Summary of Judgment

1. Introduction

This matter concerned an urgent constitutional application brought directly to the Constitutional Court for declaratory relief regarding the lawful number of seats in the Western Cape Provincial Parliament ahead of the provincial and national elections scheduled for 2 June 1999. The applicants were the Premier of the Province of the Western Cape and the Speaker of the Provincial Parliament of the Western Cape. The respondents were the Electoral Commission and the Chief Electoral Officer.

The dispute arose after the Electoral Commission, in preparing for the second democratic elections, determined the number of seats for each provincial legislature using a population-based formula derived from national electoral legislation. In relation to the Western Cape, it determined that the Provincial Parliament would have 39 seats. The applicants contended that this was inconsistent with section 13 of the Constitution of the Western Cape 1998, which provides that the Provincial Parliament consists of 42 elected members.

After attempts to resolve the disagreement by correspondence failed, the applicants approached the Constitutional Court urgently on 20 May 1999. The matter was heard on 26 May 1999. The Court issued an order on that date setting aside the Commission’s determination and confirming that the Provincial Parliament had 42 seats, with reasons furnished later on 2 September 1999.

2. Material Facts

In preparation for the 1999 elections, the Electoral Commission made determinations of the number of seats in each provincial legislature based on a formula of approximately one representative per hundred thousand inhabitants. Applying that approach, and relying on the relevant national legislation, the Commission determined on 17 March 1999 that the Western Cape Provincial Parliament would have 39 seats after the forthcoming election.

It was common cause that the Constitution of the Western Cape 1998 contains a provision, section 13, stating in direct terms that the Provincial Parliament consists of 42 elected members. It was also common cause that national legislation (referred to in the judgment as “the Act”) prescribed a formula for determining provincial seats and that, if applied, it produced a figure of 39 for the Western Cape.

The central factual premise for the applicants’ case was that the Western Cape had a duly adopted provincial constitution that expressly regulated the size of its legislature, and that this provincial constitutional provision was authorised by the national Constitution. The central factual premise for the respondents’ case was that the size of every provincial legislature was regulated by the national Constitution’s framework read with national legislation prescribing a formula, and that any inconsistency should be resolved in favour of the national framework and legislation.

Although the respondents raised arguments relating to equality, free and fair elections, and the fiscal implications of a larger legislature, the Court treated these as submissions on constitutional effect rather than as disputes of fact requiring evidentiary resolution.

3. Legal Issues

The first legal issue concerned jurisdiction and procedure: whether the matter fell within the Constitutional Court’s exclusive jurisdiction under section 167(4)(a) of the Constitution (as a dispute between organs of state in the national or provincial sphere concerning constitutional status, powers, or functions), or whether the Court should instead entertain the matter by granting direct access under rule 17, given urgency and the nature of the dispute.

The principal merits issue was a question of constitutional interpretation: whether section 105(2) of the Constitution (requiring provincial legislatures to consist of between 30 and 80 members and requiring the number of members to be determined by a formula prescribed by national legislation), and the national legislation enacted pursuant to it, applied to the Western Cape given that the Western Cape provincial constitution itself fixed the number of members at 42.

A further interpretive issue was whether the apparent divergence between the provincial constitutional provision and the national legislative formula amounted to a “conflict” to be resolved under section 147(1)(a) of the Constitution (which provides that national legislation prevails over a conflicting provision of a provincial constitution where the Constitution specifically requires or envisages the enactment of national legislation).

In addition, the Court had to assess whether recognising 42 seats in the Western Cape, rather than 39, would infringe constitutional rights and principles relied upon by the respondents, including equality and the right to vote in free and fair elections, and whether related fiscal concerns affected validity.

Overall, the dispute was predominantly a matter of law, specifically the relationship between provincial constitutions and national constitutional “default” provisions, and the application of that relationship to the undisputed structural facts about how the seat numbers had been set.

4. Court’s Reasoning

On jurisdiction, the Court expressed doubt that section 167(4)(a) necessarily applied. While it accepted that the Commission and the Chief Electoral Officer might fall within the broad definition of organs of state in section 239, it was not clear that they were organs of state “in the national or provincial sphere” as contemplated by section 167(4)(a). The Court reasoned that, in constitutional usage, “sphere” is associated with spheres of government, whereas the Electoral Commission is an independent institution and not part of government, and thus not readily located within either the national or provincial sphere in the sense envisaged by section 167(4)(a).

The Court also highlighted policy considerations favouring a narrow construction of exclusive jurisdiction under section 167(4)(a), noting the undesirability of requiring all disputes between any institutions qualifying as organs of state under section 239 to be heard only by the Constitutional Court, with the consequence that the Court would act as both court of first and final instance.

However, the Court did not finally determine exclusive jurisdiction because it considered the alternative route—direct access—to be justified. It granted direct access under rule 17, emphasising that the matter presented a single, crisp issue of constitutional interpretation, that the Court had previously considered the relevant point, that the declaration sought raised no major practical difficulties, that the parties were ready to argue, and that the matter was urgent given the impending election. The Court concluded that the interests of justice required that it hear and determine the matter directly and urgently.

On the merits, the Court’s reasoning turned on the relationship between section 143 (permitting provincial constitutions to provide for legislative and executive “structures and procedures” that differ from those in Chapter 6) and section 105(2) (which regulates the number of provincial legislators via a national formula). The applicants’ claim rested on section 13 of the Western Cape provincial constitution fixing the legislature at 42 members, and the Court accepted that this subject matter fell within the scope of “legislative structures and procedures” contemplated by section 143(1)(a).

