court is of the
opinion that the constitutional issue is of
such public importance that a ruling should be given thereon, it may,
notwithstanding
the fact that the matter has been disposed of, refer such issue
to the Constitutional Court for a decision
.
Before an issue can be referred to this Court in terms of
Section 102(8) three requirements must be satisfied.  First, a constitutional

issue must have been raised in the proceedings; secondly, the matter in which
such issue was raised must have been disposed of
by the Supreme Court
[1]
; and
thirdly, the division of the Supreme Court which disposed of the matter must be
of the opinion that the constitutional issue
is of sufficient public importance
to call for a ruling to be made thereon by this Court.
[2]  In the United States of America, and as
long ago as 1885, Matthews, J said:
[N]ever... anticipate
a question of constitutional law in advance of the necessity of deciding it;
... never... formulate a rule
of constitutional law broader than is required by
the precise facts to which it is to be applied.
[2]
This rule, though not absolute, has
ordinarily been followed by courts in the United States of America since then.
[3]
Although the United States jurisprudence is influenced by the

case

and

controversy

requirement
of Article III of the US Constitution, the rule stated by Matthews, J is a
salutary rule which has been followed in
other countries.
[4]
[3]  It is also consistent with the
requirements of section 102 of our Constitution and the decision of this Court
in
S v Mhlungu and Others
[5]
where Kentridge AJ said:
I would lay it down as
a general principle that where it is possible to decide any case, civil or
criminal, without reaching a constitutional
issue, that is the course which
should be followed.
[6]
[4]  The same principle
underlies the provisions of section 102(5) which require appeals from a
provincial or local division of
the Supreme Court to be dealt with first by the
Appellate Division and, where possible, to be disposed of by that Court without

the constitutional issue having to be addressed. It is only where it is
necessary for the purpose of disposing of the appeal, or
where it is in the
interest of justice to do so, that the constitutional issue should be dealt
with first by this Court.
[7]
It will only be
necessary
for this to be done
where the appeal cannot be disposed of without the constitutional issue being
decided; and it will only be
in the
interest of justice
for a
constitutional issue to be decided first, where there are compelling reasons
that this should be done.
[5]  This rule allows the law to develop
incrementally. In view of the far reaching implications attaching to
constitutional decisions,
it is a rule which should ordinarily be adhered to by
this and all other South African courts before whom constitutional issues
are
raised.  It is  within this context that the provisions of section 102(8)
should be viewed and interpreted.
[6]  Section 102(8) of the Constitution applies
only to cases which have been disposed of. A referral of the moot issue in such

circumstances is the exception, and it follows that the section should be
invoked only in exceptional circumstances. In other words,
there must be a
compelling public interest that requires the reference to be made.
[8]
[7]  It is not ordinarily desirable for a court
to give rulings in the abstract on issues which are not the subject of
controversy
and are only of academic interest, and section 102(8) should not be
invoked in order to refer to this court an issue which was not
relevant to the
case which had to be decided.
[9]
In the present case, it is not clear from the judgments
of the Ciskei Provincial Division whether the issue concerning the jurisdiction

of provincial and local divisions of the Supreme Court generally, as distinct
from the jurisdiction of the Ciskei Provincial Division,
was in fact raised
during the proceedings, or whether it was raised only in the judgments. But
even if the issue was raised during
the proceedings, it was not, as appears
from the judgment of Trengove AJ, relevant to the case which had to be decided.
Section
102(8) should therefore not have been invoked.
[8]  The issue has,
however, become one of public importance as a result of the judgments given by
the Ciskei Supreme Court. The
judgments held that provincial and local
divisions of the Supreme Court have jurisdiction to enquire into the validity
of Acts
of Parliament passed prior to the 27th April 1994. For the reasons
given by Trengove AJ this is not correct, and to avoid the uncertainty
that
might otherwise result from such judgments, it has been necessary for this
Court to deal with that issue. This Court is not,
however, obliged to, and will
not ordinarily decide issues, which are not correctly referred to it under
Section 102(8).
[
Mahomed DP, Ackerman, Didcott, Kriegler, Langa,
Madala, Mokgoro, O’Regan, Trengove and Sachs JJ concur in the judgment]
[9] Â
Trengove AJ
:
In this matter the Ciskei provincial division (Pickard JP and Heath J) referred
the following issue to this court for a decision
in terms of section 102(8) of
the Constitution of the Republic of South Africa, 1993 (

