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[1987] ZASCA 110
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Government of Lebowa v Gorvenment of Republic of South Africa and Another (371/86) [1987] ZASCA 110; [1988] 4 All SA 16 (AD) (29 September 1987)
371/86/AV
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
THE GOVERNMENT OF
LEBOWA
Appellant
AND
THE GOVERNMENT OF.THE REPUBLIC OF
SOUTH AFRICA
1st Respondent
THE GOVERNMENT OF KWA NDEBELE
2nd Respondent
CORAM: RABIE, ACJ, JOUBERT, HEFER, GROSSXOPF, VIVIER, JJA
HEARD
: 7 September 1987
DELIVERED
: 29 September 1987
JUDGMENT GROSSKOPF, JA
The appellant applied in the Transvaal
Provincial
2 Provincial Division for an order declaring that the
district of Moutse as defined in clause 2 of the schedule to Proclamation R
224
of 1972 forms part of the self-governing territory of Lebowa; and an order
declaring Proclamations R 227 and R 228 of 1985 to
be null and void and of no
force and effect. The last-mentioned Proclamations were intended, broadly
speaking, to incor-porate the
district of Moutse into the area of the Kwa
Ndebele legislative assembly, and to effect amendments to the constitution of
Lebowa
which were consequential on the excision of Moutse from its territory. I
deal later in greater detail with these Proclamations. The
application came
before VAN DYK J. He dismissed it with costs, but
granted
3 granted the applicant leave to appeal to this court. It will
be convenient to commence with a short historical survey. For this
purpose I
shall be referring to laws which have not only been amended from time to time,
but which now bear different titles from
those under which they were
promulgated. Save where otherwise stated, my references will be to the
legislation as amended up to the
present, and to the titles currently in
use.
For present purposes, the starting point is the Black Authorities Act, no 69
of 1951. This Act made
provision for the establishment of Black tribal, community, regional and
territorial authorities. It is not neces-
sary
4
sary to go into the respective powers and functions of
these
various authorities save to say that a territorial authority
had more
extensive powers than any of the others (sec. 7
of the Act), and exercised
these powers over an area in
which a number of the other authorities had been
establish-
ed (sec. 2 of the Act). By Government Notice R 1274 of
1962 the Lebowa Territorial Authority was established.
The evolution of Black authorities was taken
a step further by the promulgation of the National States
Constitution Act, no 21 of 1971 ( "the 1971 Act" ) . Sec. 1
of this Act reads as follows:
"(1) The State President may, after consulta-tion by the Minister with a
territorial authority, by proclamation in the
Gazette
establish a
legislative assem-
bly
5
bly for the Black area for which that territorial authority has
been es-tablished or for such area as modified by the State Presidenr
by the
said proclamation. (2) The Black area for which a legislative assembly is
established may consist of various Black areas,
shall be defined in the
proclamation referred to in subsection (1) and may, after consulta-tion by the
Minister with the executive
council of the area concerned, be amended from time
to time by the State President by proclamation in the
Gazette
."
Sections 2 and 5 of the Act authorize the
State President to make
provision by proclamation for the
constitution of a legislative assembly and
an executive
council for an area defined pursuant to section 1. By
Proclamation R 156 of 1971 the State President, acting in
terms
6 terms of sections 1,2 and 5 of the 1971 Act, established a
legislative assembly, to be known as the Lebowa Legis-lative Assembly,
for the
area described in the schedule to the Proclamation. The Proclamation also laid
down the manner in which the legislative assembly
and the executive council for
the area were to be constituted. According to the schedule, the area of the
Lebowa Legis-lative Assembly
was to consist of the areas of ten re-gional
authorities listed in the schedule as items (a) to (j).
