Brief Summary

Constitutional Law — Legislative Competence — Floor Crossing Legislation — The African National Congress challenged the constitutionality of four Acts allowing floor crossing for members of legislatures. The United Democratic Movement sought to have these Acts declared unconstitutional. The Constitutional Court upheld the challenge to the Membership Act, ruling it impermissibly amended the Constitution through ordinary legislation, while dismissing challenges to the First Amendment Act, Second Amendment Act, and Local Government Amendment Act. The Court ordered that floor crossing could occur in local government but not in national or provincial spheres, stabilizing the situation pending further legislative amendments.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns urgent proceedings in the Constitutional Court in which the African National Congress (ANC) sought, by way of direct access, a variation or extension of aspects of an earlier Constitutional Court order made in related “floor-crossing” litigation. The Minister for Justice and Constitutional Development (already a party to the broader litigation) sought relief in the form of what the Court treated as a counter-application, including clarification or further limitation of the effect of the Court’s earlier order.

The respondents included several political parties (notably the United Democratic Movement (UDM), the Inkatha Freedom Party (IFP), the Democratic Party (DP), and others), relevant members of the executive, and the Premier of KwaZulu-Natal. Four individuals who had been sworn in as new members of the KwaZulu-Natal Provincial Legislature after the expiry of interim protections also opposed the relief and sought leave to intervene.

The procedural history arose from Parliament’s enactment (in June 2002) of four Acts designed to permit limited floor crossing in the national, provincial, and local government spheres. Those Acts were challenged by the UDM in the Cape High Court, which suspended their commencement/operation pending Constitutional Court determination. The Constitutional Court previously heard the matter urgently in July 2002 (issuing an interim stabilising order), held a full hearing in August 2002, and delivered three unanimous judgments on 4 October 2002. In those earlier decisions, the Court upheld much of the legislative scheme but declared the Loss or Retention of Membership of National and Provincial Legislatures Act 22 of 2002 (the Membership Act) invalid because it impermissibly amended the Constitution through ordinary legislation rather than through a constitutional amendment.

The general subject matter of the present dispute is the post-judgment status of certain persons who had changed party allegiance in the KwaZulu-Natal Provincial Legislature in June 2002, and whether the Constitutional Court’s earlier order could now be adjusted (or its retrospective effect limited) in light of subsequent events, including the publication of a constitutional amendment bill aimed at reintroducing national and provincial floor crossing.

2. Material Facts

In June 2002 Parliament passed four statutes intended to create limited windows during which elected representatives could change party allegiance without forfeiting their seats. Two statutes concerned local government floor crossing, and two concerned national and provincial legislatures. The UDM challenged these measures in the Cape High Court. The Cape High Court (first a single judge and then a full bench) issued orders suspending the commencement and/or operation of the four Acts pending this Court’s decision.

On 3 and 4 July 2002 the Constitutional Court dealt with the matter urgently and issued an interim order to stabilise the situation pending final determination. Among other things, that interim order (in paragraph 13) protected members of legislatures and councils from losing their seats solely because of post-20 June 2002 changes in party membership, provided for restoration where removals had occurred, and restricted resolutions that would shift executive control during the interim period.

After a full hearing in August 2002, the Constitutional Court delivered judgments on 4 October 2002. It dismissed the constitutional challenge to three of the four legislative measures but upheld the challenge to the Membership Act on the basis that it had impermissibly amended the Constitution by ordinary legislation. In consequence, local government floor crossing could proceed, but national and provincial floor crossing could not proceed under the invalidated Membership Act. The Court’s order was crafted to address the effect of earlier High Court and Constitutional Court interim orders on the already-running or elapsed window periods, including the continuation of certain interim protections for a limited further period.

The present case largely concerned five individuals who were members of the KwaZulu-Natal Provincial Legislature. These individuals changed party allegiance on 21 June 2002, after the initial floor-crossing legislation had been passed. They claimed they did so in ignorance of the fact that a judge in the Cape High Court had suspended the legislation. They initially retained their positions as members of the provincial legislature due to orders from the Natal High Court and thereafter due to the Constitutional Court’s interim order.

On 11 October 2002 the Minister published in the Government Gazette the Constitution of the Republic of South Africa Fourth Amendment Bill, 2002, proposing constitutional amendments to permit limited floor crossing in the national and provincial legislatures, including a clause (section 7(3) of the Bill as published) contemplating restoration of persons removed during a defined period due to actions taken in anticipation of substantially similar enactments.

On 20 October 2002 the ANC approached the Natal High Court seeking interim interdictory relief concerning the status of the five individuals. That application was dismissed on 22 October 2002. On 23 October 2002 the Speaker swore in four new members to replace four of the five individuals (with one seat remaining vacant).

On 22 October 2002 the ANC applied urgently for direct access to the Constitutional Court seeking an order extending the protective effect of the Constitutional Court’s earlier order (made on 4 October 2002) so that it would only expire upon the rejection or promulgation of the pending constitutional amendment bill. The Minister sought relief framed as intervention but treated as a counter-application, including declarations limiting the retrospective effect of the earlier invalidity order (or alternatively making invalidity prospective from 22 October 2002), extending limitations to 31 March 2003, and keeping parts of the earlier stabilising orders in force pending variation.

