MEC for Health, KwaZulu-Natal v Premier, Kwazulu-Natal: In re Minister of Health and Others v Treatment Action Campaign and Others (CCT15/02) [2002] ZACC 14; 2002 (10) BCLR 1028 (5 July 2002)

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[2002] ZACC 14
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MEC for Health, KwaZulu-Natal v Premier, Kwazulu-Natal: In re Minister of Health and Others v Treatment Action Campaign and Others (CCT15/02) [2002] ZACC 14; 2002 (10) BCLR 1028 (CC); 2002 (5) SA 717 (CC) (5 July 2002)

CONSTITUTIONAL COURT OF SOUTH AFRICA
                                                                                                                        Â
Case
CCT 15/02
MEMBER OF THE
EXECUTIVE COUNCIL
FOR HEALTH,
KWAZULU-NATAL                                                                      Â
Appellant
versus
PREMIER OF
KWAZULU-NATAL                                                                    Â
Respondent
In re:
MINISTER OF HEALTH
AND OTHERS                                                              Â
Appellants
versus
TREATMENT ACTION
CAMPAIGN AND OTHERS                                        Respondents
Heard on                                 :           6
May 2002
Decided on                             :           6
May 2002
Reasons delivered
on            :           5 July 2002
JUDGMENT
THE COURT:
[1]
       This judgment deals
with an application for leave to appeal and coupled with that an application to
adduce further evidence
in the proposed appeal.  Both arose on the periphery of
a major dispute (the TAC case) in which judgment is being delivered
contemporaneously.
1
  The nature and history
of the dispute in the TAC case appear fully from that judgment.  These
applications were heard after conclusion
of the arguments in the TAC appeal.
[2]
       The present
applicant is the Member of the Executive Council for Health (the MEC) in the
province of KwaZulu-Natal (KZN).Â
He was cited as the fifth respondent in the
TAC case in the High Court.
[3]
       The MEC made common
cause with the other respondents who opposed the application in the High
Court.  He was represented
by the same attorney (the State Attorney) and the
same team of advocates.  He also made common cause with the other respondents
who, as applicants, applied to the High Court for a certificate in terms of
Rule 18 of this Court’s rules.
[4]
       The respondent in
the present application is the Premier of KZN.  His involvement came about in
the following manner.Â
Two days before the application to the High Court was
due to be heard, a firm of attorneys acting on the instructions of the Premier
filed a notice to the effect that the fifth respondent was appointing them as
attorneys of record instead of the State Attorney.Â
The attorneys also filed an
affidavit by the Premier to the effect that he wished to intervene in the
proceedings on behalf of the
government of KZN.  He did not support the application
for leave to appeal in the TAC case but supported the application by the
TAC
for leave to execute the High Court’s order.
2
  The MEC responded by
filing an affidavit contending that he was the fifth respondent, that he did
not support the Premier but supported
the application for leave to appeal and
opposed the application for execution.
[5]
       When the
application for a certificate was called in the High Court, two different
senior advocates appeared, each claiming
to represent the government of KZN.Â
The High Court ruled that “the intervention of the Premier of KwaZulu-Natal is
allowed”
and when asked to elaborate on the meaning of its ruling, held in a
separate judgment that:
“The meaning
of the judgment . . . is that the province of KwaZulu-Natal is now represented
by the person in whom the Executive
Authority in that province vests and that
is by the Premier of the province himself.  In other words the representation
of the province
by the member of the Executive Council for Health has lapsed,
the principal has taken over.”
[6]
       It is against this
order of the High Court that the MEC now seeks leave to appeal directly to this
Court, the High Court
having granted a positive certificate in terms of Rule 18
of this Court’s rules.  The principle criterion for this Court to grant
leave
to appeal directly to it, is whether it would be in the interests of justice to
do so.
3
  We therefore proceed to
consider whether an appeal directly to this Court is in the interests of
justice.
[7]
       The dispute in this
application is not whether the MEC was the correct party to cite in the TAC application.Â
The real
dispute is between the Premier and the MEC as to what stance should be
adopted by the government of KZN in the TAC matter.  Clearly
this is a purely
political dispute which could and should have been resolved at a political
level.  If the Premier was of the view
that the MEC was not implementing the
province’s policy
4
regarding the issues in the TAC case, he should have dealt
with that at a political level.
