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[2000] ZASCA 165
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Supreme Gaming CC v Minister of Safety and Security and Others (166/99) [2000] ZASCA 165; 2000 (3) SA 608 (SCA); 2000 (1) SACR 673 (SCA) (12 May 2000)
REPORTABLE
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case No. 166/99
In the
matter between:
SUPREME
GAMING CC Appellant
and
MINISTER OF SAFETY AND SECURITY
1
st
Respondent
PREMIER
OF THE PROVINCE OF THE
EASTERN
CAPE 2
nd
Respondent
GAMBLING
AND BETTING BOARD OF THE
PROVINCE
OF THE EASTERN CAPE 3
rd
Respondent
THE
MAGISTRATE, PORT ELIZABETH 4
th
Respondent
DIRECTOR
OF PUBLIC PROSECUTIONS,
EASTERN
CAPE 5
th
Respondent
Court: SMALBERGER, HARMS, PLEWMAN, JJA AND MELUNSKY
AND FARLAM AJJA
Heard: 2 MAY 2000
Delivered: 12 MAY 2000
Statutes:
promulgation and commencement.
JUDGMENT
HARMS JA/
HARMS
JA:
[1] One
of the functional areas of concurrent national and provincial
legislative competence relates to casinos, racing, gambling
and
wagering (Schedule 4 of the 1996 Constitution) and the
National
Gambling Act 33 of 1996
provides for a general policy in connection
with gambling in South Africa (especially
s 13).
In the exercise of
its legislative power, the Legislature of the Eastern Cape passed a
bill on the subject which, having been
assented to by the Acting
Premier, became a provincial act (s 123 of the Constitution). It
was published in the Provincial Gazette
on 3 July 1997 as the
Gambling and Betting Act 5 of 1997 (Eastern Cape). Provincial acts
take effect when published or on a
date determined in terms of the
act (ibid).
[2] Section
93 of the Gambling and Betting Act provides as follows:
(1) This Act shall be called the Gambling and
Betting Act, 1996 (Eastern Cape) and shall come into operation on a
date to be fixed
by the Premier by proclamation in the
Provincial
Gazette
.
Different
dates may be so fixed in respect of different sections of this Act.
(The date, 1996, is an obvious
error. It should be 1997.) The reason for the provision is fairly
obvious. A staggered coming
into operation of different sections
was necessary because of the recognition that certain sections must
predate others in order
to render the legislation workable. For
instance, it was necessary to establish a Gambling and Betting Board
before effect could
be given to other sections of the Act (cf
Cats Entertainment CC v Minister of Justice and Others
1995 (1) SA 869
(T) 876E-G).
[3] The
provincial Premier issued a proclamation which was published on 9
July 1997 in the Provincial Gazette in the following
form:
GAMBLING AND BETTING ACT, 1997 (EASTERN CAPE)
(ACT NO. 5 OF 1997)
COMMENCEMENT
In terms of section 93 of the Gambling and Betting Act, 1997
(Eastern Cape) (Act No. 5 of 1997), I, Makhenkesi Stofile, Premier
of the Province of the Eastern Cape, fix 9 July 1997 as the date on
which the following sections will come into operation:
Section 1;
Section 3 to section18 (inclusive);
Section 41;
Section 80; and
Section 88.
Section 88(1)(h) makes it an offence to be in
possession of any gambling device - defined in s 1 - which is used
without an appropriate
licence. On 30 December 1997, the Premier
issued a similar proclamation in which he fixed 1 January, 1998 as
the date on which
the balance of the provisions of the Act (i. e.,
those not covered by the proclamation of July 9) would come into
operation.
In the latter proclamation he also listed s 93.
[4] On 25 February 1999 an additional magistrate of
Port Elizabeth issued a search warrant which permitted the search of
the appellant's
premises for gambling devices and related matter and
which authorised the seizure thereof. It is common cause that the
appellant
was in possession of such devices without any authority
and that the appellant, in spite of prior warning, persisted in
using
them in its so-called entertainment centre. The police
executed the warrant and seized and removed a number of items from
the
premises. Shortly thereafter the appellant applied for an
order declaring the search warrant invalid and for the return of its
goods. The application was dismissed with costs by Ludorf J but he
granted leave to appeal to this Court.
[5] The appellant's case is that s
88 has not been brought into operation and that therefore the search
warrant was, at the time
of its issue and execution, invalid because
it related to a criminal offence which did not yet exist. The
argument is that
the first proclamation did not in its terms purport
first to bring s 93 into operation. This would seem to amount to an
assertion
that s 93 is subject to itself. The argument continues
that the first proclamation was thus not capable of and did not
bring
s 88 into operation - with the result already mentioned; the
matter was not saved by the second proclamation because, although
it
brought s 93 into operation, it failed to do likewise in relation to
s 88. The same argument, albeit in another statutory
setting, was
rejected in
Harksen
v Director of Public Prosecutions, Cape, and Another
1999 (4) SA 1201
(C) par 27 - 28 because, it was said, it creates a
legal catch-22 situation. In the court below, Ludorf J held that
the argument
is illogical and absurd because it is based upon the
notion that the Premier is vested with the powers defined in s 93
prior
to its coming into force; that presupposes that the Premier
is empowered to bring the inoperative s 93 into operation by means
of that very section while it is still inoperative. The fallacy of
arguing in a vicious circle (
circulus
in probando
) was
already identified by Aristotle.
