Amod v Multilateral Motor Vehicle Accidents Fund (CCT4/98) [1998] ZACC 11; 1998 (4) SA 753; 1998 (10) BCLR 1207 (27 August 1998)

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[1998] ZACC 11
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Amod v Multilateral Motor Vehicle Accidents Fund (CCT4/98) [1998] ZACC 11; 1998 (4) SA 753; 1998 (10) BCLR 1207 (27 August 1998)

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CONSTITUTIONAL COURT
OF SOUTH AFRICA
                                                                                                                           Â
Case
CCT
4/98
HAFIZA
ISMAIL AMOD (born PEER)
                                                                   Â
Applicant
versus
MULTILATERAL
MOTOR VEHICLE ACCIDENTS FUND
                              Respondent
Heard on         :         Â
21
May 1998
Decided on     :         Â
27
August 1998
JUDGMENT
CHASKALSON P
:
[1]
       The applicant has
applied for leave to appeal directly to this Court against a judgment delivered
by Meskin J in the
Durban and Coast High Court.
1
  The applicant claimed
damages in the High Court for loss of support arising out of the death of her
husband in a motor vehicle
collision in 1993.  The matter was dealt with there
as a special case in terms of Uniform Rule of Court 33(1).
2
 Â
Proceedings in the High Court:
[2]
       The applicant’s
action was based on the provisions of the Multilateral Motor Vehicle Accidents
Fund Act (“the MVA
Act”).
3
  For the purposes of the special case the parties agreed
inter alia that:
a.                     The
applicant and the deceased were married in accordance with Islamic law on 18
April
1987.
b.                     This
union was not registered as a civil marriage in terms of the provisions of the
Marriage
Act.
4
c.                     In
terms of the Islamic marriage, which is a contract, the deceased, as husband,
was
obliged to maintain and support the applicant during the course of the
marriage and until termination thereof by death or divorce;
and in fact did so.
d.                     The
deceased died in a motor vehicle accident on 25 July 1993.
e.                     The
deceased’s death was caused by the negligence of the driver of the other
vehicle
involved in the collision.
[3]
       The question which
the High Court was asked to decide was whether the defendant was legally liable
on the basis of
these facts to compensate the applicant for the loss of support
which she had suffered as a consequence of her husband’s death.Â
The respondent
would be liable only if the driver whose negligence caused the death of her
husband would have been liable for such
damages at common law if the MVA Act
had not been passed.
5
[4]
       The Appellate
Division
6
held in
Suid-Afrikaanse
Nasionale Trust en Assuransie Maatskappy Bpk v Fondo
7
that a claim for damages
for loss of support caused by the death of a spouse was allowed by the common
law only in cases where
the union in question constituted a lawful marriage in
terms of the common law.  Unions which were polygamous or potentially
polygamous
were not lawful at common law.  It followed that a spouse married
according to African customary law (which permitted polygamous
marriages) was
not entitled to claim damages for the loss of support which she suffered as a
result of the death of her husband.Â
The Court held further that the fact that
the deceased spouse had been under a statutory duty to maintain his wife during
the subsistence
of their customary marriage was not in itself sufficient to
found a claim for such damages.
[5]
       The rule in
Fondo
was applied in
Nkabinde v SA Motor & General Insurance Co Ltd
8
to a claim by a wife
married according to African customary law.  The wife sought unsuccessfully to
avoid the consequences of
that decision by relying on an agreement which she
and her deceased husband had concluded prior to their marriage, that the
husband
would be liable to maintain and support her in consideration for her
marrying him.  The court declined to extend the Aquilian action
(which forms
the basis of the common law claim) to include claims for damages based solely
on contract.
9
[6]
       In
Ismail v
Ismail
1
0
the Appellate Division
reaffirmed the rule by holding that marriages contracted in accordance with
Islamic law are not lawful marriages
in terms of the common law, because such
marriages are potentially polygamous.
[7]
       The applicant
contended in the High Court that this line of authority was no longer good law
since public policy had
evolved sufficiently in subsequent years for the court
to depart from these decisions.  In particular it was submitted that the
common
law should now be developed in accordance with section 35(3) of the interim
Constitution,
1
1
or section 39(2) read with section 8(3) of the 1996 Constitution,
1
2
to recognise that a duty
of support which flowed from an Islamic marriage was sufficient to found the
liability for which the applicant
contended.  It was submitted further that the
effect of this recognition should be retroactive in the sense that it should
grant
the applicant relief in spite of the fact that her cause of action arose
prior to the commencement of the interim Constitution on
27 April 1994.
[8]
       The events in the
case spanned three constitutional orders.  As indicated above the accident
occurred before the interim
Constitution was in force.  The action was
instituted in the High Court during the lifespan of the interim Constitution
but was
heard and decided after the 1996 Constitution had come into effect.
1
3
  Since legal proceedings
were pending before the High Court on 4 February 1997, this is a matter
governed by item 17 of schedule
6 of the 1996 Constitution
1
4
which provides that,
unless it is in the interests of justice, the matter shall be disposed of as if
the 1996 Constitution had
not been enacted.  Meskin J came to the conclusion
that it would be in the interests of justice to deal with the matter in terms