By Proclamation R 224 of 1972 the area of the Lebowa Legislative Assembly was
amended pursuant to the above-quoted section 1(2) of
the 1971 Act by the
substitution
7
substitution of an entirely new schedule. For convenience
I
shall hereafter, where appropriate, refer to this schedule
as "the
substituted schedule". In terms of the substituted
schedule the territory of
Lebowa was to consist of the areas
described in five numbered paragraphs. The
first paragraph
listed a number of districts. The second read:
"the area of the district of Moutse excluding the following farms: ..."
It is not necessary to set out the descrip-
tions of the farms which were excluded from the district of Moutse, since
nothing turns on this exclusion for pre-sent purposes. It
is the area of Moutse
as defined in paragraph 2 of the substituted schedule which fórms the
subject matter of the present
dispute.
Paragraphs 3,4 and 5 define certain other
areas
8
areas which a're not relevant for present purposes.
Shortly after the amendment of its area, the
Lebowa Legislative Assembly underwent a change of status.
To understand this change one has to refer again to cer-
tain provisions of the 1971 Act. Section 26(1) reads as
follows:
"The State President may, after consultation
by the Minister with a legislative assembly, by proclamation in the
Gazette
declare that the area, as defined from time to time, for which
that legislative assembly has been es-tablished, shall under the name
mentioned
in the proclamation be a self-governing ter-ritory within the Republic in
accordance with the provisions of this Act."
Section 29 of the Act provides that the execu-
tive government of a self-governing territory is to vest
in
9 in a cabinet consisting of ministers drawn from the members of the
legislative assembly of the territory. The powers of the legislative
assembly of
a self-governing territory are set out in section 30, read with the first
schedule to the Act. These powers - which I
need not detail - are more extensive
than those enjoyed by a legislative assembly under section 3 of the Act.
To revert to the history of Lebowa: by Proclamation R 22 5 of 1972 the area
for which the Lebowa Legislative Assembly had been established
(i.e., the area
described in the substituted schedule) was declared to be a self-governing
territory with a constitution as set out
in
10
in the proclamation. I shall refer to this Proclamation
as
the Lebowa Constitution Proclamation. It came into
force on 2 October
1972.
After 1972 the area of Lebowa was changed
from time to time. These changes were effected by amendments
to the subsituted schedule pursuant to section 1(2) of
the 1971 Act, which is quoted above. There were,
inter
alia
, amendments in 1977,1978 and 1979. These call for
no comment. The next purported amendment - by Procla-
mation R 210 of 1980 - was however of great importance
in the present dispute. This Proclamation read as
follows:
"AMENDMENT OF PROCLAMATION R. 156 OF 1971.-EXCISION OF THE DISTRICT OF MOUTSE
FROM
THE
11
THE AREA FOR WHICH THE LEBOWA LEGISLATIVE ASSEMBLY HAS BEEN
ESTABLISHED By virtue of the powers vested in me by section 1(2) of the
National
States Con-stitution Act,1971 (Act 21 of 1971), I hereby amend,with effect from
1 November 1980, Proclamation R 156 of 1971,
by the deletion of paragraph (2) of
the Schedule."
The intended effect of this Proclamation was,
as indicated by the heading,
to excise the district of
Moutse from the area of Lebowa. The members of the
government of Lebowa (the present appellant) were dis-satisfied with this
excision,
and made it known that they considered the Proclamation invalid. In
particular they contended that there had not been proper consultation.
as
required by section 1(2) of the 1971 Act, and that the Proclamation was in any
event invalid on legal grounds
with
12 with which I deal later.
The matter was then taken up by the legis-lature. Section 16 of the Laws on
Co-operation and Development Act, no 102 of 1983 ("the
1983 Act") reads as
follows:
(1)
The Schedule to
Proclamation No. R.156 of 1971 is hereby amended by the deletion of paragraph
(2).
(2)
Proclamation No. R.210 of 1980 is
hereby repealed.
(3)
Subsections (1) and (2)
shall be deemed to have come into operation on 1 November
1980."
