Constitutionality of the Mpumalanga Petitions Bill, 2000 (CCT 11/01) [2001] ZACC 10; 2002 (1) SA 447 (CC); 2001 (11) BCLR 1126 (5 October 2001)

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Constitutionality of the Mpumalanga Petitions Bill, 2000 (CCT 11/01) [2001] ZACC 10; 2002 (1) SA 447 (CC); 2001 (11) BCLR 1126 (5 October 2001)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case
CCT
11/01
IN RE: THE CONSTITUTIONALITY
OF THE
MPUMALANGA PETITIONS BILL,
2000
Heard on          :           16
August 2001
Decided on       :           5
October 2001
JUDGMENT
LANGA
DP:
[1]
Introduction
The Premier of the province of
Mpumalanga, acting under the provisions of section 121 of the Constitution, has
referred the Mpumalanga
Petitions Bill, 2000 to this Court for a decision on
its constitutionality.  Section 121 of the Constitution states:
“(1)      The Premier of a province
must either assent to and sign a Bill passed by the provincial legislature in
terms of this Chapter
or, if the Premier has reservations about the
constitutionality of the Bill, refer it back to the legislature for
reconsideration.
(2)        If, after
reconsideration, a Bill fully accommodates the Premier’s reservations, the
Premier must assent to and sign the
Bill; if not, the Premier must either—
(a)        assent to and
sign the Bill; or
(b)        refer it to the
Constitutional Court for a decision on its constitutionality.
(3)        If the
Constitutional Court decides that the Bill is constitutional, the Premier must
assent to and sign it.”
[2]
The picture that
emerges from the affidavit filed in support of the referral is the following:
when the Bill was submitted
to the Premier for his assent and signature, he
had reservations concerning the constitutionality of the powers conferred on
the
Speaker by clauses 18 and 19.  Acting under section 121(1) of the
Constitution, the Premier referred the Bill back to the legislature
for
reconsideration, specifying his reservations in respect of these two clauses
only.  He also recommended that certain other typographical
and grammatical
errors be corrected.  The legislature made most of the amendments and
corrections suggested but failed to address
the Premier’s reservations
concerning the functions and powers given to the Speaker under clauses 18 and
19.
[3]
The Premier has now
asked this Court to consider two issues.  The first is whether the Mpumalanga
provincial legislature
(the legislature) had the competence in terms of the
Constitution to pass the Petitions Bill.  The second is whether it is
permissible
in terms of the Constitution, and whatever conventions may be
applicable, for the Bill to require the Speaker to make regulations
under the
Bill (clause 18) and to fix the date on which the Bill is to come into
operation (clause 19).
[4]
Submissions defending
the constitutionality of the Bill were received from the Speaker of the
legislature as well as from
his counterpart in Gauteng.  The latter had applied
to join and was admitted as a party in the proceedings.
Issue not referred to the legislature
for reconsideration
[5]
During argument before
us there was uncertainty as to whether the question of the legislature’s
competence to pass the
Bill had also been referred by the Premier to the
legislature for its reconsideration.  The document specifying the Premier’s
reservations
had not been filed with this Court.  Full argument was however
presented to us on the merits of the issue.  At the request of the
Court,
counsel undertook to ascertain whether or not the issue had been referred by
the Premier to the legislature.  We were subsequently
advised that it had not.
The issue was therefore raised for the first time only in papers before the
Court.  The legislature has
accordingly not had an opportunity to consider this
aspect of the Premier’s reservations.
[6]
Counsel for the
parties urged the Court during argument to deal with the merits of this issue,
despite the Premier’s omission
to refer it to the legislature.  What must be
determined first, however, is whether the Court has the jurisdiction to decide
upon
an objection which the Premier has not referred to the legislature, but
raises it for the first time in this Court.  The answer to
this must depend on
the nature of the Court’s function under section 121.
The Court’s function in proceedings
under section 121
[7]
The nature
of the Court’s jurisdiction in proceedings under section 79 of the Constitution
1
was considered in
Ex parte President of the Republic of South
Africa In re: Constitutionality of the Liquor Bill
2
(the
Liquor Bill
case).  That section is concerned with the
referral of Parliamentary Bills by the President in circumstances that
correspond to those
set out in section 121.  The provisions are identical in
all but two respects: section 79 refers to the President and Parliament
while
section 121 is concerned with the Premier and the provincial legislature;
secondly, the requirement in section 79(3) that the
President’s reservations be
submitted to the National Council of Provinces in certain circumstances is
obviously not repeated in
section 121.  It is a fundamental principle that a
Court adheres to its previous decisions.