of the 1996 Constitution.
1
5
[9]
       Nonetheless Meskin
J found that, on a proper construction of section 39(2) read with section 8(3)
of the 1996 Constitution,
courts were empowered merely to amplify existing
legal principles in circumstances where the common law was silent in giving
effect
to a particular right and where legislation did not make good this
deficiency.  In his view the 1996 Constitution did not authorise
courts to
eliminate established rules from the common law; this, he held, was the
responsibility of the legislature.
1
6
  Hence Meskin J held that the
respondent was not liable to compensate the applicant for the loss of support
which she had suffered
as a consequence of the death of her husband because their
union had not constituted “a lawful marriage”.
1
7
  In the light of this conclusion it
is difficult to understand what “interest of justice” was served by dealing
with the matter
in terms of the 1996 Constitution.
The Application for Leave to Appeal:
[10]
     The applicant
initially applied to the High Court for leave to appeal to the Supreme Court of
Appeal against that judgment.Â
Due to the untimely death of Meskin J the application
was heard by Combrinck J.  Apparently as a result of questions posed by the

learned judge during the course of the hearing as to whether the appeal should
be noted to the Supreme Court of Appeal or to this
Court, the applicant
formulated a fresh application in which she sought a certificate in terms of
Constitutional Court Rule 18.
1
8
  The parties and Combrinck J were apparently of the
view that if there was to be an appeal it should be brought to this Court and

not the Supreme Court of Appeal.  The application for a “positive” certificate
was opposed, however, on the grounds that there
were no reasonable prospects of
success.  Combrinck J, whilst noting that he had not had the benefit of
detailed argument on the
matter, endorsed the views which had been expressed by
Meskin J and declined to furnish a “positive” certificate.  It was not
likely
in his view that this Court would reverse or materially alter the decision that
had been given.
[11]
     Notwithstanding the
“negative” certificate the applicant applied to this Court in terms of rule
18(f) for leave to
appeal (as she was entitled to do).
1
9
  The application raised a
number of important and difficult issues concerning the jurisdiction of the
Supreme Court of Appeal
and the Constitutional Court.  In the light of these
difficulties the application for leave to appeal was set down for hearing

before this Court and directions were given requiring the parties to consider
and to address argument to the Court on two principal
issues:
          Â
“(a)      Does the Constitutional Court have jurisdiction to hear an
appeal in this matter?  If so, does the Supreme Court
of Appeal also have
jurisdiction to hear the appeal?
(b)        If both the Constitutional Court and the Supreme Court of
Appeal have jurisdiction, is this a matter in which the
appeal should be noted
directly to the Constitutional Court?”
[12]
     The directions also
called upon the parties to deal with the following matters in their arguments:
“(a)      In view of the fact that the accident on which the applicant’s
cause of action is based occurred on 25 July 1993
is it contended that the Bill
of Rights in either the interim Constitution or the 1996 Constitution is
directly applicable to the
applicant’s claim, or does the claim depend entirely
upon the development of the common law?
(b)        In so far as the applicant’s claim depends upon the
development of the common law, is it to be dealt with in
terms of the interim
Constitution, the 1996 Constitution, or the common law jurisdiction of the
courts which exists independently
of the Constitution?
(c)        If the applicant relies on the development of the common law
under the interim Constitution:
i.      Is the question
whether reliance can be placed on that Constitution in respect of a cause of
action which arose before
the Constitution was in force a matter relating to
the ‘interpretation, protection and enforcement of the Constitution’ within
the
meaning of section 98(2)?
ii.     Is the question
whether the common law should be developed in accordance with the requirements
of section 35(3) in a
manner which will give effect to the applicant’s claim
within the jurisdiction of the Constitutional Court or the Supreme Court
of
Appeal or both Courts?
In dealing with the issues raised in paragraphs (c)(i) and (ii) above,
consideration should be given inter alia to the provisions
of sections 98(2)
and 101(5) of the interim Constitution.
(d)        If the applicant relies on the development of the common law
under the 1996 Constitution:
i.      Is the question
whether reliance can be placed on that Constitution in respect of a cause of
action which arose before
the Constitution was in force a constitutional matter
within the meaning of section 167(3) of that Constitution?
ii.     Is section 8(1)
applicable to actions against the respondent?  If so, can the applicant rely on
section 8(2)?
iii.     Is reliance
placed on sections 8(2) and (3)?  If so, is the question whether the common law
should be developed in
terms of section 8(3) to recognise a right of action for
loss of support by a widow married according to Islamic law a constitutional

