THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case no: 561/04
Reportable
In the matter between:
MARY PATRICIA KING & 92 OTHERS
COLLEEN JUDITH VAN STRAATEN & 6 OTHERS
NAMCOAST (Pty) Ltd
C M TAPSON & 2 OTHERS Appellants
and
ATTORNEYS FIDELITY FUND BOARD OF CONTROL First respondent
MINISTER OF JUSTICE Second respondent
BEFORE: HARMS, CAMERON, MTHIYANE, NUGENT
and JAFTA JJA
HEARD: 12 SEPTEMBER 2005
DELIVERED: 29 SEPTEMBER 2005
Constitution – alleged failure by National Assembly to fulfil a
constitutional obligation – power to declare legislation invalid –
different forms of statutory invalidity – invalidity alleged to derive
from breach of constitutional obligation to facilitate public
involvement in legislative process – section 167(4)(e) of
Constitution precludes SCA and high courts from making order or
entertaining application
JUDGMENT
2
CAMERON AND NUGENT JJA:
[1] The appellants challenge the validity of a statute of Parliament.
They base their challe nge on s 59 of the Cons titution, which says
amongst other things that the National Assembly must ‘facilitate
public involvement in the legisl ative and other processes of the
Assembly and its committees’. 1 They admit there was public
consultation about the statute they challenge. But they say there
was not enough. This they say ren ders the statute invalid. In the
Grahamstown High Court, Chetty J dismissed their challenge.
Though he considered that it was not the function of the courts to
prescribe to Parliament the procedure it must follow in passing
1 Constitution s 59 [s 72 is identical in respect of the National Council of Provinces]:
Public access to and involvement in the National Assembly
(1) The National Assembly must –
(a) facilitate public involvement in the legislative and other processes of the Assembly and its
committees; and
(b) conduct its business in an open manner, and hold its sittings, and those of its committees,
in public, but reasonable measures may be taken –
(i) to regulate public access, including access of the media, to the Assembly and its
committees; and
(ii) to provide for the searching of any person and, where appropriate, the refusal of entry
to, or the removal of, any person.
(2) The National Assembly may not exclude the public, including the media, from a sitting of a
committee unless it is reasonable and justifiable to do so in an open and democratic society.
3
legislation, he found that in fact there had been due compliance with
the requirement of public involvement.
[2] This appeal is with his leave. It requires us to consider the nature of
the obligation the Constitution impo ses on Parliament to ‘facilitate
public involvement’ in its processes. It also requires us to decide
whether the Constitution empowers th is court and the high courts to
grant the appellants the order of constitutional invalidity they seek.
[3] The appellants – individuals, corporations and trustees numbering
over 100, in four consol idated actions – claim ed compensation from
the first respondent, the Attorne ys Fidelity Fund (‘the Fund’) for
substantial losses they suffered afte r depositing monies in the trust
account of a Port Elizabeth firm of attorneys, van Schalkwyks. They
say the monies were to be used in a factoring scheme from which
they were promised high returns. The scheme involved discounting
bank guarantees relating to estate agents’ commissions and
4
proceeds on property sales. They say that instead of holding the
monies in trust for use in the scheme, the attorneys stole their
money, entitling them to compensation from the Fund in terms of the
Attorneys Act 53 of 1979.2 But in 1998 Parliament amended this Act
to preclude recovery of moneys deposited with an attorney not in the
usual course of practice, but to invest on behalf of a client. 3 Most of
the deposits took place after t he amendment was enacted, and the
Fund pleaded it in defence. T he appellants countered by pleading
the invalidity of the amendment Ac t for failure to comply with the
constitutional requirement of public involvement.
[4] The Minister of Justice was joined as second defendant, and the
parties agreed on a stated case, on the basis of which Chetty J
separated the inquiry as to t he Fund’s liability from the other
2 In terms of s 26, the Fund must be applied inter alia for reimbursing persons who may suffer
pecuniary loss as a result of ‘theft committed by a practising practitioner … of any money or other
property entrusted to him … in the course of his practice’.
3 Attorneys and Matters relating to Rules of Court Amendment Act 115 of 1998 s 1 and s 2, inserting s
47(1)(g), s 47(4)-(10) and s 47A into Attorneys Act 53 of 1979.
5
questions in the action, ruling as already mentioned in favour of the
Fund and the Minister (who both in this court and in the court below
made common cause with the Fund).
