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[1996] ZACC 23
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JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others (CCT49/95) [1996] ZACC 23; 1996 (12) BCLR 1599; 1997 (3) SA 514 (21 November 1996)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
J T PUBLISHING
(PROPRIETARY) LIMITED First Applicant
EUGENE MARAIS Second
Applicant
versus
MINISTER OF SAFETY AND SECURITY First
Respondent
MINISTER OF HOME AFFAIRS Second Respondent
GOVERNMENT OF THE
REPUBLIC OF SOUTH AFRICA Third Respondent
Heard on 14 May
1996
Decided on 21 November 1996 Case CCT 49/95
J U D G
M E N T
DIDCOTT J:
[1] The present matter is the
second one concerning the statutory censorship of obscenity and the like with
which we have had to deal
this year. The first was
Case and Another v
Minister of Safety and Security and Others; Curtis v Minister of Safety and
Security and Others,
[1]
where we
struck down a subsection of the Indecent or Obscene Photographic Matter Act (37
of 1967) that lay at its heart, holding
the provision to be incompatible with
the interim Constitution (Act 200 of 1993). Some equally crucial parts of the
Publications
Act (42 of 1974) have now been impugned in turn. They too are
said in these proceedings to be constitutionally defective.
[2] In neither
case did any of the counsel who argued it before us contend or suggest that such
censorship was always and in principle
repugnant to the Constitution, no matter
how vile, depraved and bereft of redeeming features the material thus suppressed
might happen
ever to be. They all accepted, on the contrary, that the
production of material so egregious, its dissemination and sometimes even
its
possession could justifiably be prohibited or restricted in the public interest
whenever those activities were shown to have
a truly pernicious effect. That
so much might well be constitutionally tolerable was furthermore acknowledged,
with varying degrees
of force and emphasis, in three of the separate judgments
delivered when we decided the previous
case.
[2]
I mention all that because
the decision given then appears to have been misunderstood in some circles as a
green light shone for
the peddling of pornography. It therefore seems
necessary to stress that the target under attack was on the earlier occasion,
and
is again on this one, not censorship in general but the particular scheme
of the statute in question, the nature and range of its
dictates and the
capacity attributed to them for hitting, indiscriminately and unseverably, both
obnoxious and innocuous material.
[3] Whether those details of the
Publications Act are indeed open to challenge in the present case is by no means
common cause, however,
but an issue in dispute and the first one that we have to
consider. The background to that question and the circumstances from
which it
arises must therefore be described straight away.
[4] The first
applicant publishes a magazine called
Hustler,
a name belonging to it on
the strength of a trademark that it holds. It also produces other publications
and material recorded
on videotape. The second applicant is a member of a
close corporation which has procured from the first applicant a franchise
allowing it to trade under the name and requiring it to sell the first
applicant’s products. Both businesses ran into trouble
when they were
believed to be contravening the Publications Act. Issues of the magazine were
banned. The police raided the premises
of the close corporation and seized its
stocks of merchandise supplied by the first applicant. The same happened to a
second
franchisee. That all occurred despite a concession by the Minister of
Home Affairs that some parts of the statute were constitutionally
flawed and the
consequent preparation, on which his department was already at work, of a bill
proposing its repeal and replacement
by a fresh scheme. An undertaking that
such incidents would not recur while the legislation remained under review was
requested
from the authorities. But they refused to promise that, insisting on
the enforcement in the meantime of the law as it stood.
[5] The sequel
was a series of recourses that the applicants had to litigation where they
sought protection for their trading against
a repetition of the experiences
undergone by them, which were said to have interfered with it drastically.
