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[2008] ZACC 20
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Weare and Another v Ndebele NO and Others (CCT15/08) [2008] ZACC 20; 2009 (1) SA 600 (CC); 2009 (4) BCLR 370 (CC) (18 November 2008)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 15/08
[2008] ZACC 20
MICHAEL
WEARE First Applicant
BETTING
WORLD (PTY) LTD Second Applicant
and
MR JOEL
SIBUSISO NDEBELE NO First Respondent
KWAZULU
-NATAL
GAMBLING BOARD Second Respondent
KWAZULU
-NATAL
BOOKMAKERS CONTROL
COMMITTEE Third
Respondent
MR
MANDISI BONGANI MABUTO MPAHLWA NO Fourth Respondent
NATIONAL
GAMBLING BOARD Fifth Respondent
Heard
on : 19 August 2008
Decided
on : 18 November 2008
JUDGMENT
VAN DER
WESTHUIZEN J:
Introduction
This
is an application for confirmation of an order of constitutional
invalidity made in respect of section 22(5) of the Kwazulu-Natal
Regulation of Racing and Betting Ordinance 28 of 1957 (the
Ordinance) by Rall AJ in the Pietermaritzburg High Court.
1
The section provides that – in the province of KwaZulu-Natal
– a juristic person may not hold a licence to carry
on the
business of bookmaking. Only natural persons may hold bookmaking
licences in the province. Juristic persons in other
provinces may
do so. The High Court held that this constituted an irrational and
arbitrary differentiation and thus declared
the section
unconstitutional for contravening section 9(1) of the Constitution,
which provides for equality before the law.
2
The High Court also found that section 9(3), which prohibits
unfair discrimination,
3
was violated by section 22(5).
The
case raises questions regarding the enjoyment by juristic persons
of the right set out in section 9 and the application
of that
section to a legislative differentiation which the applicants
allege is obsolete. It also raises the question whether
the
invalidation of provincial ordinances has to be confirmed by this
Court.
Background
Gambling
in KwaZulu-Natal is currently regulated by two pieces of provincial
legislation. Racing, betting and bookmaking are
regulated by the
Ordinance. Casinos, gaming machines, bingo and lotteries are
regulated by the KwaZulu-Natal Gambling Act
10 of 1996. These
operate concurrently with the
National Gambling Act 7 of 2004
.
Gambling is an area of concurrent national and provincial
competence under the Constitution.
4
For
some time the executive in the province has been preparing draft
legislation to replace the Ordinance and the 1996 provincial
Gambling Act and to bring the regulation of all gambling in the
province under a single statute. Bills were prepared in 2003
and
2007; the 2007 Bill is currently under consideration in the
provincial legislature.
Section
22(5) of the Ordinance restricts the category of persons who may
hold bookmaking licences in the province. It provides:
“
No bookmaker’s
license shall be issued in the name of any partnership or any
company or other association of persons, or
to the representative or
agent or officer of any partnership, company or association, or to
the representative or agent of any
individual on behalf of that
individual: Provided that nothing hereinbefore contained shall be
deemed to prevent the carrying
on of a bookmaker’s business in
partnership by two or more persons each of whom is the holder of a
valid bookmaker’s
license issued to him in terms of the
Ordinance.”
By
contrast, both Bills contain explicit provisions for juristic
persons to hold bookmaker’s licences in KwaZulu-Natal.
5
However, this proposed change has not yet been enacted and section
22(5) still regulates the position.
The
first applicant, Mr Michael Weare, holds a bookmaking licence under
the Ordinance and owns a bookmaking business in KwaZulu-Natal
under
the name “The Betting Shop”. In 2001 Mr Weare was
offered the position of managing director of the second
applicant,
Betting World (Pty) Ltd, a position he accepted and continues to
hold. Betting World, a juristic person, carries
on the business of
bookmaking in the other eight provinces of South Africa but, as a
result of the prohibition in section 22(5)
of the Ordinance, does
not do so in KwaZulu-Natal.
The
parties concluded an agreement in terms of which Betting World
undertook to provide managers for Mr Weare’s business.
The
parties also concluded a conditional contract of sale, providing
that Mr Weare would sell his business to Betting World,
subject to
various suspensive conditions. This agreement was to lapse if the
conditions were not fulfilled before the end
of December 2002.