[6] The authority of a premier to
determine a date on which any act (or certain sections of an act)
takes effect is not derived
from the Constitution. The Constitution
(s 121) only authorises a premier to assent to and sign a bill
(save for the power
of referral back to the Legislature or to the
Constitutional Court). As mentioned, once assented to and signed,
the bill becomes
a provincial act; it is then published and takes
effect when published or “on a date determined in terms of the
Act”
(s 123; cf s 13(1) of the Interpretation Act 33 of
1957). In other words, a provision in such an act which provides
for a method
of determination of an operative date is in force and
becomes effective upon publication of the act. It is in the nature
of
a suspensive condition (cf
R
v Magana
1961 (2)
SA 654
(T) 655A-B). The Premier derived his authority to fix a date
by proclamation for the coming into operation of the act or some
of
its sections from s 93. (Cf
Pharmaceutical
Manufacturers Association of SA and Others; In Re: Ex Parte
Application of the President of the RSA and Others
2000(3) BCLR 241 (CC) par 78.) If this section were not in
operation due to its prior promulgation (publication), the first
proclamation could not have issued under the hand of the Premier.
The fact that the Premier purported to bring the section
into
operation in the second proclamation is of no consequence because it
was already in operation.
[7] The judgment of Steyn CJ in
S
v Manelis
1965 (1)
SA 748
(A) concerned the question whether the Transvaal Shop Hours
Ordinance 24 of 1959 had been properly brought into operation. The
Governor-General had assented to the Ordinance in terms of s 90 of
the South Africa Act, 1909. According to s 91, an ordinance
so
assented to and “promulgated ['afgekondigd'] by the
administrator shall . . . have the force of law. . .”.
Section 21 of the Ordinance provided that it was to come into
operation on a date to be fixed by the Administrator by
proclamation,
something permitted by s 13 (1) of the Interpretation
Act. On 22 August 1959 the Administrator signed a proclamation in
which
he promulgated the Ordinance and fixed 26
August as the
date on which the Ordinance was to come into operation. The
proclamation was published on the latter date. This
means that the
actual promulgation was not on 22 August but on 26 August. Against
that background, Steyn CJ proceeded to say
at 752F-753A (my
underlining):
“When the Administrator signed the Proclamation on 22nd
August, 1959, the Ordinance had been passed by the Provincial
Council and the Governor General had assented to it. Although
it had then come into existence, it had not come into operation
and
its provisions could not be enforced or applied. According to our
common law a statute only comes into operation on promulgation.
That
rule is preserved by sec. 13 (1) of the Interpretation Act, 33 of
1957, with the qualification (which may be said to be
self evident)
'unless some other day is fixed by or under the law for the coming
into operation thereof'.
The question then is whether the power or duty to fix such a day
under a law, may be exercised or performed before the law is
first
published in the appropriate Gazette as a law.
It is said that the answer must be in the
negative because the power or duty could only be performed under a
law at a time when
the relevant provision conferring or imposing the
power or duty is in force as a law. In the present case sec. 21 of
the Ordinance
would not have been so in force until the promulgation
of the Ordinance on 26th August, 1959.
But
although the date of commencement of the rest of the Ordinance could
only have been the date to be fixed by the Administrator,
this
section [s 21] did come into operation on the date of promulgation.
It could not otherwise serve its purpose
.”
[8] In
Harksen
,
Brand J analysed the judgment at some length (in par 17 to 26) and
came to the conclusion that the underlined passage did not
represent
the view of the court but reflected a summary of an argument
rejected in a subsequent part of the judgment. With respect
to
Brand J, my impression is that it purports to be a rebuttal of the
submission in the preceding two sentences. “Promulgation”
was used by Steyn CJ (as in the South Africa Act) in its dictionary
meaning of making publicly known (see also Hahlo & Kahn
The South African Legal System and its Background
168). In other words, what the penultimate sentence
implies is that s 21 came into operation by way of promulgation
(publication),
whereas the rest of the Ordinance had to come into
operation by way of proclamation. Section 21 “could not
otherwise
serve its purpose”, namely to provide the
Administrator with the authority to fix the date of commencement.
Because the
dates of promulgation and proclamation coincided, the
issue in the present case did not really arise and the decision was
ultimately
based upon the provisions of s 14 of the Interpretation
Act. It is therefore not necessary to finally decide the meaning of
the passage for purposes of this case. In any event, there is
nothing in Steyn CJ's judgment which assists the appellant.
[9] The appeal has no redeeming features. In the
result the appeal is dismissed with costs including, where
appropriate, the
costs of two counsel.
__________________
L
T C HARMS
JUDGE OF APPEAL
Agree:
SMALBERGER
JA
PLEWMAN
JA
MELUNSKY
AJA
FARLAM
AJA