the
Constitution

), namely:
Whether
or not provincial and local divisions of the Supreme Court have jurisdiction to
inquire into the constitutionality of acts
of the legislatures of South Africa
(as it then was) and the TBVC States which were passed prior to the
commencement of the new
South African Constitution.
(See:
Zantsi v The Chairman of the
Council of State and Another
1994 (6) BCLR 136
(Ck), 171;
1995 (2) SA 534
(Ck), 569).
Mr D P de Villiers, with Mr T Deva Pillay,
appeared for Third Respondent and Mr W H Trengove, with Mr L Mpati and Mr K
Mathee, as
amici curiae
for the Applicant at the request of this court.Â
We are indebted to them for their assistance.
[10]  The factual
background of the referral can be summed up as follows.  The Applicant was
dismissed from employment in the
Ciskei Defence Force on 22 April 1991.  He
intended instituting action against Third Respondent for alleged wrongful
dismissal
but was debarred from doing so by reason of his failure to comply
with the provisions of section 71 of the Defence Act, 17 of 1986
(Ciskei).  In
terms of this section, civil proceedings had to be instituted within a period
of six months after the cause of action
had arisen.
[11]  Applicant
subsequently sought an order in the court
a quo
declaring section 71 to be unconstitutional on the ground that
it was in conflict with article 1(2) of the Ciskei Bill of Rights,
set out in
Schedule 6 to the Republic of the Ciskei Constitution Decree, 45 of 1990. The
article provided that "all persons
shall be equal before the law".
[12]  The application
proceedings were initiated in June 1993, but the matter only came before the
court for argument on some date
(which does not appear from the papers before
us) after 10 June 1994. At that stage the three Respondents no longer existed.
Counsel
however agreed that any order made in favour of Applicant would be
regarded as an order against appropriate organs of the state
under the
Constitution.
[13]  At the outset of
the hearing, Pickard JP, raised the question-
...
whether or not this court has now the jurisdiction to declare Act 17 of 1986
(Ciskei) or any portion thereof to be unlawful,
unenforceable or invalid by
virtue of its provisions being in conflict with fundamental rights protected in
either the erstwhile
Ciskei Constitution Decree or the South African
Constitution. (at 140J; 538I-J)
Counsel stated that they were of the view that the court had the
necessary jurisdiction to deal with the application. Applicant's
cause of
action had arisen during 1991, proceedings had been initiated, and
litis
contestatio
had occurred during 1993, whereupon the court  had jurisdiction
to deal with the dispute, which jurisdiction still endured.
[14]  In opposing the application on the
merits, counsel for respondents contended that the decision of the Ciskei
Appeal Court
in
Chairman of the Council of the State
v
Qokose
1994 (2) BCLR 1
(Ck AD);
1994 (2) SA 198
(Ck AD), handed down on 10 June 1994,
was binding on the court
a quo
. In that case the provisions of section
48 of the Police Act, 32 of 1983 (Ciskei), which were similar to those of
section 71, were
held to be valid and not unconstitutional.
[15]  I now refer very briefly to views of the
court
a quo
on the issue of jurisdiction raised by the learned Judge
President at the beginning of the hearing, and its finding on the merits
of the
application.  Pickard JP was of the opinion that the question of jurisdiction
revolved around the interpretation of the
expression "Act of Parliament"
in sections 101(3)(c) and 98(2)(c) of the Constitution.  By various processes
of reasoning,
to which I need not now refer, the learned Judge came to the
conclusion at 147F (545G) that-
... the only proper
interpretation of the provisions of section 101(3)(c) would then be to
interpret the expression "Parliament"
to mean "Parliament as
created by this Constitution”.
He accordingly concluded at 147J to 148A (546A-B) that