3
Since
there is no difference in substance between the considerations applicable to
the procedures set out in sections 79 and 121
of the Constitution, this Court
is bound by its previous decision in the
Liquor Bill
case unless the
decision is shown to have been clearly wrong.  None of the parties argued that
the decision should be reconsidered.
In that case, the Court identified “three
related questions” which required clarification in the light of the President’s
invocation
of the section 79 procedure.  Only the first of these is relevant
for present purposes and it was expressed as follows:
“Is the Court required to consider
only the reservations the President has expressed or can and should it direct
its attention more
widely?”
4
It was decided that the
constitutionality of the Bill must be considered in the light of the
reservations expressed by the President,
and further that the referral
provision then under consideration -
“. . . must thus be read as . . .
empowering the Court to make a decision regarding the Bill’s constitutionality
only in relation
to the President’s reservations.”
5
[8]
The Court
characterised the procedure as follows:
“The provision envisages a series of
steps, initiated by the President, in which Parliament is itself an active
participant.  The
President can refer a Bill to this Court
only after Parliament has
unavailingly reconsidered it in the light of his reservations.  The attitude of
the National Assembly (or,
where appropriate, Parliament) to the Bill’s
constitutionality is therefore also a material factor in this Court’s
determination
and it is for this reason that this Court’s Rules permit all political
parties represented in Parliament as of right to make written
submissions
relevant to the determination of the Bill’s constitutionality.  It follows that
in deciding on the Bill’s constitutionality
the Court must consider the
reservations of the President as well as any submissions relevant to them by
any party represented in
Parliament.”
6
(My emphasis.)
The remarks above are equally
applicable to a referral by the Premier under section 121.
[9]
The
question of what should happen when the Premier raises a reservation in this
Court without prior referral to the legislature
was not pertinently raised in
the
Liquor Bill
case.  There are, however, strong constitutional and
functional reasons why such a referral is not contemplated by section 121 of
the
Constitution.  What is envisaged is consideration by this Court of a Bill that
has gone through a number of steps, which include
communication by the Premier
of his or her reservations to the legislature and its reconsideration of the
Bill in the light of those
reservations.  The Court’s function to adjudicate
upon the Bill commences only after this political process has been exhausted
and
it is limited to a consideration of the Premier’s reservations together
with the responses of the parties represented in the legislature.
The role of
the legislature would be undermined if the Premier’s reservations could be
entertained by this Court without having been
referred to the legislature for
its consideration.
[10]
We are accordingly
empowered to consider only those reservations which have been referred by the
Premier to the legislature.
This approach is consistent also with the
provisions of Chapter 3 of the Constitution which require institutions to
behave with comity
towards one another and not to resort to litigation
prematurely in order to resolve constitutional disputes.  It is moreover of
some
importance that section 121(2) permits the Premier to refer a matter to
this Court only if the reservations referred to the provincial
legislature have
not been fully accommodated and obliges the Premier to sign the Bill if they
have.  Section 79(2) provides similarly
with regard to the President and a
Parliamentary Bill.
[11]
I accordingly conclude
that this Court does not have jurisdiction to consider the constitutionality of
any provision in
a Bill raised by a Premier, unless the Premier’s reservation
concerning such provision has been referred to the legislature as envisaged
by
subsections (1)and (2) of section 121 of the Constitution.  Limiting the Court’s
jurisdiction in this manner can cause prejudice
to no-one.  All other
constitutional remedies remain intact.  Sections 80 and 122 of the Constitution
permit members of the legislature,
after an Act of Parliament or of a
provincial legislature as the case may be has been signed, to apply to the
Constitutional Court
for an order declaring that all or part of the legislative
instrument in question is unconstitutional.  Speedy and effective interim
relief is also provided in such a case.  Sections 80(3) and 122(3) of the
Constitution provide in identical terms as follows:
“The Constitutional Court
may order that all or any part of an Act that is the subject of an application
in terms of subsection (1)
has no force until the Court has decided the
application if—
(a) the interests of justice require
this; and
(b) the application has a reasonable
prospect of success.”
7
[12]
The
protection does not end there.  Any individual whose rights under the Bill of
Rights are infringed or threatened may
approach a high court for an order
declaring offending provision(s) of an Act of Parliament or of a provincial
legislature to be
constitutionally invalid under section 172(2)(a).
8
Although such order would have no force until confirmed by the
Constitutional Court, such person would be entitled, in a proper
case, to
appropriate temporary relief, as provided for under section 172(2)(b).
