CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 73/03
XOLISILE ZONDI Applicant
versus
MEMBER OF THE EXECUTIVE COUNCIL FOR
TRADITIONAL AND LOCAL GOVERNMENT AFFAIRS First Respondent
WILLIE STEENBURG Second Respondent
KOBUS BOTHA Third Respondent
RICHARD COOK Fourth Respondent
Heard on : 8 November 2005
Decided on : 29 November 2005
JUDGMENT
NGCOBO J:
Introduction
[1] This case concerns the power of this Court to vary and extend the period of
suspension of a declaration of invalidity. It is a sequel to our decision in the matter of
Zondi v Member of the Executive Council for Tradi tional and Local Government
NGCOBO J
Affairs and Others1 (the original application) in whic h judgment was handed down on
15 October 2004. In that case we were co ncerned with the constitutional validity of,
among other provisions, the pr ovisions of s ections 16(1), 29(1), 33, 34 an d 37 of the
Pound Ordinance (KwaZulu-Natal), 1947 2 (the Ordinance). These provisions, and
others not relevant for present pur poses, were challenged by Mrs Zondi, the applicant
in that case, on am ong ot her grounds, the gr ounds that they were inconsistent with
sections 34 and 9(3) of the Constitution.
[2]
This constitutional challenge was upheld. The C ourt thereafter made an or der
that:
“(a) The MEC’s non-compliance with the Rules of this Court is condoned.
(b) The application for leave to appeal is granted.
(c) The appeal is upheld in part and dismissed in part.
(d) The application for leave to lead furt her evidence i s refused and there is no
order for costs.
(e) Paragraph 1 of the order of the High C ourt is set aside and is replaced by the
following:
(1) Sections 16(1), 29(1), 33, 34 and 37 of the ordinance are declared to
be inconsistent with the Constitution and therefore invalid;
(2) the declaration of invalidity made in subpara ( e)(1) above is
suspended for a period of 12 m onths from the date of this order to
enable the Provincial Legislature of KwaZulu-Natal to correct the
inconsistency that has resulted in the declaration of invalidity; and
(3) pending the enactment of legisla tion contemplated in subpara (e)(2)
above:
1 Zondi v MEC fo r Trad itional an d Lo cal Go vernment Affa irs and Ot hers 20 05 (3 ) SA 589 ( CC); 2005 (4 )
BCLR 347 (CC).
2 No. 32 of 1947.
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(i) The notice contem plated in s 16(1) of th e ordinance shall be
given to st ockowners who are kno wn or who, with the
exercise of reasonable diligence, could be ascertained.
(ii) All sales pursuant to the provisions of s 34 of the ordinance
shall be au thorised b y the magistrate’s court having
jurisdiction over the area where the relevant po und is
situated.
(iii) No sale pursuant to s 34 shall be authorised unless:
(aa) the poundkeeper, on notice to the stockowner, who is
known or who, with the exercise of reasonable
diligence can be ascer tained, lodges with a
magistrate’s court havin g jurisdiction over the area
where the re levant pound is situated, a state ment
setting forth all the amounts due under the ordinance;
(bb) the am ounts set forth in the statement by t he
poundkeeper are not disputed b y th e stockowner
within seven days of such notice; and
(cc) the magistrate is satisfied that notice ha d been given
to the stockowner, or that, with the exercise o f
reasonable diligence, the stockowner cannot be
ascertained.
(iv) Where the amounts set forth in the statement of the
poundkeeper are disputed, the magistrate shall summarily
enquire into the matter, following suc h procedure as seems
fair to the parties, and make such order as the magistrate
considers just, including the order for costs.
(f) The orders in para (e) above shall co me into effect on the date of this
judgment.
(g) Should the P rovincial Legislature of KwaZulu-Natal fail to rem edy
the unconstitutionality in the sections declared to be inconsistent with
the Constituti on in terms of subpara (e)(1) above within the period
referred in subpara (e)(2), any interested person or organisation may ,
before the expir y of that period, ap ply to t his Co urt for a furt her
suspension of the declaration of invalidit y an d/or an y ot her
appropriate further relief.
(h) Mrs Zondi is awarded costs of the appeal.
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(i) There will b e no order for costs in relation to the application for
direct access which was dismissed by the Court on 9 March 2004.”
[3]
[4]
[5]
On 23 September 2005 – 15 days before the date specified in the original order
– the Member of the Executive Counc il for Traditional and Local Government
Affairs, KwaZulu- Natal (the MEC) w ho wa s the first respondent in the original
application, lodged wit h the Regis trar of this Court an applica tion purportedly under
Rule 11. It stated that the MEC intended to make an app lication to this Court for an
order in the following terms:
“An Order varying paragraph (e)(2 ) of t his Court’s Order in Zondi v M EC for Local
Government and Traditional Affairs 2005 (3) SA 589 (CC) (CCT Case No: 73/03) to
extend the period of suspension of declaration of invalidity from 12 to 24 months.”
That application concluded with a request that “the matt er be placed before the
Chief Justice to be dealt with in terms of Rule 11(4)”. Under that sub-rule, where no
notice of opposition is given or where the notice to oppose is given but no a nswering
affidavit is lodged in respon se to an application, within the time limits prescribed by
the rules, the Chief Justice may give directions as to how the application shall be dealt
with.
Mr Lionel Errol Pienaar, the Gene ral Manager in th e KwaZulu-Natal
Department of Local Government and Traditional Affairs (the Department) deposed to
an affidavit in support of the application.