... on a proper
interpretation of the provisions of s 101 of the Constitution, a provincial or
local division of the Supreme Court
has jurisdiction to adjudicate upon the
constitutionality of any
“
Act” passed by any legislative
body, other than Parliament of the new South Africa as created by Chapter 4 of
the new South African
Constitution.
[16]  In a separate judgment, Heath J, agreed
with the conclusion arrived at by Pickard JP and gave fairly extensive reasons
for
doing so.  In considering the question of jurisdiction, the learned Judge
referred in some detail to a number of judgments in other
divisions which had
considered whether provincial or local divisions had jurisdiction to grant
interim relief pending an approach
to the Constitutional Court to contest the
validity of a statutory provision.  I do not consider it necessary to refer to
any
of these judgments because none of them deals with the issue raised in the
referral.
[17]  As to the merits of the application, the
court
a quo
was of the opinion that
Qokose's
case was
distinguishable as the appeal had been heard prior to the commencement of the
Constitution, and had consequently been
decided without reference to, or
consideration of, its provisions.  The court held that it was therefore not
bound by the appeal
court's decision in that case. The court found that section
71 was unconstitutional for reasons set out in
Matinkinca and Another v
Council of State, Ciskei and Another
1994 (1) BCLR 17
(Ck);
1994 (4) SA 472
(Ck) and it consequently made an order to that effect.
[18]  Against this background, I return to the
issue raised in the referral which, as I have mentioned, relates to the
jurisdiction
of a provincial or local division of the Supreme Court to inquire
into the constitutionality of

acts

of the legislatures of South Africa and the TBVC states which were passed
before the commencement of the Constitution.
[19]  A decision on this issue turns ultimately
on the proper interpretation of sections 101(2) and 101(3)(c) of the
Constitution.
However, in view of the jurisdictional scheme of the Constitution
it is necessary to refer first to the provisions of section 98(2)
and (3) which
relate to the jurisdiction of the Constitutional Court.
[20]  Section 98(2) states that the
Constitutional Court
-
shall have
jurisdiction in the Republic as the court of final instance over all matters
relating to the interpretation, protection
and enforcement of the provisions of
this Constitution, including- Â
the matters particularized in subparagraphs (2)(a) to (g). Thus,
throughout the whole of the Republic, as defined in section 1, the
jurisdiction
of the Constitutional Court, as the court of final instance, in respect of
constitutional issues is unqualified and
all-inclusive.
[21]  Section 98(2)(c) relates to the issue
with which we are concerned in this case, namely, the power to test laws, and
particularly
Acts of Parliament, said to be inconsistent with the Constitution.
In terms of this section, the Constitutional Court has jurisdiction
over

any inquiry into the
constitutionality of any law, including an Act of Parliament, irrespective of
whether such law was passed or
made before or after the commencement of this
Constitution.
[22]  Section 98(3) is also relevant to this
issue.  It states that-
The Constitutional
Court shall be the only court having jurisdiction over a matter referred to in
subsection (2), save where otherwise
provided in sections 101(3) and (6) and
103(1) and in an Act of Parliament.
In other words, section 98(3) read with section 98(2)(c) states,
in effect, that the  Constitutional Court shall be the "only
court having
jurisdiction" to inquire into the validity of any law, including an Act of
Parliament "save where otherwise
provided in sections 101(3) and (6) and
103(1) and in an Act of Parliament". The last two references refer to
special situations
not particularly relevant for present proposes.
[23]  I come now to sections 101(2) and
101(3)(c) which read as follows-
(2)Subject to this
Constitution, the Supreme Court shall have the jurisdiction, including the
inherent jurisdiction, vested in the
Supreme Court immediately before the
commencement of this Constitution and any further jurisdiction conferred upon
it by this Constitution
or by any law.
and
(3)Subject to this
Constitution, a provincial or local division of the Supreme Court shall, within
its area of jurisdiction,  have
jurisdiction in respect of the following
additional matters, namely
-
...
(c)any inquiry into
the constitutionality of any law applicable within its jurisdiction, other than
an Act of Parliament, irrespective
of whether such law was passed or made
before or after the commencement of the Constitution.
[24]  Mr de Villier's argument was based mainly
on the provisions of sections 98(2)(c), 98(3) and 101(3)(c). He submitted that
the question whether a provincial or local division of the Supreme Court had
jurisdiction to inquire into the constitutionality
of a law was not determined
by the consideration whether such law was passed (or made) before or after the
commencement of the
Constitution, but solely by the question whether it was one
which in the contemplation of the framers of the Constitution, was an
"Act
of Parliament". If it was such an Act, the Constitutional Court would have
exclusive jurisdiction by reason of the
provisions of section 98(3) read with
section 98(2)(c). By the same token, a provincial or local division of the
Supreme Court
would not have authority to adjudicate on the matter in terms of
the jurisdiction conferred upon it by section 101(3)(c). Mr de
Villiers further
contended that although the expression "Act of Parliament" was not
defined in the Constitution, such
indications as there were, left no doubt that
in the contemplation of the framers of the Constitution, the expression related
to
Acts passed by Parliament, sitting in Cape Town, irrespective whether such
Acts were passed before or after the commencement of
the Constitution.
[25]  Mr Trengove, on the other hand, submitted
that in addition to the jurisdiction conferred upon it by section 101(3)(c), a
provincial or local division of the Supreme Court was empowered by section
101(2) to inquire into the constitutionality of all legislation,
including Acts
of Parliament, whether passed before or after the commencement of the
Constitution.  Mr Trengove's argument in
support of this submission can be
summed up as follows. Section 101(2) of the Constitution entrenches the
"inherent jurisdiction"
vested in the Supreme Court immediately
before the commencement of the Constitution.  This inherent jurisdiction of the
Supreme
Court has at all times prior to the commencement of the Constitution
included the power of judicial review of Acts of Parliament.Â
This power, so
the argument continued, was rooted in our common law; it has moreover been
asserted and applied by our courts in
a number of well-known cases to which we
were referred; it was furthermore confirmed and reinforced, in effect, by
section 19(1)(a)
of the Supreme Court Act, 54 of 1959; and finally, it was
expressly acknowledged and preserved by section 34(2)(a) of the Republic
of
South Africa Constitution, Act 110 of 1983. Mr Trengove also contended that
section 101(3)(c), read with section 101(2), was
open to an interpretation
which did not vest the Constitutional Court with exclusive jurisdiction to
review "Acts of Parliament",
alternatively, that if section 101(3)(c)
were to be construed as ousting the Supreme Court's jurisdiction to inquire
into the validity
of "Acts of Parliament", the ouster should be
narrowly construed as applying only to Acts of Parliament passed after the