Where the judgment distinguished disputes, the principal factual matrix relevant to the decision was largely common cause: the earlier litigation history; the existence and terms of the interim and final orders; the fact of the five individuals’ change of allegiance on 21 June 2002; the publication of the Fourth Amendment Bill; and the swearing-in of replacements on 23 October 2002. The dispute turned chiefly on whether those subsequent events could legally justify variation or supplementation of the Court’s earlier final order.

3. Legal Issues

The central legal questions were whether, and in what circumstances, the Constitutional Court could vary, clarify, supplement, or extend a final order it had made on 4 October 2002 declaring legislation invalid (and regulating interim consequences), particularly where the relevant interim protection had expired by effluxion of time.

A related legal question was whether the relief sought by the ANC—although framed as an extension of the Court’s prior order—was in substance an attempt to obtain fresh mandatory relief reinstating persons who had lost seats after the expiry of interim protection, and whether such relief could be granted consistently with the prior declaration that the Membership Act was invalid.

The Minister’s application raised a further question concerning interpretation of the 4 October 2002 order: whether the Court’s order had limited retrospective effect only up to 22 October 2002, or whether the order should instead be read literally as operating retrospectively (subject only to the temporary “breathing space” protection afforded by the continuation of certain interim paragraphs until 22 October 2002).

In character, these questions were primarily questions of law (the doctrine of finality and variation of orders; interpretation of the Court’s own order; the scope of remedial powers), and questions of the application of legal principles to an agreed sequence of events, rather than disputes of primary fact.

4. Court’s Reasoning

The Court first addressed the Minister’s request to “intervene”. Because the Minister was already a party to the proceedings, the Court held that no intervention was necessary. The Minister was entitled to seek different relief from that sought by the ANC, and the application was treated as a counter-application, permitted in application proceedings by Rule 6(7)(a) of the Uniform Rules as adopted for Constitutional Court proceedings.

On direct access and urgency, the Court accepted that the relief sought concerned the variation of a Constitutional Court order in a matter involving constitutional amendment-related issues. As the Court with jurisdiction to determine such issues, and given the importance of the matter and the fact that there had been full argument, the Court held it was in the interests of justice to resolve the dispute expeditiously.

Turning to the ANC’s application, the Court emphasised the limited power of a court to vary its orders after they have been made, drawing on the principle of finality in litigation and the doctrine that, once a court has pronounced a final order, it becomes functus officio. The Court relied on its earlier decision in Minister of Justice v Ntuli (and the summary of common-law principles in Firestone South Africa (Pty) Ltd v Genticuro AG) to describe recognised exceptions permitting variation, such as clarifying ambiguities, correcting errors of expression, dealing with accessory or consequential matters inadvertently omitted, or correcting costs orders made without hearing argument. Even assuming a residual discretionary power beyond those categories, the Court reiterated that any such power must be exercised very sparingly to avoid undermining finality.

Applying these principles, the Court noted that the ANC did not contend that the 4 October 2002 order was ambiguous, uncertain, or the product of oversight or inadvertent omission. The ANC’s case accepted that the order had retrospective effect and that once the limited interim protection expired, members who were no longer members of the nominating parties would cease to be members of the KwaZulu-Natal legislature. The ANC nevertheless sought reinstatement or continued protection based on the publication of the Fourth Amendment Bill, characterising that publication as a “changed circumstance”.

The Court rejected this basis for variation. It characterised the ANC’s application, notwithstanding its form, as substantive mandatory relief aimed at protecting or restoring persons who had lost seats after acting under the mistaken assumption that the Membership Act was valid. The Court held that the claim was not founded on an existing right of those persons but on an assumption that the Constitution would in future be amended and that such amendment would restore them. The Court found no proper basis for that assumption and held that even if a bill proposing such amendment had been published or introduced, that did not provide legal grounds for varying the Court’s final order. Granting the relief would, in substance, give effect to a statutory scheme (the Membership Act) that had been declared invalid.

The Court accepted that it might be unfortunate that the affected individuals were prejudiced by reliance on the Membership Act. However, it held that once they had chosen to leave the parties that nominated them, the constitutional consequences followed. The Court also declined to restrain potential political consequences (such as a possible reconstitution of the Executive Council of KwaZulu-Natal), holding that such developments would result from political decisions regulated by the Constitution, and that the Court had no basis to prevent them merely because a constitutional amendment might be enacted in future.

In relation to the Minister’s application, the Court dealt first with the contention that the prior order required “clarification”, particularly regarding the relationship between the retrospective invalidity of the Membership Act and the continued operation of interim protections until 22 October 2002. The Court observed that any difference between the Minister’s interpretation and those of the other parties was, on the argument ultimately advanced, of limited practical significance, especially given the Minister’s acceptance that the affected members could not remain members after 22 October 2002. More fundamentally, the Court held that a mere difference in understanding did not in itself justify an order clarifying, correcting, or supplementing a final order.

