Minister of Social Development and Others, Ex Parte (CCT14/06) [2006] ZACC 3; 2006 (4) SA 309 (CC); 2006 (5) BCLR 604 (CC) (9 March 2006)

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[2006] ZACC 3
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Minister of Social Development and Others, Ex Parte (CCT14/06) [2006] ZACC 3; 2006 (4) SA 309 (CC); 2006 (5) BCLR 604 (CC) (9 March 2006)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE CCT 14/06
Ex parte:
MINISTER OF SOCIAL DEVELOPMENT
First Applicant
MEC FOR SOCIAL DEVELOPMENT
OF THE EASTERN CAPE PROVINCE
Second Applicant
MEC FOR SOCIAL SERVICES AND
POPULATION DEVELOPMENT OF KWAZULU-NATAL Third Applicant
MEC FOR SOCIAL SERVICES AND
POPULATION DEVELOPMENT OF GAUTENG Fourth
Applicant
MEC FOR SOCIAL SERVICES AND POVERTY
ALLEVIATION OF THE WESTERN CAPE PROVINCE Fifth Applicant
MEC FOR SOCIAL SERVICES AND POPULATION
DEVELOPMENT OF THE NORTHERN CAPE PROVINCE Sixth Applicant
MEC FOR HEALTH AND WELFARE
OF LIMPOPO PROVINCE
Seventh Applicant
MEC FOR SOCIAL DEVELOPMENT
OF NORTH WEST PROVINCE
Eighth Applicant
MEC FOR SOCIAL DEVELOPMENT
OF FREE STATE PROVINCE
Ninth Applicant
MEC FOR HEALTH AND WELFARE OF MPUMALANGA Tenth Applicant
Heard on : 6 March 2006
Decided on : 9 March 2006
JUDGMENT
VAN DER WESTHUIZEN J:
Introduction
This
matter came before this Court as one of urgency. It is an ex parte
application for direct access. The applicants ask the
Court to
vary its earlier order declaring a presidential proclamation
invalid and suspending the declaration of invalidity for
eighteen
months, by ordering a further period of suspension. The issues to
be decided include the determination of the time
period stipulated
in the previous order, as well as the question whether this Court
has the power to order the suspension of
an order of invalidity
with regard to legislation which has become invalid because of the
expiry of the suspension of the invalidity.
Background
On
7 November 2003 the Pretoria High Court ordered that a presidential
proclamation, Proclamation R7 of 1996, was invalid.
1
The proclamation sought, within the framework of the allocation of
executive and legislative powers in the interim Constitution,
to
assign the administration of almost the whole of the Social
Assistance Act 59 of 1992 (the SAA) to provincial governments.
The
applicant in that matter, Mr Mashavha, who was represented by the
Legal Resources Centre, then sought from this Court confirmation
of
the order of invalidity. The first respondent, the President of
the Republic of South Africa, opposed neither the original
application, nor the application for confirmation. The other four
respondents were the Minister of Social Development and three
provincial Members of Executive Councils (MECs). Only the
KwaZulu-Natal MEC for Social Welfare and Population Development

opposed the application. The Minister of Social Development filed
an answering affidavit to place on record the facts and
circumstances
that made it appropriate to suspend the order of
invalidity, as contemplated in section 172(1)(b)(ii) of the
Constitution. The
Minister also offered to pay the applicant’s
costs.
This Court found that the proclamation was indeed unconstitutional
and invalid and confirmed the High Court’s finding of

invalidity.
2
The Court took into account submissions made on behalf of the
Minister of Justice and Constitutional Development, which indicated
that there was much uncertainty around the SAA, that the capacity
of the provinces to fulfil the obligations pursuant to the
assignment of the SAA was limited, that a holistic solution was
called for and that the government needed time to unify the entire
system. It was submitted on behalf of the Minister that a solution
was in the pipeline. The South African Social Security Agency
Bill
and the Social Assistance Bill were before Parliament. It had been
anticipated that these two Bills would become law by
1 April 2004,
but this did not happen.
3
The Minister requested that the order of invalidity of the
proclamation be suspended until the provisions of the two Bills

came into effect. Counsel for the applicant did not oppose a
suspension of the order of invalidity, but wanted the suspension
to
last for a specified period. The Court concluded that suspension
for a period of eighteen months would under the circumstances
appear reasonable and fair to all interested parties.
4
Consequently
the Court ordered on 6 September 2004 that:
“
1. Paragraph 1 of the order
of the High Court is confirmed.
2. In terms of section
172(1)(b) of the Constitution the order of invalidity is
suspended for a period of
eighteen months from the date of this order.”
5
The
applicants now seek from this Court an order that paragraph 2 of
the order of 6 September 2004 be varied by the further suspension
of the order of invalidity until 1 April 2006.
According
to the applicants, the period of suspension would expire on 6 March
2006. In their application lodged with the Registrar
of this Court
on Saturday 4 March 2006, the applicants asked for the matter to be
heard on Monday 6 March 2006, as one of urgency.
It was set down
for hearing at 15:00 on that day.
In
the applicants’ notice, signed on their behalf by the State
Attorney, Johannesburg, and confirmed in an affidavit by Mr