9
[13]
In reaching
the conclusion that the Court is precluded from dealing with the question of
the legislature’s competence
to pass the Petitions Bill, I have not overlooked
the fact that in the
Liquor Bill
case, the Court explicitly left open
the question -
“[w]hether it may ever be
appropriate for the Court upon a presidential referral to consider other
provisions which are manifestly
unconstitutional, but which are not included in
the President’s reservations. . . .”
1
0
Although the issue here is
slightly different, the principle involved is the same.  Here it is not the
absence of a reservation by
the Premier.  The reservation is before the Court,
but defectively so, because there has been no compliance with the constitutional
requirement that it should first be referred to the legislature for
reconsideration.  The reasoning in the preceding paragraphs is,
however,
equally applicable to the question left open in the
Liquor Bill
case.
No room exists, in referral proceedings under sections 79 and 121 of the
Constitution, for a consideration by the Court of
issues that have not been
raised in compliance with the Constitution by the President or the Premier.
The question left open in
the
Liquor Bill
case must therefore be considered
closed.
[14]
Before proceeding to
consider the next issue, one last word is necessary on the subject of the
Court’s jurisdiction in
referral proceedings.  The Court should have certainty
as to the precise scope of the reservations referred to Parliament or the
relevant legislature by the President or the Premier, as the case may be.
Accordingly, the document in terms of which the President
or Premier conveys
his or her reservations to Parliament or the provincial legislature ought to
form part of the referral to this
Court under the provisions of sections 79 or
121.  Had the document been filed, a good deal of uncertainty and expenditure
of Court
time would have been avoided.
The Speaker’s functions under clauses
18 and 19
[15]
The second question
concerns clause 18 of the Bill which provides that “the Speaker must make
regulations required for
carrying out the provisions of the Act” and clause 19,
which confers on the Speaker the power to fix a date for the coming into
operation
of the Bill.  I deal with the two provisions in turn.
(a) Clause 18
[16]
Two issues
arise from this provision.  First, a similar power is conferred upon the
Premier under clause 17(9) of the
Bill.
1
1
It was submitted in written argument
on behalf of the Premier that the power to make regulations cannot be vested in
both the Speaker
and the Premier.  This point was conceded by counsel for the
Speaker who stated that the word “Premier” in clause 17(9) was erroneous
and
should be read as “Speaker”.  We were not told, however, how or where the
mistake was made, in passing the Bill or merely in
transcribing it.  In the
latter event the transcription can simply be corrected.  Even assuming that the
Bill as adopted by the legislature
contained the error, that would not mean
that the conflict between the two provisions gives rise to unconstitutionality.
If indeed
the two provisions are in conflict, which need not be decided here,
the effect of the conflict would be a question for judicial interpretation.
The legislature is of course free to correct any error it may have committed.
[17]
Second,
it was contended by the Premier that in terms of the Constitution and by virtue
of the doctrine of separation
of powers, the power to make regulations is a
power that may only be vested in the Premier or a member of the executive
since, in
terms of section 125 of the Constitution, the executive power of the
province vests in the Premier.  The Premier also drew attention
to section 116
which permits a provincial legislature to -
“(a)      determine and control its
internal arrangements, proceedings and procedures; and
(b)        make
rules and orders concerning its business, with due regard to representative and
participatory democracy, accountability,
transparency and public involvement.”
According to him, the
regulations which the Speaker was required to frame under the Bill amounted to
the determination and control
of the legislature’s internal arrangements,
proceedings and procedures.  He contended further that what the provision
required of
the Speaker was no more than the making of “rules and orders” concerning
the legislature’s business.  This, he argued, was a matter
which the
legislature could not delegate but which must be regulated as contemplated by
section 116.
[18]
There is no merit in
either of these arguments.  The Constitution does not provide that only members
of the executive
should make regulations.  Neither section 104 which deals with
provincial legislative authority nor section 125 which provides for
the
provincial executive authority regulates the framing of regulations, nor does
it require that legislative power be delegated
to the executive only.
[19]
The
Premier’s complaint is also directed at the delegation of the legislature’s
legislative or rule-making authority to
the Speaker.  Regulations are a
category of subordinate legislation framed and implemented by a functionary or
body other than the
legislature for the purpose of implementing valid
legislation.  Such functionaries are usually members of the executive branch of
government, but not invariably so.  A legislature has the power to delegate the
power to make regulations to functionaries when such
regulations are necessary
to supplement the primary legislation.  Ordinarily the functionary will be the
President or the Premier
or the member of the executive responsible for the implementation
of the law.  In
Executive Council of the Western Cape Legislature and Others
v President of the Republic of South Africa and Others
, Chaskalson P stated
that:
“In a modern state
detailed provisions are often required for the purpose of implementing and
regulating laws and Parliament cannot
be expected to deal with all such matters
itself.  There is nothing in the Constitution which prohibits Parliament from
delegating
subordinate regulatory authority to other bodies.  The power to do
so is necessary for effective law-making.  It is implicit in the
power to make
laws for the country and I have no doubt that under our Constitution Parliament
can pass legislation delegating such
legislative functions to other bodies.”