commencement of the Constitution. This was the approach of Heath J who foundÂ
support for this conclusion,
inter alia
, from the presumption against
the ousting of the jurisdiction of the Supreme Court (at page 164B-C; 562F-G),
from the principle
that a constitution should be construed generously so as to
give individuals "the full measure of the rights and freedoms referred
to

(at page 162B,163I; 560E,562C) and consistently with the "spirit and
purpose of sections 98 and 101"(at page 164D; 562H).
[26]  I shall first deal with Mr Trengove's
submission that, by reason of the entrenchment in section 101(2) of the
inherent jurisdiction
vested in the Supreme Court immediately prior to the
commencement of the Constitution, a provincial or local division of the Supreme

Court has jurisdiction to inquire into the constitutionality of all
legislation, including Acts of Parliament, whether passed before
or after the
commencement of the Constitution.  I do not consider it necessary to decide
whether the inherent jurisdiction vested
in the Supreme Court immediately
before the commencement of the Constitution included the power to inquire into
the validity of
Acts  of Parliament.  For present purposes, I shall assume that
it did.  The crucial question, nevertheless, is whether the inherent

jurisdiction of the court as entrenched in section 101(2), included the power
of review of Acts of Parliament. In order to determine
this question, it is
necessary to construe section 101(2) in the context of the constitutional
scheme of division of powers and
functions within the judiciary. In this
respect there is, in my view, a fundamental flaw in Mr Trengove's line of
reasoning - it
does not take sufficient account of the fact that the provisions
of section 101(2) must be regarded as being subordinate to those
of section
98(2) and (3).
[27]  In this regard, it is important to note,
first, that the provisions of section 101(2) are governed by the words
"subject
to the Constitution". As to the meaning and effect of the
phrase "subject to," I respectfully agree with, and adopt,
what
Miller JA said in the following passage in
S v Marwane
1982 (3) SA 717
(A), 747H to 748A, namely-
The purpose of the
phrase

subject to

in such a context is to establish what is dominant and what
subordinate or subservient; that to which a provision is “subject”
is dominant
- in case of conflict it prevails over that which is subject to it. Certainly,
in the field of legislation, the phrase
has this clear and accepted
connotation. When the legislator wishes to convey that that which is now being
enacted is not to prevail
in circumstances where it conflicts, or is
inconsistent or incompatible, with a specified other enactment, it very
frequently,
it not almost invariably, qualifies such enactment by the method of
declaring it to be
“
subject to
”
the other specified one.
In the present instance, section 98(2) and (3) are plainly the
dominant provisions and would prevail over section 101(2) in the event
of
conflict.
[28]  As previously indicated, the exclusivity
of jurisdiction conferred upon the Constitutional Court by section 98(3) with
reference
to the matters as set out in section 98(2), is subject to
modification only as stated in the proviso. There is no reference to section