Vusumuzi Madonsela, the Director-General of the Department of
Social Welfare, they set out the basis for the relief they seek:
The first applicant, the Minister of Social Development, who is
responsible for compliance with the court order, has not been
able
to fully comply with the order and cannot achieve compliance before
6 March. According to the applicants, the very considerable
preparatory work required to comply is all but complete, and this
non-compliance is not the result of any dilatoriness. New
legislation in the form of the
Social Assistance Act 13 of 2004
and
of the
South African Social Security Agency Act 9 of 2004
is in
force, save for
section 4
of the
South African Social Security
Agency Act.
They
claim that the proclamation to bring this last remaining section
into force is in draft form and is at this time being approved
by
the first applicant, prior to referral to the President for
signature and consequent promulgation. The regulations necessary
in terms thereof are complete and will be promulgated immediately
after the promulgation of the legislation. The practical

arrangements to facilitate an orderly transfer of functions, assets
and staff from the provinces to the Social Security Agency
are all
in place.
However,
among the steps undertaken to give effect to the court order was
that relating to the establishment and funding of the
new agency
created in terms of the new legislation. According to the
applicants, Parliament enacted the Division of Revenue
Act
2005/2006 to provide a grant to the agency with effect from 1 April
2006 to administer social welfare. Because of the injunction
of
section 214 of the Constitution the sharing of funds among the
provinces occurs once annually, according to the applicants.
It is
not possible in consequence of these arrangements to fund the
agency prior to 1 April 2006. It is not clear why the problem
thus
created was not noticed earlier by the applicants, particularly
given the importance of the payment of social grants.
The
formalities in respect of the proclamation to bring
section 4
of
the
South African Social Security Agency Act into
force are
virtually in place. All formalities can be completed by 1 April
2006. This is a delay of 25 days from the date on
which the
suspension expires. The relief is sought to avoid the implications
of invalidity during this short period, according
to the
applicants.
The
applicants thus submitted that the application was urgent and must
be heard no later than 6 March 2006 in order to enable
them
lawfully to arrange for the payment of social grants to people who
would otherwise experience severe distress.
The
issues
The
Chief Justice issued directions to the applicants to address
argument to the Court on the following issues:
“
(a) The order in
Mashavha
v President of the RSA and others
CCT 67/03 was handed down on 6
September 2004. On what basis is it argued that the time period
stipulated in para 2 of that order
expires on 6 March 2006 and not
on 5 March 2006?
(b) If the time period has
elapsed, and the order of invalidity has come into force, what power
has this Court to make any further
order in the matter?
(c) Why is this application
brought on an ex parte basis, given that the order in question was
given in a matter in which there
was another party?”
These
issues were addressed by the applicants’ counsel at the hearing on
6 March 2006.
During
argument the correctness of the applicants’ submissions
concerning the consequences of the relief not being granted was
also questioned and the possibility of alternative ways for the
applicants to avoid the interruption of payments to people was
put
to counsel. At the close of oral argument, leave was given to
counsel to make further written submissions to the Court.
Written
argument was filed on Tuesday 7 March 2006.
In
prayer 1 of the applicants’ notice condonation is sought for the
applicants’ failure to comply with normal times and forms,
on the
basis of urgency. The alleged urgency thus also has to be
considered, in view of the applicants’ conduct and explanations
and the role and function of this Court. This is done first.
Thereafter the issues mentioned in paragraphs (c), (a) and (b)
of
the directions are dealt with respectively.
Urgency
and non-compliance
(a)
The applicants’ conduct
According
to the applicants it is “self-evidentially critical” that an
extension be considered no later than the date on which
the order
of suspension expires. The explanation referred to in paragraphs 8
to 10 above as to why the first applicant has been
unable to comply
with this Court’s order is to some extent informative, but does
not specifically indicate any serious intent
or attempt to comply
with the order or contain a proper explanation for the failure to
meet the time limits, as stated by Ngcobo
J in paragraph 53 of his
judgment. As to the reason for approaching this Court at such an
extremely late stage, the applicants
explain:
“
The need for an application
for an extension of the order of suspension was regrettably
recognised very late and this oversight
is the explanation for the
absence of a timeous application to achieve this purpose. The
remissness is conceded; however, the
above honourable court is
requested to give weight to the bona fides of the officials involved
in the process, and the demonstrable
fact that the process is all
but complete.”
The explanation for approaching this Court to hear their
application on the very same day that the suspension order in their
view expires is thoroughly unconvincing. It is admitted that the
application is not timeous and that the need to approach the
Court
was regrettably recognised very late and remissness is conceded.
The “bona fides of the officials involved in the process”
is
