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[1998] ZACC 2
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African National Congress and Another v Minister of Local Government and Housing, Kwazulu-Natal and Others (CCT19/97) [1998] ZACC 2; 1998 (3) SA 1; 1998 (4) BCLR 399 (24 March 1998)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 19/97
AFRICAN NATIONAL CONGRESS First
Appellant
JACOB GEDLEYIHLEKISA ZUMA Second
Appellant
versus
MINISTER OF LOCAL
GOVERNMENT AND
HOUSING, KWAZULU-NATAL First Respondent
MINISTER OF TRADITIONAL
AND
ENVIRONMENTAL AFFAIRS, KWAZULU-NATAL Second Respondent
CHAIRMAN OF
HOUSE OF TRADITIONAL
LEADERS Third Respondent
Heard on: 7 November 1997
Decided on: 24 March
1998
JUDGMENT
O’REGAN J:
[1] This appeal
against a judgment of Combrinck J sitting in the Natal High
Court
[1]
raises the question of the
proper interpretation and application of section 182 of the Constitution of the
Republic of South Africa,
Act 200 of 1993 (the interim Constitution). That
section provides as follows:
“The traditional leader of a community observing a system of indigenous
law and residing on land within the area of jurisdiction
of an elected local
government referred to in Chapter 10, shall
ex officio
be entitled to be
a member of that local government provided that he or she has been identified in
a manner and according to guidelines
prescribed by the President by proclamation
in the Gazette after consultation with the Council of Traditional Leaders, if
then in
existence, or if not, with the Houses of Traditional Leaders which have
then been established, and shall be eligible to be elected
to any office of such
local
government.”
[2]
The
appellants are aggrieved by Proclamation 54 of 1996 (the proclamation) issued by
the first respondent, the Minister of Local Government
and Housing for the
province of KwaZulu-Natal. It establishes seven regional councils for the
province and provides that traditional
leaders, who in terms of section 182 of
the interim Constitution are entitled to be ex officio members of regional
councils, shall
be members of such councils.
[2] Paragraph 10(2) of the
proclamation, which is the focus of the appellants’ complaint, provides as
follows:
“The members of each regional council shall until the First elections are
held in terms of a law of a competent authority as
contemplated by sections 174
and 245 of the Constitution comprise
—
. . . .
(c) traditional leaders who
ex officio
are entitled to membership of the
regional council in terms of section 182 of the Constitution and have been
identified in accordance
with the provisions of Presidential Proclamation No. R
109, 1995 dated 15 December 1995.”
The appellants argue that
traditional leaders are not entitled to be members of regional councils for two
reasons. First, they argue
that the regional councils established by the
proclamation are not “local government referred to in Chapter 10” as
contemplated
by section 182 of the interim Constitution; and secondly, that
regional councils are not
elected
local government as contemplated by
section 182.
[3] In the appellants’ view, therefore, the
traditional leaders are not entitled ex officio to be members of regional
councils
in terms of section 182 of the interim Constitution. They accordingly
seek, in addition to an order for costs, an order in the following
terms:
(i) That Proclamation No. 54 of 1996, promulgated by the First Respondent in
the Provincial Gazette of KwaZulu-Natal No. 5116 of
1 April 1996 is declared to
be invalid and of no force and effect in law;
(ii) That a declaratory order be issued
that:
(a) The regional councils established in terms of Proclamation No. 54 of 1996,
promulgated by the First Respondent in the Provincial
Gazette of KwaZulu-Natal
No. 5116 of 1 April 1996, are not an elected local government for the purposes
of section 182 of the Constitution
of the Republic of South Africa Act 200 of
1993; and
(b) A traditional leader of any community observing a system of indigenous law
and residing on land within the area of jurisdiction
of any such regional
council is not ex officio entitled to be a member of that regional
council.
[4] It is necessary to set the
provisions of section 182 in their historical context. The transition to
constitutional democracy
in South Africa required major changes not only to
national government, but also to other spheres of government, including local
government. The interim Constitution provided that all legislative and
executive structures, other than local government bodies,
existing when the
interim Constitution came into force on 27 April 1994 were to be
dissolved.