matter within the meaning of section 167(3) of the Constitution?
iv.    Is reliance placed
on section 39(2)?  If so, is the question whether the common law should be
developed in terms of section
39(2) to recognise a claim for loss of support by
a widow married according to Islamic law a constitutional matter within the
meaning
of section 167(3) of the Constitution?
(e)        Any other matter considered by a party to be relevant to the
question whether the Constitutional Court or the Supreme
Court of Appeal or
both Courts have jurisdiction to hear an appeal in the present case.
(f)        If the Constitutional Court and the Supreme Court of Appeal
both have jurisdiction to hear the appeal in the present
matter should leave to
appeal directly to the Constitutional Court be granted?  In particular, and in
so far as reliance is placed
on the 1996 Constitution, is it in the interests
of justice within the meaning of section 167(6) that an appeal in this matter,

which concerns the development of the common law, should be brought directly to
the Constitutional Court rather than to the Supreme
Court of Appeal?  In this
regard the parties are required to address only the question of the proper
forum, and are not required
at this stage to address argument on the merits of
the claim or the prospects of success.”
[13]
     In addition the
directions required the registrar of this Court to bring the application for
leave to appeal to the attention
of the South African Human Rights Commission
and the Commission on Gender Equality.  The Commission on Gender Equality
applied
for and was given leave to intervene as an amicus curiae.  It was
represented by counsel at the hearing.  The Human Rights Commission
did not
seek leave to intervene in the proceedings.
[14]
     The issues raised in
any appeal against the decision of Meskin J are, as I have already noted,
difficult and important,
and clearly warrant the attention of a higher court.Â
It is my view, however, that the appeal in the present case should in the
first
instance be dealt with by the Supreme Court of Appeal and not by the
Constitutional Court.  For this reason leave to appeal
directly to this Court
should be refused.  I will confine the remainder of my judgment to the reasons
for this conclusion and
say no more about the merits of the dispute and the
issues raised in the directions than I consider to be necessary for this
purpose.
Jurisdiction under the
Interim Constitution:
[15]
     In terms of the
interim Constitution the Supreme Court of Appeal has jurisdiction to develop
the common law in accordance
with the provisions of section 35(3).
2
0
[16]
     The Supreme Court of
Appeal has jurisdiction to interpret item 17 of schedule 6 of the 1996
Constitution.  If it decides
that on a proper interpretation of that provision
the interim Constitution is applicable to this case, a question which might
arise
is whether the Supreme Court of Appeal has jurisdiction to interpret that
Constitution in order to decide whether section 35(3)
is applicable to causes
of action which arose prior to the coming into force of such Constitution.
[17]
     In
Premier of the
Province of Mpumalanga and Another v Hoofbestuur van die Vereniging van
Bestuursliggame van Staatsondersteunde Skole:
Oos-Transvaal
2
1
the Supreme Court of
Appeal, following the decision in
Rudolph and Another v Commissioner for
Inland Revenue and Others
,
2
2
held that it has no power to interpret the interim
Constitution for the purpose of deciding the question whether its common law