mentioned as a factor which should carry weight with the Court.
Neither the meaning nor the relevance of the alleged bona
fides is
explained. The applicants’ conduct seems to be a classic example
of the creation of one’s own urgency, which would
under normal
circumstances justify a finding that no urgency has been shown.
This would be the case in any court, but particularly
in this
Court, which is neither intended nor well-suited to function as an
urgent court.
6
(b)
The consequences of the relief not being granted
However, the applicants also refer to what they regard as the
inevitable consequence of an extension not being granted and state:
“
[T]he present custodians of
the distribution of welfare payments will either cease to make
payments to deserving persons and thereby
cause severe distress, or
continue to make payments, without lawful authority to do so.
Accordingly, if a suspension is not granted
grave injustice will
occur.”
The
blatant remissness of the applicants in this matter might therefore
unfortunately affect many people who are not responsible
for the
regrettable state of affairs. The SAA provides for the payment of
pensions and other grants to people in need and to
welfare
organisations who care for them. According to the applicants,
these payments cannot be made lawfully unless the relief
is
granted. Should this contention on the part of the applicants be
correct, the matter would obviously be urgent. As stated
by Ngcobo
J in paragraphs 54 and 56 of his judgment, it is ironic that the
applicants, who have been remiss in safeguarding the
interests and
indeed the constitutional rights of people, should put up the
consequences of their remissness as a reason why
relief should be
granted. The plight of the people in need will not be ignored or
taken lightly by the Court, however, even
in the face of a complete
lack of merit in the applicants’ explanation of their own
conduct.
The
applicants launched this application on the premise that nothing
short of an extension of the suspension order from this Court
could
undo their error and avert the dire consequences that may ensue
from that error. The possibility of alternatives to the
relief
sought in the absence of an extension was explored at length during
oral argument. In addition, the applicants were invited
to present
written submissions regarding adequate alternatives. The
applicants have, however, persisted in their view that no
viable
alternative to an extension order exists. Given that the
mechanisms for payment are all in place, the money has been
allocated, the beneficiaries are known and the purpose of payment
is to meet constitutional obligations, we remain unconvinced
that
the wide powers given to government to fulfil its responsibilities
preclude appropriate administrative arrangements being
made to
cover the 25 days. It is by no means clear that this Court’s
judgment in
Mashavha
precludes welfare payments being made
by provincial officials of grants determined at the national level.
We however refrain
from deciding this issue and assume in favour
of the applicants that the matter is urgent.
Ex
parte nature of the application
The
applicants explain their decision not to serve a copy of the papers
on the initial applicant, Mr Mashavha, by stating in their
papers
that the material relief sought by him has been effected. He has
no material interest in the relief sought. During argument
it was
added that locating him would have been difficult and
time-consuming. It is hard to see why Mr Mashavha, as a receiver
of social grants, would have no interest in the litigation. His
attorneys, the Legal Resources Centre, could possibly have assisted
in finding him. In my view he should have been notified, but in
the light of what follows, nothing further needs to be said
on
this.
Expiry
date of the period of suspension
In
paragraph 1 of this Court’s order in
Mashavha
, the High
Court’s order that the proclamation is invalid is confirmed. In
paragraph 2 of this Court’s order of 6 September
2004 it is
stipulated that “the order of invalidity is suspended for a
period of eighteen months from the date of this order.”
The
applicants’ view, or “reckoning” as it is referred to in
their notice, that the period of suspension expires on 6
March
2006, is not correct.
The
order of invalidity necessarily came into force when the order was
made, on 6 September 2004. The suspension of the order
also came
into force on the same date, not only because of the words “from
the date of this order” in paragraph 2 of the
order, but also
because if the suspension only came into force on 7 September, the
proclamation would have been invalid from
the time of the order of
invalidity on 6 September until the advent of the next day. The
period of suspension ended on the last
day of the eighteen months,
namely at midnight on 5 March 2006, and 6 March 2006 falls outside
the period of eighteen months.
This Court has as yet not considered the computation of time or
time periods. The general common law rule is that in the
calculation
of time the civilian method is applicable, unless a
period of days is prescribed by law, or contracting parties
intended another
method to be used.
7
According to the civil computation method a period of time
expressed in months expires at the end of the day preceding the

corresponding calendar day in the subsequent month. It is settled
law that the commencement of a period of time in curial calculation
is governed by the ordinary civilian method where any unit of time
other than days is used.
8
It follows therefore that eighteen months from the date of
judgment on 6 September 2004 ended at midnight on 5 March 2006.
Counsel for the applicants submitted, however, that an order of
invalidity is “sui generis”, which demands a benevolent