Among the conditions was the stipulation that KwaZulu-Natal’s
legislation had to change in that time
to permit juristic persons
to hold bookmaking licences. Since this legislative change did not
occur, the agreement fell through.
In
August 2006 the Office of the Premier addressed a letter to Mr
Weare, expressing the view that the agreement possibly contravened
the provisions of the Ordinance. Disciplinary proceedings then
commenced. These were suspended after the applicants had launched
their challenge to section 22(5) in the High Court and remain so
pending finalisation of this case.
The
applicants cited five respondents before the High Court. The
application was opposed by only two: the first, Mr Ndebele,
cited
in his capacity as the Premier of KwaZulu-Natal; and the third, the
KwaZulu-Natal Bookmakers Control Committee, the body
created in
terms of section 21A of the Ordinance to control bookmaking
operations in the province. The Premier and the Committee
both
appealed to this Court against the confirmation of the order of the
High Court. The fourth respondent, Mr Mpahlwa, was
cited in his
capacity as the Minister of Trade and Industry, who is responsible
for gambling at the national level. The Minister
indicated his
intention to abide the decision of the High Court and the decision
of this Court. The other two respondents,
the National Gambling
Board and the KwaZulu-Natal Provincial Gambling Board, did not
respond to the litigation at any stage.
Issues
Five issues arise for consideration. First, the applications for
condonation filed by the applicants and the third respondent
must
be considered. Second, the present case concerns the
constitutional validity of a provincial ordinance. The question
is
whether the invalidation by the High Court must be confirmed by
this Court, as the invalidation of an Act of Parliament
and a
provincial Act must be. Third, can juristic persons be bearers of
the right set out in section 9 of the Constitution?
Fourth, does
section 22(5) of the Ordinance violate section 9(1)? And fifth,
was the High Court correct in its further finding
that, in addition
to violating section 9(1), the differentiation in section 22(5)
constituted unfair discrimination contrary
to section 9(3) of the
Constitution?
Condonation
The
applicants seek condonation for the late filing of their
application for confirmation, conditional on it being found that
the filing was indeed late. The applicants filed on 31 March 2008.
Judgment was handed down in the High Court on 29 February
2008.
However, the applicants state that the judgment was only certified
by the High Court Registrar and sent to the applicants’
attorneys on 7 March. Rule 16(4) of this Court’s Rules
provides that a party who wishes to apply for confirmation of
an
order of invalidation has 15 days from the date on which the order
is made to seek confirmation. If this period is taken
to run from
29 February, it expired on 25 March and the applicants would have
filed six days late. Alternatively, if the period
is taken to run
only from 7 March when the judgment was certified, it expired on 1
April and the applicants’ filing would
be in time.
In
my view the need for certainty requires that time periods should
run from the date of the order that is the subject of the
application, rather than from the date of certification. The
matter must therefore be approached on the basis that the
applicants filed late.
The
applicants state that they waited to determine whether there would
be any appeal against the High Court decision and that
there was
some uncertainty in this regard. This explanation is not entirely
convincing. The applicants also note that the
respondents suffered
no prejudice as a result of the very short delay, while the
applicants would suffer considerable prejudice
if their application
were refused. In view of this factor, as well as the shortness of
the period involved and the fact that
the certification took some
time, it is in the interests of justice to grant condonation.
The
first respondent, the Premier, filed a notice of appeal in time on
25 March 2008. However, the third respondent, the Committee,
only
filed their notice of appeal on 5 June 2008. They state that a
decision on whether to participate in the litigation had
to be
taken by the members of the Committee. The Committee could
apparently only meet on 3 April – after the time for
filing
had expired. Since there had been several changes in personnel
during February 2008 and the members of the Committee
were new and
unfamiliar with the litigation, it was decided to obtain the
opinion of senior counsel before deciding whether
or not to join
the appeal. This opinion was received on 24 April. The committee
then met again, over a month later, on 27
May, and decided to
appeal against the order, filing on 5 June.
This
explanation is inadequate. Even if the difficulties caused by the
change in personnel are taken to explain the delay between
3 April
and 24 April while opinion was received, no explanation is given
for the other delays. In particular, it is not explained
why on
two occasions it took the Committee more than a month to meet.
