Kruger v President of the Republic of South Africa and Others (CCT 57/07) [2008] ZACC 17; 2009 (1) SA 417 (CC); 2009 (3) BCLR 268 (CC) (2 October 2008)

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Kruger v President of the Republic of South Africa and Others (CCT 57/07) [2008] ZACC 17; 2009 (1) SA 417 (CC); 2009 (3) BCLR 268 (CC) (2 October 2008)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
57/07
[2008]
ZACC 17
MARIUS KRUGER
Applicant
versus
THE PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA
First Respondent
THE MINISTER OF TRANSPORT
Second Respondent
THE
ROAD ACCIDENT FUND
Third Respondent
Heard on: 19 February 2008
Decided on: 2 October 2008
JUDGMENT
SKWEYIYA
J:
Introduction
The
applicant, Mr Kruger, an attorney, has approached this Court to
secure confirmation of the Pretoria High Court’s order

declaring a proclamation issued by the President on 11 July 2006
and published in Government Gazette No 29041 to be “null
and
void and of no force and effect.” Because the issuing of the
Proclamation concerned the “conduct of the President”,
1
the High Court referred its order to this Court for confirmation in
terms of section 172(2)(a) of the Constitution.
2
We
also have before us an application by the Road Accident Fund (the
Fund) which was established as a juristic person by section
2(1) of
the Road Accident Fund Act 56 of 1996 (the Principal Act).
3
The object of the Fund is payment of compensation in accordance
with the provisions of the Principal Act.
4
The Fund applies for direct access to this Court to obtain
certainty about the status of another Proclamation which was issued

by the President on 28 July 2006 and published in Government
Gazette No 29086. It seeks an explicit order on its effect in
this
regard because of what it refers to as the uncertainty created by
the order made in the Pretoria High Court. More particularly,
it
seeks an order declaring that the Second Proclamation lawfully
brought sections 1 to 5 of the Road Accident Fund Amendment
Act 19
of 2005 (the Amendment Act) into force and operation on 31 July
2006. The Fund’s legal representatives were given
leave to
file written submissions in this matter and were also allowed to
present oral argument in this Court.
The
matter concerns the constitutional validity of the two
Proclamations, both of which were issued by the President with the

intention of bringing into operation certain sections of the
Amendment Act which would result in the amendment of a number
of
sections of the Principal Act.
The
one, Proclamation R27, was published in the Government Gazette on
19 July 2006 (the First Proclamation) and the other, Proclamation

R32, was published in the Government Gazette on 31 July 2006 (the
Second Proclamation). They both bear the signatures of the

President and the Minister of Transport, Mr JT Radebe, as required
by section 101 of the Constitution.
Section
101 of the Constitution, which deals with decisions by members of
the executive arm of government, provides that:
“
(1) A decision by the
President must be in writing if it—
is taken in terms of
legislation; or
has legal consequences.
(2) A written decision by the
President must be counter-signed by another Cabinet member if that
decision concerns a function
assigned to that other Cabinet member.
(3) Proclamations, regulations
and other instruments of subordinate legislation must be accessible
to the public.
(4) National legislation may
specify the manner in which, and the extent to which, instruments
mentioned in subsection (3) must
be—
tabled in Parliament; and
approved by Parliament.”
The
publishing of proclamations in the Government Gazette facilitates
easy and quick access by the public to formal orders and
decisions
by legal authorities. In the present matter such authority is the
President who is the head of State and head of
the National
Executive. The authority is vested in him and he exercises such
authority with other members of Cabinet.
5
For
ease of reference the full text of each of the two Proclamations,
as they appear in the respective Government Gazettes,
is set out
below:
First Proclamation
PROCLAMATION
by the
President of the Republic
of South Africa
No. R.27, 2006
ROAD ACCIDENT FUND AMENDMENT
ACT, 2005 (ACT No. 19 OF 2005): PROCLAMATION WITH REGARD TO THE
COMMENCEMENT OF SECTIONS 4, 6, 10,
11 and 12
In terms of section 13 of the
Road Accident Fund Amendment Act, 2005 (Act No. 19 of 2005), I hereby
determine
31 July 2006
as the date on which sections 4, 6, 10,
11 and 12 will come in operation.
Given under my Hand and Seal of
the Republic of South Africa at Pretoria, on this Eleventh day of
July, Two Thousand and Six.
T.M. MBEKI
President
By Order of the
President-in-Cabinet:
J.T.
RADEBE
Minister of the Cabinet
Second Proclamation
PROCLAMATION
by the
President of the Republic
of South Africa
No. R.32, 2006
ROAD ACCIDENT FUND AMENDMENT
ACT, 2005 (ACT NO. 19 OF 2005). PROCLAMATION WITH REGARD TO THE
COMMENCEMENT OF CERTAIN SECTIONS.
In terms of section 13 of the
Road Accident Fund Amendment Act, 2005 (Act No. 19 of 2005), I
hereby, amend Proclamation No. R. 27
of 2006, by the substitution for
the reference to section 4, 6, 10, 11 and 12 in the said Proclamation
for the reference to section
1, 2, 3, 4 and 5 of the Amendment Act,
2005 (Act No. 19 of 2005).
Given under my Hand and the Seal
of the Republic of South Africa at Pretoria this 28th day of July Two
Thousand and Six.
T.M MBEKI
President
By order of the
President-in-Cabinet:
J.T.RADEBE
Minister of the Cabinet
The two Proclamations were issued and published within days of each
other by the President, who was competent in terms of section
13 of
the Amendment Act
6
to determine by proclamation in the Government Gazette the dates on
which the provisions of the Amendment Act would come into
operation.
It
is permissible under section 81 of the Constitution
7
for the legislature to authorise the President to fix the date on
which an Act of Parliament is to come into operation. Furthermore,

different dates may be fixed in respect of different provisions of
an Act of Parliament which authorises a member of the executive
to
implement legislation.
8
In
Ex Parte Minister of Safety and Security and Others: In re: S v
Walters and Another
9
Kriegler J said:
“
The national legislative
process is concluded by section 81, which reads as follows: ‘A
Bill assented to and signed by the
President becomes an Act of
Parliament, must be published promptly, and takes effect when
published or on a date determined in
terms of the Act.’ For
present purposes two features of the section should be noted. First,
that it requires prompt publication
of the Bill once it has become an
Act and, secondly, that there are two possible inception dates for
such an Act; either upon its
publication or on another date
determined in the Act itself or in a manner it prescribes.
Parliament is thus afforded the power
by section 81 of the
Constitution not to fix the date of inception of an enactment itself
but to prescribe in such enactment how
such date is to be determined.
Although the Constitution does
not expressly say so, it is clear that this power vested in
Parliament to include in an enactment
terms for determining its date
of inception, includes the power to prescribe that such date is to be
determined by the President.
The language of section 81 is wide
enough to allow such a procedure and there is no objection in
principle to a Legislature, in
the exercise of its legislative
powers, leaving the determination of an ancillary feature such as an
inception date to an appropriate
person. It is therefore recognised
legislative practice to use this useful mechanism to achieve proper
timing for the commencement
of new statutory provisions. Accordingly
this Court has twice accepted the existence and constitutional
propriety of the practice
without comment.”
10
(Footnotes omitted.)
In
Pharmaceutical Manufacturers Association
of SA and Another: In re: Ex Parte President of the Republic of
South Africa and Others
,
11
Chaskalson
P referred to the power of the President to
bring law into operation as a power which lies between the
law-making and the administrative
process. This exercise of public
power, it was held, has to be carried out lawfully and consistently
with the provisions of
the Constitution in so far as they may be
applicable to the exercise of such power.
12
In
In re: Constitutionality of the Mpumalanga Petitions Bill,
2000
13
Langa DP reiterated this and went on to say that the functionary
best placed to make such determination is ordinarily the head
of the
executive responsible for the implementation of the legislation.
14
As
indicated above, the First and Second Proclamations bear the names
of the President and the Minister of Cabinet responsible
for the
implementation of both the Principal Act and the Amendment Act. But
it is the President who has to determine when the
provisions of the
Amendment Act will come into effect.
The
power the President has under section 13 of the Amendment Act,
though limited, is an important one. It provides an important
link
between the law-making and the administrative processes and has to
be exercised lawfully and in compliance with the Constitution.
15
The Proclamations were intended to be a step in the legislative
process. Being Proclamations bringing a statute into force,
they
had to be couched in clear and unambiguous language.
It
is accepted by all the parties that the Second Proclamation was
issued to correct a bona fide error which had been made in
the First
Proclamation and that the President had become aware of that error
before 31 July 2006, the date on which the sections
mentioned in
that Proclamation were to come into operation. The First
Proclamation reflected sections 4, 6, 10, 11 and 12 of
the Amendment
Act as the sections which were to come into operation on 31 July
2006, instead of sections 1, 2, 3, 4 and 5 of
the Amendment Act.
It
should however be noted that Mr Kruger does not directly attack the
validity of the Second Proclamation in his application
to this Court
and does not seek an order that it be declared invalid, hence the
application for direct access to this Court by
the Fund.
The issues at hand
The
issues that fall to be determined are:
Whether
this Court should confirm the High Court’s declaration of
invalidity in respect of the
First Proclamation
which, it is
common cause, refers to the incorrect provisions of the Principal
Act;
the
status of the
Second Proclamation
; and
the
consequences of a declaration of validity or invalidity in respect
of the Second Proclamation.
Before
I deal with these issues, I shall first deal with three other
matters that arise in this case, namely: the applicant’s