The Court endorsed the respondents’ explanation of the function of paragraph 4 of the 4 October 2002 order (which preserved elements of interim protection): it served to provide a short “breathing space” to allow parties and affected members to consider the judgment and rearrange their affairs in light of the fact that membership could end shortly thereafter. On this reading, there was no ambiguity and no reason to depart from the literal meaning of the order.

The Court also rejected the Minister’s submission that the Court should supplement its earlier judgment to address the validity of decisions taken by the KwaZulu-Natal legislature during the interim protection period, or the rights and privileges of affected members during that time. The Court considered that these issues were not raised by affected members seeking relief, no specific decisions were challenged, and the Minister had not demonstrated a concrete interest affected by any such decision. The Court declined to pronounce on abstract or hypothetical disputes.

Finally, addressing the Minister’s alternative request to extend the limitation of retrospective effect to 31 March 2003 (and related relief), the Court held that the Minister was in effect seeking an order that would, pending a possible constitutional amendment, reinstate those who lost seats and remove their replacements. The Court identified two obstacles. First, the relevant protective period in the earlier order had already expired, and even if the power to extend an order after expiry existed (a matter doubted but left open in Ntuli), it would have to be exercised only very sparingly. The Court found no circumstances justifying so drastic an order. Second, the Court held that the Minister’s concerns stemmed from the proposal to enact a retrospective constitutional amendment, not from the Court’s earlier order, and that there were no grounds for the Court to amend its order to facilitate such an amendment or mitigate consequences of parliamentary choices. Those were matters for Parliament.

5. Outcome and Relief

The Constitutional Court dismissed both the ANC’s application and the Minister’s counter-application.

The Court ordered that the respondents’ costs be paid by the ANC and the Minister jointly and severally, and that the costs order include the costs of two counsel.

Cases Cited

Minister of Justice v Ntuli [1997] ZACC 7; 1997 (3) SA 772 (CC); 1997 (6) BCLR 677 (CC). Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A). Ex Parte Women’s Legal Centre: In re Moise v Greater Germiston Transitional Local Council 2001 (4) SA 1288 (CC). United Democratic Movement v President of the Republic of South Africa and Others (1) CCT 23/02 (Constitutional Court, as yet unreported at the time). President of the Republic of South Africa and Others v United Democratic Movement CCT 23/02 (Constitutional Court, as yet unreported at the time). United Democratic Movement v President of the Republic of South Africa and Others (2) CCT 23/02 (Constitutional Court, as yet unreported at the time).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (in particular section 74(5), section 74(6), and section 74(7)). Constitution of the Republic of South Africa Amendment Act 18 of 2002. Local Government: Municipal Structures Amendment Act 20 of 2002. Constitution of the Republic of South Africa Second Amendment Act 21 of 2002. Loss or Retention of Membership of National and Provincial Legislatures Act 22 of 2002. Constitution of the Republic of South Africa Fourth Amendment Bill, 2002 (published for comment in Government Gazette 29341 of 11 October 2002).

Rules of Court Cited

Rule 28 of the Rules of the Constitutional Court (adopting the Uniform Rules in relevant respects). Rule 6(7)(a) of the Uniform Rules of Court.

Held

The Court held that neither the ANC nor the Minister established a lawful basis for the Constitutional Court to vary, clarify, supplement, or extend its earlier final order of 4 October 2002 concerning the consequences of the invalidity of the Membership Act.

The Court held that the ANC’s request, although framed as a variation, amounted in substance to a request for fresh mandatory relief premised on anticipated future constitutional amendment, which could not justify altering the consequences of legislation already declared invalid.

The Court held that the Minister had not shown any ambiguity in the earlier order requiring clarification, nor grounds for limiting retrospectivity or extending interim protections after their expiry, particularly where the concerns raised were tied to possible future legislative choices that were matters for Parliament.

LEGAL PRINCIPLES

The judgment applied the principle that a court that has delivered a final judgment or order is generally functus officio and lacks authority to alter, correct, or supplement that order, subject only to narrow recognised exceptions. These exceptions include clarifying ambiguities, correcting errors of expression, dealing with accessory or consequential matters inadvertently omitted, and adjusting costs orders where argument was not heard, with any broader discretionary power (if it exists) to be exercised very sparingly in light of the public policy requirement of finality in litigation.

The judgment further applied the principle that speculative future events, including the publication or possible enactment of a constitutional amendment bill, do not ordinarily constitute a legal basis to vary a final constitutional order, especially where the practical effect would be to preserve or revive the operation of provisions previously declared unconstitutional and invalid.

The judgment also reflected the approach that interim protective orders accompanying constitutional invalidity may legitimately serve as a limited breathing space to allow affected parties to consider the implications of a judgment and arrange their affairs, without altering the ultimate constitutional consequences once that limited period expires.

African National Congress v United Democratic Movement and Others (Krog and Others Intervening) (CCT43/02) [2002] ZACC 24; 2003 (1) SA 533; 2003 (1) BCLR 1 (19 November 2002)