5
[8]
       The effect of the
High Court’s ruling was to substitute the Premier for the MEC as a respondent
in the TAC case.Â
It is by no means clear that the Court had the power to do
so, nor that the dispute was justiciable, more particularly as there had
been
no substantive application for such relief.  It is however unnecessary to
express a view on these questions because, for reasons
that follow, it is not
in the interests of justice to grant the MEC leave to appeal directly to this
Court.
[9]
       On the assumption
that the matter is indeed justiciable, it is important to note that the Premier
and the MEC are both
organs of state in the provincial sphere of government.
6
  They would therefore be
bound by the obligation to co-operative government provided for in Chapter 3 of
the Constitution.  Section
41(1)(h) (part of Chapter 3) provides:
“All spheres
of government and all organs of state within each sphere must –
. . . .
(h)        co-operate with one another in mutual trust and good faith by –
(i)         fostering friendly relations;
(ii)        assisting and supporting one another;
(iii)       informing one another of, and consulting one another on,
matters of common interest;
(iv)       co-ordinating their actions and legislation with one another;
(v)        adhering to agreed procedures; and
(vi)       avoiding legal proceedings against one another.”
In the
National
Gambling Board
case
7
this Court held that it
will rarely grant direct access to organs of state who have not duly performed
their obligations to co-operative
government.  By the same token, the failure
to perform those obligations is relevant when deciding whether it is in the
interests
of justice to grant an organ of state leave to appeal directly to
this Court.  Therefore, even if the matter is justiciable, the
parties have
clearly not complied with their obligations under section 41(1)(h) of the
Constitution.
[10]
     Moreover, the relief
sought in the MEC’s proposed appeal has no practical effect.  The MEC was
represented in the High
Court by the same attorney and counsel as the other
respondents and made common cause with them.  Those attorneys and counsel
appeared
in the TAC appeal for the appellants (the respondents in the High
Court).  The case was fully argued on their behalf.  The same
attorney and
counsel appeared for the MEC in this application for leave to appeal.  Should
leave be granted and the present appeal
succeed, the MEC will have nothing to add
in the TAC appeal.
[11]
     As for the Premier,
he did not note an appeal against the High Court’s order.  He supported the
relief that was granted
and the application for leave to execute and abided
this Court’s decision on appeal.  The judgment and orders in the main appeal
thus bind the Premier, the MEC and the government of KZN.  Should leave to
appeal be granted and the Premier be successful in his
proposed appeal, he
would still not be a party to the appeal in the TAC case.  It also follows that
no useful purpose would be served
by allowing the Premier to lodge any
additional evidence.
[12]
     To sum up, this
application concerns a political dispute which could and should have been
resolved at a political level;
even if the dispute is justiciable, the parties
did not comply with their obligations to co-operative government; and the
appeal
will have no practical value.  In the circumstances it is not in the
interests of justice to grant the MEC leave to appeal.
[13]
     Both parties sought
to proceed with an issue which should not have been brought to this Court and
both failed to comply with
their obligations to co-operate in government.  In
the circumstances no order as to costs should be made.
Order
[14]
     The application by
the MEC for leave to appeal and the application by the Premier to adduce
further evidence are both dismissed.
Chaskalson CJ  Langa DCJ Ackermann J Du Plessis AJ Goldstone
J Kriegler J   Madala J
Ngcobo J O’Regan J Sachs J Skweyiya AJ
For the Appellants:                          MTK
Moerane SC, P Coppin and B Vally instructed by
                                                                                                      Â
the
State Attorney, Pretoria
For the
Respondent:              DN Unterhalter instructed by the Larson Bruorton &
Falconer Inc, Durban
1
         Â
Headed
Minister of Health and Others v Treatment Action Campaign and Others
, CCT
08/02.
2
         Â
Id para
9.
3
         Â
Section
167(6)(b) of the Constitution.
4
         Â
See s
125(2)(d) of the Constitution.
5
         Â
See for instance s
132(2) of the Constitution which provides:
“The Premier of
a province appoints the members of the Executive Council, assigns their powers
and functions, and may dismiss them.”
6
         Â
National
Gambling Board v Premier KwaZulu-Natal and Others
[2001] ZACC 8
;
2002 (2) SA 715
(CC);
2002 (2) BCLR 156
(CC) para 20-2.
7
         Â
Id para 34.