[3]
They were replaced by
new structures established in terms of the interim Constitution itself. By
contrast, the interim Constitution
provided that local government structures
were to persist beyond 27 April 1994 and were to be restructured in terms of the
Local
Government Transition Act, 209 of 1993 (the Transition Act). This Act was
drafted and adopted at about the same time as the interim
Constitution
[4]
and its sole purpose
was to provide for the necessary transformation of local
government.
[5] Historically, elected local government in South Africa
has generally been confined to urban areas and divided along racial lines.

Outside urban areas, the functions of local government have been performed by a
range of different institutions. In those rural
areas where traditional
authorities existed, chiefs and headmen performed some of the functions of local
government in terms of the
Black Administration Act, 38 of 1927.
[6] The
transition from racially determined local government to democratic local
government was therefore an extremely complex matter.
The Transition Act
provides for three phases for the
transition.
[5]
The first phase, the
pre-interim phase as it was called, ran from the commencement of the Transition
Act on 2 February 1994 (ie
before the interim Constitution came into force)
until the date of the first democratic local government elections, which were
held
for most areas in November 1995 and for all areas by June 1996. During
this phase, the Transition Act provided for the establishment
of negotiating
forums to negotiate the appointment of temporary councils which were to govern
until democratic elections could be
held. The second and current phase, called
the interim phase, commenced with the first democratic elections which resulted
in the
establishment of transitional local government. These duly elected
transitional local government bodies now exercise the powers
of local government
provided for them in the Transition Act. The Transition Act expressly
recognises that during the interim phase,
elected local government “may
include the area of jurisdiction of a traditional
authority”.
[6]
[7] The
first two phases are transitional in the sense that they make provision for the
transition from racially-based local government
to non-racial local government.
The Act contemplates a third phase which will take place at some time in the
future. That phase
will not be regulated by the Transition Act itself however
but will be initiated by new legislation to be enacted by a competent
authority
which will regulate local government in the future.
[8] The interim
Constitution recognised the special role of the Transition Act in regulating the
transition of local government by
providing in section 245(1) (in its original
formulation) that:
“Until elections have been held in terms of the
Local Government
Transition Act, 1993
, local government shall not be restructured otherwise than
in accordance with that
Act.”
[7]
As
Kriegler J commented in
Executive Council, Western Cape Legislature, and
Others v President of the Republic of South Africa and Others
[1995] ZACC 8
;
1995 (4) SA
877
(CC);
1995 (10) BCLR 1289
(CC) at paragraph 182:
“[T]he restructuring of local government was to be governed exclusively by
the Transition Act until elections had been held
under its provisions. It is
obviously significant that the negotiating parties thought it necessary to
elevate the restructuring
of local government to a constitutionally protected
topic. That does not mean that the Transition Act, as it then read, was cast
in
stone. The Constitution does not say the Act cannot be amended . . . . But
what it does mean is that only the Transition Act,
amended or not, would govern
the restructuring.”
The effect, therefore, of section
245(1) was to make it clear that initially the national legislature alone was
competent to manage
the process of the restructuring of local government. The
legislature could amend the Transition Act, but provincial governments
which
under the interim Constitution had legislative competence in respect of local
government
[8]
would not gain that
competence until the initial period of restructuring was
complete.
[9] The Transition Act was repeatedly
amended.
[9]
When it was first
enacted, it contained no specific provisions relating to local government in
rural areas, although as I have noted
it did contemplate that during the interim
stage the jurisdiction of a local government council might include the area of
jurisdiction
of a traditional
authority.
1
[0]
But one of the
pieces of amending legislation, the
Local Government Transition Act Second
Amendment Act, 89 of 1995 (the Amendment Act) supplemented the Transition Act by
the addition of a new chapter, Part VA, which dealt
specifically with the issue
of rural local government.
1
[1]
The
Amendment Act required that local government structures would exist throughout
South Africa, “wall-to-wall” local
government as it was called by
Respondents’ counsel in
argument.
1
[2]
[10] The
entire area of a province had to fall within either a transitional metropolitan
council or a district council. In the case
of transitional metropolitan
councils, their entire area of jurisdiction is divided into areas in which
transitional metropolitan
substructures exercise the powers and functions of
primary level local government. In the case of district councils, their entire
area of jurisdiction may be, but is not necessarily, divided into the areas of
jurisdiction of forms of primary local government,
such as transitional local
councils, transitional representative councils and transitional rural councils.