1 November 1980, the date on
which this pro-
vision was deemed to have come into operation was, it
will have been noted, the date on which Proclamation
R 210 of 1980 purported to take effect. The purpose of
section
13
section 16 of the 1983 Act was clearly to replace
Proclama-
tion R210 of 1980 with legislation having the same effect
as
that sought to be achieved by the Proclamation. The legis-
lation obviously did not require prior consultation, as the
Proclamation did, and consequently the dispute about whether
there had been proper consultation fell away. However, some
areas of dispute still remained. The present appellant con-
tended that section 16 of the 1983 Act suffered from the same
legal defect as Proclamation R 210 of 1980, viz., that it a-
mended the substituted schedule to Proclamation R 156 of 1971
whereas what should have been amended in order to alter the
area of Lebowa, so it was contended, was the Lebowa Constitu-
tion Proclamation, R 225 of 1972, by which the self-governing
territory of Lebowa had been established.
Once more the legislature stepped in. The
Laws
14
Laws on Co-operation and Development Amendment Act,
No 91 of 1985 ("the 1985 Act") was introduced, according to the long title,
inter alia
"to remove any possible doubt concerning the area of the
self-governing territory of Lebowa". Section 9 of this Act contains an
interpreta-tion
of the Lebowa Constitution Proclamation in order to settle the
dispute about the excision (or purported ex-
cision) of Moutse. I deal with this section in detail later. Provision had
earlier been made in sections 17 and 18 of the 1983 Act
for amendments to the
constitution of Lebowa consequential on the excision of Moutse, which
was one of the electoral divisions for the election of members of the
legislative assembly. These sections of
the
15
the 1983 Act were brought into operation by Proclamation R 228
of 1985.
This concludes my resume of events concerning Lebowa, and I turn now
to Kwa Ndebele. The Kwa Ndebele Legislative Assembly was established,
pursuant
to sec-tions 1,2 and 5 of the 1971 Act, by Proclamation R 205 of 1979. The area
in respect of which the legislative assembly
was established was defined in the
first schedule to the Proclamation, and did not include the district of Moutse.
Kwa Ndebele became
a self-governing territory by virtue of Proclamation R 60 of
1981. Its area was defined as "the area described in Schedule 1 to Procla-mation
R 205 of 1979". By Proclamation R 227 of 1985
this
16 this Schedule 1 was amended by adding a paragraph to in-clude
the district of Moutse into the area of Kwa Ndebele.
The effect of these various legislative amendments to the territories of
Lebowa and Kwa Ndebele, if valid, thus was to transfer the
district of Moutse
from Lebowa to Kwa Ndebele. It is the validity of this transfer which is in
issue in the present appeal. The declarations
which the appellant seeks are, as
I indicated at the commencement of this judgment, firstly that the district of
Moutse, as defined
in clause 2 of the sub-stituted schedule, forms part of the
self-governing territory of Lebowa; and secondly that Proclamations R
227 and R
228 of 1985 are null and void. Pro-
clamation
17 clamation R 227, it will be recalled, incorporated Moutse
into the area of Kwa Ndbele, and Proclamation R 288 in
effect caused the constitution of Lebowa to be amended consequential upon the
excision of Moutse from its area. The appellant did
not launch an independent
attack on the validity of these Proclamations but contended that they would have
to be struck down if the
appellant succeeded in its first claim, i.e., if this
Court were to declare that Moutse still forms part of Lebowa.
It seems remarkable that the dispute about Moutse should still be open for
debate where the legislature has twice, in 1983 and 1985,
sought to determine
it. It seems appropriate therefore to commence my consideration of the merits of
this dispute by dealing with
the most
recent
18
recent legislative attempt to resolve this issue, viz.,
section 9 of the 1985 Act.