Their earlier efforts
to achieve that object all went awry for various reasons,
none of which matters now. In the end they applied to the Transvaal Provincial
Division of the Supreme Court for an order
referring to us, for our ruling
on them, the questions whether the Publications Act and the Indecent or Obscene
Photographic Matter
Act,
[3]
or
alternatively some individual sections of each, were constitutionally valid or
invalid. No additional relief was claimed
in that forum as either an interim
or a lasting measure. The Minister of Safety and Security, the Minister of
Home Affairs and
the Government were joined in the proceedings and cited
respectively as the first, second and third respondents. The first respondent
took no part in the debate that followed, abiding instead by the decision of the
Court. The other two respondents both opposed
the application. It came
before Daniels J, who dismissed it with costs. His refusal of the referral
was appealable to this
Court under section 102(17) of the Constitution. So the
applicants obtained from him the preliminary certificate required for such
purposes by our rule 18. They then applied to us for leave to appeal against
the decision in terms of that rule, as read with section
102(11) of the
Constitution. In accordance with directions issued here for the disposal of the
matter, oral argument on the application
for leave to appeal was heard in due
course by the whole Court, together with the appeal itself in case the
application succeeded.
[6] The referral was sought under section 102(1)
of the Constitution, the salient part of which stipulates that:
“If, in any matter before a provincial or local division of the Supreme
Court, there is an issue which may be decisive
for the case, and which falls
within the exclusive jurisdiction of the Constitutional Court ..., the
provincial or  local
division concerned shall, if it considers
it to be in the interest of justice to do so, refer such matter to the
Constitutional
Court for its decision: Provided that, if it is necessary for
evidence to be heard for the purposes of deciding such issue, the
provincial or
local division concerned shall hear such evidence and make a finding thereon,
before referring the matter to the Constitutional
Court.”
Daniels J took the view that those provisions
did not apply to the sort of case at hand, a case raising no issue but the ones
on
which a ruling was wanted from us. His reasons for thinking so were
furnished in a judgment that he delivered at the time, when
he said:
“The validity of the Acts, in the context of their enforceability regard
being had to the Constitution, is not in
issue.
[4]
The procedure adopted
and sought to be employed by the applicants is simply not catered for by the
section. There is no
case before this Court involving the question of the
validity of the two Acts. The applicants have merely expressed a desire
to
have that issue determined by the Constitutional Court, and to that end
ask for a referral not of the case or matter or
issue before the Court, but of
an issue unrelated to the matter under
consideration.
[5]
This Court also
finds itself in a position where it cannot consider whether evidence is
necessary for the purposes of deciding
the issue, since it is not required to
determine the issue but is asked to refer that very issue to the
Constitutional Court,
and it is precluded from giving  effect to the
requirements of the section. However one interprets the section, one is
constrained
to find that a referral, such as is contemplated, prerequires an
issue arising within the context of an existing or pending
lis
. Since
the issues sought to be referred are not issues in the case or matter before me,
a determination of those issues cannot
be decisive for any case, least of all
the matter before me. In my view the referral sought is incompetent, and to
grant the
order prayed would be irregular and beyond the scope of the
section.”
[7] The field for the enquiry into the
construction thus placed on section 102(1) is best entered, as I see it, through
section 7(4)
of the Constitution, a convenient portal to that area of
investigation. Paragraph (a) of the subsection, which appears at the
beginning
of Chapter 3, decrees that:
“When an infringement of or threat to any right entrenched in this Chapter
is alleged, any person referred to in paragraph
(b) shall be entitled to apply
to a competent court of law for appropriate relief, which may include a
declaration of rights.”
The list then provided by
paragraph (b) of the people who are qualified to claim such relief mentions in
subparagraph (i) “a
person acting in his or her own interest”,
and in subparagraph (iv) “a person acting as a member of or in the
interest
of a group or class of persons”. Each applicant fell within a
category so specified, subparagraph (i) covering the first
applicant while
subparagraph (iv) accommodated the second. They both complained that the
statutes in question infringed or threatened
a number of rights which Chapter
3 protected against “all law in force”, as section 7(2) put it,
“during the
period of operation of this Constitution”. Their
ultimate aim was to gain an order which upheld the rights invoked by
declaring the alleged infringements or threats to be unconstitutional.