1
2
The factors relevant to a
consideration of whether the delegation of a law-making power is appropriate
are many.  They include the
nature and ambit of the delegation, the identity of
the person or institution to whom the power is delegated, and the subject
matter
of the delegated power.
1
3
[20]
The legislation in
this case concerns petitions to the legislature.  It has been enacted to give substance
to the legislature’s
responsibility for oversight of the executive and to
facilitate public involvement in the legislative and other processes of the
legislature.  The Bill, if and when it becomes a provincial Act, is to be
implemented by the provincial legislature, including the
Speaker, and not by
the provincial executive.  It would be inappropriate for the executive to
regulate the former function, and wholly
appropriate for the legislature to
regulate both functions itself through its Speaker who by virtue of his or her
office should have
the necessary expertise and is fully accountable to the
legislature.  The objection to this power being delegated to the Speaker
is
thus not valid.
(b) Clause 19
[21]
The clause provides
that the “Petitions Act . . . comes into operation on a date to be determined
by the Speaker by proclamation
in the Provincial Gazette”.  The Premier
contends that the clause is a breach of the separation of powers doctrine as
the power to
fix the date of the coming into operation of an Act is one
conventionally performed by a member of the executive only, usually the
President or a provincial Premier.
[22]
This power
turns, in my view, on the proper interpretation of section 123 of the
Constitution which provides that a provincial
Act “. . . takes effect when
published or on a date determined in terms of the Act”.  The power was
correctly characterised by the
Full Bench of the Transvaal High Court in
Pharmaceutical
Manufacturers Association of SA and Another In re: Ex parte President of the
Republic of South Africa and Others,
where the following was said:
“Legislative power, which
includes the power to determine when the particular measure should come into
operation, is conferred by
the Constitution upon Parliament and not upon the
President, whether as the head of State or as head of the Executive.  In terms
of s 81 of the Constitution, a Bill assented to and signed by the President
thereby becomes an Act of Parliament, which must be ‘published
promptly’ and it
takes effect ‘when published or on a date determined in terms of the Act’.  It
thus lies within the constitutional
power of Parliament, and not the
Constitutional power of the President (whether as head of State or as head of
the Executive), to
determine when enactments should take effect.  If Parliament
says nothing at all on the subject in any particular case, then, by
default,
the enactment will take effect upon publication.  On the other hand it may
determine, whether by specifying a particular
date or providing a mechanism for
that date to be fixed, some other date upon which the enactment shall take
effect.”
1
4
These remarks apply with equal force
to the relationship between the Premier of a province and the provincial
legislature.
[23]
The power
conferred on the legislature by the Constitution is a special one which enables
the legislature to appoint a
functionary to determine when the law comes into
force.  It lies between law-making and administration.
1
5
Its purpose is to delay the operation of the legislation to enable
the necessary steps to be taken in order to make the legislation
effective
before the law comes into force.  The functionary best placed to make such
determination is ordinarily the head of the
executive responsible for the
implementation of the legislation.  There is however no provision of the
Constitution that requires
that it be the President or the Premier.  The choice
of the person is left to the legislature.  It would obviously be inappropriate
for a legislature to designate a person whose functions are not related to
matters which have to be resolved before the law is brought
into force.  It is
unlikely that this will ever happen and it is not necessary to decide what the
position would be if it did.  I
would likewise have grave reservations were a
legislature to confer this power upon a person not accountable to it in some
constitutionally
recognised way, or who was not in a position to determine when
the Act could effectively be brought into force.  That too need not
be
considered in this case.
[24]
In this case the
legislature conferred a power upon the Speaker to determine when the Bill
should come into force as a
provincial Act.  That functionary is intimately
involved in important steps which must be taken before the legislation is
brought
into force, being responsible for the promulgation of regulations that
are evidently a pre-requisite to the effective implementation
of the
legislation.  The Speaker is accountable to the legislature and is well placed
to determine when the Act can effectively be
brought into force.  The Petitions
Bill creates duties and obligations which are internal to the functioning of
the legislature.
Since the steps that have to be taken must be taken by the
legislature, the Speaker is clearly an appropriate functionary to determine
whether or not this has been done.  The objection to this provision can
therefore not succeed.