construction to “include the last day”. Accordingly, so the
argument goes, the method of calculating time will depend on the
facts of the case, including whether the person affected by the
order is a lay person or has knowledge of the law and how he
or she
understood the order.
9
This
approach has no substance. Firstly, it can hardly be argued that
the applicants in this case, as prominent members of the
executive,
with the State Attorney as their legal representative, are lay
persons as far as reading or understanding court orders
is
concerned. It is furthermore not clear what “sui generis” in
this context means. It does not follow that even “sui
generis”
court orders are not governed by the ordinary civil method of
computation at least as far as months — as opposed
to days —
are concerned. A departure from this principle will undermine
legal certainty.
10
A court will be burdened with difficult and untenable enquiries
into the circumstances of the person affected by the order.
This
would leave court orders of invalidity open to the undesirable
consequences of further litigation. It is a recipe for
chaos.
Retrospective
suspension of invalidity
The
period of suspension thus lapsed on Sunday 5 March 2006, before
this application was heard. The applicants can no longer
seek an
extension of an existing suspension period. Instead, they apply
for a revival of an expired suspension order and a temporary
reversal of the declaration of invalidity. A court does not have
the power to grant such an application.
The
applicants contend that section 172(1)(b)(ii) of the Constitution
11
empowers a court to order a “retrospective” extension of an
order suspending a declaration of constitutional invalidity.
By
this they mean that a court can introduce a period of suspension
once the declaration of invalidity has already taken effect.

Specifically, the applicants point to the multiple use of the word
“any” in the provision — a court may make a just and
equitable order suspending the declaration of invalidity “for any
period and on any conditions” — as indicating that a
court has
expansive powers. The applicants recognise, however, that a court
must limit its utilisation of the power under section
172(1)(b)(ii). They propose that a court should invoke this
retrospective extension power only in the rarest of circumstances.

In ascertaining whether a case qualifies, the applicants advance a
three-part test that they claim is guided by the values of
the
Constitution: an extension with such retrospective effect can be
granted if it (1) would not unfairly advantage one party;
(2) would
not detrimentally affect the vested rights of other parties; and
(3) is necessary to avoid dire problems. According
to the
applicants, this is the rare case that meets the test.
In
Minister of Justice v Ntuli
12
this Court considered whether it has the power to vary a final
order made by it in a constitutional matter. In
S v Ntuli
13
the Court declared a provision of the
Criminal Procedure Act 51 of
1977
invalid based on its inconsistency with the interim
Constitution and suspended the declaration. Following the
expiration of
the suspension period, the Court heard an application
by the Minister of Justice for an extension.
The Court first canvassed the common law principle governing a
court’s authority to vary its orders. This principle was

summarised in
Firestone South Africa (Pty) Ltd v Genticuro AG
14
as follows:
“
The general principle, now
well established in our law, is that, once a court has duly
pronounced a final judgment or order, it
has itself no authority to
correct, alter, or supplement it. The reason is that it thereupon
becomes
functus
officio
: its
jurisdiction in the case having been fully and finally exercised,
its authority over the subject-matter has ceased.”
15
The
Court then noted recognised exceptions to this general principle.
These exceptions are variations to an order that are necessary
to
explain ambiguities, correct errors of expression, deal with
accessory or consequential matters that were overlooked or