Their sights were set, in other words, on obtaining eventually
a declaration of
the very kind for which section 7(4)(a) entitled them to apply. No such order
could be granted by the Transvaal
Provincial Division, however, because it
did not rank as a “competent court” for those purposes. For it
lacked
the requisite consents to its adjudication on the constitutionality
of the statutes or parts of them that the applicants
planned to assail
in asserting the rights to which they laid claim. That issue lay instead
within the exclusive jurisdiction entrusted
to this Court by section 98(3) of
the Constitution, as read with sections 98(2)(c), 101(3)(c) and 101(6). So
the applicants
had to approach us for the declaratory order that they wanted.
[8] No more than two methods of doing that are ever available to
litigants in cases like the present matter. They may follow the
ordinary
course, the one taken here, by asking the Supreme Court for the referral to us
of the questions on which decisions are
sought. Or they may request us to
allow them direct access to our Court on those issues through the channel of its
rule 17(1),
as read with section 100(2) of the Constitution. But the
alternative is a special route open, according to the rule, in -
“... exceptional circumstances only, which will ordinarily exist only
where the matter is of such urgency, or otherwise
of such public importance,
that the delay necessitated by the use of the ordinary procedures would
prejudice the public interest
or prejudice the ends of justice and good
government”.
I doubt that the present case would have
passed the test thus set, had the applicants chosen that second path initially
and in the
circumstances which prevailed
then.
[6]
In argument their counsel
urged us nevertheless to let them fall back on it at this stage if we confirmed
the decision of Daniels
J. The best reason for our acceding in that event to
the belated request would have been the fresh factor which had entered the
reckoning in the meantime when the door was closed to a referral. We might
have felt persuaded that, once the prospect of a
prejudicial delay in the
outcome of a referral amounted to an exceptional circumstance contemplated by
the rule in a matter of
public importance, the certainty of no such outcome
when there was nothing to produce one must
a fortiori
do so too.
Otherwise an impasse would have ensued in which the applicants had no way of
capturing our attention and, since
that alone sufficed, the procedural right
which they derived from section 7 (4) (a) was frustrated. Those possibilities
need detain
us, however, no further. For the occasion to explore them does not
arise now.
[9] I say that because, in my opinion, Daniels J
misconstrued section 102(1) and erred in holding the referral to be
incompetent.
In the light of section 7(4) it seems hardly imaginable that the
framers of the Constitution intended, when they provided for
referrals, to
differentiate between cases in which the questions calling for our consideration
were the sole ones raised and those
where others that did not concern us
accompanied them, excluding the former from the process and confining it to the
latter. No
sound reason for such a distinction occurs to me in principle or in
pursuit of some policy. Nor does the wording of section 102(1)
show, to my
mind, that it was meant to be drawn. The subsection deals with “any
matter” coming before a provincial
or local division which contains an
issue that falls within the exclusive jurisdiction of this Court and may be
decisive of the case.
The division must then refer the issue to
us,
[7]
once it believes that a
referral would serve the interests of justice. And that is surely so on the
wording, whether the issue
stands alone or additional ones emerge as well which
do not have to be determined here. The second and third subsections of
section 102 lend some support to my reading of subsection (1). They go
thus:
“(2) If, in any matter before a local or provincial division, there is
any issue other than an issue referred to the
Constitutional Court in
terms of subsection (1), the provincial or local division shall, if it refers
the relevant issue to the
Constitutional Court, suspend the proceedings before
it, pending the decision of the Constitutional
Court.
[8]
(3) If, in any matter before a provincial or local division, there are both
constitutional and other issues, the provincial
or local division concerned
shall, if it does not refer an issue to the Constitutional Court, hear the
matter, make findings of
fact which may be relevant to a constitutional issue
within the exclusive jurisdiction of the Constitutional Court, and give a
decision on such issues as are within its
jurisdiction.”
The conditional conjunction
used at the start of both subsections indicates that the situations which they
envisage for referrals
encompass indeed, but are not necessarily restricted to,
those where more issues have arisen than any susceptible to the process.