The procedure followed by the MEC
4
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[6]
[7]
Rule 11 deals with the application proced ure in general. Sub- rule 11(1)( b)
which deal s with the form and c ontent of s uch a pplication provi des, am ong other
things, that such application
“ . . . shall set forth a day , not less th an five da ys after service thereof on the
respondent, on or before which such responde nt is required to notify the applicant in
writing whether he or she intends to oppose such application and shall furthe r state
that if no such notification is given, the Registrar will be requested to place the matter
before the Chief Justice to be dealt with in terms of subrule (4).”3
The application lodged by the M EC does not set out the time limits referred to
in sub-rule 11(1)(b). A request to the Regi strar to place the matter before the Chief
Justice under Rule 11 can only be m ade upon t he failure by the responde nt either to
give notice of intention to o ppose or having given such notice, the respondent fails to
lodge the answering affidavit within the period set out in the notice of motion. This is
done in terms of Rule 11(3)(c)(i).4 Having failed to set out the time limits required by
sub-rule 11(1)(b), the matter c ould not be placed before the Chief Justice pursuant to
sub-rule 11(4). The on ly basis upon which the matter could have been placed before
the Chief Justice would have been if the application was lodged as one of ur gency in
terms of Rule 12. The appl ication wa s not l odged i n ter ms of Rule 12,
3 Rule 11(4) of the Rules of the Constitutional Court provides:
“When an application is placed be fore the Chief Justice in term s of subrule (3)(c), he or she
shall g ive d irections as to ho w th e ap plication shall b e dealt with an d, in p articular, as to
whether it shall be set down for hearing or whether it shall be dealt with on the basis of written
argument or summarily on the basis of the information contained in the affidavits.”
4 Rule 11(3)(c)(i) of the Rules of the Constitutional Court provides:
“Where no notice of opposition is given or where no answering affidavit in terms of paragraph
(a)(ii) is lodged within the time referred to in paragraph (a)(ii), the Registrar shall within five
days of the expiry thereof place the application before the Chief Justice.”
5
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notwithstanding the urgency involved. During oral argument, counsel could not offer
any explanation as to why this was not done.
[8]
[9]
[10]
The pr ocedure f ollowed by t he M EC was not in acco rdance with the
requirements of Rule 11.
The interim order of 4 October 2005
In order to protect the interests of persons who might be prejudiced if the period
of suspension fixed in the original order was not extended and in order to consider the
underlying constitutional issu es, on 4 October 2005, the Court, on its own motion,
made an order that:
“Paragraph (e)(2) of the Order of this Court made o n 15 October 2004 is varied and
the period o f suspension of the declaration of invalidit y is extended unt il 30
November 2005.”
Simultaneously, the Chief Justice issued directions setting t he matter down for
hearing on 8 Novem ber 2005; requiring Mrs Zondi, the applican t in the original
application, to lodge her answer ing affida vit by 19 October 2005 if she wished to
oppose the application; and setting out the periods for the filing of written arguments.
The parties were also directed to addr ess, am ongst other issues, the followi ng
questions in their written argum ents: (a) the circum stances unde r whic h thi s Court
may extend the period of suspension of the declaration of invalidity in the light of our
decision in Minister of Justice v Ntuli 1997 (3) SA 772 (CC); and (b) in the absence of
paragraph (g) of the or iginal order of this Court made on 15 October 2004 w ould this
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Court have the powe r to e xtend t he peri od of suspension of the declaration of
invalidity?
[11]
[12]
[13]
Notwithstanding the defect referred to above, this matter is an appropriate
matter to be heard under Rule 12, which provides:
“(1) In urgent ap plications, th e Chief Justice may dispense with the for ms an d
service provided for i n these rules and may give directions for th e matter to be dealt
with at such t ime and in such manner and in accordance with such procedure, which
shall as far as is practicable be in accordance with these rules, as may be appropriate.
(2) An application in term s of subrule (1) shall on notice of motion be
accompanied by an affidavit setting forth e xplicitly the circu mstances that justify a
departure from the ordinary procedures.”
Mrs Zondi has since been given the opportun ity to oppose the present application if
she wishes to do so. She ha s chosen not to do so. Th e matter must therefore be
treated as an unopposed application to vary and extend the period of suspension of the
declaration of invalidi ty fixed in paragraph (e)(2) of the original order of t his Court
made on 15 October 2004.
Facts in support of the application
In his affidavit requesting an e xtension of the period of susp ension, Mr Pienaar
outlines the steps taken thus fa r to comply with the original order and the anticipated
future process. In addition, he provides an explanation for the delay.
It appears from this affidavit that after the judgment of this Court in the original
application was studied, it became apparent th at the original Bill that was in existence
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at the time of the original application, di d not address the issues dealt with in the
judgment of this Cour t in the original app lication. In addition, after its publ ication,
the original Bill had “generated much controversy”. In the light of this, it was decided
“to jettison” that Bill and to recommence the process of drafting the legislation. In
addition, it was decided to draft standa rd by-laws for adoption by municipalities
which did not have t he resources or funds t o compile their own by-laws. This was
apparently done because th e “Pounds” fall within the competence of municipalities. 5
There is no indication of the dates when these decisions were made.
[14]
It was decided furt her that the draf ting process woul d be undertaken by a
“service provider”. The “service provider” was to be responsible for co-ordinating the
drafting of the standard by-l aws and t he relevant legisl ation, m anagement of t he
consultation and publi c participation process, the analys is of comments received and
the drafting of the fina l versions of the le gislation and t he standard by-laws. Duri ng
March 2005 the Department advertised the position of the “service provider”. No
applicants were forthcoming. The position was re-advertised on 15 May 2005. There
5 In terms of Schedule 5 Part B o f the Constitution “Pounds” fall within the competence of local government
matters to th e ex tent set o ut in sectio ns 1 55(6)(a) and (7 ) of th e C onstitution. These pro visions of th e
Constitution in turn provide:
“(6) Each provincial government must establish municipalities in its province in a manner
consistent with the legislation enacted in terms of subsections (2) and (3) and, by legislative or
other measures, must—
(a) provide for the monitoring and support of local government in the province;
(b) . . .
(7) The national government, subject to section 44, and the provincial governments have
the legislative and executive authority to see to the effective performance by municipalities of
their functions in respect of matters listed in Schedules 4 and 5, by regulating the exercise by
municipalities of their executive authority referred to in section 156(1).”