Therefore, metropolitan
councils are purely second-tier or umbrella forms of
local government, but district councils are not necessarily so.
[11] The
Transition Act specifically contemplates that first-tier local government need
not be established throughout rural areas.
It merely requires that district
councils be established to cover all areas not governed by metropolitan
councils. The Act, therefore,
contemplates that certain “remaining
areas” outside of metropolitan and urban areas need have no primary tier
of local
government, but can fall within the jurisdiction of a district council.
As it happens, in most provinces primary tier local governments
have been
established for the provinces, but in KwaZulu-Natal, this is not the
case.
1
[3]
This province has chosen,
as it was entitled to do in terms of the Transition Act, to establish district
councils (which in terms
of the proclamation were somewhat confusingly called
regional councils) throughout the province, but not to establish primary tier
local government throughout the province.
[12] According to section
9D(1)(b) of the Transition Act, also introduced by the Amendment Act, a district
council shall consist
of members elected by transitional local councils,
transitional representative councils or transitional rural councils within the
area of jurisdiction of the district council; and where there is a remaining
area within the jurisdiction of the district council
(ie. an area in which there
is no primary tier of local government), members elected directly from such area
or nominated from such
area. The number of members from remaining areas are to
be determined proportionally in the light of the number of residents in
the
remaining area compared to the number of residents in the entire area of the
district council.
1
[4]
[13] A
further important amendment introduced into the Transition Act by the Amendment
Act provides that if a member of an Executive
Council (MEC) of a province (in
this case, the Minister of Local Government and Housing for KwaZulu-Natal)
considers it desirable,
he or she may permit the nomination of certain members
of a district council from interest groups identified in the Transition
Act.
1
[5]
Four interest groups are
recognised in terms of section 9A of the Act – farmers, landowners, or
levy payers; farm labourers;
women; and traditional leaders. Section 9D(3)
stipulates that no single interest group shall nominate more than 10 per cent of
the
members to be elected and nominated in respect of a relevant remaining area;
and that the total number of nominated members shall
not exceed 20 per cent of
the total number of members to be elected and nominated for the remaining
area.
[14] Two important changes were therefore introduced by the
Amendment Act. First, local government was to be extended to the entire
territory of South Africa, something not previously contemplated by the
Transition Act. Secondly, it provided in some circumstances
for the nomination
of members of local government bodies. Previously, the Transition Act had
contemplated that local government
bodies would comprise only elected
members.
[15] The seven regional councils established by the
proclamation for the province of KwaZulu-Natal were district councils as
contemplated
by the Transition Act as amended by the Amendment Act. According
to the proclamation, these councils comprise, in addition to the
traditional
leaders who are entitled to ex officio membership in terms of section 182 of the
interim Constitution, members drawn
from elected transitional local governments
within the area of jurisdiction of the regional council, as well as directly
elected
members from areas where no transitional local councils exist, and also
certain nominated members.
1
[6]
In
terms of paragraph 10(2)(b)(ii) of the proclamation, the first respondent has
declared that the membership of district councils
shall include nominated
members of two interest groups referred to in the Transition Act – levy
payers and women.
[16] I now turn to the proper interpretation and
application of section 182 of the interim Constitution. Section 182 must be
understood
in its context in the interim Constitution. It forms part of chapter
11 which is entitled “Traditional Authorities”.
The first provision
of the chapter, section 181, provides for the continuation of the authority of
traditional authorities and confirms
that they will continue to exercise and
perform their powers and functions in accordance with applicable laws and
customs, subject
to the repeal or amendment of such laws and customs. The
remaining three provisions of chapter 11 deal with the relationship between
traditional leaders and the three spheres of government. At national level,
section 184 provides that a Council of Traditional Leaders
shall be established
which shall have powers to make recommendations to government in relation to
matters concerning traditional
authorities, indigenous law and custom. At
provincial level, section 183 provides that in those provinces where there are
traditional
leaders, the provincial legislatures shall establish a House of
Traditional Leaders which shall play a similar role at provincial
level to that
played by the Council of Traditional Leaders at national
level.