The
interpretation that I put on subsection (1) is then reinforced with greater
strength by subsection (17), which ordains that:
“If, in any matter before a provincial or local division, the only issue
raised is a constitutional issue within the exclusive
jurisdiction of the
Constitutional Court ..., a refusal to refer such issue to the Constitutional
Court shall be appealable to
the Constitutional
Court.”
That, in my view, dispels any doubt that may linger
about the import of subsection (1), demonstrating quite clearly the competence
of a referral when the issue to which it relates is the only one in the
case.
[10] So much has already been decided by this Court, as it happens,
not in a matter which raised precisely the same point but during
a general
discussion of referrals that took place. The occasion was
Brink v Kitshoff
NO
,
[9]
when Chaskalson P had this
to say:
“The Constitution contemplates that constitutional disputes will
ordinarily be dealt with by the provincial or local division
before the
Constitutional Court is engaged; and this is so even if the only issue in the
case is a constitutional issue within the
exclusive jurisdiction of the
Constitutional Court. This follows from the language of section 102 (1) and (2)
which necessarily
implies that section 102 (1) is applicable to cases in which
the only issue is the one to be referred to the Constitutional Court,
and
section 102 (17) which makes provision for appeals to the Constitutional Court
against a decision of the Supreme Court refusing
a referral where ‘the
only issue raised is a constitutional issue within the exclusive jurisdiction of
the Constitutional Court’.”
That judgment had
not been delivered when Daniels J dismissed the application for a referral, or
even by the time when we heard argument
on the refusal. But the direction in
which we must go is now confirmed by the passage that I have
quoted.
[11] In coming to the opposite conclusion Daniels J was
influenced by a couple of considerations which call next for some comment.

He could not see, in the first place, how the issues on which a referral was
requested might prove to be decisive of the case
before him. But they would
surely have had that effect. The case raised those issues squarely, and them
alone. They were therefore
ones decisive of the case, of the whole case as
distinct from the part containing the preliminary application for a referral.
Their
decisiveness would have become obvious had a declaratory order resolving
them been obtainable and sought from Daniels J himself.
The same could
scarcely have been gainsaid, what is more, if the applicants had claimed from
him such an order in their favour,
presenting the claim with tongues in cheeks
when they knew full well that he was precluded from adjudicating on it and
would inevitably
have to send the matter here once the issues turned out to be
transmissible. By any token those would then have arisen, to quote
from his
judgment, “within the context of an existing or pending
lis
”
of which he was truly seized. Yet the difference between that step which the
applicants might have taken and the course
actually followed by them was one
of mere form and no substance. So futile an exercise, such a veritable charade,
would have contributed
nothing real to the proceedings. The second
difficulty that Daniels J thought he faced and took into account had to do with
the proviso to section 102(1), which required evidence to be adduced in an
application for a referral whenever that was necessary
for the determination
of any issue thus posed. The form and thrust of the application on his
agenda prevented him, he believed,
from considering the need for evidence on
that occasion, and therefore from giving effect to the requirement. I do not
understand
why he felt obstructed there. Some remarks about such evidence were
passed in
Luitingh v Minister of
Defence,
[10]
when the judgment
delivered by us expressed uncertainty about -
“... the scope of the evidence which the proviso encompasses, whether it
envisages testimony pertaining to the issue that is
about to be referred,
testimony relating to other issues which furnish the setting for the enquiry
into that one, or both categories”.
The question was
left open then, and it will stay undecided for the time being since the
answer is now neither here nor there.
For nothing would have barred Daniels J
from hearing evidence on either subject, had any that might count sprung to
mind. Counsel
who represented the second and third respondents in the Court
below maintained there that some was required. But no scrap of it
was tendered
by either side, as far as we can tell from the record. None happened to be
needed anyhow. The second topic broached
in the passage which I have just
quoted was by the way in the absence of the additional issues that it mentioned.
And the first topic
amounted to a general one, the treatment of which neither
depended on nor could be affected by any particular set of facts that somebody
or other had to prove.