inadvertently omitted, and correct orders for costs made without
having heard argument on the issue.
16
The court in
Firestone
was willing to assume that a court
might have a discretionary power to vary its orders in other
appropriate cases, but emphasised
that such a discretionary power
“should be very sparingly exercised, for public policy demands
that the principle of finality
in litigation should generally be
preserved rather than eroded . . . .”
17
Next,
the Court turned to the contention of the Minister, similar to that
of the applicants in the present case, that the power
granted to
courts under section 172(1)(b)(ii) of the Constitution to suspend a
declaration of invalidity “for any period and
on any conditions”
could be exercised subsequent to the issuance of an order. The
Court explicitly rejected this contention:
“
The construction suggested
by counsel for the Minister would enable a Court to revive a statute
which it had previously declared
to be invalid. If such an unusual
power had been intended, I would have thought that it would be
expressed in language much clearer
than that which has been used,
and that there would at least be some indication of the
circumstances which would have to exist
to justify the exercise of
the power.”
18
The Court added:
“
The principle
of finality in litigation which underlies the common law rules for
the variation of judgments and orders is clearly
relevant to
constitutional matters. There must be an end to litigation and it
would be intolerable and could lead to great uncertainty
if Courts
could be approached to reconsider final orders made in judgments
declaring the provisions of a particular statute to
be invalid.”
19
However,
the Court concluded that it was not necessary to decide the issue.
For purposes of the judgment, the Court assumed that
in rare
circumstances a court could subsequently vary an order for the
suspension of the invalidity of a statute for good cause.
The
Court then held that the case was not one in which the exercise of
the power would be warranted.
20
In
Zondi
21
this Court reiterated the conclusion it came to in
Ntuli
that a court does not have the power to revive a statute that has
been declared invalid. Unlike in
Ntuli
,
Zondi
involved an application to extend a suspension of a declaration of
invalidity brought before the expiration of the suspension
period.
As such, the Court focused on the general issue of whether a court
has the power to further suspend its order when the
period of
suspension has not yet expired.
The
Court first considered whether the common law read with section 173
of the Constitution — which provides that this Court,
the Supreme
Court of Appeal and the High Courts have the “inherent power to
protect and regulate their own process, and to
develop the common
law, taking into account the interests of justice” — authorises
the Court to extend a suspension order.
The Court found merit in
this approach, but determined that it was not required to base its
holding on section 173.
22
Instead,
the Court relied upon section 172(1) of the Constitution. It held
that it “not only has the power but also has the
obligation under
its just and equitable jurisdiction to vary that period of
suspension and the conditions attached to the suspension,
if
necessary, to reflect the justice and equity required by the facts
of the case.”
23
The Court made clear, however, that this power survives only as
long as the suspension period:
“
During the period of
suspension
this
Court retains the power to reconsider the continued suspension of
the declaration of invalidity and the period of suspension
as well
as the conditions 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 seems
to be no reason both in logic and principle 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.”
24
(Emphasis added.)
Additionally,
the Court read
Ntuli
as standing for the proposition that a
court has no power to suspend a declaration of invalidity once the
suspension period has
lapsed. The Court described
Ntuli
as
holding as follows:
“
What the Court held is that
it is impermissible for a court to make a declaration of invalidity
without making an order suspending
the declaration of invalidity,
and then later, in different proceedings, to make an order
suspending the declaration of 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 period of suspension has lapsed
,
a court has no power to suspend the declaration of invalidity,
for
to do so would be to revive the constitutionality of a provision
that it has already declared invalid
.”
25
(Emphasis added.)
Ntuli
and
Zondi
make clear that the boundary of a court’s power
lies at the expiration of the suspension order. Before the
expiration of the
suspension order, the provision has not yet been
declared invalid and a court retains its power under section
172(1)(b)(ii) to
make a just and equitable order suspending the
declaration of invalidity or extending an existing suspension.
However, once
the suspension period lapses, the provision is
invalid and a court’s suspension power under section
172(1)(b)(ii) has ended.
The time of suspension and extension
ceases, and the realm of revival and resuscitation begins. In
short, the Constitution
grants a court the power to suspend an
order of constitutional invalidity. It does not grant a court the
power to revive a law
that has already become invalid.
There
are important reasons of constitutional principle underlying the
conclusion that a court is not empowered to resuscitate
legislation
that has been declared invalid. To do so, a court would in effect
legislate. Such an exercise would offend both
the separation of
powers principle in terms of which law-making powers are reserved
for the legislature, and the principle of
constitutional supremacy
which renders law that is inconsistent with the Constitution
invalid.
In
this case, the period of suspension expired on 5 March 2006. At
the moment the suspension expired, this Court’s declaration
of
invalidity took effect. Having declared the presidential
proclamation invalid, this Court reached the boundary of its power.
This Court cannot turn back time to “retrospectively extend” a
suspension order that no longer exists. We cannot revive
the
invalid proclamation.
Conclusion
The
inevitable conclusion is that the relief sought by the applicants
cannot be granted. For this, only the applicants must take
full
responsibility. They made a series of errors. The applicants did
not comply timeously with this Court’s order of 6 September
2004.
They miscalculated the expiry date of the order suspending the
order of invalidity. They approached the Court too late,
at a time
when it had become impossible to grant the relief they seek.
I
agree with the criticism levelled in the judgment of Ngcobo J of
the conduct of the applicants and that their explanation falls
far
short of what would originally be required to grant the extension
of a period of suspension of an order of invalidity. However,
I
find it unnecessary to consider the question whether there is
enough on the papers before us in this case to grant the relief
sought, if we had the power to do so.
It
was argued on behalf of the applicants that they approached this
Court because they respect the previous order of the Court,
they do
not wish to act unlawfully and they seek relief from the Court to
assist them in their dilemma and in their commitment
not to fail
the people who depend on the payment of social grants. This is
appreciated. However, it must at all times be understood
that this
Court has to apply the Constitution and the law, that it functions
under the Constitution and the law and that the
Constitution is the
only source of its powers.
This
Court can and will exercise powers given to it by the Constitution
in a practical way that takes constitutionally appropriate
account
of the difficulties government might have in co-ordinating its
various legislative and executive activities, and it will
always
pay due attention to the impact its decisions will have on those
who stand to be affected. It cannot, however, assume
powers that
it does not have.
As
stated earlier, this Court does not wish to ignore the plight of
those in need of payments in terms of the SAA. It is a cause
for
serious concern. But, on the papers before this Court in this
matter, it does not have the power to remedy the situation.

