Brief Summary

Constitutional Law — Appeals — Direct appeal to Constitutional Court — Procedure for leave to appeal — Appellant sought leave to appeal a High Court decision regarding voting majority required for budget approval — Dispute centered on interpretation of constitutional provisions and the Local Government Transition Act — High Court dismissed application, leading to appeal application to Constitutional Court — Court held that existing rules and procedures for appeals from High Court on constitutional matters must be followed, and that the applicants were entitled to apply for leave to appeal directly to the Constitutional Court under Rule 18 of its Rules.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an appeal to the Constitutional Court arising from an urgent constitutional dispute about the voting threshold required for the adoption of a municipal budget during the transitional local government dispensation under the Local Government Transition Act 209 of 1993 and the Constitution of the Republic of South Africa, 1996.

The appellant was the Member of the Executive Council for Development Planning and Local Government in the Provincial Government of Gauteng (the MEC). The respondents were the Democratic Party and two individuals, Ivor Blumenthal and Elizabeth Clogg, who were members of the relevant municipal council structures.

The dispute originated in the Witwatersrand High Court, where the MEC and the Eastern Metropolitan Substructure of the Greater Johannesburg Transitional Metropolitan Council sought urgent declaratory relief to confirm that a simple majority was sufficient to approve the budget for the forthcoming financial year. Snyders J dismissed that application with costs, holding that the relevant provisions of the Local Government Transition Act were, by virtue of the transitional provisions in the 1996 Constitution, effectively insulated until 30 April 1999.

Following that dismissal, there was a further procedural dispute about the correct route and procedure for appeal in constitutional matters under the new constitutional order, given that contemplated national legislation and amended procedural rules were not yet fully in place. The Constitutional Court ultimately granted leave to appeal directly to it. The judgment of Chaskalson P dealt with the leave-to-appeal aspect and explained why leave was granted despite a negative certificate from the High Court. The judgment of Yacoob J addressed the merits and disposed of the constitutional challenge.

2. Material Facts

A meeting of the Eastern Metropolitan Substructure of the Greater Johannesburg Transitional Metropolitan Council took place on 31 May 1997, at which a dispute arose regarding the majority required to approve the Council’s budget for the next financial year. The dispute was practically significant because the Council’s financial year ran from 1 July to 30 June, and the timely and lawful adoption of a budget was necessary for lawful expenditure.

It was common cause that a budget proposal obtained the support of a majority of council members, but not a two-thirds majority. This factual outcome sharpened the legal conflict between, on the one hand, section 16(5) of the Local Government Transition Act (which required a two-thirds majority for budget resolutions by certain transitional structures) and, on the other, section 160(3)(b) read with section 160(2)(b) of the 1996 Constitution (which requires approval of municipal budgets by a majority vote and prohibits delegation of budget approval).

The Council and the MEC approached the Witwatersrand High Court in June 1997 seeking an order declaring that the Council could approve its budget by a simple majority. The High Court dismissed that application with costs.

After the High Court’s merits decision, the applicants sought (in one application) both a certificate under Constitutional Court Rule 18(e) to support a direct appeal to the Constitutional Court, and leave to appeal to the Supreme Court of Appeal or a full bench of the High Court in the event that direct leave to appeal were refused. Snyders J granted leave to appeal to the Supreme Court of Appeal but issued a negative certificate for purposes of Rule 18(e), indicating that in her view a ruling by the Constitutional Court was not desirable and that the Court would not likely grant leave.

The MEC nonetheless applied to the Constitutional Court for leave to appeal. The respondents did not file opposition within the time limits. The Constitutional Court granted leave under its ordinary procedures. After being notified of the grant, the respondents’ attorneys sought to object and requested an opportunity to file opposing material out of time, contending that audi alteram partem required a hearing on leave to appeal. The Court refused that request on the basis that the Constitutional Court Rules permitted summary disposal, time limits had been ignored without adequate justification, and there were no grounds to recall or set aside the order granting leave.