[17] Section 182 governs the relationship between the third tier
of government, local government and traditional leaders. Transition
to
democratic local government at the third tier was to take place in terms of the
Transition Act which recognised that in the interim
phase of transition, areas
over which traditional leaders had had authority could be included within the
areas of jurisdiction of
elected local
authorities.
1
[7]
This gave rise to
a potential tension between democratic local government and traditional leaders.
It is this tension that the interim
Constitution seeks, in part, to resolve
through the mechanism of Section 182.
[18] As this Court observed in its
first certification judgment,
Certification of the Constitution of the
Republic of South Africa
[1996] ZACC 26
; ,
1996
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) at para 10:
“After a long history of ‘deep conflict between a minority which
reserved for itself all control over the political instruments
of the state and
a majority who sought to resist that domination’, the overwhelming
majority of South Africans across the political
divide realised that the country
had to be urgently rescued from imminent disaster by a negotiated commitment to
a fundamentally
new constitutional order premised upon open and democratic
government and the universal enjoyment of fundamental human
rights.”
A wide range of interests and concerns came to
be expressed in the process of compromise that led to the adoption of both the
interim
Constitution and the 1996 Constitution. Section 182 reflects the
substantial transition that the establishment of democratic local
government in
rural areas would signify and in particular its implications for communities
that had previously been based on traditional
forms of governance. As Combrinck
J aptly observed in his judgment in the court a quo:
“It is obvious from the provisions of the Constitution that one of the
problems which the legislature was faced with was the
existence of traditional
leaders who by custom and indigenous law exercised authority over communities.
They were not and never
have been democratically elected. Quite clearly their
authority could not by the stroke of a pen, be removed. Accordingly provision
had to be made for them. Hence Chapter 11 of the [interim
Constitution].” (At 302B-C.)
[19] Section 182 is
therefore an important constitutional entitlement for traditional leaders whose
customary authority and role
were being affected by the transition to democracy.
Construed purposively, therefore, section 182 means that traditional leaders
are
entitled to ex officio representation on local government in their areas. That
entitlement arises once elections have been held
for local government and once
the procedural requirements contained in section 182 have been met. This
ensures that traditional
leaders are entitled to representation on a council
without having to stand for election. It also ensures that for the period of
transition the traditional leaders who had previously been exercising the powers
and performing the functions of local government
will be represented on the
newly established institutions which would now be responsible for those
functions.
[20] Let me now turn to the appellants’ arguments. The
first argument was that section 182 only entitled traditional leaders
to be
members of local government where that local government was “local
government referred to in Chapter 10”. The
appellants argued that the
regional councils established in terms of the proclamation were not local
government “referred to
in Chapter 10”. Chapter 10 of the interim
Constitution provides for “Local Government”. It establishes, in
broad
terms, the status of local government and the structures, powers and
functions of local government.
[21] The appellants rely on section
245(1) of the interim Constitution, set out
above,
1
[8]
which provides that local
government shall not be restructured otherwise than in accordance with the
Transition Act until after the
first elections for local government have been
held. Accordingly they argue that the local government that came into existence
after
the first elections is local government contemplated by the Transition Act
and not local government contemplated by chapter 10.
Local government
contemplated by chapter 10, it was argued, cannot come into existence until
further restructuring after the first
elections have been held.
[22] In
my view, this argument is misconceived. We held in
Executive Council,
Western Cape Legislature, and Others v President of the Republic of South Africa
and Others
[1995] ZACC 8
;
1995 (4) SA 877
(CC);
1995 (10) BCLR 1289
(CC), that the effect
of section 245(1) was that the restructuring of local government could be
effected in terms of the Transition
Act only. The import of that decision was
to hold that only the national Parliament would be competent to direct the
transformation
of local government until the time period identified in section
245(1) had elapsed. Provincial governments would not be constitutionally
competent to enact legislation other than that specifically authorised by the
Transition Act until the transitional period identified
in the interim
Constitution had elapsed. We did not hold that the process of transition in
local government meant that for other
purposes the provisions of chapter 10 of
the Constitution had no effect. Section 245(1) is in my view not capable of
bearing such
a meaning. I therefore cannot accept appellants’ argument
that local government established in terms of the Transition Act
after elections
have been held is not local government contemplated by chapter
10.