101(2) in the proviso. It follows that the provisions of section 101(2) should
not be construed as constituting a modification
of the Constitutional Court's
exclusive jurisdiction, in terms of section 98(3) read with section 98(2)(c),
to inquire into the
constitutionality of Acts of Parliament. However, if the
expression "inherent jurisdiction" were construed - as counsel

contended it should be - as inclusive of the power of review of Acts of
Parliament, the provisions of section 101(2) would, to
that extent, manifestly
conflict or be inconsistent with the provisions of section 98(2) and(3)(c).
[29]  The interpretation of section 101(2)
advanced by Mr Trengove also gives rise to other inconsistencies or anomalies.
For example,
according to that interpretation, section 101(2) confers
jurisdiction upon a provincial or local division of the Supreme Court to

inquire into the constitutionality of any law, applicable within its area of
jurisdiction, including an Act of Parliament, whereas
in section 101(3)(c) the
jurisdiction of such a provincial or local division to inquire into the
constitutionality of laws, relates
to "any laws applicable within its area
of jurisdiction, other than an Act of Parliament."
[30]  In endeavouring to reconcile his
interpretation of the extent of the inherent jurisdiction of the Supreme Court,
entrenched
in section 101(2), with the provisions of section 101(3)(c), Mr
Trengove was constrained to resort to a somewhat artificial construction
of the
latter section. He contended that the language of the section did not exclude
or revoke the Supreme Courts' inherent power
of judicial review of Acts of
Parliament - it merely entrenched the Supreme Court

s
jurisdiction to inquire into the constitutionality of any law applicable within
its area of jurisdiction, and excluded Acts of
Parliament from the general
entrenchment. What this argument however overlooks, is that if the Supreme
Court

s inherent jurisdiction immediately
prior to the commencement of the Constitution, in fact included the power of
judicial review
of Acts of Parliament, such power has, as I have already
mentioned, been excluded or revoked by section 98(3) read with 98(2)(c),
and
has not been reinstated in section 101(3)(c) or in any other section of the
Constitution.
[31]  There is a further factor militating
against the correctness of the interpretation of section 101(2) contended for
by Mr
Trengove. Section 101(4) confers the powers of the Constitutional Court
in terms of section 98(5), (6), (7), (8) and (9) upon a
provincial or local
division of the Supreme Court "for the purposes of exercising its
jurisdiction under subsection (3)."
If the inherent jurisdiction of the
Supreme Court as entrenched in section 101(2), had included the power of
judicial review of
Acts of Parliament, the Constitution would, no doubt, have
provided for a similar conferral of powers upon a provincial or local
division
for the purposes of exercising its jurisdiction under section 101(2), but no
such provision exists.
[32]  In the result, I have come to the
conclusion that whatever the scope of the Supreme Court

s
inherent jurisdiction immediately before the commencement of the Constitution
might have been, its inherent jurisdiction as entrenched
in section 101(2) does
not include the power of review of the constitutionality of Acts of Parliament.
[33]  I now come to the provisions of section
101(3)(c). The question for consideration is whether this section confers
jurisdiction
upon a provincial or local division of the Supreme Court to
inquire into the constitutionality of an Act of Parliament passed before
the
commencement of the Constitution. The answer to this question depends, as
Pickard JP observed, on the proper interpretation
of the expression "Act
of Parliament" in the context of sections 101(3)(c) and 98(2)(c). It will
be recalled that the
learned judges in the court
a quo
were of the
opinion that the expression applied only to Acts of Parliament passed after the
commencement of the Constitution, and
not to Acts passed before that date.
[34]  Central to the reasoning of Pickard JP
were two propositions.  First, none of the legislatures of the Republic of
South
Africa or Transkei, Bophuthatswana, Venda and Ciskei "were
recognised by the vast majority of the subjects of the new South
Africa as the
legitimate representatives of the people or as the legitimate legislatures for
them."  Consequently, in the
context of the new democratic Constitution,
the term "Parliament, when used in its ordinary sense, does not include...
any
of those legislatures."   Secondly, since none of the legislatures of
the old Republic of South Africa or the TBVC states
had authority to legislate
for the whole of what is now the national territory, none of them can be said
to have been a Parliament
within the meaning of the 1993 Constitution.
[35]  The 1993 Constitution is an Act passed by
the old South African Parliament.  It does not purport to bring about a merger