Whether this Court may have the power to issue any other just and
equitable order or otherwise provide appropriate relief, cannot
be
determined in this application. No such order has been specified
or sought by the applicants and no case for any such relief
has
been made out.
It
remains crucial for the relevant organs of government to fulfil
their constitutional obligation and make every effort and to
fully
explore all legal possibilities to prevent the interruption of the
payment of pensions and other social grants.
Order
The
application is dismissed.
Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Nkabinde J, O’Regan
J, Sachs J, Skweyiya J, and Yacoob J concur in the judgment
of Van
der Westhuizen J.
NGCOBO J:
I
have had the benefit of reading the judgment of Van der Westhuizen
J. I concur in his judgment and order. However, I consider
it
necessary to emphasise the principles that govern an application
for the extension of the period of suspension.
This
is the third occasion that this Court has been called upon to
consider the extension of the period of suspension of an order
of
invalidity. We considered this question in
Ntuli
1
and more recently in
Zondi.
2
The
principles that emerge from these cases may be summarised as
follows:
The
principle of finality in litigation which underlies the common law
rules for the variation of judgments and orders is applicable
to
constitutional matters. If courts were to be asked to reconsider
final orders declaring provisions of statutes invalid, this
could
well lead to an intolerable situation and uncertainty.
3
This
Court has the power under its “just and equitable” jurisdiction
to vary the period of suspension of an order of invalidity
and to
determine the conditions which are attached to the extension of the
period.
4
If the period of invalidity is not suspended or the period of
suspension has lapsed, this Court has no power to suspend or extend
the suspension of the declaration of invalidity. To do so would be
to revive legislation which had been invalidated in terms
of the
Court’s order.
5
The
Court will vary the period of suspension that has not yet expired
when it is just and equitable to do so. The determination
of what
is “just and equitable” or is “in the interests of justice”
involves similar considerations.
6
And what is just and equitable depends on the facts of each case.
7
Factors
that are relevant to the enquiry whether it is just and equitable
to extend the period of suspension include the sufficiency
of
explanation for failure to comply with the original period of
suspension; the potentiality of prejudice being sustained if
the
period of suspension were extended or not extended; the prospects
of complying with the deadline; the need to bring litigation
to
finality; and the need to promote the constitutional project and
prevent chaos.
8
What
is required is a balancing of all the relevant factors bearing in
mind that the ultimate goal is to make an order that is
just and
equitable.
9
An
application for the extension of the period of suspension must be
made within a reasonable time. It must be made in sufficient
time
to allow the matter to be considered by this Court before the
expiry of the period of suspension.
10
The
explanation for failure to correct the constitutional defect within
the time limit set out in the court order “must be set
out fully,
candidly, timeously and in a manner that conforms with the Rules of
the Court.”
11
It
should not be assumed that an extension of the period will be
granted as a matter of course and in the public interest. If
a
proper case for the extension of the period of suspension is not
made out, an applicant for the extension of the period of
time runs
the risk of the request being refused.
12
This
Court has the responsibility to ensure that the provisions of the
Constitution are upheld and enforced. An applicant for
the
extension of the period of suspension should not therefore assume
that the Court will lightly grant the suspension of an
order of
invalidity.
The
present application was lodged literally on the eve of the expiry
date, namely, on a Saturday 4 March 2006, when the Court
was closed
for business. No prior warning was given. There is no
explanation, nothing at all, why this matter was left until
the
very few hours before the deadline was due to expire. What must be
borne in mind is that a Court of eleven members is ill-suited
for
an urgent application which requires a hearing there and then, in
particular, when an application is launched on a Saturday
when the
Court is closed for business. In
President of the Republic of
South Africa and Others v United Democratic Movement
(
UDM
)
13
we said the following concerning urgent applications during recess:
“
The Constitutional Court is
not designed to act in matters of extreme urgency. It consists of
11 members and a quorum of the Court
is eight of them. This Court
is in recess for some months of each year and during those times its
members disperse to their homes
which, in some cases, are a
considerable distance from the seat of the Court in Johannesburg.
Members of the Court, however, are
obliged to be available for
recall to the seat of the Court at short notice. However, it is not
always possible to convene a quorum
of the Court at very short
notice during a recess. If the High Court is not able to grant an
interim order in an urgent case where
there is a justifiable fear of
irreparable harm, a person who might be prejudiced by an act flowing
from the legislation might
well be left without an effective remedy.
That would be an unfortunate consequence which should not lightly
be held to be an inevitable
consequence of the provisions of the
Constitution.”
14
The
remarks in the
UDM
case apply equally to an urgent
application brought on a Saturday when the Court is closed for
business. Government has the
obligation to avoid this unfortunate
consequence. I understand that the practice that is followed in
the High Court, which deals
with urgent applications more often, is
to give due notice and warn the judge performing urgent duties that
an application will
be brought. There is no reason why a similar
practice was not followed in this matter. What this demonstrates
is that the existence
of a court order was only realised, at the
earliest, some time on Friday. This was very late.
There
is another disturbing feature of this case. There is no
explanation for the government’s failure to meet the time limits
in the court order. What was happening during the entire
eighteen-month period is not set out. Nor is there any indication
that the court order was drawn to the attention of Parliament to
enable it to consider how to expedite the matter in the light
of
the court order. Once again, we must emphasise that an application
for the extension of the period of suspension, like any
application
for an indulgence, must “set out fully, candidly, timeously”
the explanation for the delay. In this case that
was not done.
Much
was made of the fact that if the extension is refused, people who
are receiving social welfare grants will be the first casualties.