[12] All that must still be said under the
heading of competent referrals is this. Counsel who appeared for the
second
and third respondents reminded us of two previous
dicta
that we
had voiced and relied on them in his argument supporting the line taken by
Daniels J. The first was an excerpt from
the judgment written in
S v
Vermaas; S v du Plessis
[11]
which concerned section 102(1) and went as follows:
“What we have to decide on a referral ordered under the subsection is a
specific ‘issue’ falling within our exclusive
jurisdiction which has
arisen in the ‘matter’ so referred, and not the ‘matter’
in its entirety.”
That observation furnished authority,
counsel contended, for the proposition that the referral of an issue could never
be countenanced
once it was the sole one raised by the case, since “the
‘matter’ in its entirety” would then be improperly
referred.
The second passage by which counsel set store came from the judgment passed by
us in
Luitingh v Minister of
Defence,
[12]
where we had noted
that:
“The purpose which section 102(1) was designed to serve is obvious. It
enables provincial and local divisions to seek rulings
on issues of the kind
encompassed which they need for, and on obtaining must apply to, the matters
handled by them.”
Counsel pointed out that no such
purpose could be accomplished unless a residue of issues remained before the
provincial or local
division, awaiting determination there. His reliance
on those
dicta
of ours was, however, misplaced. It ignored altogether
the
context in which the words had been uttered. Neither case had
contained a single issue alone, the one sent here. Multiple issues
had arisen
in each, the rest of which were left behind and had yet to be resolved there.
On both occasions our attention was therefore
focussed on, and our minds were
accordingly attuned to, cases of that sort and no other kind. That
concentration on them formed
the setting in which we spoke as we did. So
each of the extracts quoted must be read in relation to no cases but those.

The upshot is nothing derived from either to buttress the decision of Daniels
J.
[13] Once the referral was competent it should, in my view, have been
ordered. Daniels J did not consider where the interests of
justice lay in that
regard. The conclusion to which he came made it unnecessary for him to apply
his mind to the question. The
answer, when required, is the responsibility in
the first instance of the provincial or local division dealing with the matter.
The last word on it rests always, however, with this
Court.
[13]
Here, I believe, the
interests of justice told in favour of a referral, given the circumstances that
prevailed at the time of the
application for such and their accentuation by the
attitude which the Minister and his department had adopted.
[14] It
follows that, in my judgment, we should grant the application for leave to
appeal, allow the appeal in turn, and substitute
the requested referral for its
refusal.
[15] The reversal of the decision reached in the Court below
brings duly before us the claim for a declaratory order which the applicants
wish us to grant on the constitutional issues presented by them. That does not
necessarily mean, however, that we are now bound
to resolve those issues.
Whether we should say anything at all about them must be settled first. I
interpose that enquiry because
a declaratory order is a discretionary
remedy,
[14]
in the sense that the
claim lodged by an interested party for such an order does not in itself oblige
the Court handling the matter
to respond to the question which it poses, even
when that looks like being capable of a ready answer. A corollary is the
judicial
policy governing the discretion thus vested in the Courts, a well
established and uniformly observed policy which directs them not
to exercise it
in favour of deciding points that are merely abstract, academic or hypothetical
ones.
[15]
I see no reason why
this new Court of ours should not adhere in turn to a rule that sounds so
sensible. Its provenance lies in
the intrinsic character and object of the
remedy, after all, rather than some jurisdictional concept peculiar to the work
of the
Supreme Court or otherwise foreign to that performed here. Perhaps, what
is more, a declaratory order on an issue quite unsuitable
for one does not even
amount to “appropriate relief ”, the type which section 7(4)(a)
empowers us to grant. The description
may well encompass not only the form of
the relief but also the setting for it. We do not need to consider that
suggestion, however,
once our adoption of the rule appears to be wise in any
event. We should no doubt regard it, like most general rules, as one that
is
subject in special circumstances to exceptions, in our field those necessitated
now and then by factors which are fundamental
to a proper constitutional
adjudication. But, for reasons that will emerge in a moment, nothing warrants a
departure from the policy
this time. A further word or two had better be said
on the topic before I leave it. Section 98 (5) admittedly enjoins us to
declare
that a law is invalid once we have found it to be inconsistent with the
Constitution. But the requirement does not mean that we
are compelled to
determine the anterior issue of inconsistency when, owing to its wholly
abstract,
[16]
academic or
hypothetical nature should it have such in a given case, our going into it can
produce no concrete or tangible result,
indeed none whatsoever beyond the bare
declaration.