jurisdiction to decide administrative law matters was effectively taken away
from it by the interim Constitution.
2
3
  That question has been referred to
this Court by the Supreme Court of Appeal in
Fedsure Life Assurance Ltd and
Others v Greater Johannesburg Transitional Metropolitan Council and Others
.
2
4
  Since that matter has
not yet been decided, I will make no comment as to whether such jurisdiction
still exists, and whether
on a proper construction of the interim Constitution
the Supreme Court of Appeal is precluded from resolving the issue itself.
[18]
     The present matter is
clearly distinguishable from these two cases.  This Court has already held that
on a proper construction
of the interim Constitution the Appellate Division had
jurisdiction to develop the common law in accordance with the provisions
of
section 35(3).
2
5
  In so far as it is necessary to interpret the interim Constitution to
determine its “spirit, purport and objects” I am of
the opinion that the
jurisdiction to do so is clearly incidental to the jurisdiction vested in the
Appellate Division to develop
the common law.
[19]
     This seems to me to
follow from earlier decisions of this Court.
2
6
  Mahomed DP stated in
Du Plessis
that:
“The
interpretation which I have come to favour has the advantage of giving to the
different Divisions of the Supreme Court, including
its Appellate Division, a
very clear and creative role in the active evolution of our constitutional
jurisprudence by examining,
and in suitable circumstances expanding, the
traditional frontiers of the common law by infusing it with the spirit of
chapter
3 of the Constitution and its purport and objects.  Nothing contained
in s 101(5), read with s 8, of the Constitution would in
any way impede the
untrammelled exercise of such powers, but it would leave also to the
Constitutional Court the residual power
to determine, in suitable
circumstances, whether in the application of its jurisdiction in terms of
section 35(3) the Supreme Court
has in any particular case properly had regard
to the spirit of chapter 3 of the Constitution and its purport and objects.”
2
7
[20]
     This Court has
decided that the interim Constitution does not ordinarily apply to causes of
action which arose prior to
the date on which it came into force.
2
8
  It has expressly left
open the question whether there might be exceptional circumstances in which
this rule would not be applicable.Â
These dicta dealt with the direct
application of provisions of the Bill of Rights and not with its indirect
application in terms
of section 35(3) of the interim Constitution.
[21]
     The question whether
section 35(3) can be relied upon by a litigant in respect of a common law claim
which arose prior
to the date on which the interim Constitution came into force
was raised but not decided by Kentridge AJ in his judgment in
Du Plessis
,
and the question whether an appeal against a judgment in such a matter would
lie to the Appellate Division or the Constitutional
Court was specifically left
open.
2
9
[22]
     The Supreme Court of
Appeal has always had an inherent jurisdiction to develop the common law to
meet the needs of a changing
society.  The circumstances in which it elects to
do so and the manner in which it develops the law form part of this
jurisdiction.Â
With the coming into force of the interim Constitution, and
later the 1996 Constitution, this power must now be exercised in accordance

with the “spirit, purport and objects” of the Bill of Rights.
3
0
[23]
     In my view the
vesting of the power in the Supreme Court of Appeal under section 35(3) of the
interim Constitution and
section 39(2) of the 1996 Constitution to develop the
common law necessarily includes the jurisdiction to decide whether the power

can be exercised in cases in which the cause of action arose before the
Constitutions were in force, or whether it should be confined
to causes of
action arising after the coming into force of such Constitutions.
[24]
     Mr Omar, who appeared
on behalf of the applicant, also contended that if the interim Constitution is
applicable the applicant
would be entitled to rely directly on the provisions
of the Bill of Rights for the relief claimed by her notwithstanding the fact

that the cause of action arose before that Constitution was in force.  This, so
it was contended, was an exceptional case to which
the rule stated in
Du
Plessis
and
Tsotetsi
would not apply, and raises an issue under the
interim Constitution in respect of which the Supreme Court of Appeal would not
have
jurisdiction.
[25]
     This Court has not
decided that there are indeed cases which would not be covered by the rule in
Du
Plessis
and
Tsotetsi
, and I do not consider it necessary or
desirable to decide that question now.  It is not clear how the direct
application of the
Bill of Rights under the interim Constitution would benefit
the applicant.  She does not seek to set aside the provisions of the
MVA Act on
which she relies for her cause of action.  Because the MVA Act imposes
liability on the respondent only when the driver
of the vehicle would have been
liable at common law, it is only if the common law is developed to give rise to
such liability that
the applicant could succeed.  The applicant has not
indicated how, if the Bill of Rights is applied directly to the MVA Act, the