[23] I have a further difficulty with this aspect of the
appellants’ argument. If it were to be adopted, it seems to me that
it
would produce the absurd result that traditional leaders would not be entitled
to sit ex officio on local government bodies elected
in terms of the Transition
Act, but only on local government bodies established after further restructuring
of local government took
place in terms of subsequent legislation. As the very
purpose of permitting traditional leaders to be members of the local government
bodies in the areas where they lived, was to ease the transition from one form
of local government to another, this interpretation
would be inconsistent with
if not destructive of the very purpose of the transition.
[24] As part
of their first argument, the appellants also submitted that chapter 10 did not
contemplate second-tier or umbrella forms
of local government such as the
regional councils under consideration here. I cannot accept this argument
either. Section 174(2)
of that chapter provides that:
“A law referred to in subsection (1) may make provision for categories of
metropolitan, urban and rural local governments with
differentiated powers,
functions and structures according to considerations of demography, economy,
physical and environmental conditions
and other factors which justify or
necessitate such categories.”
This is a broad provision
permitting a wide range of differentiated forms of local government with
different structures, powers and
functions. In my view, therefore,
appellants’ first argument must fail. The forms of local government
established in the
province of KwaZulu-Natal after the first elections were held
there in June 1996, and in particular, the regional councils established
by the
proclamation were forms of local government referred to in chapter 10 for the
purposes of section 182.
[25] The appellants’s second argument was
that the regional councils established by the proclamation were not forms of
“elected
local government” as contemplated by section 182. The
argument was that because certain members of the regional council were
nominated
by interest groups, regional councils were not elected local government. The
appellants therefore asserted that “elected”
local government in
section 182 should be read as “wholly elected”.
[26] The
appellants acknowledged that their approach to the interpretation of section
182, when read together with the provisions
of section 9D of the Transition Act,
led to an anomaly. Section 9D permits an MEC when he or she considers it
desirable, to allow
certain interest groups to nominate members of district
councils. The effect of appellants’ reading of section 182 is that
the
right of traditional leaders to be members of a local government body is
dependent upon whether an MEC has exercised the power
given to him or her by
section 9D or not. As Combrinck J remarked in his judgment in the court a quo,
the constitutionally entrenched
right of traditional leaders to be members of
local government ex officio, would be placed on “a precarious and
arbitrary footing”
if the appellants’ interpretation were to be
adopted (at 303A). The precariousness of the constitutional entitlement would
arise not only in the case of district councils but also in the case of
transitional representative councils, in respect of which
nominated members are
also permitted by the Transition Act. In both cases, on appellants’
argument, traditional leaders can
be prevented from exercising their
constitutional entitlement to ex officio membership of a local government body
simply because
an MEC considers it desirable to permit one of the identified
interest groups to nominate even a single member to the local government
body.
[27] Appellants’ counsel argued that a different anomaly
would arise if district councils were to be considered “elected
local
government” for the purposes of section 182. Traditional leaders would,
he argued, be entitled to be members of a district
council ex officio as a
result of the operation of section 182 of the interim Constitution. Other
traditional leaders may, if the
relevant MEC considers it desirable, sit as
nominated members of the same council. This would result in a situation of
“double
representation”, argued the appellants, and would be
anomalous. The proposition is a hypothetical one, for it has not arisen
in
KwaZulu-Natal, where the first respondent apparently did not consider it
desirable for traditional leaders to be represented by
nominated members. This
is no doubt because, in his view, traditional leaders already had a
constitutional entitlement to membership
of the regional
councils.
[28] A situation of double representation, so to speak, could
only arise if an MEC in terms of the powers conferred upon him or her
by the
Transition Act deemed it desirable for such double representation to occur. It
is not necessary for the purposes of this
judgment to consider whether and in
what circumstances such a decision would be subject to review, as the question
does not arise
on the facts of this case. Any double representation would, of
course, be numerically limited. First, the number of nominated members
is
limited by the capping provisions referred to in paragraph 13 above and
secondly, the number of traditional leaders who will be
entitled ex officio to
membership of such councils is limited by the number of such leaders who reside
within the area of the council
and who are identified formally in terms of the
procedures provided for in section 182. It is not clear therefore that the
anomaly
referred to by the appellants will ever arise, nor is it clear how
serious it may be if it does. In the circumstances, I have not
been persuaded
that it would be more serious an anomaly than that which would arise if the
interpretation proposed by the appellants
were adopted.