[16] The current state of affairs differs significantly
from the situation that existed at the time when Daniels J heard the
application
for a referral. No staunch effort was made before us to defend
the parts of the Publications Act that had come under fire,
and by the time
when the argument ended it seemed to have become common cause that, in some
important respects at least, the
statute could not survive constitutional
scrutiny. The only question then remaining in dispute on those features of it
was whether
their consequent invalidation should ensue immediately or be
suspended for a limited period in order to afford Parliament the opportunity
of
repairing the defects in them. The occasion for that opportunity which was
thought to have arisen has disappeared, however,
since we reserved our judgment
in the case. For Parliament has now achieved the purpose that the suspension
was meant to serve
by passing in the meantime the Films and Publications Act
(65 of 1996), which repeals entirely both the Publications Act and the
Indecent
or Obscene Photographic Matter Act, replacing the pair with a substantially
different scheme. The new statute was enacted
very recently, and it has not
yet been brought into operation. But that will no doubt happen soon, in all
probability sooner than
the time when the suggested suspension would have
expired. The old statutes, which are already obsolete, will both then
terminate.
Neither of the applicants, nor for that matter anyone else, stands
to gain the slightest advantage today from an order dealing
with their moribund
and futureless provisions. No wrong which we can still right was done to either
applicant on the strength of
them. Nor is anything that should be stopped
likely to occur under their rapidly waning authority.
[17] In all those
circumstances there can hardly be a clearer instance of issues that are
wholly academic, of issues exciting
no interest but an historical one, than
those on which our ruling is wanted have now become. The repeal of the
Publications Act
has disposed altogether of the question pertaining to that.
And any aspect of the one about the Indecent or Obscene Photographic
Matter Act
which our previous decision on it did not answer finally has been foreclosed by
its repeal in turn. I therefore conclude
that we should decline at this stage
to grant a declaratory order on either topic.
[18] The costs of the
litigation in its consecutive phases remain to be considered. Once the view is
taken that the application for
a referral ought to have succeeded in the Court
below, it must follow that the applicants should not have been saddled with the
entire costs of those proceedings. They were liable for the ones that would
have been incurred had their application encountered
no resistance, since they
could not have avoided going to Court for the referral in any event. But those
occasioned by the opposition
which eventuated should be made payable, now that
it has failed, by the second and third respondents. The applicants had to come
here on appeal in order to obtain that reversal of the adverse order for costs.
So they deserve, I believe, to be awarded the costs
of both the appeal and the
application for leave to appeal.
[19] In the result an order is made in
the terms that follow.
(a) The application for leave to appeal is
granted.
(b) The appeal is allowed and the order of the Court below
dismissing with costs the application for a referral is replaced by
one:
(i) granting the application and referring to this Court the two issues
that were sought to be referred;
(ii) directing the second and third
respondents to pay the costs occasioned by their opposition to the
application.
(c) No ruling on either of those issues will be given by this
Court in the situation that prevails now and in the light of the
material
differences between it and the one that existed when the Court below heard the
application for a referral.
(d) The second and third respondents are directed
to pay the costs of the appeal and of the application for leave to
appeal.
(e) The costs awarded in subparagraph (b) (ii) and in paragraph (d)
of this order will include at each stage those which the applicants
and
appellants incurred for its purposes in employing the services of two
counsel.
Chaskalson P, Mahomed DP, Ackermann J, Kriegler J, Langa J,
Madala J, Mokgoro J, O’Regan J and Sachs J all concur in the
judgment of
Didcott J.
For the applicants and appellants: JJ Gauntlett SC and
GJ Marcus, instructed by Michael B Snoyman and Associates.