between five "independent countries".   On the contrary, it
recognises only the sovereignty of South Africa, and proceeds
on the basis that
South Africa is claiming sovereignty over the TBVC states, repealing the
legislation by which they were previously
established, and referring to them in
the text as areas "which form part of the national territory." It
makes provision
for constitutional continuity, treating the 1983 Constitution
of the Republic of South Africa as the previous Constitution. Â
Consistently
with this, the name of the country remains the Republic of South Africa,  the
then South African President was empowered
to bring the provisions of the
Constitution into force prior to April 1994 (Section 251), the national revenue
fund of the Republic
of South Africa established under the 1983  Constitution
is deemed to be the State Revenue Fund (Section 240), the elections for
the new
Parliament were to be conducted in terms of the South African Electoral Act
1993 (Section 249), under the supervision of
the Independent Electoral
Commission (Section 250), and local government elections are to be conducted in
terms of the South African
Local Government Transition Act 1993 (Section 245).Â
In Section 234 one "Parliament" is contemplated, and the reference
is
clearly to the South African Parliament in Cape Town.  In the context of the
Constitution as a whole it is clear that "Act
of Parliament" means an
Act of the South African Parliament sitting in Cape Town. (See also
Japaco
Investments (Pty) Ltd and Others v The Minister of Justice
1995 (1) BCLR
113(C)
, 116D-F). This has been accepted by almost every division of the Supreme
Court both before and since the decision of the Ciskei
Provincial Division in
this case.  In my view, therefore, the two central propositions on which
Pickard JP based his judgment
must be rejected.
[36]  The Constitution does not contain a definition
of the expression "Act of Parliament". However, this expression has

formed part of the definition of the word "law" in our Interpretation
Acts ever since 1910 (see section 3, s.v. "law"
in the Interpretation
Act, 5 of 1910). In the present Act, Interpretation Act, 33 of 1957, the word
"law" is defined
in section 2 as-
"any law,
proclamation, ordinance, Act of Parliament or other enactment having the force
of law."
The word "Parliament" was initially defined in these
Interpretation Acts as meaning

the
Parliament of the Union of South Africa" but since 1961 it has meant
"the Parliament of the Republic of South Africa."
Thus, since the
establishment of the Union of South Africa in 1910, the expression "Act of
Parliament" has consistently
been used in our statute law with reference
to legislation passed by the South African Parliament - by the Parliament of
the Union
of South Africa during the period 1910 - 1961, and from then onwards,
by the Parliament of the Republic of South Africa. The expression
has never
been used in our statute law with reference to any laws passed or made by the
Parliaments or legislatures of any of the
former TBVC States. The question
whether, in the context of the Constitution, the expression "Act of
Parliament" refers
to an Act passed either before or after the
commencement of the Constitution, or to an Act regardless of when it was
passed, must
of course be determined with reference to the context in which it
occurs.
[37]  I return to the provisions of sections
98(2)(c) and 101(3)(c) to consider whether in the context of these sections the
expression
"Act of Parliament" includes acts passed before the
commencement of the Constitution. In view of the effect of provisions
of section
98(3), I shall first deal with the meaning of the words "Act of
Parliament" in section 98(2)(c). Having regard
to the all-inclusive nature
of the jurisdiction conferred upon the Constitutional Court by section 98(2)
and the ordinary meaning
of the language of section 98(2)(c), I have no doubt
that in this section the expression "Act of Parliament" refers to
any
such Act irrespective of whether it was passed before or after the commencement
of the Constitution.  This becomes very clear
if the section is construed, as
it should be, with due regard to the meaning assigned to the word
"law" in the Interpretation
Act. In the context of section 98(2)(c)
the words "any law, including an Act of Parliament” and “such
“
law”,
clearly mean "any law, proclamation, ordinance,
Act of Parliament
or other enactment having the force of law." (my emphasis). So construed,
section 98(2)(c), in effect, confers jurisdiction
upon the Constitutional Court
over any inquiry into the constitutionality of "any law, proclamation,
ordinance, Act of Parliament,
or other enactment having the force of law",
irrespective of whether "such law, proclamation, ordinance, Act of
Parliament,
or other enactment having the force of law" was passed or made
before or after the commencement of the Constitution.
[38]  It is now necessary to consider the
meaning of the expression
“
Act of Parliament" in
the context of section 101(3)(c). In this regard, it is important to bear in
mind that the jurisdiction
conferred upon a provincial or local division of the
Supreme Court by this section is concurrent jurisdiction and that it, in
effect,
modifies the exclusivity of the jurisdiction conferred upon the
Constitutional Court by section 98(3) with reference to the subject
matter of
section 98(3)(c). The essential difference between the scope of the
jurisdiction conferred by sections 98(2)(c) and 101(3)(c)
upon the respective
courts, is that section 98(2)(c) confers jurisdiction upon the Constitutional
Court over "any inquiry
into the constitutionality of any law,
including
an Act of Parliament" (my emphasis), whereas section 101(3)(c) confers
jurisdiction upon a provincial or local division of
the Supreme Court in
respect of "any inquiry into the constitutionality of any law ...
other
than an Act of Parliament." (my emphasis) This comparison of the wording
of the two clauses shows quite clearly that the jurisdiction
conferred by
section 101(3)(c) does not include the power to inquire into the
constitutionality of Acts of Parliament, nor does
it modify or affect the
exclusivity of the Constitutional Court's jurisdiction to do so, in any manner.
Thus, the question whether
a provincial or local division of the Supreme Court
has jurisdiction in terms of section 101(3)(c), to inquire into the
constitutionality
of any law depends entirely upon whether that law is an Act
of Parliament, or not. If it is, a provincial or local division would
have no
jurisdiction in the matter for it would fall within the exclusive jurisdiction
conferred upon the Constitutional Court
by section 98(3) read with section
98(2)(c) in respect of any inquiry into the constitutionality of an Act of
Parliament. This
in my view follows clearly from the structure and provisions
of the Constitution dealing with the judicial authority and the jurisdiction
of
the Courts in respect of constitutional issues, and cannot be avoided, as Heath
J sought to do, by a resort to presumptions
and to a "generous" and
"purposive" interpretation.  In fact, in the present case, the
adoption of a purposive
interpretation does not support the conclusion reached
by Heath J.  In my view the clear purpose of the relevant provisions was
to
ensure that the  Constitutional Court would be the only Court with jurisdiction
to set aside an Act of Parliament. What other
purpose could there have been for
the provisions of section 98(3) and the deliberate distinction drawn in
sections 98(2) and 102(3)
between the jurisdiction of the Constitutional Court
and the jurisdiction of the Supreme Court?  In this respect, and without seeking