application for condonation, the application for direct access to
this Court by the Fund and the question of Mr Kruger’s
locus
standi in these proceedings.
Condonation
The
applicant applied for condonation for the late filing of the record.
The record was filed only one court day late. The applicant
offers
two reasons for this: first, there was a delay in the preparation of
the record because the High Court file was lost and
second, the
courier service employed by the applicant mislaid the documents and
failed to send them to Johannesburg timeously.
The
circumstances as presented by the applicant coupled with the lack of
prejudice suffered by any of the respondents by the late
filing of
the full record are sufficient to grant the condonation.
Standing of the applicant
The
first and second respondents denied that Mr Kruger had standing to
bring the application in the High Court. They argued that
he had
neither a direct nor a substantial interest in the litigation. This
challenge was not pursued in this Court, correctly
so in my view.
Section
38 of the Constitution provides that:
“
Anyone listed in this
section has the right to approach a competent court, alleging that a
right in the Bill of Rights has been
infringed or threatened, and the
court may grant appropriate relief, including a declaration of
rights. The persons who may approach
a court are—
(a) anyone acting in their own
interest;
(b) anyone acting on behalf of
another person who cannot act in their own name;
(c) anyone acting as a member
of, or in the interest of, a group or class of persons;
(d) anyone acting in the public
interest; and
(e) an association acting in the
interest of its members.”
This
provision introduces a radical departure from the common law in
relation to standing.
16
It expands the list of persons who may approach a court in cases
where there is an allegation that a right in the Bill of Rights
has
been infringed or threatened to include anyone acting in the public
interest or on behalf of another person who cannot act
in their own
interest.
17
In
Ferreira
18
O’Regan J explained why a generous and expanded approach to
standing is necessary in constitutional litigation. She said:
“
Existing common-law rules
of standing have often developed in the context of private
litigation. As a general rule, private litigation
is concerned with
the determination of a dispute between two individuals, in which
relief will be specific and, often, retrospective,
in that it applies
to a set of past events. Such litigation will generally not directly
affect people who are not parties to the
litigation. In such cases,
the plaintiff is both the victim of the harm and the beneficiary of
the relief. In litigation of a
public character, however, that nexus
is rarely so intimate. The relief sought is generally
forward-looking and general in its
application, so that it may
directly affect a wide range of people. In addition, the harm
alleged may often be quite diffuse or
amorphous. Of course, these
categories are ideal types: no bright line can be drawn between
private litigation and litigation
of a public or constitutional
nature. Not all non-constitutional litigation is private in nature.
Nor can it be said that all
constitutional challenges involve
litigation of a purely public character: a challenge to a particular
administrative act or decision
may be of a private rather than a
public character. But it is clear that in litigation of a public
character, different considerations
may be appropriate to determine
who should have standing to launch litigation.”
19
(Footnotes omitted.)
Section
38, however, is not of direct application in this case as it does not
concern a challenge based on a right in chapter 2
of the
Constitution. Nevertheless, in my view, we should adopt a generous
approach to standing in this case. In so doing, I am
mindful of the
fact that constitutional litigation is of particular importance in
our country where we have a large number of people
who have had scant
educational opportunities and who may not be aware of their rights.
Such an approach to standing will facilitate
the protection of the
Constitution.
Mr
Kruger asserts locus standi on two grounds: a direct and personal
interest and as a person acting in the public interest.
20
Although Mr Kruger may not have established standing on either
basis under the restricted rules of standing operative at common

law, I am persuaded that an expanded understanding of what
constitutes a direct and personal interest should be adopted in this

case.
As
an attorney in a specialist personal injury legal firm who works
regularly in this field, Mr Kruger has a direct and professional

interest in the validity of the Proclamations. A legal practitioner
is an officer of the court. Where the practitioner can
establish
both that a proclamation is of direct and central importance to the
field in which he or she operates, and that it
is in the interests
of the administration of justice that the validity of that
proclamation be determined by a court, that practitioner
may
approach a court to challenge the validity of such a proclamation.
In this case, Mr Kruger has shown that he is a personal
injury
attorney and that the validity of the Proclamations is of central
importance to his field of practice. Moreover, he has
established
that significant legal uncertainty has arisen because of the
contents of the First Proclamation and the publication
of the Second
Proclamation. The effect of this uncertainty is clearly adverse to
the proper administration of justice. A personal
injury attorney
must be able to understand and engage with the legislative scheme on
which he or she and his or her clients rely
in order to seek
compensation. The uncertainty created by the issue of the two
Proclamations and their effect on Mr Kruger’s
ability to
manage his clients’ affairs are reason enough to grant
standing to the applicant.
In
recognising the applicant’s standing in this case, I emphasise
that it arises because of the need for legal certainty
and the
administration of justice. Legal practitioners must not assume that
they will be allowed to bring applications to this
Court for a
declaration of invalidity based purely on financial self-interest or
in circumstances where they cannot show that
it will be in the
interest of the administration of justice that they do so.
It
is not necessary, given this conclusion, to decide whether a
litigant, when raising a constitutional challenge not based on

chapter 2 of the Constitution is entitled to act in the public
interest. That question can stand over for another day.
The Fund’s application for direct access
The
Fund applies for direct access to this Court to obtain certainty
about the status of the Second Proclamation, and more particularly,

whether it lawfully brought sections 1 to 5 of the Amendment Act
into operation on 31 July 2006.
The
application is governed by Rule 18 of this Court’s Rules,
21
read with section 167(6)(a) of the Constitution.
22
The legal principles that are applicable in the granting of an
application for direct access to this Court are fully set out
in the
judgment of Ngcobo J in
Zondi
.
23
This Court has discretion whether to grant direct access. It will
only do so in exceptional cases and when it is in the interests
of
justice in the light of the facts of each case.
24
There are compelling reasons why the application by the Fund for
direct access to this Court should be granted.
First,
the Fund is a juristic person established by the Principal Act.
25
The Act’s purpose is to provide to victims of motor vehicle
accidents the “greatest possible protection”.
26
The Fund’s priority in bringing the application is to defend
the validity of the Second Proclamation and, if it were held
to be
invalid, to obtain certainty about its status.
Secondly,
the victims of accidents are obviously prejudiced by the uncertainty
surrounding the status of the provisions of the
Amendment Act. It
is not disputed that the Fund, its Board, its Chief Executive
Officer (CEO) and its entire staff have been
operating on the
understanding that sections 1 to 5 of the Amendment Act have been in
force since 31 July 2006. It is thus in
the interest of all that
certainty be achieved as soon as possible.
Thirdly,
the First and Second Proclamations are closely related to one
another in time and in purpose. They were issued in the
same month
and year and were both published to make it public that certain
provisions of the Amendment Act would be coming into
operation on a
specified date.
Finally,
the application for direct access raises issues closely related to
those already before this Court in the confirmation
proceedings. It
cannot be in the interests of justice to require the Fund to begin
fresh proceedings in the High Court seeking
the declaratory order
that it seeks by way of direct application in this Court.
In
Fourie
27
this Court granted direct access to an applicant who challenged the
validity of a statute that was not before the Court because—
“
[t]he direct access
application fills a gap in the Fourie case referred to by the High
Court, this Court and the SCA. The common
law in relation to
marriage has been overtaken by statute in a great number of respects.
To deal with it as if the Marriage Act
did not exist would be highly
artificial and abstract. The overlap between the issues raised and
their strong interconnectedness
requires them to be dealt with in an
integrated and comprehensive fashion. There would be grave
disadvantages to all concerned
if the issues raised were to be
decided in a piecemeal way.”
28
The
circumstances in the application for direct access by the Fund are
exceptional. It is in the interests of justice that the
validity of
the two Proclamations be considered together.
The legislative background
A
brief analysis of the Principal Act, the Amendment Act and the two
Proclamations is necessary before I deal with the issue of
validity.
The Road Accident Fund Act 56 of 1996 (the Principal Act)
The
Principal Act provides for the establishment of the Road Accident
Fund.
29
Sections 2 to 16 of this Act are, in the main,
administrative
in that they create the machinery by which the Fund is administered.
The Fund is controlled, managed and administered by its
Board, CEO
and staff. Broadly, sections 17 to 25 of the Principal Act are
substantive
in the sense that they prescribe the rules
according to which the victims of motor vehicle accidents are
compensated.
The Road Accident Fund Amendment Act 19 of 2005 (the Amendment
Act)
The
Amendment Act made wide-ranging amendments to both the
administrative parts (sections 2 to 16) and substantive parts
(sections
17 to 25) of the Principal Act. As noted above,
30
section 13 of the Amendment Act, read with section 13(3) of the
Interpretation Act 33 of 1957 permits the President to stagger
the
implementation of the amendments provided for in the Amendment Act,
by putting them into operation on different dates.
The two proclamations
A
reading of the two Proclamations suggests, and this was common cause
between the parties, that the President intended to stagger
the
implementation of the Amendment Act by first putting into effect the
amendments to the administrative provisions of the Principal
Act
contained in sections 1 to 5 of the Amendment Act. The President
mistakenly referred to sections 4, 6, 10, 11 and 12 of
the Amendment
Act: sections of the Principal Act which were to be amended by
sections 1 to 5 of the Amendment Act.
The
relevant parts of sections 1 to 5 of the Amendment Act as published
in the Government Gazette read as follows:
“
Amendment of section 4
of Act 56 of 1996, as amended by section 1 of Act 15 of 2001
1.
Section 4 of the
principal Act is hereby amended—
. . . .
Amendment of section 6 of Act
56 of 1996
2.
Section 6 of the
principal Act is hereby amended by the substitution for subsection
(1) of the following subsection . . . .
Amendment of section 10 of
Act 56 of 1996, as amended by section 1 of Act 43 of 2002
3.
Section 10 of the
principal Act is hereby amended—
. . . .
Amendment of section 11 of
Act 56 of 1996
4.
Section 11 of the
principal Act is hereby amended
. . . .
Amendment of section 12 of
Act 56 of 1996
5.
Section 12 of the
principal Act is hereby amended—
. . . .”.
Each
of the five sections in the Amendment Act has a heading in bold
letters which identifies the section of the Principal Act
which is
to be amended. In the next line, and in line with where each of the
five section numbers of the Amendment Act appear,
the section of the
Principal Act which appears in the heading appears once, more,
albeit in less bold letters. There is nothing
which draws the
attention of the reader to the numbers which identify the five
sections.
A
proper determination of the validity of the two Proclamations
requires a brief analysis of the relevant sections of the Amendment

Act and of the Principal Act which are listed in the two
Proclamations.
Section 4
Section
1 of the Amendment Act added two new subsections to the Principal
Act, namely, sections 4(4) and 4(2)(i) of the Principal
Act. The
new subsections provide that the Fund may enter into agreements with
other parties including other organs of state,
for purposes of the
implementation of the Principal Act.
Section 6
Section
2 of the Amendment Act amended section 6(1) of the Principal Act by
shifting the Fund’s financial year-end from
30 April to 31
March of every year.
Section 10
Section
3 of the Amendment Act amended section 10 of the Principal Act which
concerns the constitution and operation of the Board
of the Fund.
Sections 11 and 12
Sections
4 and 5 of the Amendment Act deleted section 11(1)(a)(iv) of the
Principal Act (which related to matters on which the
Board of the
Fund could make recommendations to the Minister) and amended section
12(1)(a) and (b) of the Principal Act. This
latter section relates
to the qualification, experience and appointment of the CEO of the
Fund.
The
issuing of the First Proclamation would have resulted in its coming
into operation on 31 July 2006, importing an arbitrary
selection of
one of the administrative amendments (section 4 of the Principal
Act) and four of the substantive amendments (sections
6, 10, 11 and
12 of the Principal Act) made by the Amendment Act.
In
the Second Proclamation, published on 31 July 2006, the President
purports to “amend” the First Proclamation by
amending
the incorrect reference to sections 4, 6, 10, 11 and 12 of the
Amendment Act with a reference to sections 1, 2, 3, 4
and 5 of the
Amendment Act.
In
these circumstances, the mistake made by the President is
self-evident. He made a genuine and bona fide mistake. It is

common cause that he intended the First Proclamation to bring the
administrative amendments made by sections 1 to 5 of the Amendment