relevant provisions could be “read down” so as to give her a right of action if
the common law is not developed in line with
her main argument.  Nor has she
indicated how the Bill of Rights might otherwise be directly applicable to her
claim.
[26]
     We did not hear
argument on the merits of the dispute and thus no more need be said about this
issue than the following.Â
The question of the direct application of the
Constitutions can arise only if the common law is not developed to allow her to
claim
damages.  The anterior question of the development of the common law must
be decided first.
Jurisdiction under the 1996
Constitution:
[27]
     If the interests of
justice require it to do so, the Supreme Court of Appeal has jurisdiction in
terms of section 168(3)
of the 1996 Constitution
3
1
to decide the appeal in accordance
with the provisions of the 1996 Constitution.
[28]
     Mr Omar submitted
that this Court’s jurisdiction in the present matter is co-extensive with that
of the Supreme Court
of Appeal.  Section 167(3) and (7) of the 1996
Constitution provides as follows:
          Â
           “(3)       The Constitutional Court -
(a)        is the highest court in all constitutional matters;
(b)        may decide only constitutional matters, and issues connected
with decisions on constitutional matters; and
(c)        makes the final decision whether a matter is a constitutional
matter or whether an issue is connected with a decision
on a constitutional
matter.
                                                .
. . .
(7)        A constitutional matter includes any issue involving the
interpretation, protection or enforcement of the Constitution.”
[29]
     Section 173 of the
1996 Constitution provides as follows:
“The
Constitutional Court, Supreme Court of Appeal and High Courts have the inherent
power to protect and regulate their own process,
and to develop the common law,
taking into account the interests of justice.”
[30]
     It is not necessary
in the present matter to consider whether the development of the common law in
accordance with the
provisions of section 39(2) of the 1996 Constitution in a
case such as this is a “constitutional matter”; nor is it necessary
to consider
the precise scope of the “inherent power” to develop the common law vested in
this Court by section 173 and whether
it is more extensive than the power under
the interim Constitution recognised in
Du Plessis
and
Gardener
.
3
2
[31]
     The factors referred
to in paragraphs 65 and 66 of the judgment of Kentridge AJ in
Du Plessis
will no doubt be relevant to the way in which the common law is developed under
section 39(2) of the 1996 Constitution.  So too
will be the provisions of
section 8(2) and 8(3) of the 1996 Constitution.
3
3
  Section 8(2) makes the Bill of
Rights binding on natural and juristic persons “if, and to the extent that, it
is applicable,
taking into account the nature of the right and the nature of
any duty imposed by the right”.  Section 8(3) requires courts in
giving effect
to section 8(2) to “apply, or if necessary develop, the common law to the
extent that legislation does not give
affect to that right” and also empowers
the courts to develop “rules of the common law to limit the right, provided
that the
limitation is in accordance with section 36(1).”  The development of a
coherent system of law may call for the development of
the common law under
section 35(3) of the interim Constitution and section 39(2) of the 1996
Constitution to be done in a manner
consistent with the way in which the law
will be developed under sections 8(2) and 8(3) of the 1996 Constitution.  Once
again
I prefer to make no comment on this issue other than to say that I
consider it to be one which is within the jurisdiction of the
Supreme Court of
Appeal.
[32]
     As the highest court
in “constitutional matters” this Court has jurisdiction to hear appeals from
decisions of the
Supreme Court of Appeal in such matters.
3
4
  It also has a discretion
in terms of section 167(6) of the 1996 Constitution
3
5
to permit a litigant to
appeal directly to it from the decision of the High Court in a constitutional
matter.  The considerations
relevant to applications for leave to appeal
directly to this Court from decisions of the High Court are discussed in the
Democratic
Party
case.
3
6
  Of particular relevance to the present matter is the following passage
in that judgment:
“What is of
importance, however, and what must always be kept in mind in dealing with such
matters is that the saving of costs
and time are not the only factors that have
to be taken into account in deciding what is in the interests of justice in any
given
case.  There may be cases where the nature of the dispute is such that it
would be appropriate for the SCA to consider the matter
before it comes to this
Court, and in the interests of justice for it to do so.”
3
7
[33]
     When a constitutional
matter is one which turns on the direct application of the Constitution and
which does not involve
the development of the common law, considerations of
costs and time may make it desirable that the appeal be brought directly to