8
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were applicants this time. Although the “service provider” was selected dur ing June
2005, the “service provider” was only formally appointed on 18 July 2005.
[15]
[16]
The delay in the appointment of the “service provi der” is attributed to the fact
that the Departm ent under went s ignificant c hanges dur ing t his pe riod i ncluding t he
appointment of a ne w M EC i n Decem ber 2004, t he appoi ntment of a new
departmental head in March 2005 and th e restructuring pr ogram which t ook place
within the Department. It is alleged that as a result of this, the appoin tment of the
“service provider” and its ultimate formal approval took much more time than had
been anticipated. It had been anticipated th at the draft standard by-laws and the draft
legislation would ha ve been c ompleted by February 2005. The internal deadlines
proved impossible to meet.
We are told that because of the dela y in the appointmen t of the “service
provider” “and other delays brought on by the service pr ovider, it was decided not to
utilise the service provider to dr aft the ne w legislation.” The Department took over
the drafting of the legislation and left the “service provider” to draft the standard by-
laws. Neither the dates when these decisions were taken nor the na ture of the “other
delays” by the “service provider” are set out. The draft Bill was completed “by the
end of July 2005” w hile the standard by -laws were com pleted “during early August
2005.”
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[17]
[18]
[19]
As to the anticipated future process, Mr Pienaar outlines the legislative process
through which the Bill has to go. This pr ocess includes: holding consultations with
the S outh African Local Governm ent A ssociation and the KwaZulu-Natal Local
Government Association; the publication of the Bill for comments; its consideration
by the office of the Premier, the state le gal advisors, the Portfolio Committee and
eventually the Provincial Legislature; and assent to the Bill by the Premier.
The draft Bill has since gone through the office of the Prem ier and was
published for comment on 22 September 2005. At the time of preparing the affidavit,
it was anticipated that the public comment procedure would be completed towards the
end of Oct ober 2005, whereafter the com ments would be consider ed and a ppropriate
changes made to the Bill and the by-laws, if necessary. It is anticipated that the
process of analysing the comments received and any consequential drafting w ould be
completed by the end of Nove mber 2005, provided that no major redrafting is
required. Thereafter the Bill would be subm itted to the State Law Advisor for
certification in accordance with the provincial legislative process.
After certification by the State Law Advi sor, the Bill will be submitted to the
Executive Council for an “in pri nciple” approval. O nce the “in principle” approval
has been obtained from the Executive Council, the Bill will return to the Departmen t
which will then prepare all necessary doc umentation required for the Speaker to
introduce the Bill in the Legi slature. The Speaker will first refer the Bill to the
relevant Portfolio Committee for its consideration. It is expected that this process will
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be over by the end of Februa ry 2006. Thereafter, th e Bill will be referred to the
Provincial Legislature for approval.
[20]
[21]
The KwaZulu-Natal Provincial Legislature will hold its first sitting during mid-
February 2006. It is not known how long the Portfolio Committee will take to process
the Bill. On the assumption that the Bill will receive immediate attention in the
Provincial Legislature and will not prove too controversial, it is an ticipated that it will
be approved by the Legislature at the beginning of March 2006. Mr Pienaar notes that
the Legislature might decide to hold public hearings on the matter, given that it is a
sensitive matter. This might prolong th e process by approximately two further
months. On this assumption the Bill will be approved by the Le gislature by June
2006, it will then be sent to the Premier for assent. On these assumptions, Mr Pienaar
estimates that the Bill will become law by the end of June 2006.
However Mr Pienaar sounds a note of cauti on, observing that “the passage of
legislation is not alwa ys uncomplicated or uncontroversial.” He draws attention to a
legislation which, because of its controversial nature, took over 24 months to finalise.
Giving due allowance for unpredicted events and any delays in the political process
and public notice and com ment processes, Mr Pienaar predicts that a further 12
months suspension would be adequate to en able the Legislature to pass the remedial
legislation contemplated in paragraph (e)(2) of the original order of this Court.
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[22]
[23]
[24]
[25]
Mr Pienaar alleges that the MEC only “rea lised during the co urse of July 2005
that it was perilously close to not comply ing with the period of 12 m onths in the
order.” Subsequently, steps were taken to approach this Court for the extension of the
period of suspension.
This then is the background to this application.
Questions presented
The questions w hich have to be considere d are: (a) whether this Court has the
power to vary and e xtend the period of suspension previously fixed in the fi nal order
declaring the provisions of the O rdinance to be invalid and if so , (b) whether it is a
power which should be exercised in the circumstances of this case. The first question
arises because in the directions the parties were directed to address the broad question
whether in the absence of paragraph (g) of the ori ginal order this Court w ould have
the power to extend the period of s uspension of the declaration of invalidity.
Paragraph (g) allows any interested person to apply to this Court for the extension of
the period of suspension before the expiry of that period.
The question whether this Court has the power to extend the period previously
fixed in the declaration of invalidity is an important constitutio nal question. And it
concerns the powers of this Court wh en deciding a constitutional matter. In Ntuli this
Court assum ed without decidi ng that the pe riod of suspension of invalidity m ay be
12
NGCOBO J
varied in an appropriate case. 6 Nor did t he Court decide whet her an application t o
extend the period of s uspension of the declaration of i nvalidity falls to be determined
under the Court’s power to make a “just and equitable” order (section 172(1)(b)) or its
power to “develop the common law, taking into account the interests of justice”
(section 173).
[26]
[27]
In view of this, the Chief Justice called for argument on the question whether in
the absence of paragr aph (g) of the origi nal order of t his Court made on 15 Oct ober
2004, this Court w ould ha ve the power to extend the period of suspension of the
declaration of invalidi ty. Argum ent was addr essed to us on this question. I n these
circumstances it is n ecessary for this Court to deal with this qu estion. It will be
convenient to address this br oad question firs t, before co nsidering the powers of this
Court to vary the period of suspension under paragraph (g) of the original order.