Section 9 serves to interpret the Lebowa
Constitution Proclamation, R 225 of 1972. In section 2
of the Proclamation the area of Lebowa is defined as the "area described in
the Schedule to Proclamation R 156 of 1971". What section
9 of the 1985 Act does
is to give a statutory meaning to this definition. The section reads
as follows:
"For the purpose of section 2 of the Lebowa Constitution Proclamation, 1972,
any reference to the area for which the self-governing
ter-ritory of Lebowa has
been established, shall be interpreted as a reference to the area defined in the
Schedule to Proclamation
No. R.156 of 1971, as substituted by Proclamation No.
R.224 of 1972 and amended by Proclamations Nos. R.126 of 1977, R.217 of 1978,
R.247 of 1979, R.210 of 1980 (read with section 16
of
19
of the Laws on Co-operation and Development Amendment Act,
1983 (Act No. 102 of 1983)), R.123 of 1981 and R.35 of 1983, and as it
may thereafter be amended under section 26 of the National States
Constitution Act, 1971 (Act No. 21 of 1971)."
The section thus provides, broadly speaking,that the area of
Lebowe should be understood to consist of the area defined in
the
substituted schedule as it was amended up to the date of
the 1985 Act,
and as it might be amended in the future.
(I return later to future amendments). The amendments
specifically mentioned in the section are firstly those
of 1977, 1978 and 1979, which, as I have indicated above,
have no bearing on the present matter. Then there is the
reference to Proclamation R 210 of 1980 (read with section
16 of the 1983 Act). This is the crucial provision of
the
20
the section for present purposes. The further
amendments
mentioned in the section are also not relevant.
Section 9 of the 1985 Act consequently refers
to the following provisions which are relevant to the in-
clusion or excision of Moutse: the substituted schedule,
which contained a reference to Moutse in paragraph 2;
Proclamation R 210 of 1980, which purported to delete
paragraph 2 from the substituted schedule, and section 16
of the 1983 Act, which repealed Proclamation R 210 of
1980 but gave statutory effect to the deletion of para-
graph 2 of the schedule. Consequently the net result of
these.amendments, if they are all given their full effect,
was to delete paragraph 2 from the substituted schedule.
And
21
And it is the area defined in the schedule as thus
amended
which, in terms of section 9 of the 1985 Act, must be
taken to be the area for which the self-governing territo-
ry of Lebowa was established.
Mr
Gordon
, who appeared for the appellant,
sought to escape the above interpretation by relying on
the brackets which enclose the reference to section 16 of
the 1983 Act in section 9 of the 1985 Act. The effect
of the brackets is, he said, that regard is to be had to
section 16 only in so far as it qualifies Proclamation
R 210 of 1980, and for no other purpose. Since the only
effect which the 1983 Act had on Proclamation R 210 of 1980
was to repeal it, the result then is, he contended, that
the
22
the substituted schedule should be read for
purposes of the 1985 ACt as if it still contained paragraph 2 (since, according
to the
argument, section 16 (1) of the 1985 Act, which in effect re-enacted the
Proclamation, was to be ignored because it did not qualify
the Proclamation).
The position would have been different, he said, if the reference to section 16
of the 1983 Act had not been placed
in brackets, but if the parenthesis had been
indicated in some other way, e.g., by placing the reference between com-mas or
semi-colons.
If that had been the punctuation used, section 16 of the 1983 Act
would, for the purposes of sec-tion 9 of the 1985 Act, have had
to be read
together with
all
22 A
all the Proclamations mentioned in section 9, and
would
then have been given its full effect of not only
repealing
Proclamation R 210 of 1980, but also of replacing it with
a legislative provision which removed the reference to i
Moutse from the substituted schedule.
Mr
23
Mr
Gordon
quoted no authority for the propo-
sition
that words in parenthesis were to be differently
interpreted depending on
whether the parenthesis was in-
dicated by brackets rather than by commas or
semi-colons.