to express any opinion in regard to the conflicting decisions on the
jurisdiction of the Supreme Court to grant interim relief
in disputes in which
the validity of an Act of Parliament is in issue (a matter which has now been
resolved by the provisions of
section 16
of the
Constitutional Court
Complementary Act, 13 of 1995
), I agree with the comments of Didcott J in
Bux
v The Officer Commanding the Pietermaritzburg Prison and Others
1994 (4)
BCLR 10
(N) 14J to 15F;
1994 (4) SA 562
(N), 566D-J.
[39]  I do not consider it necessary to deal
with Mr Trengove's alternative submission in respect of
section 101(3)(c)
because it does not take account of the effect of
section 98(3)
and is founded
on a premise which I have already rejected as unsound, namely that
section
101(2)
entrenches the inherent jurisdiction of the Supreme Court to inquire
into the constitutionality of an Act of Parliament.
[40]  Finally, as to laws passed or made by the
legislatures of the former TBVC States prior to the commencement of the Constitution,

I have already indicated that, in my opinion, those laws do not fall within the
definition of an Act of Parliament. It follows
that a provincial or local
division of the Supreme Court would have jurisdiction, under section 101(3)(c),
to inquire into the
constitutionality of any such law, applicable within its
area of jurisdiction.
[41]  In the result, I have come to the
conclusion that the issue referred to this Court by the Ciskei Provincial
Division in terms
of section 102(8) of the Constitution should be decided as
follows
-
1.  A provincial or local division has no
jurisdiction to inquire into the constitutionality of an Act of Parliament
passed by
the South African Parliament, irrespective of whether such Act was
passed before or after the commencement of the Constitution.
2.  As to a law passed or made by any of the
legislatures of the former TBVC States, a provincial or local division of the
Supreme
Court has jurisdiction, in terms of section 101(3)(c), to inquire into
the constitutionality of any such law applicable within its
jurisdiction.
         Â
J.
TRENGOVE
ACTING
JUDGE OF THE CONSTITUTIONAL COURT
[
Chaskalson
P, Mahomed DP, Ackerman, Didcott, Kriegler, Langa, Madala, Mokgoro, O’Regan,
Sachs JJ concur in the judgment
]
COUNSEL FOR APPLICANTS            W
TRENGOVE S.C
(amicus curiae)
ASSISTED BY                       L.MPATI
& K. MATHEE
Istructed by                 Constitutional
Litigation Unit
Legal Resources Centre (JHB)
COUNSEL FOR RESPONDENTS
         Â
D.
P. de VILLEIRS Q.C
T. DEVA PILLAY
Instructed by                     Smith
Tabata Van Heerden & Siwisa
[1]
     It is not clear when and in
what circumstances a matter can be said to have been