[5] According to the stated case, the Minister of Justice introduced the
relevant Bill in the National Asse mbly on 30 January 1998 together
with a memorandum on its objects, a clause by clause analysis, and
a statement that the Department of Justice had consulted with a wide
range of professional b odies representing attorneys and advocates.
(These all supported the Bill.) The Bill was then referred to the
National Assembly’s Portfolio Committee on Justice. On 26
February 1998 the committee’s chairman issued a media statement
inviting ‘any person or organisation’ to make written representations
on the Bill before 27 March 1998, or to indicate by that date whether
they wished to give oral evidence.
6
[6] The Portfolio Committee held pub lic hearings on 20 April and on 4
May 1998, after which it agreed to amendments to the Bill. In this
form the Bill had its second reading on 30 July 1998, proceeded to
the National Council of Provinces and thence back to the Assembly’s
Portfolio Committee, which cons idered the Council’s amendments,
whereafter the National Assembly on 6 November assented to it.
[7] The stated case records that articles relevant to the Bill were
published in seven out of sevent een daily newspapers in South
Africa. These could have reached just under half of the country’s
total daily newspaper readers of 4.6 million. There was no
publication in weekly newspapers, or in the government or provincial
gazettes. The government webs ite in September and November
1998 did however carry versions of the Bill.
[8] In June 1995, the National A ssembly adopted standing rules. These
empowered its portfolio committees to summon persons to appear
7
and produce documents, and to rec eive representations from
interested persons or parties and to permit oral evidence or
representations. But it is comm on cause that when the amendment
Act was passed, there was no general requirement that prior notice
of the introduction of a Bill had to be published with an explanatory
memorandum. This was introduced only later, when the National
Assembly adopted more extensive and explicit rules.
4
[9] These rules are still in force. They require that the memorandum
accompanying a Bill at its introduction must contain a list of persons
and institutions the executive cons ulted in preparing the Bill. In
addition, a Bill may be introduced in the National Assembly only if
prior notice of its intended introduction is published in the
Government Gazette along with an explanatory summary (unless the
Bill as it is to be introduced has itself been published there). And if
4 In a letter included in the stated case, the Secretary to the National Assembly records that on 25
November 1999, the National Assembly adopted a report of the National Assembly Rules Committee
dated 23 March 1999, which contained a comprehensive set of revised rules.
8
the draft Bill is published, the notic e must contain an invitation to
interested persons and institutions to submit written representations
on it to the secretary to Parliament within a specified period. If the
Bill has not been published for pu blic comment, and the portfolio
committee to which it is referred considers public comment
necessary, it may through invitations, media statements,
advertisements or other means invite the public to comment.
[10] Although these more extensiv e requirements were not in force
when the amendment Act was ad opted, the appellants expressly
disclaimed any attack on the validity of the parliamentary rules that
applied at the time, and made no cl aim that they were not complied
with. They invoke the Constitution itself, and their complaint is that
the National Assembly failed to do enough to fulfil its obligation to
facilitate public involvement. They complain that though bodies who
supported the legislation were informed and consulted, including the
9
organised legal professi on, those whose inte rests the amendment
detrimentally affected – investor s like themselv es who entrusted
money for investment to attorneys – were, as counsel put it during
argument, ‘left out in the cold’. This, they say, makes the legislation
invalid. Parliament, they contend, must take ‘reasonable measures’
to ensure that all members of the pub lic with an interest in legislation
become aware that it is contemplated, and that they have a right to
‘say their say’ about it. If it fails to do this, its enactments lack the
force of law.
[11] This case therefore does not raise questions concerning the
content of or oversight over the ru les that s 57 of the Constitution
empowers Parliament to adopt. It focuses only on statutory invalidity
alleged to arise from breach of a co nstitutional obligation. We are
thus not asked to consider any questions concerning breach of a
constitutional obligation falling short of this consequence.
10
[12] The main question is whether this court is precluded from
pronouncing on the appellants’ complaint. Though an order of
constitutional invalidity has no force unless it is confirmed by the
Constitutional Court, this court and the high courts have jurisdiction
to ‘make an order concerning the c onstitutional validity of an Act of
Parliament’ (s 172(2)(a)).5 Section 167(4)(e) how ever allows only
the Constitutional Court to ‘decide that Parliament or the President
has failed to fulfil a constitutional obligation’. 6 Since the appellants
claim that the amendment Act is invalid because Parliament failed to
fulfil an obligation in s 59 of the Constitution, the question is whether
5 Constitution s 172(2)(a):
‘The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning
the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but
an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.’