this Court.  But when the constitutional matter involves the development of the
common law, the position is different.  The Supreme
Court of Appeal has
jurisdiction to develop the common law in all matters including constitutional
matters.  Because of the breadth
of its jurisdiction and its expertise in the
common law, its views as to whether the common law should or should not be
developed
in a “constitutional matter” are of particular importance.  Assuming,
as Mr Omar contends, that this Court’s jurisdiction
to develop the common law
in constitutional matters is no different to that of the Supreme Court of
Appeal, it is a jurisdiction
which ought not ordinarily to be exercised without
the matter having first been dealt with by the Supreme Court of Appeal.
The Order:
[34]
     The crucial question
in this case is whether the common law should be developed to allow the
applicant to claim damages
for loss of support.  Whether the matter is dealt
with under the 1996 Constitution or as if that Constitution had not been
passed,
the question is one within the jurisdiction of the Supreme Court of Appeal.Â
For the reasons given the appeal ought to have been
noted to that court and not
to the Constitutional Court.
[35]
     To avoid any doubt as
to the implications of the order that is made, I wish to make it clear that the
application for leave
to appeal is dismissed because it is premature.  It will
be open to either party to approach this Court for leave to appeal after
the
matter has been dealt with by the Supreme Court of Appeal, or if leave to
appeal to the Supreme Court of Appeal is not granted
by the High Court or the
Chief Justice.
[36]
     The circumstances in
which the matter came before this Court have already been described.
3
8
  It is not a case in
which it would be appropriate to make any order for costs.
[37]
     The following order
is made:
The application for leave
to appeal directly to this Court from the decision given by Meskin J in the
Durban and Coast High Court
is refused.
Langa DP, Ackermann J,
Didcott J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O’Regan J, Sachs J and
Yacoob J concur in the
judgment of Chaskalson P.
For the Applicant:                 Mr MS Omar of MS Omar & Associates
For the Respondent:  Mr J Pammenter SC and Mr P Rowan instructed by
Chapman Dyer Inc
For the Amicus Curiae:        Mr M Chaskalson instructed by Mabuza
Mabunda Inc
1
         Â
Reported
as
Amod v Multilateral Motor Vehicle Accident Fund
1997 (12) BCLR 1716
(D).
2
         Â
Uniform Rule of
Court 33(1) provides as follows:
“The parties to
any dispute may, after institution of proceedings, agree upon a written
statement of facts in the form of a special
case for the adjudication of the
court.”
3
         Â
Act 93
of 1989.  This act has subsequently been repealed by the Road Accidents Fund
Act 56 of
1996.
4
         Â
Act 25
of 1961.
5
         Â
Mlisane
v South African Eagle Insurance Co Ltd
1996 (3) SA
36
(C) at 39B-41D.
6
         Â
Now the
Supreme Court of Appeal in terms of item 16(3)(a) of schedule 6 of the 1996
Constitution.
7
         Â
1960 (2)
SA 467
(A).
8
         Â
1961 (1)
SA 302
(D).
9
         Â
The right of a
spouse married according to African customary law to claim damages for loss of
support has since been provided for,
subject to certain conditions, in
section 31 of the Black Laws Amendment Act 76 of 1963.  No equivalent statutory
provision exists
however in respect of a spouse married according to Islamic
law.
10
        Â
1983 (1)
SA 1006
(A).
11
        Â
Section 35(3) of the
Constitution of the Republic of South Africa Act 200 of 1993 provides as
follows:
“In the
interpretation of any law and the application and development of the common law
and customary law, a court shall have
due regard to the spirit, purport and
objects of this Chapter.”
12
        Â
Section 39(2) of the
Constitution of the Republic of South Africa, 1996, provides as follows:
“When interpreting any legislation, and when developing the common
law or customary law, every court, tribunal or forum must promote
the spirit,
purport and objects of the Bill of Rights.”
                Section
8 of the 1996 Constitution provides as follows:
            “(1)             . . . .
(2)           A provision of the Bill of Rights binds
a natural or a juristic person if, and to the extent that, it is
applicable,
taking into account the nature of the right and the nature of any duty imposed
by the right.
(3)           When applying a provision of the Bill
of Rights to a natural or juristic person in terms of subsection (2),
a court -
(a)           in order to give effect to a right in
the Bill, must apply, or if necessary develop, the common law to the
extent
that legislation does not give effect to that right; and
(b)           may develop rules of the common law to
limit the right, provided that the limitation is in accordance with
section
36(1).
(4)           . . . .”
13
        Â
The
application in the High Court was lodged in January 1997 and was heard on 20
November 1997.  Judgment was delivered by Meskin
J on 1 December
1997.
14
        Â
Item 17 of schedule
6 of the 1996 Constitution provides as follows:
“All proceedings
which were pending before a court when the new Constitution took effect, must
be disposed of as if the new Constitution
had not been enacted, unless the
interests of justice require otherwise.”
15
        Â
Amod
above n 1 at 1721I and 1722E-F.
16
        Â
Id
1723D-1725D.
17
        Â
Id
1726F-G.
18
        Â
The
Constitutional Court rules promulgated under section 100(1) of the interim
Constitution were still in force at the time of
the application.
19
        Â
Member
of the Executive Council for Development Planning and Local Government in the
Provincial Government of Gauteng v Democratic
Party and Others
[1998] ZACC 9
;
1998 (7) BCLR 855
(CC) at paras 16-22.
20
        Â
Du
Plessis and Others v De Klerk and Another
[1996] ZACC 10
;
1996 (3)
SA 850
(CC);
1996 (5) BCLR 658
(CC) at paras  59-64, 87, 137 and
138;
Gardener v Whitaker
[1996] ZACC 11
;
1996 (4) SA 337
(CC);
1996 (6) BCLR 775
(CC) at
paras 16 and 17.
21
        Â
As yet
unreported judgment of the Supreme Court of Appeal, case no 101/96, delivered
on 26 March   1998.
22
        Â
[1996] ZASCA 20
;
1996 (2)
SA 886
(A).
23
        Â
Mpumalanga
above n 21 at 15-21 of the judgment.
24
        Â
As yet
unreported judgment of the Supreme Court of Appeal, case no 328/97, delivered
on 23 March 1998.
25
        Â
Above n
20.
26
        Â
Id.
27
        Â
Du Plessis
above n 20 at para 87.  See also the comments of Kentridge AJ in
para 63 of the judgment.
28
        Â
Du
Plessis
above n 20 at paras 20, 68 and 114,
Key
v Attorney-General, Cape Provincial Division, and  Another
[1996] ZACC 25
;
1996 (4)
SA 187
(CC);
1996 (6) BCLR 788
(CC) at paras 4-6,
Rudolph and Another v
Commissioner for Inland Revenue and Others
[1996] ZACC 13
;
1996 (4) SA 552
(CC);
1996 (7)
BCLR 889
(CC) at para 15, and
Tsotetsi v Mutual & Federal Insurance Co
Ltd
[1996] ZACC 19
;
1997 (1) SA 585
(CC);
1996 (11) BCLR 1439
(CC) at para 6.
29
        Â
Du
Plessis
above n 20 at paras 65 and 66.
30
        Â
It is not
necessary to decide whether the difference in wording between section 39(2) of
the 1996 Constitution and section 35(3)
of the interim Constitution has any
material effect on the manner in which this power should be exercised.
31
        Â
Section 168(3) of
the 1996 Constitution provides as follows:
“The Supreme Court of Appeal may decide appeals in any matter.  It
is the highest court of appeal except in constitutional matters,
and may decide
only -
(a)           appeals;
(b)           issues connected with appeals; and
(c)           any other matter that may be referred to it in
circumstances defined by an Act of Parliament.”
32
        Â
Above n
20.
33
        Â
Above n
12.
34
        Â
S v
Pennington and Another
1997 (4) SA 1076
(CC);
1997
(10) BCLR 1413
(CC).
35
        Â
Section 167(6) of
the 1996 Constitution provides as follows:
“National legislation or the rules of the Constitutional Court must
allow a person, when it is in the interests of justice and
with leave of the
Constitutional Court -
(a)           . . . ; or
(b)           to appeal directly to the Constitutional Court from
any other court.”
36
        Â
Above n
19 at paras 27-33.
37
        Â
Id para 31.
38
        Â
Above
paras 10-14.