The lack of authority for this proposition is not surprising
since punctuation is a matter to which little or no regard
is had in the interpretation of statutes. In
Duke of
Devonshire and Others v. O'Connor
(1890) 24 QBD 468
(CA)
LORD ESHER M R said (at p. 478):
"To my mind ... it is perfectly clear that in an Act of Parliament there are
no such things as brackets any more than there are such
things as stops."
This passage has been approved in South Africa.
See e.g.
Bosman's Trustee v. Land and Agricultural Bank of
SA
24
SA and Registrar of Deeds, Vryburg
1916 CPD 47
at p. 54
and
Sigcau v. Sigcau
1941 CPD 334
at p. 345. However, Steyn,
Uitleg
van Wette
, 5th ed. at p. 150 disapproves of this view as being unrealistic.
I need not come to any firm conclusion on the matter since it is
at least clear
that no sanctity attaches to punctuation - indeed, an in-terpretation supported
only by the use of a particular punctuation
mark must inevitably yield to one
based on the intention of the legislature as it appears from the meaning of the
words used read
in their context. (Cf.
S v. Yolelo
1981(1) SA 1002 (A) at
p. 1011 A-B - a pas-sage which deals with the related topic of the division of a
section into paragraphs).
And
25 And our courts have shown no hesitation in ignoring brackets where
the sense of a provision required it. See
Swanepoel v. Bloemfontein Town
Council
1950(3) SA 536 (0) at p. 541 B-G,
De Beer v. Coetzee
1956(3)
SA 263 (T) at pp. 267 D - 268 B,
R v. Le Roux
1959(4) SA 342 (C) at p.
347 C-F and
S v. Le Riche
1965(4) SA 757 (T) at p. 758 D-G. In the
present case the use of the brackets would, according to Mr
Gordon'
s
argument, have the result that section 16 of the 1983 Act should, for the
purpose of section 9 of the 1985 Act, be read as if it
did nothing more than to
repeal Proclamation R 210 of 1980; whereas if section 16 of the 1983 Act were
read on its own it also in
effect re-enacted the proclamation. It
seems
26
seems quite inconceivable that the legislature would
have
set out a list of the amendments to the substituted
schedule but would have intended to ordain, merely by
using brackets instead of commas or semi-colons, that
one of the amendments which appears in the list should
be disregarded. Assuming that in linguistic theory
brackets can have such an effect on the meaning of words,
I can do no better than to quote the following dictum by
FRY LJ (
Duke of Devonshire v. O'Connor
(
supra
) at p. 483):
"Now, whether brackets can or cannot be looked at if they appear on the
Parliament Roll, I express no opinion; but ... in the present
case ... I must
read through them and pay no attention to them, for the sense is too strong for
me to pause at these miserable brackets."
It
27 It follows, therefore, that section 9 of the 1985 Act
legislatively interpreted the Lebowa Consti-tution Proclamation so as to
exclude
Moutse from the area
of Lebowa. This conclusion would by itself be a complete answer to the
appellant's claims. However, for complete-ness' sake I propose
commenting
briefly also on section 16 of the 1983 Act. Before doing so, I should, however,
mention one last aspect of section 9 of
the 1985 Act. As appears from its terms
which I have quoted above, this section refers also to possible future
amendments to the
area of Lebowa, and expresses the contemplation that such
amendments would be effected "under section 26" of the 1971 Act (in Afrikaans,
"kragtens artikel 26"). It
was
28 was common cause in argument before us that section 26 of the 1971
Act does not grant any such powers of amend-ment and I express
no view on the
correct interpretation to be placed on the reference to that section.
I turn now to section 16 of the 1983 Act, and, in particular, the amendment
which it effected to the substituted schedule by the deletion
of paragraph 2
thereof which related to Moutse. The argument adduced on behalf of the appellant
was that the substituted sche-dule
served only to define the area of Lebowa
prior to its becoming a self-governing territory. Once Lebowa achieved that
status, so it
was contended, the substituted schedule, and Proclamation R 156 of
1971 of which it formed a part,
became
29
became of historical interest only. Amendments to
the
schedule could therefore not affect the area of the self-
governing
territory of Lebowa.