6 Constitution s 167(4):
‘Only the Constitutional Court may –
(a) decide disputes between organs of state in the national or provincial sphere concerning the
constitutional status, powers or functions of any of those organs of state;
(b) decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the
circumstances anticipated in section 79 or 121;
(c) decide applications envisaged in section 80 or 122 [by at least one third of the members of
National Assembly or 20% of the members of a provincial legislature for an order declaring all or
part of an Act unconstitutional];
(d) decide on the constitutionality of any amendment to the Constitution;
(e) decide that Parliament or the President has failed to fulfil a constitutional obligation;
(f) certify a provincial constitution in terms of section 144.’
11
we are precluded from hearing th eir complaint on the ground that
only the Constitutional Court can address the failure they allege.
[13] Before the hearing, this cour t invited the parties to make
submissions on this issue, which was not argued before Chetty J.
Both sides rightly submitted that th e words ‘constitutional obligation’
in s 167(4)(e) must bear a restricted meaning. The Constitutional
Court has said as much. In President of the Republic of South Africa
v South African Rugby Football Union ,
7 a case concerning the
conduct of the President, the court pointed out that if s 167(4)(e)
were construed as applying to all questions concerning constitutional
validity of conduct of t he President, it would co nflict with s 172(2)(a).
It therefore considered that when th e two sections are read together
a ‘narrow meaning’ should be given to ‘fulfil a constitutional
7 1999 (2) SA 14 (CC).
12
obligation’ in s 167(4)(e), though it found it unnecessary to decide
what that meaning should be.8
[14] The purpose of the constitutional provisions giving exclusive
jurisdiction to the Constitutional Court is –
‘to preserve the comity between the j udicial branch of government, on the one
hand, and the legislative and executive br anches of government, on the other,
by ensuring that only the hi ghest Court in constitutional matters intrudes into the
domain of the principal legislative and executive organs of State.’9
Since the Constitutional Court bears ‘the responsibility of being the
ultimate guardian of the Constituti on and its values’, s 167(4) vests it
with exclusive jurisdiction in ‘crucial political areas’,10 and it bears the
8 1999 (2) SA 14 (CC) para 25.
9 President of the Republic of South Africa v SARFU 1999 (2) SA 14 (CC) para 29, dealing with s
172(2), but endorsed more broadly in relation to ‘provisions of the Constitution which confer exclusive
jurisdiction upon [the Constitutional Court] to decide certain constitutional matters’ in President of the
Republic of South Africa v United Democratic Movement 2003 (1) SA 472 (CC) para 20.
10 President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147
(CC) para 72.
13
duty ‘to adjudicate finally in respect of issues which would inevitably
have important political consequences’.11
[15] These are the cle ar premises. The question is whether they leave
space for this court and the high courts to grant an order of statutory
invalidity when the defect is alleged to arise from breach of a
constitutional obligation. Though their approaches differed in the
details, counsel on both sides c ontended that this court retained
jurisdiction under s 172(2) to ‘make an order’ concerning the
constitutional validity of the amendment Act, even when the source
of the challenge was breach of a constitutional obligation. Appellants’
counsel contended that the failure to fulfil a constitutional obligation
was ‘ancillary’ to the question wh ether the statute was invalid.
Counsel for the Fund contended that the jurisdiction conferred by s
172(2) prevails even when failure to fulfil a constitutional obligation is
11 President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147
(CC) paras 72 and 73.
14
the source of the alleged invalidity: it is enough for jurisdiction that a
statute is attacked for constitutional inconsistency.
[16] In our view these approaches impermissibly attenuate the
jurisdictional exclusion in s 167(4). Although s 172(2) grants power
to this court and the high court s ‘to make an orde r concerning the
constitutional validity of an Act of Parliament’ the co-existence of the
two provisions requires that we distinguish between different ways in
which the Constitution envisages that statutes may be invalid. One
case is where, even though a st atute is validly adopted by
Parliament, its provisions fall ou tside the scope of Parliament’s
legislative authority as defined in the Constitution, most notably by
the Bill of Rights.
12 In such a case s 172(2) clearly empowers this
court and the high courts to make an order of constitutional invalidity.
12 Constitution s 8(1):
‘The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all
organs of state.’
15
[17] A purported statute may also be invalid because Parliament fails
to enact it properly at all. This would happen if Parliament omits to
observe the stipulations the Constitution prescribes concerning the
manner and form in which legislation is to be adopted. Provisions of
this kind include s 53, which requires that a majority of the members
of the National Assembly must be present before a vote is taken on a
Bill, and that all questions before the Assembly are decided by a
majority of votes cast.