The Court held that where a provincial constitution regulates the legislative structures and procedures of a provincial legislature in a manner permitted by section 143(1) and not in breach of the limitations in section 143(2), then the default provisions of Chapter 6—expressly including section 105(2)—do not apply to that province on those points. The Court characterised the Chapter 6 arrangements as providing a framework for provinces where no provincial constitution provides otherwise, and it reasoned that a valid provincial constitutional provision on legislative structure displaces the Chapter 6 default provisions on that topic.

Because section 105(2) was held not to apply to the Western Cape in the face of section 13 of its provincial constitution, the Court concluded that national legislation enacted pursuant to section 105(2) likewise could not govern the seat determination for the Western Cape while the provincial constitutional provision remained in force. The Court therefore rejected the respondents’ reliance on section 147(1)(a). It reasoned that the difference between the national legislative prescription (39 seats) and the provincial constitutional prescription (42 seats) was not the type of “conflict” envisaged for resolution under section 147, because the divergence was specifically sanctioned by the Constitution itself through section 143’s authorisation for provincial constitutions to differ on legislative structures and procedures.

The Court reinforced this conclusion by referring to its earlier decision during the certification process of the Western Cape Constitution, in which it had already rejected objections to section 13 and had held that the number of members of a legislature is part of legislative structure or procedure, and therefore a matter on which a provincial constitution may validly provide something different under section 143(1)(a). The Court treated this prior determination as directly supporting the applicants’ position that section 13 was constitutionally competent and not overridden by section 105(2) or national legislation.

The respondents’ further constitutional objections based on equality, free and fair elections, and fiscal burden were also rejected. The Court reasoned that because the electoral system is one of proportional representation, additional seats in a provincial legislature do not increase the strength or weight of a vote within the province; the allocation of representation remains proportional irrespective of the absolute number of seats. The Court also rejected the suggestion that a larger provincial legislature would yield illegitimate or unequal influence at national level, noting that representation in the National Council of Provinces is fixed at 10 members per province, and that votes in the National Assembly are not affected by the number of seats in a provincial legislature.

The Court further observed that, even under section 105(2)’s own framework, the minimum and maximum limits can produce differences between provinces relative to population size, and it cited this as undermining the respondents’ contention that any deviation from a strict population formula necessarily violates equality or electoral fairness. As to fiscal concerns, the Court responded that the provincial constitution had been passed by a two-thirds majority, reflecting democratic and constitutional acceptance of its size and attendant fiscal implications.

Finally, the Court addressed the practical consequence of its interpretation. It held that the Commission’s determination under the national legislation, insofar as it purported to set Western Cape seats at 39, was invalid. It noted that if the Western Cape were to amend its constitution by removing section 13 so that the provincial constitution no longer regulated the number of seats, the Commission would then be empowered to make a determination under the Electoral Act read with section 105(2).

5. Outcome and Relief

The Court unanimously declared that the number of seats in the Western Cape Provincial Parliament is governed by section 13 of the Constitution of the Western Cape 1998, namely 42 seats.

It set aside as invalid the Electoral Commission’s determination of 17 March 1999 that the Western Cape Provincial Parliament would have 39 seats after the election scheduled for 2 June 1999.

The respondents were ordered to pay the costs of the application, consistent with the parties’ agreement that costs should follow the result.

Cases Cited

In re: Certification of the Constitution of the Western Cape, 1997 (4) SA 795 (CC); 1997 (12) BCLR 1653 (CC)

Legislation Cited

Constitution of the Republic of South Africa, 1996

Constitution of the Western Cape, 1998

Electoral Act 73 of 1998

Rules of Court Cited

Rules of the Constitutional Court: Rule 17

Held

The Constitutional Court held that section 105(2) of the Constitution and national legislation enacted pursuant to it do not apply to determine the number of seats in a provincial legislature where a valid provincial constitution, authorised by section 143(1)(a), itself provides for a different legislative structure, including fixing the number of members.

Accordingly, section 13 of the Constitution of the Western Cape 1998 validly governs the composition of the Western Cape Provincial Parliament, with the result that the Commission’s determination fixing the number at 39 seats was invalid, and the Provincial Parliament was entitled to 42 seats.

The Court further held that recognising 42 seats did not infringe equality or the right to vote in free and fair elections, given proportional representation and the structure of representation at national level, and that fiscal objections did not affect validity in light of the democratic adoption of the provincial constitution.

LEGAL PRINCIPLES

A provincial constitution may, under section 143(1)(a) of the Constitution, validly provide for provincial legislative structures and procedures that differ from those set out in Chapter 6, subject to compliance with section 143(2) (including consistency with the Constitution, the founding values in section 1, and the principles of cooperative government in Chapter 3, and not conferring powers beyond those constitutionally allocated).

Where a provincial constitution validly regulates a matter falling within legislative structures and procedures, the relevant provisions of Chapter 6 operate as default provisions and do not apply to that province on that subject. Consequently, national legislation authorised by a default provision such as section 105(2) cannot override a valid provincial constitutional provision regulating the same structural matter.

A divergence between national legislation enacted pursuant to a constitutional default provision and a provincial constitutional provision authorised by section 143 is not necessarily a “conflict” to be resolved under section 147(1)(a), because the Constitution itself contemplates and permits such authorised provincial variation.

Direct access to the Constitutional Court under rule 17 may be granted where the interests of justice so require, including in circumstances of urgency and where the dispute presents a focused issue of constitutional interpretation suitable for determination without the ordinary sequence of litigation.