3. Legal Issues

On the leave-to-appeal aspect, the central questions were procedural and evaluative in nature, namely how applications for direct appeals from the High Court to the Constitutional Court should be handled pending full legislative and rules-based implementation of section 167(6) of the 1996 Constitution, and what factors constitute the “interests of justice” in deciding whether to grant leave for a direct appeal that bypasses the Supreme Court of Appeal.

On the merits, the principal legal issue was the constitutionality and operative status of section 16(5) of the Local Government Transition Act during the transitional period, and in particular whether it was inconsistent with section 160(3)(b) of the 1996 Constitution (which provides that matters listed in section 160(2), including approval of budgets, are determined by a decision supported by a majority of the municipal council’s members).

The merits dispute was primarily one of constitutional interpretation and the application of constitutional transitional provisions to an apparent conflict between a statutory transitional mechanism and a permanent constitutional rule. The determination required an interpretive judgment about the interaction between Schedule 6, especially item 26(2), and Chapter 7 of the Constitution, rather than fact-finding.

A further issue raised in argument (though ultimately not necessary to decide for the outcome) concerned whether litigants may seek substantive relief premised on the invalidity of an Act of Parliament without directly seeking a formal declaration of invalidity, thereby potentially avoiding the confirmation procedure in section 172(2) of the Constitution.

4. Court’s Reasoning

On procedure and leave to appeal, Chaskalson P emphasised that, pending the enactment of the legislation or promulgation of rules contemplated by section 167(6) of the Constitution, applications for leave to appeal to the Constitutional Court remained governed by existing Constitutional Court Rules, especially Rule 18, and the Court’s established practice. The High Court’s certificate under Rule 18(e) was described as assistance to the Constitutional Court and not dispositive; Rule 18 expressly permits an application for leave to appeal even where the certificate is negative.

The Court rejected the respondents’ attempt to revisit the already granted leave to appeal. It relied on the Constitutional Court Rules permitting summary disposal of leave-to-appeal applications on the papers, and it stressed that time limits must be complied with and that applications for condonation or extension must be made timeously and properly motivated. The respondents had not provided adequate reasons for failing to notify the registrar of their intention to oppose or for the delay in filing opposing material. There was therefore no basis to recall the order granting leave.

In explaining why leave to appeal was granted, Chaskalson P distinguished between direct access applications (where the Constitutional Court acts as a court of first instance) and direct appeals from the High Court (where it acts as a court of appeal). The judgment treated the “interests of justice” inquiry as multi-factorial. Relevant considerations included the importance of the constitutional issue, prospects of success, urgency, and the savings in time and costs from bypassing an intermediate appeal, weighed against disadvantages such as the loss of the Supreme Court of Appeal’s views and potential roll-management impacts. The Court disagreed with the High Court’s concern that granting direct appeals would necessarily delay justice, noting that the Constitutional Court can control its roll through its leave-to-appeal decisions and that increasing the Supreme Court of Appeal’s constitutional caseload could also cause delay. In this matter, because the appeal concerned only constitutional interpretation, raised issues of broad importance for local government functioning, and called for a definitive resolution, leave to appeal directly was considered to be in the interests of justice.

On the merits, Yacoob J framed the dispute as turning on the meaning and effect of the second sentence of item 26(2) of Schedule 6 of the 1996 Constitution, which provides that “Section 16(5) and (6) of the Local Government Transition Act, 1993, may not be repealed before 30 April 1999.” The appellant contended that this sentence merely prohibited repeal and did not immunise section 16(5) from constitutional review; on that approach, section 16(5) would be inconsistent with section 160(3)(b) and invalid. The respondents contended that item 26(2), properly construed, authorised the continued operation of section 16(5) during the transition and displaced the conflicting constitutional budget-majority requirement until the transitional period ended.

The Court reasoned that the alleged inconsistency could not be determined by comparing section 16(5) with section 160(3)(b) in isolation. Instead, the Constitution had to be read as a whole, including its transitional arrangements. Section 241 makes Schedule 6 applicable to the transition to the new constitutional order, and Schedule 6 is designed to enable an orderly move from an existing legal and institutional regime to the full Chapter 7 local government system. The Court treated the transitional scheme as one where certain measures apply during the transitional period even if they differ from what the new order will eventually require.