13 Although counsel for the appellants
suggested that these provisions impose ‘obligations’ on Parliament in
the sense envisaged in s 167(4)(e), this seems to us misconceived.
Procedural requirements that are prerequisites to validity do not
impose obligations. This is because constitutional limitations on
legislative authority generally – al beit not invariably – derive from
13 Constitution s 53(1):
‘Except where the Constitution provides otherwise –
(a) a majority of the members of the National Assembly must be present before a vote may be taken
on a Bill or an amendment to a Bill;
(b) at least one third of the members must be present before a vote may be taken on any other question
before the Assembly; and
(c) all questions before the Assembly are decided by a majority of the votes cast.’
16
disabilities contained in rules th at qualify the way in which the
legislature may act: and it is a mi stake to confuse legal limitations
that arise from procedural prerequisi tes and from other limitations of
legislative power with those that derive from the imposition of duties:
‘A constitution which effectively restrict s the legislative powe rs of the supreme
legislature in the system does not do so by imposing (or at any rate need not
impose) duties on the legislature not to attempt to legislat e in certain ways;
instead it provides that any such purported legislation shall be void. It imposes
not legal duties but legal di sabilities. “Limits” here implies not the presence of
duty but the absence of legal power.’14
[18] A requirement as to form and manner for adopting legislation may
however arise from an obligation that is imposed on the legislature.
But the distinction between an ob ligation-derived prerequisite to
validity and a purely capacity-def ining formality should not be
ignored, since this would be to overlook the variety and complexity of
14 HLA Hart, The Concept of Law (Clarendon Press, Oxford, 1961) pages 68, 69 and 242, drawing on
Wesley Newcombe Hohfeld Fundamental Legal Conceptions (1923).
17
the differing forms of disability and du ty that the Constitution itself
imposes. Should Parliament purport to adopt a Bill that fails to
receive a majority of votes cas t, it does not act in breach of a
constitutional obligation, but fails to legislate at all. This court and
the high courts thus have jurisd iction under s 172(2) to make an
order of constitutional invalidity. 15 They decide not that Parliament
has failed in its duty to fulfil an obligation (a ‘crucial political’
question), but only the more formal question that by omitting to
observe the Constitution’s prerequisites as to form and manner,
Parliament has failed to produce a constitutionally valid statute.
[19] We accept that a third route might also lead to invalidity, where
Parliament so completely fails to fulfil the positive obligations the
Constitution imposes on it that it s purported legislative acts are
invalid. For while the legislative authority of the State in the national
15 See Harris v Minister of the Interior 1952 (2) SA 428 (A), Minister of the Interior v Harris 1952 (4)
SA 769 (A).
18
sphere of government is vested in Parliament, the exercise of this
authority requires more than merely an assemblage of the members
for the time being of those bodies debating and voting on proposed
legislation. The Constitution requi res that Parliament function in
accordance with the principles of accountability, responsiveness and
openness that constitute on e of its founding values. 16 That founding
value, so far as it relates to th e conduct of the National Assembly,
finds expression in the Constitution’s requirement that its rules and
orders for the conduct of its business must be made with due regard
not only to representative democra cy but also to participative
democracy.17 It also finds expression in the National Assembly’s
power to receive petitions, represent ations or submissions from any
16 Constitution s 1(d) establishes as a founding value of the Republic of South Africa –
‘Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of
democratic government, to ensure accountability, responsiveness and openness.’
17 Constitution s 57(1)(b) provides that the National Assembly may make rules and orders concerning
its business, ‘with due regard to representative and participatory democracy, accountability,
transparency and public involvement’.
19
interested persons or institutions, 18 its duty to facilitate public
involvement in its legi slative and other proces ses and of those of its
committees,19 its duty generally to con duct its business in an open
manner and hold its sittings and thos e of its committees in public, 20
and its duty generally not to excl ude the public or the media from
sittings of its committees.21
[20] Those are all facets of a Nati onal Assembly that belongs to the
people, although its formal bus iness is conducte d through their
representatives, and it is to an Assembly functioning in this way that
the Constitution entrusts the power to legislate. 22 Its antithesis is a
body that separates itself from and excludes the public, is indifferent
18 Constitution s 56(d) provides that the National Assembly or any of its committees may ‘receive
petitions, representations or submissions from any interested persons or institutions’.