Does this Court have the power to extend the period of suspension of the declaration
of invalidity in the absence of an order similar to paragraph (g)?
The common law position
The MEC contended that in the absence of paragraph (g) of the ori ginal order,
this Court would have the power to extend the period of suspension of the declaration
of invalidity. In urging this power on this Court, the MEC relied upon the common
law and sections 172(1) and 173 of the Constitution.
6 Minister of Justice v Ntuli 1997 (3) SA 772 (CC); 1997 (6) BCLR 677 (CC) at para 30.
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[28]
[29]
Under common law the general rule is th at a judge has no a uthority to am end
his or her ow n final order. The rationale for this principle is two -fold. In the first
place a judge who has given a final order is functus officio. Once a judge ha s fully
exercised his or her jurisdiction, his or he r authority over the subject matter ceases. 7
The other equally important consideration is the public interest in bringing litigation to
finality.8 The parties m ust be assured that once an order of court has been m ade, it is
final and they can arrange their affairs in accordance with that order.
However our pre-constitutional case law re cognised certain exceptions to this
general rule. These exceptio ns are referred to in the Firestone case. These are
supplementing accessory or cons equential matters such as co sts orders or interest on
judgment debts; clarification of a judgm ent or order so as to give effect to the court’s
true intention; correcting clerical, arithmetical or other errors in its judgment or order;
and altering an order for costs where it was made without hearing the parties. 9 T his
list of exceptions wa s not c onsidered e xhaustive. It may be extended to meet the
exigencies of modern times.10
7 West Rand Es tates Ltd v N ew Zealand Insurance Co Ltd 1926 AD 173 at 178 per I nnes CJ; Firestone South
Africa (Pty) Ltd v Genticuro A.G. 1977 (4) SA 298 (A) at 306F-G.
8 Ntuli above n 6 at para 29; Firestone id at 309A.
9 Firestone id at 306H-307G.
10 Firestone id at 308B-D; Ex parte Barclays Bank 1936 AD 481 at 48 5; Estate Garlick v Co mmissioner for
Inland Revenue 1934 AD 499 at 503-4.
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[30]
[31]
Simple int erlocutory orders stand on a diff erent foot ing. These are ope n to
reconsideration, variation or rescission on good cause shown.11 Courts have exercised
the power to vary simple interlocutory orders when the facts on which the orders were
based have changed12 or where the orders were based on an incorrect interpretation of
a statute which only b ecame apparent later.13 The rationale for hol ding interlocutory
orders to be subject to variation seems to be their very nature. They do not dispose of
any issue or any portion of the issue in the main action.14
In South Cape Corporation, it was held that the granting of an order for leave to
execute, which is a simple in terlocutory order, is within a wide general discretion of
the court.15 And these orders are gran ted by courts as part and parcel of their inherent
jurisdiction to control their judgments. 16 In exercising their discretion, courts are
required to determine what is just and equitable in the circumstances of the particular
case.17 In particular, they have regard to th e potentiality of irreparable harm if leave
to execute were to be granted or refused.18 The court further held that:
11 South Cape Corporation ( Pty) Lt d v En gineering Management Servi ces ( Pty) Lt d 1977 (3) SA 5 34 (A) at
550H; Duncan NO v Minister of Law and Order 1985 (4) SA 1 (T) at 3A; Bell v Bell 1908 TS 887 at 891-3.
12 Sandell and Others v Jacobs and Another 1970 (4) SA 630 (SWA); Meyer v Meyer 1948 (1) SA 484 (T).
13 Duncan above n 11 at 3D.
14 South Cape Corporation above n 11 at 552G.
15 Id at 545C.
16 Id at 545D.
17 Id.
18 Id at 545E.
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“Having regard, however, to the general natu re of the discretion vested in the Court
which makes such an order . . . it seems to me to be wholly appropriate that an order
granting leave to execute should , in a proper case, be subject to correction, alteration
or even to being set aside before the final determination of the matter on appeal.”19
[32]
[33]
An analysis of our pre-constitutional ca se law suggests that these exceptions
were grounded on at least two interrelated considerations. The first was the need to do
justice. S upport for this is to be found in the West Rand Estates case, which is
probably the first case in wh ich the Appellate Division was called upon t o consider
whether it had the power to am end its order. In that case the Appellate Division had
inadvertently omitted to award in terest that had been claime d to a successful litigant.
In amending the order, the court concluded that “the only course to pursue is to adopt
the one which justice demands”.20 The court observed that “the Court is merely doing
justice between the s ame parties”. 21 And i t added t hat th is “is a plain matter o f
necessity and justice.” 22 S ubsequent case law di d no t suggest otherwise. This
language m akes it plain that in am ending its order, the court wa s m otivated by t he
need to do justice.
The other consideration relates to th e need to adapt common law to the
changing times and circumstances. In West Rand Estates, and in dealing with the time
limit for prescription of one day within which the amendment of an order was allowed
19 Id at 552E-F.
20 West Rand Estates above n 7 at 193.
21 Id at 194.
22 Id.
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under common law, the court observed that what was considered to be an expedient or
reasonable time previously may not be expedient or reasonable at the present tim e. It
added that “[t]im e and circum stances bring a bout c hange a nd de velopment; and
modern exigencies and conditions may well require the observance of a longer period
of prescription.” 23 T hus i n Estate Garlick the court adapted com mon law ex
necessitate rei to meet the modern exigencies ca used by the prac tice of m aking the
costs orders without hearing argument.24
[34]
What emerges from our pre-cons titutional era jurisprudence is that the general
rule that an or der once m ade is unaltera ble was departed from when it was in the
interests of justice to do so and where th ere was a need to ad apt the common law to
changing circumstances and to meet modern exigencies. It is equally clear from the
case law that in departing from the general rule, the court invoked its inherent power
to regulate its own process. Thus in West Rand Estates, the court held that:
“It is within the provi nce of this Court to regulate i ts own procedure in m atters of
adjective law. And, now that the point has come before it for decision, to lay down a
definite rule of practice. I am of opinio n that the proper rule should be that wh ich I
have just stated. The Court, by acting in this way, does not in s ubstance and effect
alter or undo its previously pronounced sentence, within the m eaning of t he Roman
and Rom an-Dutch law. The sanctity of t he doctrine of res judicata remains
unimpaired and of full f orce, for the Court is merely doing justice between th e same
parties, on the same pleadings in the same suit, on a clai m which it has inadvertently