Act into operation from 31 July 2006. He failed to do so only
because the First Proclamation incorrectly identified those

provisions. It is logical that they should be the first amended
provisions of the Principal Act to be brought into operation and
it
is reasonable to infer that that was the intention of the Minister
of Transport who is responsible for the administration
and
implementation of the Principal Act. The provisions could have been
brought into operation immediately as they were capable
of being
implemented without much difficulty.
Validity of the First Proclamation
All
parties accept the contention that the First Proclamation was
objectively irrational because the provisions of the Amendment
Act
(sections 4, 6, 10, 11 and 12) which it purported to put into
operation were an arbitrary selection on account of a mistake
by the
President.
This
acceptance is well-founded. Section 4, listed in both the First and
Second Proclamations, belongs to the cluster of the
administrative
amendments which are listed in the Second Proclamation. The effect
of the First Proclamation, if taken literally,
was to put into
operation an arbitrary selection of one of the administrative
amendments (section 4) and four of the substantive
amendments
(sections 6, 10, 11 and 12) made by the Amendment Act. Furthermore,
it would have made no sense if the President
had mentioned that he
had listed section 4 in the First Proclamation as the only provision
of the Amendment Act which would come
into operation on 31 July
2006. Section 4 by itself would achieve little and it would be
arbitrary and irrational to have it
as the only section capable of
implementation on the face of the First Proclamation.
The
other sections listed in the First Proclamation deal with varied
topics:
section
6 introduces a new section which substitutes section 17 of the
Principal Act. It deals with the liability of the Fund
to the
victims of motor vehicle accidents;
31
section
10 deals with the amendment of a section of the Principal Act
relating to the period of prescription of claims by victims
in
motor vehicle accidents;
32
section
11 concerns regulations promulgated under the Principal Act;
33
and
section
12 is a transitional provision.
34
It
follows that the First Proclamation is objectively irrational
because the provisions of the Amendment Act which it purported
to
put into operation were an arbitrary selection. Under the doctrine
of objective invalidity, the First Proclamation should
be regarded
as having been a nullity from the outset.
35
It was invalid ab initio and therefore has no effect in law.
36
Furthermore, if the First Proclamation were to remain in effect, it
would create a number of legal and practical problems.
First,
it would not be possible to determine what injuries entitle a third
party to claim compensation for general damages, for
the following
reasons:
section
6 of the Amendment Act substitutes section 17 of the Principal Act.
Section 17(1) as amended provides that the obligation
of the Fund
to compensate a third party for non-pecuniary loss shall be limited
to compensation for a “serious injury”;
section
11 of the Amendment Act substitutes section 26 of the Principal
Act. It authorises the Minister to make regulations
regarding
“injuries which, for the purposes of section 17, are not
regarded as serious injuries”; and
regulations
have not been made determining what constitutes a “serious
injury”.
The
result is that it is impossible for an attorney to advise a client as
to whether he or she may claim compensation for non-pecuniary
loss as
a consequence of injuries suffered in an accident.
Second,
it is not possible to determine at what rate the medical expenses
will be reimbursed by the Fund:
section
6 of the Amendment Act introduces section 17(4B) into the Principal
Act. This provides that the liability of the Fund
for medical
expenses shall be limited to a tariff prescribed by legislation and
regulation.
no
such tariff has been prescribed.
The
result is that it is impossible for an attorney to advise a client
as to what medical expenses he or she may claim from the
Fund. It
may even be that no expenses may be claimed.
Validity of the Second Proclamation
Both
the Minister and the Fund asked that this Court find and declare
that the Second Proclamation lawfully brought the administrative

amendments in sections 1 to 5 of the Amendment Act into operation on
31 July 2006.
Counsel
for the Minister and the Fund argued that, had the President used
the words ‘I hereby re-proclaim’ instead
of ‘I
hereby amend’ in the Second Proclamation, the validity of the
Second Proclamation would not be in dispute as
that could have been
regarded as one continuous act by the President for the following
reasons.
First,
it would be patent that the President was rectifying a mistake he
had made in the already published First Proclamation
and that the
‘re-proclamation’ was issued to give effect to his true
intention of bringing into operation the correct
sections of the
Amendment Act.
The
second is that he would bring into operation the sections which he
had initially intended to. This would not be ultra vires
in terms
of section 13 of the Amendment Act.
Third,
this would not do harm to nor prejudice anyone as it would result in
the bringing into operation of those sections of the
Amendment Act
on the fixed date of 31 July 2006, which had been the intention from
the beginning.
The powers of the President and the rule of law
Counsel
for the applicant urged that in order for the President to correct
an error made in an issued proclamation, recourse would
have to be
had to a court of law or parliament. It would not, so the argument
went, fall within the powers of the President
to correct such an
error without having the invalid proclamation set aside. In my
view, this question needs to be answered in
the light of the
provisions of section 13 of the Amendment Act,
37
read with section 81 of the Constitution.
38
The power conferred by these provisions is a narrow one: to issue a
proclamation determining the date upon which legislation
will be
brought into force. The question is whether, properly construed,
those provisions empower the President to withdraw
a proclamation
issued in error, if the withdrawal is done before the relevant
legislation comes into force.
In
my view, the provisions in question necessarily imply a power to
withdraw. To read them otherwise would be to require the
President,
when seeking to correct an error, to approach this Court to declare
invalid a proclamation issued in error even if
the proclamation has
not yet had any direct legal effect. Where the President has issued
a proclamation in error, and this proclamation
has yet to come into
force, it is appropriate that the power to issue such proclamation
includes the power to withdraw it. The
power to withdraw accords
with the nature of the power to issue and publish proclamations of
this sort and the lawful exercise
of this power will not be harmful
to the rule of law. However, in my view, the President does not
have the power to amend a
proclamation issued in error where the
original proclamation was void from its commencement, as in this
case. I cannot see that
a nullity can be amended. It can of course
be withdrawn as I have reasoned above.
Counsel
for the Minister argued that the status of the Second Proclamation
be judged on its substance and not its form. While
I support in
general the principle that substance should take precedence over
form, that principle must yield in appropriate
cases to the rule of
law.
On
the facts of the present case the President could lawfully have
withdrawn the First Proclamation once he had realised his mistake
as
long as he did so in unambiguous terms, and before 31 July 2006. It
would impose an undue burden on the President to have
required him
to apply to court to have the incorrect proclamation set aside even
when the proclamation had not yet come into
force.
However,
that is not what happened here. Instead, the President issued the
Second Proclamation in which he purported to “amend”
the
invalid First Proclamation. The President cannot have the power to
amend a nullity as I have said above.
39
Moreover, the Second Proclamation did not withdraw the First
Proclamation; nor on its face could the legal position with regard

to the Amendment Act be determined. No commencement date is to be
found in the text of the Second Proclamation. One has to
rely on
the doctrine of incorporation by reference and consider the text of
the void First Proclamation to give the Second Proclamation
meaning.
Thus, to ascertain the full ambit of the substance of the Second
Proclamation a reader would have to refer to the invalid
First
Proclamation. In my view, this is undesirable. The Second
Proclamation thus lacked clarity and this is inconsistent with
the
rule of law.
40
The
power entrusted to the President under section 13 of the Amendment
Act had to be carried out lawfully and consistently with
the
Constitution. Two of the values on which our country is founded are
the supremacy of the Constitution and the rule of law.
41
It follows from this that when executive officials are required by
law to publish in proclamations decisions taken by them in
terms of
legislation, and where such decisions will have legal consequences,
they should be communicated in clear language so
that those who are
affected can know what it is that they should do in order to comply
with the law.
42
The
public should not have to depend on lawyers to interpret the meaning
and import of words in proclamations in order for them
to know
whether a particular piece of legislation passed by Parliament has
taken effect. The issue and publication of the two
Proclamations in
the present matter was meant to let the public know that specific
sections of the Amendment Act would come into
force on 31 July 2006
and this meant that there should have been no doubt in the minds of
the public as to which sections of
the Amendment Act would come into
effect.
The
doctrine of legality requires that the two Proclamations should
neither be vague nor uncertain and this cannot be said to
be the
case in respect of the Second Proclamation. The President should
have, in the circumstances, withdrawn the First Proclamation

clearly, expressly and unambiguously in the Second Proclamation.
Accordingly,
I conclude that the Second Proclamation is invalid.
Consequences of invalidity
The
applicant, the Minister and the Fund concur in the assertion that
were it to emerge that the Second Proclamation did not validly
bring
sections 1 to 5 of the Amendment Act into operation on 31 July 2006,
the consequences would be devastating.
The
Minister, the Fund, its Board, its CEO, its entire staff, the courts
and claimants have since 31 July 2006 operated on the
understanding
that sections 1 to 5 of the Amendment Act were in force.
The
Minister affirms that he, the Board, the Chair, the Vice-Chair and
members of the Board and the CEO of the Fund have acted
under the
amended administrative provisions since 31 July 2006 and says that
the implications of a finding that sections 1 to
5 did not come into
force on that date would wreak havoc with the control, management
and administration of the Fund.
The
Fund gives details regarding the complications that would arise in
the event of this Court holding that sections 1 to 5 of
the
Amendment Act did not come into force on 31 July 2006.
43
In
terms of section 172(1)(a) of the Constitution, a law which is
inconsistent with the Constitution must be declared invalid.
Both
the First and Second Proclamations must therefore be declared
invalid. This Court has the further power in terms of section