[29] The
question of the meaning to be attached to “elected local government”
in section 182 needs to be answered by
reference to the historical context in
which that provision was drafted which I have described above. Its primary
purpose was to
give traditional leaders an entitlement to be members of local
government bodies that had jurisdiction over the area in which they
reside to
ensure continuity and avoid dislocation during the period of transition. By
using the phrase “elected local government”,
the interim
Constitution made it clear that their entitlement did not arise until after the
first elections in terms of the Transition
Act had been held. At the time that
section 182 was enacted, no democratic elections for local government had yet
been held, nor
had a final date been set for such elections. Indeed, the first
elections for local government were only held more than eighteen
months after
the interim Constitution and the Transition Act were adopted by
parliament.
1
[9]
At the time of the
drafting of section 182, local government was in what the Transition Act refers
to as the pre-interim phase.
[30] It seems to me that the phrase
“elected local government” was adopted to make it plain that
traditional leaders
did not have a constitutional entitlement to membership of
local government until after the first elections had been held. In other
words,
traditional leaders were only to be given an ex officio entitlement to
membership of local government bodies in the interim
phase contemplated by the
Transition Act and not in the pre-interim phase when no elections had yet been
held. As I have described,
the Transition Act was amended after the interim
Constitution came into force to permit nominated members of some forms of local
government. The number of members who could be nominated was however, as I have
described, strictly limited by the provisions of
the Transition Act. Given the
restrictions on the number of nominees, and the fact that the majority of
members of the local government
bodies would still be determined by elections,
it does not seem to me that the fact that there are some nominees on those local
government
councils, results in their not qualifying as “elected”
local government as required by section 182 of the interim
Constitution.
[31] I cannot accept therefore that the narrow meaning
contended for by the appellants should be given to “elected local
government”
in section 182. In my view, such an interpretation would
undermine the clear constitutional purpose sought to be achieved by section
182.
It is for these reasons that I cannot accept the second argument proposed by
appellants’ counsel and the appeal on the
merits must accordingly
fail.
[32] During argument, questions were put to counsel concerning the
meaning of certain provisions in the sixth schedule to the Constitution
of the
Republic of South Africa 1996. Item 26 of that schedule provides as
follows:
“(1) Notwithstanding the provisions of sections 151, 155, 156 and 157 of
the new Constitution
—
(a) the provisions of the Local Government Transition Act, 1993 (Act 209 of
1993), as may be amended from time to time by national
legislation consistent
with the new Constitution, remain in force until 30 April 1999 or until
repealed, whichever is sooner; and
(b) a traditional leader of a community observing a system of indigenous law and
residing on land within the area of a transitional
local council, transitional
rural council or transitional representative council, referred to in the
Local
Government Transition Act, 1993
, and who has been identified as set out in
section 182
of the previous Constitution, is
ex officio
entitled to be a
member of that council until 30 April 1999 or until an Act of Parliament
provides
otherwise.
(2) Section 245(4) of the previous Constitution continues in force until the
application of that section lapses.
Section 16(5)
and (6) of the
Local
Government Transition Act, 1993
, may not be repealed before 30 April
1999.”
Section 245(4)
of the interim
Constitution provides as follows:
“Until a period of not less than three years has elapsed from the date on
which the members of a district council, a metropolitan
substructure, a
transitional council, a transitional representative council or a transitional
rural council as contemplated in the
Local Government Transition Act, 1993
, have
been elected in terms of that Act, such council or substructure, as the case may
be, shall not be disestablished and no change
shall be made to the powers, area
of jurisdiction, wards or number of seats thereof except in accordance with an
Act of Parliament
further regulating the local government transition process or
by way of proclamation in the
Provincial Gazette
by the Premier of a
province acting in consultation with the Minister for Provincial Affairs and
Constitutional
Development.”
2
[0]
These
are difficult provisions whose precise implications are not readily apparent.