A central aspect of the reasoning was that the appropriate comparison was between Chapter 7 and item 26 of Schedule 6, both constitutional provisions. In the Court’s analysis, item 26 specifically governs the transitional period for local government; therefore, during that period, it is item 26 that has operative effect, and conflicting Chapter 7 provisions are not yet applicable to the extent of the conflict. The second sentence of item 26(2), in context, was construed as ensuring that section 16(5) continues in force until 30 April 1999 notwithstanding section 160(3)(b), which would apply thereafter. Read in that manner, section 16(5) and section 160(3)(b) were treated as temporally sequenced and therefore compatible.

The Court rejected the appellant’s proposed construction as producing an outcome the Court considered untenable: it would mean the Constitution simultaneously protects section 16(5) against repeal while rendering it invalid immediately on promulgation, making the protection effectively pointless. The Court considered that the framers could not have intended the second sentence of item 26(2) to have no practical purpose. The Court therefore adopted a purposive construction aligned with the transitional design of the Constitution.

The appellant’s additional contention that section 16(5) violated broader constitutional “principles” such as democratic government, autonomous local government, transparency, and separation of powers was not accepted. The Court held that even assuming such principles were implicated, the “deadlock-breaking mechanism” in section 16(5), allowing the MEC to approve a budget if the council failed to do so, could not be characterised as breaching them. The Court treated the mechanism as necessary to prevent governance paralysis, and it emphasised that the MEC’s power must be exercised in good faith, is politically accountable, and remains subject to constitutional scrutiny (including under Chapter 3).

The Court also addressed, without deciding it as part of the ratio, a procedural concern that had arisen from the manner in which the High Court application had been framed (seeking declaratory relief premised on invalidity rather than a direct invalidity declaration). The Court indicated that significant difficulties would confront any practice that grants relief consequential upon invalidity without a formal invalidity declaration, given the constitutional requirements in section 172(1) and the confirmation mechanism in section 172(2), and the need to avoid uncertainty about the status of legislation.

On costs, the Court acknowledged the Constitutional Court’s general reluctance to award costs against unsuccessful constitutional challengers where that might chill legitimate constitutional litigation. However, it held that no inflexible rule applied. In this matter, the appellant (a provincial MEC) had initiated litigation against political and individual respondents and had failed in the challenge. The Court considered it unfair to require the respondents to bear their own costs in both the High Court and the Constitutional Court.

5. Outcome and Relief

The Constitutional Court dismissed the appeal on the merits, holding that section 16(5) of the Local Government Transition Act 209 of 1993 remained in force and operative until 30 April 1999 by virtue of the transitional constitutional scheme, and that it was not inconsistent with the Constitution when the Constitution is read as a whole including Schedule 6.

The Court ordered the appellant to pay the respondents’ costs, including the costs consequent upon the employment of two counsel, and the dismissal with costs extended to both the High Court proceedings and the proceedings in the Constitutional Court as described in the judgment.

Cases Cited

Eastern Metropolitan Substructure of The Greater Johannesburg Transitional Metropolitan Council and Another v Democratic Party and Others 1997 (8) BCLR 1039 (W).

S v Pennington and Another 1997 (4) SA 1076 (CC); 1997 (10) BCLR 1413 (CC).

Bruce and Another v Fleecytex Johannesburg CC and Others (CCT 1/98) (Constitutional Court, 24 March 1998) (unreported at the time of this judgment, as described in the text).

Heyman v Yorkshire Insurance Co. Ltd. 1964 (1) SA 487 (A).

Law Society, Transvaal v Behrman 1981 (4) SA 538 (A).

Ex parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, 1996 [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC).

Ex parte Chairperson of the Constitutional Assembly: In Re Certification of the Amended Text of the Constitution of the Republic of South Africa [1996] ZACC 24; 1997 (2) SA 97 (CC); 1997 (1) BCLR 1 (CC).

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC).

Parbhoo and Others v Getz NO and Another 1997 (4) SA 1095 (CC); 1997 (10) BCLR 1337 (CC).

Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC); 1997 (12) BCLR 1675 (CC).

Motsepe v Commissioner for Inland Revenue [1997] ZACC 3; 1997 (2) SA 898 (CC); 1997 (6) BCLR 692 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (including sections 160(2)(b), 160(3)(b), 166, 167(6), 171, 172(1), 172(2), 241 and Schedule 6 item 16 and item 26).

Constitution of the Republic of South Africa Act 200 of 1993 (the interim Constitution) (including section 245(4) and the jurisdiction-related provisions referred to in the judgment).

Local Government Transition Act 209 of 1993 (as amended) (including section 16(5) and section 16(6), and also section 10G(3)(a) as referenced).

Supreme Court Act 59 of 1959 (including sections 20 and 21).

Constitutional Court Complementary Act Amendment Act 79 of 1997 (referred to as enacted but not yet in force at the relevant time).

Labour Relations Act, 1995 (referred to in the certification discussion quoted in the judgment).

Promotion of National Unity and Reconciliation Amendment Act, 1995 (referred to in the certification discussion quoted in the judgment).

Rules of Court Cited

Rules of the Constitutional Court (in particular Rule 18, including Rule 18(e) and Rule 18(i)(ii) as referenced).

Uniform Rules of Court (in particular Uniform Rule 49).

Held

The Constitutional Court held that section 16(5) of the Local Government Transition Act 209 of 1993 continued to operate during the transitional period until 30 April 1999 because the Constitution’s transitional provisions in Schedule 6, item 26(2), read with section 241, authorised its continuing force notwithstanding the differing rule in section 160(3)(b), which was treated as part of the new constitutional local government order applicable after the transitional period.

The Court held further that the deadlock-breaking mechanism permitting the provincial MEC to approve a municipal budget in specified circumstances did not, on the arguments advanced, constitute a breach of constitutional requirements when properly understood within the transitional scheme and subject to constitutional constraints on the exercise of public power.

The appeal was dismissed with costs, including costs of two counsel.

LEGAL PRINCIPLES

The judgment applied the principle that apparent conflict between a statutory provision and a constitutional provision must be assessed by reading the Constitution as a whole, including any transitional arrangements that determine the timing and applicability of particular constitutional schemes. Transitional provisions may validly regulate a phased transition to the new constitutional order, and the operative question is how the relevant constitutional provisions interact, not whether a statute differs from a permanent constitutional rule when both are read in isolation.

The judgment applied a purposive approach to constitutional interpretation in the transitional context, rejecting a construction that would render a transitional constitutional protection practically meaningless. Where a transitional clause prohibits repeal of a statutory mechanism for a defined period, that clause may, in context, be understood to authorise the continued operation of that mechanism for that period, with permanently applicable constitutional provisions taking full effect thereafter.

On procedure, the judgment applied the principle that, pending the full implementation of the procedures contemplated by section 167(6), the Constitutional Court’s own rules (notably Rule 18) and established practice govern applications for leave to appeal directly to it from the High Court. The High Court’s certificate under Rule 18(e) is not determinative; it is intended to assist the Constitutional Court, and leave to appeal may be sought and granted notwithstanding a negative certificate.

In assessing whether a direct appeal to the Constitutional Court is in the interests of justice, the judgment treated the inquiry as fact-sensitive and multi-factorial. Relevant considerations include the importance and urgency of the constitutional issue, prospects of success, potential savings in time and costs, and the value (or absence) of intermediate appellate consideration, balanced against the institutional disadvantages of bypassing the Supreme Court of Appeal and the Constitutional Court’s roll-management considerations.

On costs, the judgment applied the principle that although the Constitutional Court is cautious about making adverse cost orders that might deter constitutional litigation, there is no absolute rule against costs being awarded against an unsuccessful constitutional challenger, particularly where fairness to the successful parties justifies such an order in the circumstances.

Member of the Executive Council for Development Planning and Local Government, Gauteng v Democratic Party and Others (CCT33/97) [1998] ZACC 9; 1998 (4) SA 1157; 1998 (7) BCLR 855 (29 May 1998)