overlooked.”25
23 Id at 193.
24 Firestone above n 7 at 308H; Estate Garlick above n 10 at 503-4.
25 West Rand Estates above n 7 at 194.
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[35]
[36]
[37]
This approach to the general rule by th e Appellant Division is consistent w ith
the Constitution. It is now entrenched in section 173 of the Constitution which
provides that:
“The Constitutional Court , Suprem e Court of Appeal and High Courts ha ve the
inherent power to protect and regulate their own process, and to develop the co mmon
law, taking into account the interests of justice.”
There is therefore much to be said for the view that common law, viewed in the
light of section 173 of the Constitution, provides the po wer to extend the period of
suspension of t he declaration of i nvalidity as contended by the M EC.26 This will of
course require us to consider w hether common law s hould now be de veloped in t he
interests of justice to bring it in line wi th the powers of this Court in deciding
constitutional matters. However, in the view we take of the matter, it not necessary to
do so. The MEC c ontended in the alternativ e that the power to e xtend the period of
suspension is to be found in section 172(1) which deals with the powers of this Court
in deciding a constitutional matter within its jurisdiction.
The position under the Constitution
An application to vary an order declaring the provisions of the Ordinance to be
invalid is either a constitutional matter or an issue connected with a decision on a
constitutional matter. And, as such, it is within the jurisdiction of this Court. 27 T he
26 Ntuli above n 6 at para 31.
27 Ntuli above n 6 at para 31; section 167(3)(b) and (c) of the Constitution provides:
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powers of this Court whe n deci ding a m atter within its jurisdiction are set out in
section 172(1) of the Constitution which reads:
“(1) When deciding a constitutional matter within its power, a court—
(a) must declare that any law or cond uct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including—
(i) an order limiting the retrospective effect of the declaration of
invalidity; and
(ii) an order sus pending the declaration of invalidit y f or an y
period and on an y con ditions, to a llow the com petent
authority to correct the defect.”
[38]
The question whet her this Court has the power to extend the period of
suspension of the declaration of invalidity must therefore be determined by reference
to section 172( 1). A mong the powers conferred on this Court whe n deciding a
constitutional matter is the power to “make any order that is just and equitable”. This
power includes the power to su spend “the declaration of invalidity for any period and
on any conditions, t o allow the competent authority to correct the defect.” Indeed in
the exercise of this power, the Court in the origina l application m ade an or der
suspending the declaration of invalidity fo r a period of 12 m onths to all ow t he
KwaZulu-Natal Provincial Legislature to correct the constitutional defects in the
Ordinance.
“(3) The Constitutional Court—
(b) may decide only constitutional matters, and issues connected with decisions
on constitutional matters; and
(c) makes th e final d ecision wh ether a matter is a co nstitutional m atter o r
whether an issue is connected with a decision on a constitutional matter.”
19
NGCOBO J
[39]
[40]
The question t hat arises is whether havi ng considered it just and equitable t o
suspend the order of invalidity for a fixed period this Court can extend that period. By
its very nature an order that is “ju st and equitable” in the context of the suspens ion of
a declaration of i nvalidity is subject to vari ation. Thi s is so because the de cision to
suspend the declaration of in validity, the determination of the period of suspension as
well as the conditions to be attached to such suspension, are informed by the facts and
circumstances that are at the disposal of th e Court at the time the order is made. New
facts may emerge or circumstan ces may ch ange and render the period of suspensio n
previously fixed to be unjust or inequitable. In these ci rcumstances, this Court not
only has the power but also has t he obligation under its just and equitable jurisdiction
to vary that period of susp ension and the conditions att ached to the suspension, if
necessary, to reflect the justice and equity required by the facts of the case.
The power to m ake an order that is just and equitabl e is not limited to the time
when the Court declares a st atutory provision inconsistent with the Constitution and
suspends the order of invalidity. During th e period of suspension this Court retains
the power to reconsider the continued sus pension of the declaration of invalidi ty and
the period of suspensi on as well as the conditi ons of suspension in the exercise of its
power to make an order that is just and equitable. When the facts on which the period
of suspension was based have changed or where the full implications of the order were
not previously apparent, there seem s to be no reason both in l ogic and pri nciple why
this Court should not, before the expiry of the period of suspension, have the power to
extend the period, if to do so would be just and equitable.
20
NGCOBO J
[41]
[42]
[43]
Our decision in Ntuli might at first reading be understood to suggest that section
172 cannot be read to perm it this Court to va ry an order suspending the period of the
declaration of invalidity afte r the declaration of invalidity. 28 In paragraph 25 t his
Court held:
“In my view subparas (a) and (b) of s 172(1) should not be read disjunctively so as to
permit a Court to order that a declaration of invalidity may be suspended in different
proceedings to those in which the declaration of invalidit y is made. They should
rather be read together to mean that when a Court declares a statutory provision
inconsistent with the Constitution t o be i nvalid, as it is required to do, it m ay also
suspend that order if there are good reasons for doing so.”
This passage m ust of course be read with paragraph 26 w hich indicates the
context in which the above holding was made. In paragraph 26 the Court said:
“The construction suggested by counsel fo r the Minister would enable a Court to
revive a statu te which it had previousl y declared to be invalid. I f such an unusual
power had been intended, I would h ave thought that it would be expressed in
language much clearer than that which has been used, and that there would at l east be
some indication of the circumstances which would have to exist to justify the exercise
of the power. As appears from what is said later in this judgm ent, however, there is
no need to decide this question, which can be left open.”