172(1)(b) of the Constitution to make any order that is just and
equitable. In my view, given the evidence placed before this
Court
by the Minister and the Fund, it would be appropriate to ensure that
the President issues a new proclamation bringing the
correct
provisions of the legislation into force with effect from 31 July
2006. Although it is unusual to bring legislation
into force so
that it has retrospective operation, it is entirely appropriate in
this case as it will ensure that all the conduct
of the Fund which
relied on the two Proclamations since 31 July 2006 will not be void
on the grounds that the Proclamations themselves
have been declared
invalid.
The
President should be given 30 days to issue the new proclamation. In
the meantime, this Court should ensure that no disruption
to the
administration of the Fund should occur by providing that the Fund
shall continue to act as if the relevant sections of
the Amendment
Act had validly been brought into force and that everything that has
been done by the Fund since 31 July 2006 which
relied on the
provisions of the new legislation shall be deemed not to be invalid
on the ground only that the two Proclamations
have been declared to
be invalid. If the meaning of the Second Proclamation had been
clear, the mechanism to achieve this end
would have been the
suspension of the declaration of invalidity as contemplated by
section 172(1)(b)(ii) of the Constitution.
However, as the meaning
of the Second Proclamation is not clear, I do not think that route
can be followed.
Accordingly,
it will be just and equitable to order that the Fund may continue to
act as if sections 1 to 5 of the Amendment Act
were brought into
force lawfully on 31 July 2006, and to provide that anything done
under those provisions from 31 July 2006
to the date 30 days after
the issue of this order shall not be invalid on the ground that the
provisions of the Amendment Act
were not in fact brought into force
on 31 July 2006.
Costs
In
this Court all parties sought clarity. It would be remiss to award
a costs order which hinders the public’s access to
the courts
in order to gain clarity. It is appropriate to support the costs
order made in the High Court because at that stage
of the
proceedings there was no need for the respondent to oppose the
application.
In
this Court, the applicant sought an order requiring the first and
second respondents to pay the costs of the application.
The second
respondent argued that it would not be appropriate to make any order
for costs against him in this Court because he
no longer opposed the
application for confirmation.
Although
the second respondent did not oppose the application in this Court,
costs should still be awarded against him. The opposition
at the
lower court level impacted the course that this litigation has had
to take. Thus, while the confirmation would nonetheless
have had to
come to this Court, it is still appropriate to order that the
applicant’s costs be paid by the first and second
respondents.
The
third respondent applied for direct access. This was granted. The
costs of the third respondent should thus be borne by
it.
Order
In
the circumstances, the following order is made:
The
applicant’s application for condonation of the late filing
of the record is granted.
The
application for leave to appeal is granted.
The
application for direct access by the third respondent is granted.
The
order handed down by the Pretoria High Court on 14 June 2007,
declaring that Proclamation R27 of 2006 is null and void
and of no
force and effect, is confirmed with effect from 31 July 2006.
Proclamation
R32 of 2006 is declared to be invalid with effect from 31 July
2006.
The
President must issue a Proclamation bringing sections 1, 2, 3, 4
and 5 of the Road Accident Fund Amendment Act, 2005 (Act
No. 19 of
2005) into effect, with effect from 31 July 2006, within 30 days
of the date of this order.
Notwithstanding
the declarations of invalidity contained in paragraphs (d) and (e)
of this order, the Fund may continue to
act for 30 days from the
date of this order as if sections 1, 2,3,4 and 5 of the Amendment
Act were brought into force on
31 July 2006.
Notwithstanding the declarations of invalidity contained in
paragraphs (d) and (e) of this order, everything that has been

done by the Fund since 31 July 2006 on the basis that sections
1,2,3,4 and 5 of the Amendment Act were brought into force
on 31
July 2006 shall—
not be invalid on the ground that the First and Second
Proclamations have been declared to be invalid in this order;

and
be deemed valid as if sections 1,2,3,4 and 5 of the Amendment
Act had been lawfully brought into force on 31 July 2006.
The
first and second respondents are ordered to pay the costs of the
applicant in both courts, jointly and severally, the
one paying
the other to be absolved, including the costs of two counsel.
Langa
CJ, O’Regan ADCJ, Kroon AJ, Madala J, Mokgoro J, Ngcobo J,
Nkabinde J and Van der Westhuizen J concur in the judgment
of
Skweyiya J.
JAFTA
AJ:
I
have read the judgment prepared by my colleague Skweyiya J.
Regrettably I disagree with the conclusion which he has come
to
regarding the invalidity of both Proclamations. Proclamation R32
was issued in order to correct the error in Proclamation
R27 which
came into operation at midnight on 30 July 2006. When read
together, the two Proclamations convey and put into force
the
President’s correct decision in relation to bringing into
operation certain sections of the Road Accident Fund Amendment
Act
19 of 2005 ( the Amendment Act). I come to this finding for
reasons which now follow.
The
facts are set out in the judgment of Skweyiya J. For ease of
reading, I will refer only to facts which are relevant to
my
reasons and findings. In 2005, Parliament enacted the Amendment
Act. This Act was signed into law by the President on
23 December
2005. It was published on 5 January 2006. However, it did not
come into operation upon being assented to by the
President or upon
publication in the Government Gazette.
1
Section 13 of the Amendment Act provides that it will come into
force “on a date determined by the President by proclamation

in the Government Gazette.”
In
July 2006, the President decided to bring into operation certain
sections of the Amendment Act which did not require that
measures
be put in place before implementation of the Act. The sections
which the President decided to bring into operation
dealt with
administrative matters. They were sections 1, 2, 3, 4 and 5 of the
Amendment Act which amended sections 4, 6, 10,
11 and 12 of the
Road Accident Fund Act 56 of 1996 (the Principal Act).
But
when Proclamation R27 was drafted in order to carry out the
President’s decision, it referred erroneously to sections
6,
10, 11 and 12 instead of sections 1, 2, 3, 4 and 5 of the Amendment
Act. However, it correctly referred to section 4 of
that Act. The
Proclamation was published on 19 July 2006 with this error. The
President had determined 31 July 2006 as the
date on which sections
1, 2, 3, 4 and 5 of the Amendment Act would come into operation.
The Proclamation purported to bring
into force on that date
sections 4, 6, 10, 11 and 12.
Before
31 July 2006, the President became aware that Proclamation R27 did
not correctly reflect his decision in that it referred
to four
incorrect sections, namely, sections 6, 10, 11 and 12. In order to
rectify this error the President issued Proclamation
R32, which was
published on 31 July 2006. Evidently, the latter was intended to
amend the former, insofar as it referred to
the wrong sections.
Both Proclamations are fully set out in Skweyiya J’s
judgment.
In
the High Court
On
31 July 2006, the applicant instituted a review application in the
Pretoria High Court, seeking an order declaring Proclamation
R27 to
be null and void and of no force and effect. At the time he
instituted the application, he was not aware that the President
had
sought to rectify the error by amending Proclamation R27. It was
pointed out in the answering affidavit, filed on behalf
of the
second respondent, that the President had issued Proclamation R32
so as to amend the first one. In reply, the applicant
contended
that the law did not authorise the President to rectify the error
in Proclamation R27 by issuing a Second Proclamation.
He contended
that the error could only be corrected by an Act of Parliament or
an application to court for a review of the
impugned Proclamation.
The
applicant persisted in his challenge on the ground that
Proclamation R27 had been erroneously issued. He formulated his

challenge in the following terms:
“
The Proclamation [R27]
was issued in error. What the President actually intended was to
bring into operation sections 1, 2, 3,
4 and 5 of the amending Act,
which respectively amends sections 4, 6, 10, 11 and 12 of the
principal Act.
The Department of Transport,
which operates under the direction of the Minister of Transport, has
acknowledged that the Proclamation
was issued in error. It has
stated that the Proclamation will be withdrawn, and a new
Proclamation will be issued in its place.
I submit that the President
does not have the power to withdraw a Proclamation which he has
issued, bringing an Act or a section
of an Act into operation. The
result is that Proclamation R27 of 2006 continues in effect,
notwithstanding any notice of its
purported withdrawal.
The consequence of the
erroneous bringing into operation of sections 4, 6, 10, 11 and 12 of
the amending Act is that parts of
the principal Act are incapable of
operation.”
The
President did not file opposing papers in the High Court. But the
Minister of Transport filed an affidavit deposed to by
Ms
Nonkululeko Msomi, the Deputy Director General: Transport
Regulation and Public Entity Oversight Division. She disputed
that
Proclamation R27 was issued in error and contended that it was
properly issued even though it contained the error of referring
to
wrong sections. She explained:
“
Although the
Proclamation was correctly issued, it referred to wrong sections of
the amending Act which were to be put into operation,
and should
have referred to sections 1, 2, 3, 4, and 5 of the amending Act. As
a result of this error of having referred to
incorrect sections of
the amending Act, a second Proclamation was issued, namely,
Proclamation No.R.32 of 2006 which corrected
the erroneous reference
to sections 4, 6, 10, 11, and 12 referred to above and in that
Proclamation the correct reference of
the sections that were put
into operation was made, namely, 1, 2, 3, 4, and 5 of the Amendment
Act of 2005.”
The
High Court (per Preller J) held that the applicant had the
requisite locus standi to challenge the validity of Proclamation

R27. It also upheld the applicant’s argument to the effect
that this Proclamation was erroneously issued by the President.