Questions were put to counsel as to the effect
of these provisions and counsel
for both appellants and respondents were subsequently afforded an opportunity to
submit further written
argument upon these matters. However, it seems to me
that the interpretation and application of these provisions is a matter which
does not arise in the current appeal.
[33] This litigation commenced
some eight months before the 1996 Constitution came into force. There is no
doubt that there is a
real and live dispute between the litigants which is the
subject matter of the current appeal. That dispute relates to the question
of
the proper composition of district councils, and in particular, the question of
whether traditional leaders were entitled to ex
officio
membership of
such councils from the date of the establishment of those councils following
upon the elections. It may be that the
actions or decisions of such councils
would be subject to challenge if it were to be held that they had been
incorrectly constituted
for any period. It may be that a further dispute will
arise between the parties as to the entitlement of traditional leaders to
remain
members of district councils subsequent to the promulgation of the 1996
Constitution, but that is not a matter which we should
anticipate in these
proceedings.
[34] The only question that remains for consideration is
costs. The court a quo ordered the appellants to pay the costs of their
failed
application, including the costs attendant upon the employment of senior
counsel. The appellants appealed against that order
of the court a quo as well
as the order dismissing their application. In
Sanderson v Attorney-General,
Eastern Cape
1997 (12) BCLR 1675
(CC), the appellant appealed against a
decision of the High Court. The appellant was unsuccessful on the merits, but
this Court
nevertheless set aside the order of the High Court requiring the
appellant to pay costs. Kriegler J, speaking on behalf of a unanimous
court and
relying on the decisions of the Court in
Ferreira v Levin NO and Others;
Vryenhoek and Others v Powell NO and Others
[1996] ZACC 27
;
1996 (2) SA 621
(CC);
1996 (4)
BCLR 441
(CC) and
Motsepe v Commissioner for Inland Revenue
[1997] ZACC 3
;
1997 (2) SA
898
(CC);
1997 (6) BCLR 692
(CC), held:
“Although the appellant failed to establish the constitutional claim he
advanced, it was a genuine complaint on a point of
substance and should
therefore not have been visited with the sanction of a costs order. However
slow a court of appeal should be
to interfere with a costs order in a court of
first instance, this is clearly a case where intervention is necessary.
Although the
appeal must fail on the merits, the appellant is entitled to a
reversal of that part of the order in the High Court condemning him
to pay the
costs and should not have to bear the costs in this Court.” (At para
44.)
2
[1]
In this
case, too, it seems to me that appellants should not have been visited with an
adverse costs order in the court below, even
though the appeal must fail on the
merits. The issues raised by the appellants were genuine constitutional
questions which raised
matters of broad concern within the province of
KwaZulu-Natal. The issues were complex and it was not argued by the
Respondents,
nor could it have been, that the litigation was spurious or
frivolous. In the circumstances, it is my view that this is not a matter
in
which the appellants should have been required to pay costs.
[35] The
following order is made:
(a) the appeal succeeds in respect of costs only.
(b) Combrinck J’s order is set aside and for it the following
substituted:
“In the result the application is dismissed. No order is made as to
costs.”
(c) no order is made as to the costs of
appeal.
Chaskalson P, Langa DP, Ackermann J,
Didcott J, Goldstone J, Kriegler J, Madala J, Mokgoro J and Sachs J concur in
the judgment of
O’Regan J.
For the appellants: GJ Marcus SC and P Blomkamp instructed by Von Klemperer
Davis & Harrison Inc.
For the respondents: AJ Dickson SC instructed by Austen Smith.
[1]
That judgment was reported as
African National Congress and Another v Minister of Local Government and
Housing and Others
1997 (3) BCLR 295
(N).
[2]
This provision
in the interim Constitution originally read as follows:
“The traditional leader of a community observing a system of indigenous
law and residing on land within the area of jurisdiction
of an elected local
government referred to in Chapter 10, shall
ex officio
be entitled to be
a member of that local government, and shall be eligible to be elected to any
office of such local government.”
The provision was amended to read as reflected in the text of this judgment by
section 8 of the Constitution of the Republic of South
Africa Second Amendment
Act, 44 of 1995 which came into force on 20 September 1995.
[3]
Sections 234 - 235
of the interim Constitution.