[25]
One further
matter should be mentioned.  The Premier has referred to the doctrine of the
separation of powers and to conventions
in relation to the powers conferred on
the Speaker.  The allocation of powers to the Speaker to determine the date of
commencement
of the Bill, does not implicate the doctrine of separation of
powers.  As stated earlier, the operation of the doctrine is not absolute
and
this Court held that in time our courts would work out a peculiarly South
African model of the doctrine.
1
6
With regard to the conventions, it is unnecessary to consider
their place, if any, under the Constitution.  Whatever separate existence
they
might have cannot prevail against express or implied provisions of the
Constitution.
Order
[26]
It is declared that-
Clauses 18 and 19 of the Mpumalanga
Petitions Bill, 2000, which require the Speaker of the provincial legislature
to make regulations
under the Bill and to fix the date on which the Bill is to
come into operation are not unconstitutional on the grounds advanced by
the
Premier.
Chaskalson P, Ackermann J, Kriegler
J, Madala J, Mokgoro J, O’Regan J, Sachs J, Yacoob J, Du Plessis AJ and
Skweyiya AJ concur in
the judgment of Langa DP.
For the Premier of
Mpumalanga:           PC van der Byl SC and MM Oosthuizen instructed by the
State Attorney, Pretoria.
For the Speaker of the
Mpumalanga Legislature:           MSM Brassey SC and NH Maenetje instructed by
Cheadle Thompson & Haysom
Inc., Johannesburg.
For the Speaker of the
Gauteng and the Gauteng Legislature: RM Wise SC and M Khoza instructed by
Nicholls, Cambanis and Associates,
Johannesburg.
1
Section 79 of the Constitution provides:
“
(1)         The
President must either assent to and sign a Bill passed in terms of this Chapter
or, if the President has reservations
about the constitutionality of the  Bill,
refer it back to the National Assembly for reconsideration.
(2)        The joint rules
and orders must provide for the procedure for the reconsideration of a Bill by
the National Assembly and
the participation of the National Council of
Provinces in the process.
(3)        The National
Council of Provinces must participate in the reconsideration of a Bill that the
President has referred back
to the National Assembly if—
(a)
the President’s reservations about
the constitutionality of  the Bill relate to a procedural matter that involves
the Council;
or
(b)
section 74(1), (2) or (3)(b) or 76
was applicable in the passing of the Bill.
(4)        If, after
reconsideration, a Bill fully accommodates the President’s reservations, the
President must assent to and sign
the Bill; if not, the President must either—
(a)        assent to and
sign the Bill; or
(b)
refer it to the Constitutional
Court for a decision on its constitutionality.
(5)        If the Constitutional Court
decides that the Bill is constitutional, the President must assent to and sign
it.”
2
[1999] ZACC 15
;
2000 (1) BCLR 1
(CC )
[1999] ZACC 15
; ;
2000 (1)
SA 732
(CC).
3
In re: Certification of the Amended
Text of the Constitution of the Republic of South Africa
[1996] ZACC 24
;
1996
1997 (1) BCLR
1(CC)
;
1997 (2) SA 97
(CC) at para 8.
4
Liquor Bill
above n 2 at
para 11.
5
Id at para 14.
6
Id at para 19.
7
Section 80(3) deals with the
referral of an Act of Parliament and section 122(3) is concerned with a
provincial Act.
8
Section 172(2)(a) of the Constitution
states:
“
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.”
9
Section 172(2)(b) of the Constitution
states:
“
A court which makes an order of constitutional invalidity may grant
a temporary interdict or other temporary relief to a party, or
may adjourn the
proceedings, pending a decision of the Constitutional Court on the validity of
that Act or conduct.”
0
0
Liquor Bill
above n 2 at para 15.
1
1
Clause
17(9) provides:
“
The Premier may supplement this procedure by way of regulations.”
2
2
[1995] ZACC 8
;
1995 (10) BCLR 1289
(CC);
1995 (4) SA 877
(CC) at para 51.
3
3
These factors were some of those identified
by Mahomed DP in the
Western Cape
case, id at para 136.  The difference
of opinion expressed in the judgments in that case concerning the extent to
which Parliament
may delegate plenary legislative powers has no relevance to
the case currently under consideration.
4
4
1999 (4) SA 788
(T) at 796G - I.
5
5
See
Pharmaceutical Manufacturers
Association of South Africa and Another In re: Ex parte President of the
Republic of South Africa and
Others
[2000] ZACC 1
;
2000 (3) BCLR 241
(CC);
2000 (2) SA 674
(CC) at para 79.
6
6
De Lange v Smuts
NO and Others
[1998] ZACC 6
;
1998 (7) BCLR 779
(CC);
1998 (3) SA
785
(CC) at para 60.