What the Court held is that it is imperm issible for a court to make a declaration
of invalidity without m aking a n order sus pending t he declaration of i nvalidity, and
then later, in different proceedings, to ma ke an order suspending the declaration of
28 Ntuli above n 6 at para 25.
21
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invalidity. The decision stresses two points: first, an order suspending the declaration
of invalidity must be made at the same time as the declaration of invalidity; and
second, if the declaration of invalidity is not suspended or the pe riod of suspensio n
has lapsed, a court has no power to suspend th e declaration of invalidity, for to do so
would be to revive the cons titutionality of a provision th at it has already declared
invalid.
[44]
[45]
The power to vary the period of susp ension flows from th e Constitution. The
suspension of an order of invalidity and allowing time to correct the constitutional
defects are sanctioned by the Cons titution. As we pointed out in Steyn, “this
mechanism is intended to avert disorders or dislocation that may arise as a result of an
immediate declaration of invalidity.”29 Having regard to the general discretion of this
Court to m ake an or der that is just and equitable and the purpose of suspending the
declaration of invalidity, in principle, this Court should have the power t o extend the
period of suspension if the period of susp ension previously fixed pr oved to be
inadequate. The power to make an order t hat is just and equitable is therefore by its
very nature a continuing power which may be exercised at any ti me during the period
of suspension when it is just and equitable.
In constitutional matters therefore the co urt has a wide general discretion to
order the extension of the period of suspe nsion of the declaration of invalidity and to
determine the conditions which shall attach to the suspension. This discretion is part
29 S v Steyn 2001 (1) SA 1146 (CC); 2001 (1) BCLR 52 (CC) at para 45.
22
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and parcel of the power which the court has in deciding constitutional matters to make
an order that is just and equitable. In de termining what is just and equitable the court
would normally have regard to the potentiality of prejudice to persons affected and the
public order if the request for extension were to be refused.
[46]
[47]
In my view, an application to extend the period of suspension of the declaration
of invalidity falls to be dealt with under th e Court’s power to m ake an or der that is
“just and equitable”. In view of this c onclusion, it is not ne cessary to consider
whether such application can also be dealt with under the court’s power to develop the
common law under s ection 173. Nor is it n ecessary in this case to develop the
common law and adapt it to the powers of this Court in deciding constitutional matters
within its jurisdiction. And as indicate d above, our pre-constitu tional jurisprudence
indicates that the power of the court to vary an order is rooted in the interests of
justice and the need to adapt the commo n law to changi ng circ umstances. And
furthermore as this Court observed in Ntuli, the determination of what is “just and
equitable” or is “in the interests of justice” involves similar consid erations. What is
just and equitable will ordinarily be in the interests of justice.30
What is just and equitabl e depe nds on the facts of each case. It m ust be
emphasised that in view of th e principle of finality, the po wer to extend the period of
suspension should, as a ge neral matter be “very sparingly exercised”. 31 Factors that
30 Ntuli above n 6 at para 31.
31 Firestone above n 7 at 309A.
23
NGCOBO J
may be rel evant i n a particular case incl ude the sufficiency of t he expla nation for
failure to comply w ith the original period of suspen sion; the potentiality of prejudice
being sustained if the period of suspensi on were extended or not extended; the
prospects of complying with the deadline; the n eed to bring litigation to finality; and
the need to promote the constitutional project and prevent chaos. Wh at is involved is
the balancing of all relevant factors bearin g in mind that the ultim ate goal is to make
an order that is “just and equitable”.
The power of this C ourt t o extend t he peri od of sus pension of the decl aration of
invalidity under paragraph (g) of the original order
[48]
[49]
Paragraph (g) of the original Order reads:
“Should the Provincial Legislature of KwaZulu-Natal fail to rem edy the
unconstitutionality in the sections declared to be inconsistent with the Constitution in
terms of subpara (e)(1) above within the period referred in su bpara (e)(2), any
interested person or organi sation may, before the expiry of t hat period, appl y to this
Court for a further suspension of the declaration of invalidit y and/or an y other
appropriate further relief.”
It is not uncommon for a court to m ake an order and reserve to itself the power
to vary the order made.32 In the past this Court has reserved its authority to reconsider
orders for costs 33 or vary the peri od of sus pension of a declaration of invalidi ty34 or
32 For some common law cases on this see Moti v Moti and Hassim Moti Ltd 1934 TPD 428 at 443; Nedfin Bank
Ltd v Muller and Others 1981 (4) SA 229 (D) at 238H; Afrimeric Distributors (Pty) Ltd v E I R ogoff (Pty) Ltd
1948 (1) SA 569 (W) at 577.
33 Ferreira v Levin NO and Others 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC) and the follow up in Ferreira
v Levin and Others (No 2) 1996 (2) SA 621 (CC); 1996 (4) BCLR 441 (CC).
34 Ntuli above n 6 and Zondi above n 1.
24
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made further appropriate orders. 35 Thus in Steyn,36 the Court allowed the Minister of
Justice and Constitutional Deve lopment to apply to it for an order varying the terms
stipulated i n the or der or exte nding the peri od of s uspension pr ovided in the order.
Such orde rs expressly contem plate that the order m ade m ay be varied if the
circumstances warrant it. By their very natu re such orders are therefore not final.
Neither the principle of finality nor the doctrine of functus officio arise in relation to
such orders. Those who are bound by these orders know in advance that the order is
not final.
[50]
[51]
Thus where a court, in its order, adds a paragraph similar to paragraph (g), the
court is, in effect, making it plain that the order it has made is not to be understood as
final. And an order of this kind does no t preclude the court from reconsidering the
matter in relation to which it has reserved the authority to reconsider. In paragraph (g)
this Court expressly reserved to itself the power to vary and extend further the period
of suspe nsion of t he declaration of invalid ity. It follows therefore that paragraph
(e)(2) of the origi nal order of this Cour t is not final and the period of suspension
contemplated therein may be varied and extended if circumstances so warrant.