It is ironic that the applicants, who on their own admissions, have
been remiss in safeguarding the interests of those people,
should
now put up the consequences of their remissness as a reason for
seeking relief in this Court. It is not clear why people
who are
receiving social welfare grants would not be paid when there is
clearly a constitutional obligation to pay and funds
are available.
Nor is there anything in the papers that suggests that the
applicants will be prevented from taking steps to
ensure that those
who are entitled to social welfare grants are paid timeously and
that those who are applying for such grants
have their applications
considered timeously.
As
this Court observed in
Ntuli
:
“
This case demonstrates not
only the importance of a prompt response by government to any order
made by this Court that the provisions
of an Act of Parliament is
inconsistent with the Constitution and accordingly invalid; it also
demonstrates the importance of ensuring
that all relevant
information is placed before the Court at the time of the
proceedings for declaration of invalidity.”
15
At
issue in this case are rights of people to receive social
assistance. This is a fundamental right enshrined in section
27(1)(c)
of the Constitution. Given this, one would have expected
the officials dealing with this matter to act promptly to comply
with
the court order. If the officials dealing with this matter
had acted promptly in the period of eighteen months which have now
passed since the original order was made, all the steps necessary
to comply with the court order would have been complied with.
I
am satisfied that the government has had sufficient time to address
the problem identified in the main judgment. There is no
suggestion that the period of eighteen months was inadequate. All
that we are told is that, “all practical arrangements to
facilitate an orderly transfer of functions, assets and staff from
the provinces to the Social Security Agency are all in place.”

There is no explanation why the remaining steps could not be taken
during the past eighteen months. But what is clear is that
the
need to apply for the extension of the period of suspension “was
regrettably recognised very late and this oversight is
the
explanation” for the delay in bringing this application.
In
the absence of any explanation, the delay in complying with the
court order is therefore inexcusable. So too, is the delay
in
launching the present proceedings, which were initiated only a few
hours before the period of suspension would terminate and
in
circumstances where it was not reasonably possible to hear the
application and give a decision before the period of suspension
had
expired.
We
are not unmindful of the plight of those individuals who are
receiving the social welfare grants as well as those who are

seeking such grants. They are entitled to be paid those grants as
and when they are due. Similarly, those who are seeking such
grants are entitled to have their applications considered and, if
they meet the relevant criteria, to be awarded such grants.