Regarding Proclamation R32, the High Court found that the President
had no authority to issue the Second Proclamation, the
effect of
which was to amend the first one. It reasoned:
“
Because new laws often
require regulations and the taking of other administrative steps in
order to operate effectively, the practice
has developed over many
years for Parliament to leave it to the executive to decide when
everything necessary is in place for
a new law to function. In such
case there is a provision in the Act which empowers the President to
bring the Act into operation
(and nothing more) by proclamation when
the time is ripe. The provision certainly does not empower the
President to later revoke
the proclamation if he no longer likes the
Act, thereby effectively repealing it.
Taking this argument to its
logical conclusion would mean that the President would have the
power to revoke by proclamation any
Act that he or his predecessors
have previously brought into operation by publishing a proclamation
to that effect in the
Gazette
. One can hardly imagine the
consequences if e.g. the statutes protecting land tenure, the labour
legislation or even the Criminal
Procedure Act should be revoked in
terms of this hypothetical extended power. Such a regime will
simply be government by decree
which is the antithesis of the Rule
of Law which is one of the cornerstones of our Constitution.
My conclusion is therefore that
the President’s power to bring an Act into operation by way of
a proclamation does not include
the power to either amend or revoke
that proclamation.”
Following
the above reasoning and findings, the High Court issued the
following order:
“
1. It is declared that
Proclamation R27 of 2006 is null and void and of no force and
effect.
2. The second respondent is
ordered to pay the applicant’s costs.
3. The order in paragraph 1
above is referred to the Constitutional Court for confirmation in
terms of Section 172(2)(a) of the
Constitution.”
The
issues
This
Court must be satisfied that the declaration of invalidity was
properly made before it can confirm the High Court’s
order.
The first issue for consideration is whether the entire
Proclamation R27 was invalid ab initio. If it was not, the
next
issue will be whether the President had the power to rectify the
error in Proclamation R27 by issuing Proclamation R32
which sought
to amend the First Proclamation. I address these issues in turn.
Before doing so, however, I must mention that
in this Court,
counsel for the Minister did not persist in the argument that the
applicant lacked locus standi. I am willing
to accept that the
applicant’s nature of practice constitutes sufficient
interest for him to have locus standi in this
matter.
Was
the entire Proclamation R27 invalid from the outset?
The
answer to this question lies in the consideration of the ground on
which the applicant relies in challenging the validity
of
Proclamation R27. This Proclamation is attacked on the sole ground
that it refers to sections which the President did not
intend to
put into force. It is common cause that the President had decided
to put into force sections 1 to 5 of the Amendment
Act. But the
Proclamation referred to sections 4, 6, 10, 11 and 12 instead of
sections 1, 2, 3, 4 and 5. Section 4 was the
only section to which
a correct reference was made. Insofar as reference was made to the
other sections, it did not reflect
the President’s true
decision; otherwise the Proclamation was correct in all other
respects.
I
have difficulty in accepting that the error, which is limited in
extent, has the effect of nullifying the entire Proclamation
R27.
In determining the validity of the Proclamation it is important to
recall that it is not the President’s decision
that is under
attack here but the incorrect recordal of that decision in the
Proclamation. In other words, the Proclamation’s
validity is
challenged on the basis that it does not represent the whole of the
President’s correct decision. Self-evidently
the
Proclamation contains good and bad parts. The question that arises
is whether the bad part can be severed from the good.
Severability
Severability
is a tool commonly used to remedy unconstitutional legislative
provisions.
2
Under the common law, severance is employed to sever the bad part
of a document in order to save it from invalidity.
3
There is no reason against the application of severance to a
proclamation which brings an Act of Parliament into force, provided

the test for severance is met. This test entails two stages.
During the first stage the focus is on determining whether the
good
can be severed from the bad. If so, then one has to determine
whether what remains gives effect, in the present context,
to the
purpose which the President sought to achieve. In
Coetzee
,
4
Kriegler J outlined the test as follows:
“
Although severability in
the context of constitutional law may often require special
treatment, in the present case the trite
test can properly be
applied: if the good is not dependent on the bad and can be
separated from it, one gives effect to the good
that remains after
the separation if it still gives effect to the main objective of the
statute. The test has two parts: first,
is it possible to sever the
invalid provisions and, second, if so, is what remains giving effect
to the purpose of the legislative
scheme?”
5
(Footnote omitted.)
The
application of severance, as it appears above, does not depend on
whether the entire objective is achieved by executing
what remains
after severance. The question is whether giving effect to the
remaining part will achieve the intended objective,
albeit
partially. In applying the test to the present case, the enquiry
is first, whether reference to the incorrect sections
6, 10, 11 and
12 can be severed from the rest of Proclamation R27 and if so,
second, whether giving effect to what remains
of the Proclamation,
would achieve partially the President’s objective.
There
can be no doubt that the wrong sections can be severed from the
correct one. Section 13 of the Amendment Act empowers
the
President to choose the sections he decides to put into force at
any given time. The number of the sections to be put
into
operation falls within his discretion. It can be one or more
sections which he identifies for this purpose. The coming
into
operation of section 4 of the Amendment Act
6
does not depend on the implementation of the severed sections 6,
10, 11 and 12. As a result, putting section 4 into force
would
achieve the President’s objective. In fact it seems to me
that this section came into operation on 31 July 2006.
According
to section 13 of the Interpretation Act 33 of 1957, Proclamation
R27 came into operation on the expiration of 30
July 2006.
7
However,
sections 6, 10, 11 and 12 did not, contrary to the view held by the
applicant,
8
come into force because they did not form part of the President’s
decision. The fact that these sections appeared in
the
Proclamation did not make them part of the sections which the
President had intended to put into operation. This is common

cause. It is the decision of the President that put section 4 into
operation and not the Proclamation which was just a means
of
executing the President’s decision. The power conferred on
the President by section 13 of the Amendment Act can only
be
exercised if the President applies his mind to the relevant issues.
He has to consider whether the necessary framework
for
implementing the Act is in place before putting into force parts of
the Act which require the existence of such framework.
In this
case, the President had decided to put into force those sections of
the Act which did not require any measures to
be in place. It is
this exercise of public power which is required to meet the
threshold of rationality.
In
invoking the decision of this Court in
Pharmaceutical
Manufacturers
,
9
counsel for the applicant argued that Proclamation R27 was invalid
because it was irrational and was issued in error. He submitted

that the present case “is for practical purposes on all fours
with the
Pharmaceutical Manufacturers
case.” In my
view the present case is distinguishable from that case in two
respects. First, in
Pharmaceutical Manufacturers
, the
President became aware of the error after the relevant Act had been
put into operation. Thus he had no power to withdraw
a
proclamation which had already become effective and put the
relevant Act into force. In the present case, the President
became
aware and took remedial action before the Proclamation became
effective.
Secondly
and most importantly, in
Pharmaceutical Manufacturers
, the
error influenced the exercise of public power by the President. He
was made to believe incorrectly that the regulatory
framework
necessary for the implementation of the Act was in place before he
took the decision to bring it into force. His
true decision there
was to bring the relevant Act into force. Had he been given the
true facts he could not have made the
decision and therefore issued
the Proclamation. It was in that context that the Court said:
“
Rationality in this
sense is a minimum threshold requirement applicable to the exercise
of all public power by members of the
Executive and other
functionaries. Action that fails to pass this threshold is
inconsistent with the requirements of our Constitution
and therefore
unlawful. The setting of this standard does not mean that the
Courts can or should substitute their opinions as
to what is
appropriate for the opinions of those in whom the power has been
vested. As long as the purpose sought to be achieved
by the
exercise of public power is within the authority of the functionary,
and as long as the functionary’s decision,
viewed objectively,
is rational, a Court cannot interfere with the decision simply
because it disagrees with it or considers
that the power was
exercised inappropriately. A decision that is objectively
irrational is likely to be made only rarely but,
if this does occur,
a Court has the power to intervene and set aside the irrational
decision.”
10
(Footnote omitted.)
As
observed in the above dictum, the requirement of rationality
applies to the exercise of public power. In the present case,
the
President had properly and appropriately exercised the power by
deciding to put into operation only those sections which
did not
require any measures to be put in place before implementation. The
error came into existence after the decision had
been taken and
when it was recorded in the Proclamation. The invocation of
rationality in the present circumstances is, in
my view, misplaced.
The partial invalidity of the Proclamation flows from the fact
that it did not reflect the correct decision
of the President. It
follows that the President’s decision, which is not
challenged in these proceedings, remains intact.
The question that
arises at this stage is whether the President could rectify the
error in Proclamation R27. This is the
issue which I will discuss
in turn below.
The
concession made by the Minister’s counsel
Before
I address the question whether the President was empowered to issue
the Second Proclamation, I must comment on the concession
made by
the Minister’s counsel to the effect that Proclamation R27
was a nullity from the outset. In their written argument,
counsel
for the Minister submitted:
“
We accept the essence of
the applicant’s contentions about the First Proclamation:
1.
It
was objectively irrational because the provisions of the Amendment
Act which it purported to put into operation, were an arbitrary

selection which resulted from an underlying mistake.
2. It is appropriate for this
court to confirm the High Court’s order declaring the First
Proclamation to be invalid. There
is no reason to limit the
retrospective operation of the order of invalidity.
Under the doctrine of
objective invalidity, the First Proclamation is regarded as having
been a nullity from the outset.
It follows that the First
Proclamation never brought into operation the provisions to which
it erroneously referred. It had
no effect in law at all.”
The
difficulty with the concession is that it departs from the wrong
premise, namely, that all the sections to which the First

Proclamation refers were incorrect. It overlooks the fact that
section 4 had been correctly referred to. As a result it makes
no
distinction between the erroneously referred-to-sections and
section 4. Its reliance on the doctrine of objective invalidity
is
mistaken. The doctrine of objective invalidity cannot apply to
that part of the Proclamation which was not affected by
the error
and thus not invalid. In the light of this finding the question
that arises is: what is the effect of the concession
on the
determination of the issue? I proceed to address this question.
Ordinarily
a court accepts, without deciding, factual concessions made by the
parties because the effect thereof is that the
conceded issue is no
longer placed in dispute. This rule extends to legal concessions
but only to the extent that a court
is satisfied that a concession
was properly made. If the court is of the view that a legal
concession was improperly made,
it is entitled to reject it and
decide the issue as if it remained in dispute. In
Matatiele
Municipality
,
11
Ngcobo J, writing for the majority, said:
“
Here, we are concerned
with a legal concession. It is trite that this Court is not bound
by a legal concession if it considers
the concession to be wrong in
law. Indeed, in
Azanian Peoples Organisation (AZAPO) and Others
v President of the Republic of South Africa and Others
, this
Court firmly rejected the proposition that it is bound by an
incorrect legal concession, holding that, ‘if that concession