The power of this Court to make an order such as paragraph (g) is derived from
the general power of this Court when de ciding a constitutional matter within its
jurisdiction contained in sec tion 172(1) of the Constitution. This Court has a wide
35 Sibiya and Others v The Director of P ublic Prosecut ions an d Ot hers CCT 4 5/04, 7 O ctober 2005, as ye t
unreported, in which this Court extended the period of time within which a report required by it had to be filed.
36 Steyn above n 29.
25
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discretion when deciding a constitutional m atter. Its discretion includes the power to
make an order that is just and equitable. A nd an order that is just and e quitable is not
confined to suspending a declaration of invalidity. Its power to make an order that is
just and equitable is wide enough to include the power to reserve to itself the power to
reconsider the period of suspension as well as th e conditions upon which the
declaration of invalidity is suspended, and if a proper case is made out, vary the period
of suspension or the conditions attached to such suspensi on. And, as pointed out
earlier, the question whet her an order should be var ied m ust be determ ined by
reference to what is just and equitable.
[52]
[53]
In this case therefore, apart from the po wer to extend the period of suspension
under its general pow er to m ake an order that is just and equitable under section
172(1), thi s Court also has the power under paragraph ( g) of the origi nal order t o
extend the period of s uspension of the de claration of invalidity when it is just and
equitable t o do so. In view of this, this application fa lls to be determined under
paragraph (g) of the original order, whic h also requires the determ ination of what is
just and equitable. The ne xt question for c onsideration therefore is whether it is just
and equitable to vary and extend the period of suspension in this case.
Should the period of suspension be varied and extended in this case?
The manner in which this matter was conducted from the be ginning deserves
criticism. In the main application, the MEC took the attitude that it was not necessary
for the High Court to reach the constitutionality of the prov isions of the Ordinance.
26
NGCOBO J
As a result of this attitude he took a de liberate decision not to place before court
information relating to the consequences of an order of invalidity. He persisted in this
attitude notwithstanding the s pecific request to do so by the Hi gh Court. As a
consequence the High Court m ade an orde r of invalidity without su ch information.
His belated attempt to lead further evid ence in this Court was declined. The
information that was placed before this Court at the time of the original order related
to the draft Bill that was in existence then. There was no information as to how long it
would take to proces s that Bill. As a consequence the Court made the original
suspension order without the full facts rel ating to how long the process of finalising
the Bill would take.
[54] In the second place, as early as March 2005 , it must have been m anifestly clear
that the deadline would not be met. In fact, the Departme nt had anticipated that the
standard by-laws and draft legislation w ould be ready by Febr uary 2005. Mr Pienaar
states that “internal deadlin es proved impossible to m eet.” Yet the application was
only lodged on 23 September 2005. There is no explanation for this delay. We were
informed from the bar that part of the delay is attributable to a diskette that got lost in
the offices of the State Attorney, Johannesburg. The State Attorney concerned has not
put up any affidavit explaining thi s. It is undesirable in matters of this nature for an
explanation to be give n by wa y of statem ents from the bar. An explanation must b e
contained on affidavit.
27
NGCOBO J
[55]
[56]
Applications of this nature must be made within a reasonable time. It must be
made in time to allow the matter to be cons idered by this C ourt before t he expiry of
the period of suspension. Where the application is made late but c loser to the date of
the expiry of the suspension period, it m ust be brought by way of urgency in terms of
the rules of this Court. Here the applic ation was m ade barely 15 days before the
expiry date, five days before the end of Court term and there was no prayer to have the
matter heard as a m atter of urgency. The notice of motion did not set out the periods
within which Mrs Zondi was required to indicate her notice of opposition or lodge her
answering affidavit as required by Rule 11 . In the result there were no time limit s
within which the matter had to be considered . This Court had, on its own motion, to
extend the period fixed in the ori ginal order to 30 N ovember 2005 purely to preserve
the rights of the parties and to consider the underlying constitutional issues.
In the third place, the explanation given for failure to meet the deadline leaves a
great deal to be desired. It is lacking in particularity, the dates when crucial decisions
were taken being either not specified or only specified in vague terms such as “during
early August” or “by the end of July”. In addition, while the delay is attributed to the
delays in the appointment of a “service pr ovider” and the delays brought about by the
“service provider”, the change in the MEC and the restructuring of the Departm ent,
there is no indication as to what attention, if any, was given to the court or der and to
meeting the deadline in the m eantime. Nor is the re any i ndication w hether the
KwaZulu-Natal Provincial Legislature was apprised of the court order and what steps,
if any, that Legislature took to ensure timeous compliance with the court order.
28
NGCOBO J
[57]
[58]
[59]
It is alleged that the draft Bill still has to go through a process over which the
Department has no control. This process includes a consideration of the Bill by the
Executive Council, the Portfolio Committee an d the Legislature itself. In addition, it
will also invol ve holding of public hearings and a cons ideration of comments. The
officials and functi onaries who are in cont rol of these further processes have not
provided any information as to how l ong their respective pr ocesses would ta ke. N or
have these officials and f unctionaries been shown to be unwilling to provide this
information. In the result the Court has to speculate on how l ong the pr ocess will
take.
There is no s uggestion that the order has been draw n t o t he at tention of t he
KwaZulu-Natal Provincial Legislature to enab le it to consider how to expedite the
process of enacting the relevant legislation and thereafter place information before this
Court that would enable it to assess for itself the sufficiency of the period of extension
now requested. After all it is th e Legislat ure that is required by the court order to
correct the constitutional defect. And it is therefore the Legislature that m ust take
steps to ensure compliance w ith the court order. It was therefore incumbent upon the
MEC to draw the court order to the attention of the Provincial Legislature.