disposed of

within the meaning of section
102(8), particularly if the possibility exists that an appeal may be noted. We
heard no argument
on this and it is not necessary to deal with that issue in
this judgment
[2]
   Â
   Â
Liverpool,
New York and Philadelphia Steamship Co. v Commissioners of Emigration
113 US 33
, 39 (1885).
[3]
   Â
   Â
Burton
v US
[1905] USSC 18
;
196 US 283
,
295 (1905);
Ashwander v Tennessee
Valley Authority
[1936] USSC 36
;
297 US 288
,
341 (1936);
Joint Anti-Fascist
Refugee Committee v McGrath
341 US
123
, 154-5 (1951);
Kremens
Hospital Director v Bartley
[1977] USSC 77
;
431 US
119
, 133-4 (1977).
[4]
     H.M. Seervai,
Constitutional
Law of India:
Vol I 3ed (1983) para. 11.200 cites Chandrachud CJ in the
Rajasthan
case (1978) 1 S.C.R.1, for the proposition that

in the field of constitutional adjudication...the court will
decide no more than needs to be decided in any particular case.

See also Casey,J:Â
Constitutional Law in
Ireland
, 2ed (1992), 284 where the author discusses cases in which the
Supreme Court adopted the view that

Constitutional
issues must be reached last

.In
Law Society of Upper Canada
v Skapinker
(1984) 8 CRR 193
,214 the Supreme Court of Canada held that

[t]he development of the Charter as it takes
its place in our constitutional law must necessarily be a careful process.
Where issues
do not compel commentary on these new Charter provisions, none
should be undertaken.

See also:
Borowski v Canada
57 DLR (4th) 231,where a similar approach was adopted by the Supreme Court of
Canada to the related question of

mootness

.
[5]
    Â
  Â
[1995] ZACC 4
;
1995
(7) BCLR 793
(CC), 821F-G para 59; 1995(3) SA 867 (CC), 894 para 59; see also
S
v Vermaas
[1995] ZACC 5
;
1995 (7) BCLR 851
(CC), 858F-H para 13 (CC); 1995 (3) SA 292
(CC).
[6]
   Â
Ibid
para 59; see also
Prokureursorde van Transvaal v Kleynhans
1994 (4) BCLR 48
(T), 51C-52C;
1995 (1) SA 839
(T), 849D-850D.
Â
[7]
   Â
    Â
Section
102(1) of the Constitution and Constitutional Court Rule 23(3).
[8]
     In
Borowski v Canada supra
note 3, the Canadian Supreme Court held that although the general policy or
practice was that courts may decline to decide cases
which merely raise
hypothetical or abstract questions, they had a discretion to depart from that
general practice. According to
the court, it was undesirable to lay down
precise criteria for the exercise of such discretion except to emphasize that
the court
has to take into account the rationale behind the the general policy
against deciding moot issues. First, in an adversary system,
issues are best
decided in the context of a live controversy. The second consideration is based
on concern for judicial economy
and the last is that it is generally
undesirable and possibly an intrusion into the role of the legislature for a
court to pronounce
judgments on constitutional issues in the absence of a
dispute affecting the rights of the parties to the litigation. The court

ultimately dismissed the appeal stating that,

[t]he mere fact, however, that a case raising the same point is
likely to recur even frequently should not by itself be a reason
for hearing an
appeal which is moot. It is preferable to wait and determine the point in a
genuine adversarial context unless the
circumstances suggest that the dispute
will have always disappeared before it is ultimately resolved.
[9]
     Compare in this regard the
refusal of the courts to entertain applications for a declaration of rights in
respect of abstract
or hypothetical issues in
Anglo-Transvaal Collieries v
SA Mutual Life Assurance Society
1977(3) SA 631 (T),635E-636F confirmed on
appeal
sub nom SA Mutual Life Assurance Society v Anglo-Transvaal Collieries
1977 (3) SA 642
(A), 655D and 658H.