was wrong in law [it] would have no hesitation whatsoever in
rejecting it’. Were it to be otherwise, this could lead to
an
intolerable situation where this Court would be bound by a mistake
of law on the part of a litigant. The result would be
the
certification of law or conduct as consistent with the Constitution
when the law or conduct in fact is inconsistent with
the
Constitution. This would be contrary to the provisions of section 2
of the Constitution which provides that the ‘Constitution
is
the supreme law of the Republic; law or conduct inconsistent with it
is invalid’.”
12
(Footnote omitted.)
The
President’s power to rectify the error in Proclamation R27
When
the President became aware of the error in the Proclamation he
sought to rectify it. But because the Proclamation had
already
been published, he deemed it appropriate to correct it by means of
issuing a Second Proclamation amending, to the extent
necessary,
the first one. Both in the High Court and in this Court, the
applicant argued that the President was not empowered
to amend
Proclamation R27 in the manner he did. Relying on
Pharmaceutical
Manufacturers
,
13
counsel for the applicant argued that the only options which
were available to the President were to institute a review
application
or approach Parliament to enact an amendment. He
submitted that section 13 of the Amendment Act does not authorise
the President
to amend a proclamation. Were it to be construed as
empowering him to do so, continued the argument, the President
would be
able to repeal provisions in an Act of Parliament by
simply amending his original Proclamation which brought such
provisions
into force. This would, concluded the argument, be a
far-reaching and startling power which could cause the law to
change
from time to time as the President determined.
When
taken at face value, the above argument is seductively persuasive.
The High Court upheld it and rejected the assertion
that the
President had amended Proclamation R27. It reasoned that were the
President to have the power to amend, he could
“revoke by
proclamation any Act that he or his predecessors had previously
brought into operation by publishing a proclamation
to that effect
in the Gazette.” If this were to happen, the High Court
reasoned, it would constitute “government
by decree which is
the antithesis of the Rule of Law which is one of the cornerstones
of our Constitution.”
14
However,
the demise of the above argument lies in its foundation. It is
based on the wrong premise, which is that the President
sought to
amend the Proclamation which had brought into force sections 6, 10,
11 and 12 of the Amendment Act, when this was
clearly not the
position. These sections were never brought into operation
because, as stated earlier, they did not form part
of the
President’s decision and were not intended to come into
force. In the present case, the President sought to rectify
an
error which had no legal force and effect. As mentioned above,
only section 4 came into operation on 31 July 2006. To
the extent
that Proclamation R32 refers to section 4 as one of the substituted
sections, it has no legal force. In fact the
inclusion of section
4 in Proclamation R32 was irrational and creates an unnecessary
confusion. It is indeed meaningless for
Proclamation R32 to
replace section 4 in Proclamation R27 with the same section 4.
The
issue that requires consideration in this regard is whether the
President was empowered to rectify the error which arose
in the
present matter. Reference to
Pharmaceutical Manufacturers
is not helpful to this enquiry because the error we are concerned
with here is of a different kind. In determining this issue,
the
starting point must be the Constitution, which is the genesis of
the President’s power to bring Acts of Parliament
into
operation. Section 81 of the Constitution provides:
“
A Bill assented to and
signed by the President becomes an Act of Parliament, must be
published promptly, and takes effect when
published or on a date
determined in terms of the Act.”
The
constitutional power to bring an Act of Parliament into force can
be exercised by the President only if the Act authorises
it. In
other words, the exercise of the power and the manner of doing it
depends on the terms of the Act to be brought into
operation. If
an Act of Parliament is silent on the issue, it comes into
operation automatically upon publication. But a
number of Acts of
Parliament require antecedent measures to be put in place before
they can be implemented. In that event,
the practice is for
Parliament to authorise the President, once the measures are in
place, to bring the Act into force. This
is normally done by
adding a section to this effect in the Act itself.
In
the present case, section 13 of the Amendment Act authorises the
President to bring its provisions into force on a date determined

by him and it requires him to do this by publishing a proclamation
in the Government Gazette. The duty imposed on the President
is to
bring the Act into force when circumstances are conducive for it to
be implemented. The Act confers a discretion on
him to determine
when circumstances are conducive for bringing the Act into
operation and to decide whether to bring into force
the entire Act
or only parts of it. Once this determination is made, the
President is under the duty to bring the Act or its
part into
operation. However, he is obliged to discharge this duty by
publishing a proclamation in the Government Gazette
which sets out
his decision. It is in this context that the question whether the
President had the power to amend Proclamation
R27 must be
considered.
Although
neither the Constitution nor the Amendment Act confer express power
on the President to amend proclamations containing
errors such as
the present, the power to amend to this limited extent is implied.
It is implied because it is necessary for
the President to have it
in order to properly discharge his duty to bring the determined
parts of the Act into operation.
The facts of the present case
demonstrate this point. It cannot be argued that the President
lacks the power to correct proclamations
drafted in a manner that
does not correctly reflect his decision. To hold otherwise would
defeat the very purpose for which
the power was conferred on the
President.
It
is a well-established principle of our law to interpret a provision
which expressly confers a particular power as impliedly
including
in its ambit the authorisation of taking steps reasonably necessary
to achieve the main purpose.
15
The latter is taken as being incidental or ancillary to the
expressly conferred power. In
Matatiele Municipality
Ngcobo
J said:
“
It is trite that the
power to do that which is expressly authorised includes the power to
do that which is necessary to give effect
to the power expressly
given. The power of Parliament to redraw provincial boundaries
therefore includes the power that is reasonably
necessary for the
exercise of its power to alter provincial boundaries.”
16
(Footnote omitted.)
For
these reasons, I conclude that the President had the power to
rectify the error in Proclamation R27 by issuing Proclamation
R32.
It follows that, to the extent described above, both Proclamations
are valid. The High Court erred in declaring the
First
Proclamation invalid.
Costs
The
general rule applicable to the issue of costs should be followed in
this matter. Consequently, each party must bear its
own costs.
Accordingly
I would make the following order:
The
declaration of invalidity made by the High Court is not confirmed.
The
order of the High Court is set aside and replaced with the
following order:
(i) The
application is dismissed.
YACOOB J:
Introduction
This
case is concerned with the validity of two Proclamations issued by
the President of the Republic of South Africa as head
of the
National Executive
1
purportedly in accordance with the provisions of
section 13
of the
Road Accident Fund Amendment Act
2
(the
amending Act). The first of these Proclamations was issued on
11 July 2006 (the first Proclamation) and the second, around two

weeks later on 28 July 2006 (the second Proclamation). I have read
the judgments of Skweyiya J and Jafta AJ and find myself
unable to
agree with their reasoning and their conclusions. My colleague
Skweyiya J analyses and determines separately the
validity of each
of the two Proclamations whose validity is in issue in this case
and concludes that:
each
is invalid;
the first Proclamation was invalid ab initio;
the
second Proclamation was aimed at validating the first
Proclamation;
it
did not do so;
both
Proclamations are therefore invalid; and
it
would be just and equitable to allow the President to correct the
defect and to ensure that the first Proclamation is treated
as if
it had brought the correct legislative provisions into force
.
Jafta
AJ holds that:
the
first Proclamation is valid in part and invalid in part;
the
part that is valid can and should be severed from the part that is
not;
the
part that is good can be amended by the President and has been
amended by the second Proclamation; and
the
second Proclamation validly amended the first.
The
approach in this judgment is to read both Proclamations together
and to:
find
the first Proclamation invalid;
hold
that it is not just and equitable for the invalidity to take
effect until the date of this judgment;
find
that the second Proclamation did not successfully amend the first;
sever
those parts of the first Proclamation which are bad; and
read
in the amendments intended by the President when issuing the
second Proclamation.
The
fundamental difference between the judgment of Skweyiya J and this
judgment is, in my view, that this judgment expressly
focuses on
whether it is just and equitable to declare both Proclamations
invalid, whereas the judgment of Skweyiya J does
not conduct this
enquiry but concludes that the first Proclamation was invalid from
the date of its publication.
I
agree with Skweyiya J that the application for condonation must be
granted. So too must the application for direct access
made by the
Road Accident Fund (the Fund) established in terms of
section 2(1)
of the
Road Accident Fund Act (the
main Act).
3
However, I would allow the application on the basis that the
validity of the second Proclamation for which the Fund contends
is
interwoven with the validity of the first and that both
Proclamations need to be read and considered together. I
nevertheless
ultimately conclude that no order should be made
pursuant to the application for direct access because there is no
need to
do so in the light of the order that is motivated in
respect of the first Proclamation.
In
my judgement, the applicant has standing as an attorney engaged in
work aimed at ensuring that people who are injured in
motor
collisions are properly compensated by the Fund. In doing so the
attorney would need to understand the compensation
regime, to
advise clients and to operate the system in order that clients are
properly compensated. A compensation law that
is irrationally
brought into force would undoubtedly affect this ability.
The
Legislation and the two Proclamations
The
amending Act amended the main Act. Section 13 of the amending Act
provided that the amending legislation would come into
force on a
date “determined by the President by proclamation in the
Gazette”. The President, intending to bring
sections 1, 2,
3, 4 and 5 of the amending Act into operation, published
4
the first Proclamation on 19 July 2006
5
reading as follows:
“
[I] hereby determine 31
July 2006 as the date on which sections 4, 6, 10, 11 and 12 will
come in operation.”
It
is apparent therefore that the President brought sections 4, 6, 10,
11 and 12 of the amending Act into operation but intended
to bring
into operation sections 1, 2, 3, 4 and 5 of that Act. It follows
that section 4 of the amending Act was rightly brought
into
operation while the others were not.
6
The basis of this error emerged easily enough: Sections 1, 2, 3, 4
and 5 of the amending Act amended sections 4, 6, 10, 11
and 12 of
the main Act respectively. The President in fact had in mind
bringing into force the amended sections 4, 6, 10,
11 and 12 of the
main Act. Amendments were effected by sections 1, 2, 3, 4 and 5 of
the amending Act.
7
This
error was apparently realised before 28 July 2006 and, on that
date, the President issued the second Proclamation which
reads:
“
[I]
hereby, amend Proclamation No. R. 27 of 2006, by the substitution
for the reference to section 4, 6, 10, 11 and 12 in the
said
Proclamation for the reference to section 1, 2, 3, 4 and 5 of the
Amendment Act, 2005 (Act No. 19 of 2005).”
8
The
second Proclamation was issued by the office of the President some
days before 31 July 2006 when the incorrect sections
would
erroneously have been brought into force. This Proclamation was
however published on the same day as that on which the
incorrect
sections were brought into force. The second Proclamation was
evidently aimed at correcting the errors in the first
and both were
published at the time the challenge to the validity of the first
Proclamation was made before the High Court.
It is therefore
appropriate to have regard to both Proclamations together in an
effort to determine if the office of the President
had succeeded in
putting right the error which was known to exist. Although all the
parties before us conceded that the first
Proclamation was invalid
it remains nonetheless necessary to examine this question. The
answer is not straight-forward but,
if it is not in favour of the
President, the first Proclamation must be invalid. I proceed to
examine this issue.
Amendment
of Proclamation by President?
I
have already pointed out that the President sought to amend the
first Proclamation by the second Proclamation. Two inter-related

questions arise. The first is whether and in what circumstances it
is competent for the President to amend a proclamation.
And the
second is whether the President successfully amended the first
Proclamation in this case.
I
cannot at this stage envisage any substantial objection to the
President having the power to amend a proclamation which that