An examination of the 1971 Act demonstrates,
in my view, that this argument is fallacious. Moreover
this Court has already interpreted the relevant provisions
of the Act in a sense contrary to that put forward in the
argument, as I shall show. I repeat briefly the effect
of the relevant sections of the Act. Section 1, which I
have quoted above, makes provision for the establishment
of legislative assemblies in Black areas and for the de-
fining of areas in respect of which such legislative as-
semblies would have legislative power. In sub-section (2)
there
30 there is provision for the amendment of such areas.
The
transition to self-governing status is governed by section 26(1) of the 1971
Act. The area in respect of which self-governing
powers may be granted is
described in that sub-section as "the area, as defined from time to time, for
which that legislative assembly
has been established". Now the area for which
the legis-lative assembly was established, is that defined in the Proclamation
issued
pursuant to section 1(1) of the 1971 Act. In terms of section 1(2) this
area may "be amended from time to time" after consultation
with the
"executive
council
31
council" of the area concerned. And, in terms of
sec- |
tion 29 of the 1971 Act, the provisions of the Act with
regard to
an executive council shall
mutatis mutandis
apply to a Cabinet of a self-governing territory. The
effect of these provisions on the amendment of the area
of a self-governing territory was expressed by this Court
as follows in
Government of the Republic of South Africa
and Another v. Government of Kwa Zulu and Another
1983(1)
SA 164 (A) at p. 199 H
in fin
:
"The State President's power to amend an area which has been declared by him
to be a self-governing territory is not unlimited, for,
since such an area is an
area for which a legislative assembly has been established in terms of the
provisions of s 1(1), an amendment
thereof may be made only after
consultation
32
Consultation by the Minister with the Cabinet of the territory
concerned: see s 1(2) read with s 29 of the 1971 Act."
(See also at p. 201 C-E and 206 D-G).
It is common cause that the above passages
formed a part of the Court's
ratio decidendi
. However,
Mr.
Gordon
suggested in argument
before us that this point
may possibly not have been pressed vigorously in
the
argument in the
Kwa Zulu
case. (It was common cause
though that it had been debated in the heads of argument -
see at pp. 176 H and 189 D to 190 F of the report). Be
that as it may, this Court has given a considered judgment
on the point in issue, and we should not depart from it
unless, at the very least, we are satisfied that it is
clearly
33 clearly wrong. See the authorities quoted in
Tucker's Land
and Development Corporation (Pty) Ltd v. Strydom
1984(1) SA 1 (A) at pp. 16
G to 17 D. Far from being so satisfied, I consider the above passages from the
Kwa Zulu
case to be clearly correct in view of the unambiguous terms of
the provisions which I have summarized.
My conclusion accordingly is that the area of Lebowa was, both before and
after its transition to self-governing status, defined in
the substituted
schedule. When the legislature amended the schedule by section 16 of the 1983
Act it thereby altered the area of
Lebowa. The nature of the alteration was, of
course, to excise the district of Moutse.
To
34 To sum up: Section 16 of the 1983 Act served to excise Moutse from
the area of the Lebowa self-goveming territory. Section 9 of
the 1985 Act
thereafter pro-vided a legislative interpretation of the area of the Lebowa
self-governing territory which again, in
effect, ordained that Moutse was to be
regarded as excluded. It follows that the interpretation which the legislature
placed on the
Lebowa Constitution Proclamation was the one which I consider to
be legally correct in any event. For the reasons which I have given,
the
ap-pellant is not entitled to the relief claimed by it.
The appeal is dismissed with costs, including
the costs of two counsel.
E M GROSSKOPF, JA
RABIE, ACJ )
JOUBERT, JA ) Concur
HEFER, JA )
VIVIER, JA )