It is necessary to bear in mind that when a law is declared invalid it is not just
the parties to the litigation who are affected , the public as a whole has an interest,
particularly those likely to be covered by the law. What is in issue is not just potential
29
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disrespect for the time limits in the court order, but the interests of the public.
Reasons that justify or at least explain fa ilure to meet the time limits in th e court
order, must be set out fully, candi dly, timeously and i n a m anner that confor ms with
the Rules of the Court. Thos e responsible for drafting remedial legislation should not
assume that as a matter of cours e and in th e public interest an extension of the time
period will be granted. If a proper case for extension is not made out in an appropriate
way then the drafters of the new legislation must be aware that they run the risk of the
request for an extension of the period of suspension being refused.
[60]
[61]
That said however, there are factors that have com bined to produce a del ay.
When the original order was made, it was made on the basis that there was alr eady in
existence a draft Bill that woul d not take long to fi nalise. At the tim e the full
implications of the judgmen t on that draft Bill were not apparent. Having been
drafted prior to the judgment of this Court, the MEC had to reconsider the draft Bill in
the light of the judgment which dealt with the key provisions of the Pound legislation.
Having reconsidered the Bill, the MEC was compelled to jettison it, resulting in th e
process having to commence afresh. This process was bound to result in delays not
previously anticipated. We ar e also m indful of the fact th at the legislative process is
time consum ing a nd not unc omplicated. Because it invol ves hum an beings,
unforeseen delay sometimes occurs, as this case shows.
A new Bill was completed by the end of July 2005. The proposed standard by-
laws for municipalities were completed dur ing August 2005. On 22 September 2005
30
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the Bill was published for comment in th e Provincial Government Gazette. The
process seems to be well under way. There is no reason to believe that the Legislature
will not give priority to the enactment of th e relevant legislation, once the court order
is drawn to its attention, as it should have been in the first pla ce. Nor is there any
reason to doubt that the other institutions and functionaries who still have to consider
the Bill, will not expedite the Bill in view of the delay that has already occurred. This
is therefore not an appropriate case for a structural injunction.
[62]
[63]
There is a further consideration that is relevant in this case. In the main
judgment we emphasised the importance of Pound legislation and said:
“The need to take immediate action agains t trespassing anim als cannot be gainsaid.
Unattended animals may cause damage to crops and property. They could also pose
safety or heal th hazards to other ani mals and members of the public. It i s therefore
necessary to have a mechanism for deali ng quickly and effectively with ani mals
found trespassing on land or straying in public places or on publi c roads. The need
for such mechanisms must be viewed against the responsibility of livestock owners to
ensure that t heir ani mals do not trespass onto other people’ s land. If they s hould
neglect their livestock, they m ust be prep ared to pa y the price for such neglect.
Pound legisl ation is therefore necessar y t o deal with those livestock owners who
neglect their responsibilities.”37
If the relief sought in the pr esent proceedi ngs were t o be refus ed, the land
owners would be left without any protection in the interim. We considered that “a just
and equitable” order is one that “shoul d protect both the rights of stockow ners and
37 Zondi above n 1 at para 80.
31
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landowners.”38 The pr otection of landow ners requires “a mechanism for dealing
quickly and effectively with an imals found trespassin g on la nd or straying in public
places or on public roads.” 39 With this in m ind, we pu t in place an interim regime
designed to protect both the stockowners and landowners. If the period of s uspension
is not extended, the interim regime will fa ll away and the landowners would lose the
protection. The result would be chaos and lawlessness. Th e rule of law would be the
first casualty.
[64]
[65]
We are not unmindful of th e need to bring litigation to finality. This is an
important consideration too. It engend ers confidence in the rule of law and,
ultimately, in the judicial process. It is confidence that courts require to ensure
compliance with their orders. Yet this c onsideration m ust at tim es yield to t he
interests of prom oting the constitutional project . Part of that constitutional project is
to allow the KwaZulu-Natal Provincial Legislature to correct the constitutional defects
in the pound legislation but at the same time ensuring that neither stockowners nor the
landowners are unduly prejudiced in the interim.
The original order was m ade in the public interest. It was made to protect the
public from trespassing a nd str aying anim als. The powerful c onsideration in t his
matter which outweighs others is that the public will suffer considerable prejudice if
the order of suspension were not extended. There will be no mechanism for dealing
38 Id at para 130.
39 Id at para 80.
32
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immediately and effectively with trespassing and straying animals. By contrast, if the
period of suspension were ex tended, there would be no pr ejudice. The cons titutional
rights of the public ar e protected by the in terim regime that we put i n place. A nd
having regard to w here the legi slative pro cess is at present, there is no reason to
believe that a period longer than 12 months is required to finalise the legislation.
[66]
[67]
In all the circumstances, this is therefor e a proper case for the exercise of the
power to vary and ext end the period of sus pension. It is just and equitable t hat the
period of suspension of the declaration of invalidity be extended for a further period of
12 months. In the result, a relief substantially the same as that prayed for in the notice
of motion should be granted. The effect of gran ting the relief sought is that the order
made on 4 October 2005 extending the per iod of suspension to 30 Novem ber 2005
falls away.
The order
In the event, the following order is made:
Paragraph (e)(2) of t he origi nal order made by this Court in the matter of Zondi v
MEC for Traditional and Loc al Government Affairs and Others 2005 (3) SA 589
(CC); 2005 (4) BCLR 347 (CC) is varied a nd the period of suspension contemplated
in that paragraph is extended for a further period of 12 months until 15 October 2006.
33
NGCOBO J
Langa CJ, Mosene ke DCJ, Mokgor o J, O’Re gan J, Sachs J, Skweyi ya J, Van der
Westhuizen J and Yacoob J concur in the judgment of Ngcobo J.
34
For the applicant: No appearance.
For the first respondent: AJ Dickson SC a nd AA Ga briel instructed by the
State Attorney, Johannesburg.