office realises is patently erroneous in order to correct the error
(and for no other purpose) provided that the amendment
is properly
effected before the proclamation comes into effect. Neither the
Constitution nor the provisions of section 13
of the amending Act
precludes this course. Nor would a limitation of this kind be in
accordance with good government and administration.
Government at
all levels must be encouraged to be vigilant at all times and must
be given the opportunity to change their
decisions if the officials
concerned discover that the decisions were patently erroneous. To
compel parties to approach a
court to set aside a decision that is
obviously in error would be inconsistent with that responsiveness
with which the Constitution
charges all organs of state. The
energy as well as the financial and other resources that would need
to be expended in order
to set aside an obviously incorrect
decision when that decision has been corrected before it came into
force is counter-productive,
overly technical and cannot be
justified in our constitutional order.
Different
considerations apply when the error is discovered and the
correction made after a proclamation bringing an Act into
force is
published. An amendment by the President in these circumstances
could well amount to repeal of legislation. We are
not concerned
with that situation and it need not be addressed further.
The
situation in this case is that the decision to correct was made and
the amending Proclamation was signed by the President
three days
before the first Proclamation came into force, but the second
Proclamation was published on 31 July 2006: the same
day on which
the first Proclamation came into force. If the President did
indeed have the power to amend there would have
been, in my view,
no difficulty about the validity of the amendment had the second
Proclamation been published on 29 July 2006.
In this regard, it
seems to me to place form over substance to make a distinction
between, on the one hand, withdrawal of
the first Proclamation and
the replacement of that Proclamation by another and, on the other
hand, the amendment of the first
Proclamation by the second. Each
approach would produce the same result provided, of course, that
the proclamation intended
to implement either approach is published
before the date upon which the erroneous proclamation comes into
operation. It is
the timing of the publication that is essential;
whether the withdrawal/replacement process or the one of amendment
is followed
is neither here nor there.
It
is however not necessary to decide whether it would have been
competent for the President to amend the first Proclamation,
had
the amending Proclamation been published before the first one.
This is because this case must be decided on the footing
that the
second Proclamation was published after the first.
It
cannot be gainsaid that the second Proclamation was not published a
day before the first Proclamation came into operation.
It was
published on the same day. In these circumstances, it is necessary
to determine whether the second Proclamation was
published at the
same time as the incorrect sections of the amending Act were
brought into force, or whether the second Proclamation
was
published only after the first Proclamation came into operation.
In our law, a determination that a provision of a law
would come
into operation on 31 July 2006 results in the provision coming into
force at midnight on 31 July 2006.
9
It follows that the first Proclamation came into force at midnight
on 31 July 2006. We know that 31 July 2006 appears as
the date of
publication in the Government Gazette containing the second
Proclamation. But we have no idea whether the Government
Gazette
was in fact published a little time before midnight or some time
after. It would be wrong to assume that the second
Proclamation
was published either before midnight or at midnight on 31 July
2006. This judgment must proceed on the basis
that publication was
effected after midnight.
As
at midnight on 31 July 2006, therefore, the first Proclamation was
in operation and the second Proclamation not. In these

circumstances, the first Proclamation was irrational and therefore
invalid.
The
next question is whether the second Proclamation had the effect of
validating the first Proclamation which had come into
force in an
invalid state. I do not think so. In the circumstances the
parties were right in conceding that the first Proclamation
was
invalid. The fact that the second Proclamation did not amend the
first means that it too must be declared invalid.
Just
and equitable order
It
is appropriate to consider the just and equitable order that falls
to be made consequent upon the declaration of invalidity
of both
Proclamations. It must be stressed at the outset of this enquiry
that it does not follow from a finding of invalidity
in relation to
any instrument that that instrument is invalid from the moment of
its promulgation. Our Constitution undoubtedly
places an
obligation upon a court, including this Court, to declare both
Proclamations inconsistent with the Constitution and
invalid.
10
There is however no obligation to declare the Proclamations
inconsistent with the Constitution and invalid with retrospective

effect. Indeed a court is expressly given the power (and in my
view obliged) to make an “order that is just and equitable”
11
including an order limiting the retrospective effect of the
invalidity
12
and an order suspending that declaration of invalidity.
13
I emphasise that it is the obligation of this Court to consider
whether it is just and equitable that the first Proclamation
be
regarded as invalid from the date of its promulgation. This Court
has held in relation to objective invalidity that—
“
[t]he Court’s
order does not invalidate the law; it merely declares it to be
invalid. It is very seldom patent, and in
most cases is disputed,
that pre-constitutional laws are inconsistent with the provisions of
the Constitution. It is one of
this Court’s functions to
determine and pronounce on the invalidity of laws, including Acts of
Parliament. This does not
detract from the reality that
pre-existing laws either remained valid or became invalid upon the
provisions of the Constitution
coming into operation. In this sense
laws are objectively valid or invalid depending on whether they are
or are not inconsistent
with the Constitution. The fact that a
dispute concerning inconsistency may only be decided years
afterwards, does not affect
the objective nature of the invalidity.
The issue of whether a law is invalid or not does not in theory
therefore depend on
whether, at the moment when the issue is being
considered, a particular person’s rights are threatened or
infringed by
the offending law or not.
A pre-existing law which was
inconsistent with the provisions of the Constitution became invalid
the moment the relevant provisions
of the Constitution came into
effect. The fact that this Court has the power in terms of section
98(5) of the Constitution to
postpone the operation of invalidity
and, in terms of section 98(6), to regulate the consequences of the
invalidity, does not
detract from the conclusion that the test for
invalidity is an objective one and that the inception of invalidity
of a pre-existing
law occurs when the relevant provision of the
Constitution came into operation. The provisions of sections 98(5)
and (6), which
permit the Court to control the result of a
declaration of invalidity, may give temporary validity to the law
and require it
to be obeyed and persons who ignore statutes that are
inconsistent with the Constitution may not always be able to do so
with
impunity.”
14
This
was said in relation to the interim Constitution. Applied to our
Constitution the passage means that, like in the interim

Constitution, the default position is that laws declared invalid by
this Court are to be regarded as invalid from the date
of their
inception. However like under the interim Constitution, this Court
has the power to control retrospectivity and the
effects of a
declaration of invalidity.
In
this case the President sought to rectify an error but did so a
little too late. There is no point in declaring the first

Proclamation to be invalid ab initio because the consequences would
be to frustrate the bona fide effort of the Executive to
correct
the error. It would be just and equitable, in all the
circumstances, to give effect to the intention of the Executive
and
to amend the first Proclamation by a process of severance and
reading in. This would be the correct course particularly
in the
light of the fact that the Fund has for the past two years
proceeded on the basis that this was so.
In
the result, I would sever from the first Proclamation the phrase
“4, 6, 10, 11 and 12” and read in to the Proclamation

in the place of the severed phrase the phrase “1, 2, 3, 4 and
5”. After this exercise, the relevant part of the

Proclamation would read as follows:
“
PROCLAMATION WITH REGARD
TO THE COMMENCEMENT OF SECTIONS 1, 2, 3, 4 AND 5
In terms of section 13 of the
Road Accident Fund Amendment Act, 2005 (Act No.19 of 2005), I hereby
determine 31 July 2006 as the
date on which sections 1, 2, 3, 4 and
5 will come into operation.”
For
the purpose of clarity I would require the President to ensure that
the terms of the first Proclamation that result from
the reading in
and severance proposed by this judgment are published in the
Government Gazette within 14 days.
This
being a minority judgment, there is no point in formulating an
order.
For the Applicant: Advocate Geoff Budlender instructed by Kruger &
Co.
For the Second Respondent: Advocate Wim Trengove SC and Advocate
Alfred Cockrell instructed by the State Attorney.
For the Third Respondent: Advocate Wim Trengove SC and Advocate
Steven Budlender instructed by Brugmans Incorporated.
1
Section 167(5) of the Constitution provides:
“The
Constitutional Court makes the final decision whether an Act of
Parliament, a provincial Act or conduct of the President
is
constitutional, and must confirm any order of invalidity made by the
Supreme Court of Appeal, a High Court, or a court of
similar status,
before that order has any force.”
2
Section 172(2)(a) provides:
“The
Supreme Court of Appeal, a High Court or a court of similar status
may make an order concerning the constitutional
validity of an Act
of Parliament, a provincial Act or any conduct of the President, but
an order of constitutional invalidity
has no force unless it is
confirmed by the Constitutional Court.”
3
Section 2(1) of the Principal Act provides: “There is hereby
established a juristic person to be known as the Road Accident