19 Constitution s 59(1)(a) provides that the National Assembly must ‘facilitate public involvement in
the legislative and other processes of the Assembly and its committees’.
20 Constitution s 59(1)(b) provides that the National Assembly must ‘conduct its business in an open
manner, and hold its sittings in public’ but that reasonable measures may be taken to regulate public
access and to provide for searching of persons.
21 Constitution s 59(2):
‘The National Assembly may not exclude the public, including the media, from a sitting of a committee
unless it is reasonable and justifiable to do so in an open and democratic society.’
22 Constitution s 42 (3):
‘The National Assembly is elected to represent the people and to ensure government by the people
under the Constitution. It does this by choosing the President, by providing a national forum for public
consideration of issues, by passing legislation and by scrutinizing and overseeing executive action.’
20
to their participation and intere sts, and conducts its business
concealed from the public eye. Were that ever to occur it would
negate one of the essential pillars of the Constitution, with
fundamental implications not only for Parliament’s legitimacy, but for
its legislative capacity. These consequences would follow, not
because Parliament has failed to fulfil a capacity-defining procedural
formality, but because it has disavowed the obligations the
Constitution imposes on it.
[21] If, in violation of the constitutional obligation to conduct business in
an inclusive and open manner, and to hold sittings in public,
members of the National Assembly were to convene in secret or at
an undisclosed venue, it is not hard to imagine that it might be held
that this was not Parliament fu nctioning as contemplated in the
Constitution at all, and that conse quently ‘legislation’ the persons so
assembled purported to adopt lacked constitutional validity.
21
[22] The present case falls very far short of that . ‘Public involvement’
is necessarily an inexact concept, with many possible facets, and the
duty to ‘facilitate’ it can be fulfilled not in one, but in many different
ways. Public involvement might include public participation through
the submission of commentary and representations: but that is
neither definitive nor exhaustive of its content. The public may
become ‘involved’ in the business of the National Assembly as much
by understanding and being informed of what it is doing as by
participating directly in those process es. It is plain that by imposing
on Parliament the obligation to facilitate public involvement in its
processes the Constitution sets a base standard, but then leaves
Parliament significant leeway in fulfilling it. Whether or not the
National Assembly has fulfilled it s obligation cannot be assessed by
examining only one aspect of ‘public involvement’ in isolation of
others, as the appellants have so ught to do here. Nor are the
22
various obligations s 59(1) imposes to be viewed as if they are
independent of one another, with the result that the failure of one
necessarily divests the National Assembly of its legislative authority.
[23] In our view it is only at t hat extreme – where Parliament has so
renounced its constitutional obligations that it ceases to be or to act
as the body the Constitution env isages and thus ceases to have
legislative authority – that its purp orted enactments will not be valid.
And the question whether that ex treme has been reached – which is
the prerequisite for the appellants’ claim to succeed – is not one that
this court or the High Courts are able to decide. That it would result
in the invalidity of the National Assembly’s purported acts is not
sufficient in itself to vest this court with jurisdiction under s 172(2)
because the invalidity in such a case is predicated upon the anterior
question. Given the implications su ch a decision would entail, that
23
would be pre-eminently a ‘crucial political’ question, and s 167(4)(e)
reserves it for only the Constitutional Court to make.
[24] It follows that the appropriat e course for Chetty J, had the
jurisdictional question been raised before him, would have been to
strike the application from the roll because of the high court’s lack of
competence to hear the application. His order dismissing the
application has in substance the same effect.
[25] In this court the appeal stands to be struck from the roll. The
appellants asked that in that ev ent they be spared the burden of the
respondents’ costs, but that cannot be. Although this court now
applies the Constitutional Court’s flexible principle that bona fide and
reasonable litigants who raise genuine constitutional issues of broad
concern should not be inhibited from asserting their rights by having
24
to pay the costs of gov ernmental adversaries,23 that principle cannot
apply here. This was in essence a claim for private compensation,
brought by disappointed invest ors who found that a statute
obstructed their path to recompense. Their challenge to the validity
of the statute involves the assert ion of no essentially constitutional
entitlement, and the normal rule as to costs must therefore apply.
Although the Fund and the Minister were represented by two sets of
two counsel, they requested the costs of only two.
[26] The appeal is struck from the roll with costs, including the costs of
two counsel.
E CAMERON & RW NUGENT
JUDGES OF APPEAL
CONCUR:
HARMS JA
MTHIYANE JA
JAFTA JA
23 See De Kock v Van Rooyen 2005 (1) SA 1 (SCA) para 30.