[4]
The interim Constitution was
assented to by the State President on 25 January 1994 and was published in
Government Gazette 15466
of 28 January 1994. The Transition Act was assented to
by the State President on 20 January 1994 and was published in the Government
Gazette on 2 February 1994. The interim Constitution did not come into force
until 27 April 1994, but the Transition Act came into
force on 2 February
1994.
[5]
See Parts IV, V and VI of the
Transition Act. See also the judgment of Kriegler J in
Executive
Council, Western Cape Legislature, and Others v President of the Republic of
South Africa and Others
[1995] ZACC 8
;
1995 (4) SA 877
(CC);
1995 (10) BCLR 1289
(CC) at
para 178.
[6]
Section
8(1)(a) of the Transition Act.
[7]
It should be noted that until its
repeal as a result of the entering into force of the Constitution of the
Republic of South Africa,
1996 on 4 February 1997, section 245(1) was amended
twice. It was first amended by section 12 of the Constitution of the Republic
of South Africa Second Amendment Act, 44 of 1995 to read as
follows:
“Until 31 March 1996, local government shall not be restructured otherwise
than in accordance with the Local Government Transition
Act, 1993 (Act No 209 of
1993).”
This amendment came into force on 20 September 1995.
It was then amended a second time on 29 March 1996 by section 3 of the
Constitution of the Republic of South Africa Amendment Act,
7 of 1996 so that it
read as follows:
“Local government shall not be restructured otherwise than in terms of the
Local Government Transition Act, 1993 (Act No. 209
of 1993), in respect of any
area in which members of a district council, a metropolitan substructure, a
transitional council, a transitional
representative council or a transitional
rural council as contemplated in the Local Government Transition Act, 1993, have
not been
elected in terms of that
Act.”
[8]
See
schedule 6 to the interim Constitution.
[9]
See Act 61 of
1995, Act 89
of
1995, Act 12
of 1996 and Act 97 of
1996.
1
[0]
Section 8 of the
Transition Act provided that:
“(1) A transitional council for which elections shall be held as provided
for in section 9, shall be known as —
(a) a
transitional local council for a non-metropolitan area of local government,
which may include the area of jurisdiction of a
traditional authority
contemplated in section 181 of the Constitution of the Republic of South Africa,
1993. . . .”
[1]
1
That Act was promulgated on 20
October 1995 but it provided that Part VA was deemed to have come into force on
30 June 1995.
1
[2]
According to the long title to
the Amendment Act, it was “to extend the application of the [Transition]
Act throughout the
Republic”. Section 9 of the Amendment Act introduced
section 9D(1) of the Transition Act which provides that, amongst others,
the
following principle shall apply in respect of rural local government
—
“(a) provision shall be made for the division of the whole area of each
province into areas of jurisdiction of transitional
metropolitan councils, if
any, and areas of district councils. . .
.”
1
[3]
See
Green Paper on Local
Government
, October 1997, at page 9. According to the Green Paper, the
North-West province has also adopted the approach taken by
KwaZulu-Natal.
1
[4]
Section
9D(1)(b) of the Transition Act provides that:
“a district council shall consist of
—
(i) members elected as prescribed by regulation under section 12 on a
proportional basis according to the number of members of each
of the
transitional local councils, transitional representative councils or
transitional rural councils, the areas of jurisdiction
or areas of which are
situated within the area of such district council; and
(ii) in the case where there is a remaining area, members elected or elected and
nominated from such area in accordance with a ratio
based on the inhabitant
numbers of the area of such district council in relation to such numbers of the
remaining
area;”.
1
[5]
Section
9D(2)(b) read with the definition of “interest group” in section
9A.
1
[6]
Paragraph 10(2) of the
Proclamation.
1
[7]
Section 8(1)(a) of the
Transition Act.
1
[8]
Cited above at paragraph 8,
see also n 7.
1
[9]
The first elections for local
government were held in most areas of the country in November 1995 but
elections were delayed in KwaZulu-Natal,
for example, until June
1996.
2
[0]
This
provision was added to the interim Constitution by section 3(b) of Act 7 of
1996.
2
[1]
See also
City Council of
Pretoria v Walker
, CCT 8/97, 17 February 1998, as yet unreported, at
paragraph 98.