Fund.”
4
Section 3 of the Principal Act.
5
Section 85 of the Constitution, which deals with the executive
authority of the Republic, provides that:
“(1)
The executive authority of the Republic is vested in the President.
(2) The President exercises the executive authority,
together with the other members of the Cabinet, by—
(a) implementing national legislation except where the
Constitution or an Act of Parliament provides otherwise;
(b) developing and implementing national policy;
(c) co-ordinating the functions of state departments
and administrations;
(d) preparing and initiating legislation; and
(e) performing any other executive function provided
for in the Constitution or in
national legislation.”
6
Section 13 of the Amendment Act reads as follows:
“This
Act is called the
Road Accident Fund Amendment Act, 2005
, and takes
effect on a date determined by the President by proclamation in the
Gazette.”
7
Section 81 of the Constitution provides that:
“A
Bill assented to and signed by the President becomes an Act of
Parliament, must be published promptly, and takes effect
when
published or on a date determined in terms of the Act.”
8
Section 13(3) of the Interpretation Act 33 of 1957 provides that:
“If
any Act provides that that Act shall come into operation on a date
fixed by the President or the Premier of a Province
by proclamation
in the Gazette, it shall be deemed that different dates may be so
fixed in respect of different provisions of
that Act.”
9
[2002] ZACC 6
;
2002 (4) SA 613
(CC);
2002 (7) BCLR 663
(CC).
10
Id at para 70-1.
11
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC).
12
Id at para 79.
13
[2001] ZACC 10
;
2002 (1) SA 447
(CC);
2001 (11) BCLR 1126
(CC).
14
Id at para 23.
15
Pharmaceutical Manufacturers
above n 11 at para 79.
16
Lawyers for Human Rights and Another v Minister of Home Affairs
and Another
[2004] ZACC 12
;
2004 (4) SA 125
(CC);
2004 (7) BCLR
775
(CC) at para 14. See also para 17.
17
Above [21].
18
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO
and Others
[1995] ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC).
19
Id a
t para 229.
20
Above [21].
21
Rule 18(1) states:
“An
application for direct access as contemplated in section 167(6)(a)
of the Constitution shall be brought on notice of
motion, which
shall be supported by an affidavit, which shall set forth the facts
upon which the applicant relies for relief.”
22
Section 167(6)(a) reads:
“National
legislation or the rules of the Constitutional Court must allow a
person, when it is in the interests of justice
and with leave of the
Constitutional Court—
(a) to
bring a matter directly to the Constitutional Court”.
23
Zondi v MEC, Traditional and Local Government Affairs and Others
[2004] ZACC 19
;
2006 (3) SA 1
(CC);
2005 (4) BCLR 347
(CC) at paras
12-5.
24
Concerned Land Claimants’ Organisation (Port Elizabeth) v Port
Elizabeth Land and Community Restoration Association and
Others
[2006] ZACC 14
;
2007 (2) SA 531
(CC);
2007 (2) BCLR 111
(CC) at
paras 18-9.
25
Above n 3.
26
Engelbrecht v Road Accident Fund and Another
[2007] ZACC 1
;
2007 (6) SA 96
(CC);
2007 (5) BCLR 457
(CC) at para 23.
27
Minister of Home Affairs and Another v Fourie and Another
(Doctors for Life International and Others, Amici Curiae); Lesbian
and
Gay Equality Project and Others v Minister of Home Affairs and
Others
[2005] ZACC 19
;
2006 (1) SA 524
(CC);
2006 (3) BCLR 355
(CC).
28
Id at para 42.
29
Above n 3.
30
Above [8]-[9].
31
Section 6 provides:
“The
following section is hereby substituted for section 17 of the
principal Act:
‘Liability
of Fund and agents
17(1)
The Fund or an agent shall—
(a) subject to this Act, in the case of a claim for
compensation under this section arising from the driving of a motor
vehicle
where the identity of the owner or the driver thereof has
been established; and
(b) subject to any regulation made under section 26,
in the case of a claim for compensation under this section arising
from
the driving of a motor vehicle where the identity of neither
the owner nor the driver thereof has been established,
be
obliged to compensate any person (the third party) for any loss or
damage which the third party has suffered as a result of
any bodily
injury to himself or herself or the death of or any bodily injury to
any other person, caused by or arising from the
driving of a motor
vehicle by any person at any place within the Republic, if the
injury or death is due to the negligence or
other wrongful act of
the driver or of the owner of the motor vehicle or of his or her
employee in the performance of the employee’s
duties as
employee: Provided that the obligation of the Fund to compensate a
third party for non-pecuniary loss shall be limited
to compensation
for a serious injury as contemplated in subsection (1A) and shall be
paid by way of a lump sum.’”
32
Section 10 provides that:
“Section
23 of the principal Act is hereby amended by the substitution for
subsection (3) of the following subsection:
‘(3)
Notwithstanding subsection (1), no claim which has been lodged in
terms of section 17(4)(a) or 24 shall prescribe
before the expiry of
a period of five years from the date on which the cause of action
arose.’”
33
Section 11 provides that:
“The
following section is hereby substituted for section 26 of the
principal Act:
‘26(1)
The Minister may make regulations regarding any matter that shall or
may be prescribed in terms of this Act or which
it is necessary or
expedient to prescribe in order to achieve or promote the object of
this Act.’”
34
Section 12 provides that:
“Any
claim for compensation under section 17 of the principal Act in
respect of which the cause of action arose prior to
the date on
which this Act took effect must be dealt with as if this Act had not
taken effect.”
35
Ferreira v Levin
above n 18 at paras 25-30. See also
Gory
v Kolver NO and Others (Starke and Others Intervening)
[2006]
ZACC 20
;
2007 (4) SA 97
(CC);
2007 (3) BCLR 249
(CC) at para 39;
Ingledew v Financial Services Board: In re Financial Services
Board v Van der Merwe and Another
[2003] ZACC 8
;
2003 (4) SA 584
(CC);
2003 (8) BCLR 825
(CC) at para 20;
Ex Parte Women’s
Legal Centre: In re Moise v Greater Germiston Transitional Local
Council
[2001] ZACC 2
;
2001 (4) SA 1288
(CC) at paras 12-4;
Prince v President, Cape Law Society
[2000] ZACC 28
;
2001 (2)
SA 388
(CC);
2001 (2) BCLR 133
(CC) at paras 36-7.
36
Ferreira v Levin
above n 18 at para 28.
37
Above n 6.
38
Above n 7.
39
Above [61].
40
Affordable Medicines Trust and Others v Minister of Health and
Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) at paras 108-9.
41
Section 1(c) of the Constitution.
42
Affordable Medicines
above n 40 at para 109.
43
The Fund submits that the following complications would arise.
First, all of the members of the Fund’s Board were appointed

by the Minister of Transport on 1 August 2006, in accordance with
the procedure prescribed by the amended version of the Principal

Act. If sections 1 to 5 of the Amendment Act did not come into
force on 31 July 2006, all the members of the Board would have
been
unlawfully appointed.
Secondly, and as a
consequence of the unlawful appointments of the Board members, all
the decisions of the Board taken since
1 August 2006 would arguably
be invalid. The Board has adopted no fewer than 93 resolutions
since then. They include resolutions
approving various strategic
plans, quarterly reports and financial statements; revising the
Fund’s policies; entering into
reinsurance agreements with
local and international reinsurers; entering into commutation
agreements with international reinsurers;
entering into insurance
contracts to provide cover for directors and officers of the Fund;
approving the settlement of a number
of different claims in excess
of R5 million each; approving the purchase of a new enterprise
resource planning solution to the
value of approximately R60
million; approving the purchase of a new claims management system to
the value of approximately R90
million; approving salary increases
for staff at management level and salary agreements with the South
African Transport &
Allied Workers Union; determining and
approving a new executive structure for the Fund; approving
contracts for the appointment
of a new executive team for the Fund,
including executive appointments of the CEO, Chief Financial
Officer, Marketing & Communications
Executive, Human Resources
Executive, Information Technology Executive and Business Development
Executive; and approving amendments
to the Fund’s delegation
of authority structure.
Thirdly, if sections 1
to 5 of the Amendment Act did not come into force on 31 July 2006,
it would also raise significant doubt
over decisions taken by the
Fund’s executives since that date. All of the present
incumbents, save for the CEO, were appointed
by the Board subsequent
to 31 July 2006. If the Board itself was not lawfully constituted,
then arguably all of these appointments
were invalid, as were all
decisions made by such appointees.
Fourthly, the delegation
of authority under which all of the Fund’s executives acted
(including the CEO) would arguably
be invalid as these delegations
were adopted by the Board after 31 July 2006. This is particularly
concerning in respect of
decisions taken by the CEO. The Act, as
amended, requires the CEO to be responsible for managing the “day
to day affairs
of the Fund”. This would mean that the CEO has
made countless decisions concerning the Fund during the relevant
period,
including giving approval for all settlements with claims of
more than R3 million.
In the circumstances,
the Fund submits that if the Second Proclamation did not validly
bring sections 1 to 5 of the Amendment
Act into force on 31 July
2006, it would cause chaos and severely prejudice the Fund, the
claimants who rely on it and other
entities which have contracted
with it.
The Fund accepts that
there may be a way for courts to hold particular resolutions,
decisions or contracts to be valid, notwithstanding
the apparent
illegalities and lack of authority described above. However, it
argues that even this process would cause massive
uncertainty and
flux in the road accident sector. It would cause the Fund great
expense in defending each decision challenged
on this basis.
1
Section 81 of the Constitution outlines the process by which an Act
of Parliament is put into operation. For the full text of
the
section see [107] below.
2
South African Liquor Traders Association and Others v
Chairperson, Gauteng Liquor Board and Other
s
[2006] ZACC 7
;
2006
(8) BCLR 901
(CC) at para 31.
3
Cine Films (Pty) Ltd and Others v Commissioner of Police and
Others
1972 (2) SA 254
(A) at 268D-F;
[1972] 2 All SA 85
(A) at
95; and
Divisional Commissioner of SA Police, Witwatersrand Area
and
Others v SA Associated Newspapers Ltd and Another
1966 (2) SA 503
(A) at 513A-C;
[1966] 3 All SA 1
(A) at 7.
4
Coetzee v Government of the Republic of South Africa; Matiso and
Others v Commanding Officer
,
Port Elizabeth Prison and Others
[1995] ZACC 7
;
1995 (4) SA 631
(CC);
1995 (10) BCLR 1382
(CC).
5
Id at para 16.
6
Section 4 reads:
“Section
11 of the principal Act is hereby amended by the deletion in
subsection (1)(a) of subparagraph (iv).”
7
Section 13(2) provides
:
“Where
any law, or any order, warrant, scheme, letters patent, rules,
regulations or by-laws made, granted or issued under
the authority
of a law, is expressed to come into operation on a particular day,
it shall be construed as coming into operation
immediately on the
expiration of the previous day.”
8
Above at [87].
9
Pharmaceutical Manufacturers Association of SA and Another In re:
ex parte President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC).
10
Id at para 90.
11
Matatiele Municipality and Others v President of the Republic of
South Africa and Others (1)
[2006] ZACC 2
;
2006 (5) SA 47
(CC);
2006 (5) BCLR 622
(CC).
12
Id at para 67.
13
Above n 9.
14
Above at [89].
15
Masetlha v President of the Republic of South Africa and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC);
2008 (1) BCLR 1
(CC) at para
68;
GNH Office Automation CC and Another v Provincial Tender
Board, Eastern Cape and Another
1998 (3) SA 45
(SCA) at 51G;
Moleah v University of Transkei and Others
1998 (2) SA 522
(Tk) at 536I.
16
Above n 10 at para 50.
1
Sections 84, 85 and 101 of the Constitution.
2
Act 19 of
2005.
3
Act 56
of 1996.
4
Proclamation R 27, GG 29041, 19 July 2006
.
5
It will be remembered that the first Proclamation
was issued on 11 July 2006.
6
In my view nothing turns on the fact that section
4 of the amending legislation was rightly brought into operation.
7
Reflected in the following table:
Section
of a
mending ActSection
of main Act amended1426310411512
8
Proclamation R 32, GG 29086, 31 July 2006.
9
Section 13(2) of the Interpretation Act 33 of
1957.
10
Section 172(1)(a) provides that a court “deciding
a constitutional matter within its power . . . must declare that any
law
or conduct that is inconsistent with the Constitution is
invalid”.
11
Section 172(1)(b).
12
Section 172(1)(b)(i).
13
Section 172(1)(b)(ii).
14
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO
and Others
[1995] ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at paras 27-8.