For the
second and third respondents: GL Grobler SC, DE van Loggerenberg and NJ
Louw, instructed by PRT Rudman Attorneys.
No appearance for the
first respondent.
[1]
1996(3)SA 617(CC); 1996(5) BCLR
609(CC).
[2]
See paras 93, 99 and 105 to
107.
[3]
At that time we had not yet passed
judgment on the second statute mentioned. The applicants had been threatened
with it too.
[4]
That sentence should be read no
doubt as if some such word as here or now had
been added to the end
of it.
[5]
I construe the mention made of an
issue unrelated to the matter under consideration as an allusion
to one on which
a decision was hoped to be obtained elsewhere.
[6]
See para 18 of the judgment, not
yet reported, which this Court delivered on 18 November 1996 in
Transvaal
Agricultural Union v Minister of Land Affairs and Another.
[7]
We have already ruled that the
word matter, where it appears for the second time in s 102(1),
must be interpreted
as if issue had appeared there
instead. That was decided in para 10 of the judgment delivered
in
S v Vermaas; S v du Plessis
1995(3) SA 292 (CC) at 296H; 1995(7) BCLR
851(CC) at 856G.
[8]
In
S v Vermaas; S v du Plessis
we held that ss (2) does not in itself provide for any referrals ...
(but) merely supplements ss (1) by regulating the
procedure which the
provincial or local division must follow in ordering a referral under that
subsection. See footnote
7 above: para 12 at 297 E-F in the first
report cited there and 857 D-E in the second one.
[9]
See para 6:
[1996] ZACC 9
;
1996 (4) SA 197
(CC)
at 206 C-E
[1996] ZACC 9
; ;
1996 (6) BCLR 752
(CC) at 757 H-J.
[10]
See para 8: 1996(2)SA 909 (CC)
at 916 A-B; 1996(4) BCLR 581 (CC) at 586 I-J.
[11]
See footnote 7 above: para 10
at 296 F in the first report cited there and 856 E in the second one.
[12]
See footnote 10 above: para 5
at 914 D-E in the first report cited there and 585 C-D in the second one.
[13]
That was decided in
Luitingh
v Minister of Defence.
See footnote 10 above: para 12 at 918E in the first
report cited there and 589 D-E in the second one.
[14]
See s 19 (1) (a) (iii) of the
Supreme Court Act (59 of 1959);
Ex parte Nell
1963 (1) SA 754
(A) at 760
B;
Reinecke v Incorporated General Insurances Ltd
1974 (2) SA 84
(A) at
93 H;
South African Mutual Life Assurance Society v Anglo - Transvaal
Collieries Ltd
1977 (3) SA 642
(A) at 658 H.
[15]
See
Herbert Porter and Co
Ltd and Another v Johannesburg Stock Exchange
1974 (4) SA 781
(W) at 796 G -
H;
Anglo-Transvaal Collieries Ltd v South African Mutual Life Assurance
Society
1977 (3) SA 631
(T) at 635 F-G;
Erasmus v Protea
Assuransiemaatskappy Bpk
1982 (2) SA 64
(N) at 66 H;
Compagnie
Interafricaine de Travaux v South African Transport Services and Others
[1991] ZASCA 16
;
1991
(4) SA 217
(A) at 230 I-J;
Muller v The Master and Others
1992 (4) SA
277
(T) at 281 J - 282 A;
Shoba v Officer Commanding, Temporary Police Camp,
Wagendrift Dam, and Another
;
Maphanga v Officer Commanding, South
African Police Murder and Robbery Unit, Pietermaritzburg, and Others
1995
(4) SA 1
(A) at 14 F;
Family Benefit Friendly Society v Commissioner for
Inland Revenue and Another
1995 (4) SA 120
(T) at 125 E-F.
[16]
In our directions which are
issued for hearings before this Court we often indicate that the questions put
to us will be treated as
abstract ones. What we mean by saying
so is that we shall deal with them in principle, and as general questions
on
which no evidence is required because the answers do not depend on any
particular set of facts. We never imply that they will
be considered in a
vacuum.