Regrettably, this application was brought ex parte
and
without any notice either to the applicants in the original
application or to their attorneys. However, there is nothing
in
this judgment which prevents any person who might be adversely
affected by the refusal to extend the period of suspension
from
approaching any court of competent jurisdiction to seek relief, if
so advised.
This
judgment must not be understood as suggesting that even if the
applicants had approached the Court timeously, the extension
would
have been refused. In
Zondi
, the applicant approached the
Court 15 days before the expiry of the period of suspension, but
the Court was nevertheless prepared
to extend the period to allow
the matter to be argued later. In this case, the applicants
approached the Court very late, and
left the Court with no time to
consider extending the period of suspension before its expiry. In
all the circumstances of this
case, the lateness in approaching the
Court, viewed against the lack of any explanation for the delay,
the application must be
dismissed.
Moseneke DCJ, Madala J, Mokgoro J, and Nkabinde J concur in the
judgment of Ngcobo J.
For the applicants: R Sutherland SC and S Baloyi instructed by the
State Attorney, Johannesburg.
1
Mashavha v President of the RSA and Others
2004 (3) BCLR 292
(T) at para 19.1. Shongwe J ordered “[t]hat Proclamation R7 of
1996 was invalid insofar as it purported to assign the
administration
and amend provisions of the Social Assistance Act 59
of 1992.”
2
Mashavha v President of the RSA
[2004] ZACC 6
;
2005 (2) SA 476
(CC);
2004
(12) BCLR 1243
(CC) at paras 68 and 71.
3
The South African Social Security Agency Act 9 of
2004 (the South African Social Security Agency Bill) was assented to
on 2 June
2004, and the Social Assistance Act 13 of 2004 (the Social
Assistance Bill) was assented to on 10 June 2004. See id at fn 70.
4
Mashavha
above n 2
at para 69.
5
Id at para 71.
6
See
President of the Republic of South Africa and Others v United
Democratic Movement (African Christian Democratic Party and Others
Intervening; Institute for Democracy in South Africa and Another as
Amici Curiae)
[2002] ZACC 34
;
2003 (1) SA 472
(CC);
2002 (11) BCLR 1164
(CC) at
para 30, quoted in the judgment of Ngcobo J.
7
E Cameron “Time” in Joubert (ed)
The Law of South Africa
first reissue
(Butterworths, Durban 2002) vol 27 para 433 at
371.
8
A long line of case law has settled the issue. In
Joubert v
Enslin
1910 AD 6
at 25-26 the Appellate Division, expressly
approving
Cock v Cape of Good Hope Marine Assurance Company
[1858] 3 Searle 114
, laid down the general rule for computation:
where the period in question is expressed in terms of weeks, months
or years, the
period will expire at the end of the day preceding the
corresponding calendar day. In
Du Plessis v United African
Furnishing Co
1921 OPD 156
a defendant who, on 14 May, filed an
application to rescind a default judgment of which he had knowledge
on 14 April was held to
have missed the one-month deadline.
Du
Plessis
was accepted as correct for some 20 years and in an
exhaustive consideration of the authorities and case law in
Nair
v Naicker
1942 NPD 3
, another untimeous application to set aside
a default judgment, Broome J was not persuaded to ignore its
authority. See also
Minister of Police v Subbulutchmi
1980
(4) SA 768
(A) at 771H-772E and cases cited therein; Cameron above n
7 at para 431.
9
In
Semer v Retief and Berman
1948 (1) SA 182
(C) at 188, for
example, Ogilvie Thompson AJ remarked that lay persons “might
quite understandingly consider” that a period
stipulated on 15
July to last “[f]or three weeks from date hereof” would expire
only “on 5
th
August, as distinct from at midnight on
4
th
August”.
10
In a concurring judgment in
Nair v Naicker,
above n 8 at 12,
Hathorn JP expressed himself strongly on the duty of the courts
to make the law certain and discard, particularly in this branch
of
the law, unsatisfactory detailed technical reasoning which could go
either way according to the whim of the judge. Where decided
cases
have laid down a clear rule, easily applied, they should be
scrupulously followed, even in hard cases.
11
Section 172(1) provides as follows:
“
(1) When deciding a constitutional matter within its
power, a court—
must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency;
and
may make any order that is just and equitable,
including—
an order limiting the retrospective effect of the
declaration of invalidity; and
an
order suspending the declaration of invalidity for any period and on
any conditions, to allow the competent authority to correct
the
defect.”
12
[1997] ZACC 7
;
1997 (3) SA 772
(CC);
1997 (6) BCLR 677
(CC).
13
[1995] ZACC 14
;
1996 (1) SA 1207
(CC);
1996 (1) BCLR 141
(CC).
14
1977 (4) SA 298
(A).
15
Id at 306F-G (citation omitted).
16
Ntuli
above n 12 at para 22 citing
Firestone
above n 14
at 306G-308A.
17
Firestone
above n 14 at 309A.
18
Ntuli
above n 12 at para 26.
19
Id at para 29.
20
Id at para 30.
21
Zondi v MEC for Traditional and Local Government Affairs and
Others
2006 (3) BCLR 423
(CC).
22
Id at para 36.
23
Id at para 39.
24
Id at para 40.
25
Id at para 43.
1
Minister of Justice v Ntuli
[1997] ZACC 7
;
1997 (3) SA 772
(CC);
1997 (6)
BCLR 677
(CC). In
S v Steyn
[2000] ZACC 24
;
2001 (1) SA 1146
(CC);
2001 (1)
BCLR 52
(CC), this Court considered the question whether an
extension of time should be allowed to the government to comply with
the decision
in
Ntuli
, albeit in a different context, at para
45.
2
Zondi v MEC for Traditional and Local Government Affairs and
Others
2006 (3) BCLR 423
(CC).
3
Ntuli
above n 1 at para 29.
4
Zondi
above n 2 at para 37.
5
Ntuli
above n 1 at para 38.
6
Zondi
above n 2 at para 39;
Ntuli
above n 1 at para
31.
7
Zondi
above n 2
at para 47.
8
Id.
9
Id.
10
Id at para 55.
11
Id at para 59.
12
Zondi
above n 2 at para 59;
Ntuli
above n 1 at para
42.
13
President of the Republic of South Africa and Others v United
Democratic Movement (African Christian Democratic Party and Others
Intervening; Institute for Democracy in South Africa and Another as
Amici Curiae)
[2002] ZACC 34
;
2003 (1) SA 472
(CC);
2002 (11) BCLR 1164
(CC).
14
Id at para 30.
15
Ntuli
above n 1 at para 41.