This shows a disregard for the time frames set out in
the Rules of
this Court. Furthermore, the third respondent associated itself
entirely with the argument of the first respondent
and was
represented by the same counsel, so no prejudice follows from their
exclusion. Taking the interests of justice into
account, there is
no reason to grant condonation.
In
view of this finding, the third respondent plays no further part in
the consideration of this matter. For clarity, I refer
to the
first respondent (the first appellant before this Court) as “the
Premier”.
Does
the invalidation of a provincial ordinance have to be confirmed by
this Court?
Section
172(2)(a) of the Constitution 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.”
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.”
We
are not here concerned with an Act of Parliament or conduct of the
President. The question is whether the Ordinance is a
“provincial
Act” for the purposes of sections 167(5) and 172(2)(a). This
question arose in
Zondi
v MEC for Traditional and Local
Government Affairs
but was not decided by this Court.
6
I regard it as appropriate and desirable to address the question
in this case.
The
parties agree that the Ordinance should be treated as a “provincial
Act” and that a finding of constitutional
invalidity must be
confirmed by this Court. For the reasons that follow, I am of the
view that this is correct.
The
term “provincial Act” is not defined in the
Constitution. Its ambit, as used in sections 167(5) and 172(2)(a),
should be determined against the background of the purpose of those
sections. Not all orders of invalidity made by the High
Court fall
under the sections and thus require confirmation by this Court.
For example, the invalidation of regulations does
not.
7
The reason why some matters are subject to this Court’s
ultimate jurisdiction has been expressed as follows:
“
Counsel for the
applicants submitted that the effect of s 172(2) is to give this
Court exclusive jurisdiction to make orders of
invalidity that are
binding upon Parliament, Provincial Legislatures and the President.
The purpose of these provisions, so
it was contended, is to preserve
the comity between the judicial branch of government on the one hand
and the legislative and
executive branches of government on the
other, by ensuring that only the highest court in constitutional
matters intrudes into
the domains of the principal legislative and
executive organs of State. In my view this submission correctly
reflects the purpose
of section 172(2). Our Constitution makes
provision for the separation of powers and vests in the Judiciary
the power of declaring
statutes and conduct of the highest organs of
State inconsistent with the Constitution and thus invalid. It
entrusts to this
Court the duty of supervising the exercise of this
power and requires it to consider every case in which an order of
invalidity
has been made, to decide whether or not this has been
correctly done. This Court has a duty to assume this supervisory
role.”
8
(footnote omitted.)
The
rationale for confirming the invalidation of acts of the national
and provincial legislatures and the conduct of the President
is
based on institutional respect and comity. It follows from a
recognition of the status of the legislatures and the President
in
our constitutional order. The question of how the Ordinance is to
be handled must be addressed with this in mind.
Under
the 1910 Constitution and the 1961 Constitution – the period
in which the present Ordinance was passed – provincial
ordinances were passed by entities known as provincial councils.
9
Provincial councils were seen at this time as bodies exercising
original legislative discretion, analogous in this respect
to
Parliament. In
Middelburg v Gertzen
, they were described as
follows by Innes CJ:
“
. . . I entertain no
doubt that a Provincial Council is a deliberative legislative body,
and that its ordinances duly passed and
assented to must be classed
under the category of statutes, and not of mere bye-laws or
regulations.”
10
The
position at that time is reflected in the fact that ordinances,
like Acts of Parliament, were not subject to review on substantive,
as opposed to procedural or formal, grounds.
11
The significance of this is that review for substantive
unreasonableness was seen as appropriate, conceptually, in relation
to delegated
legislation only. The legislature was presumed
not to have intended to authorise unreasonable rules, and so
unreasonable rules
made under delegated legislative authority stood
to be invalidated as ultra vires. By contrast, under the doctrine
of parliamentary
sovereignty, Parliament could pass unreasonable
laws if it wished. That provincial councils were viewed the same
way and that
their ordinances were not subject to review for
substantive unreasonableness confirms that ordinances were seen as
original
legislation.
12
When
the 1983 Constitution came into effect, the provisions of the 1961
Constitution dealing with provinces were retained as
the Provincial
Government Act 32 of 1961, separate to the Constitution.
13
Provincial councils remained original legislative bodies under
this Act. This changed with effect from 1 July 1986 when the
new
Provincial Government Act 69 of 1986 (the 1986 Act) came into
effect. The 1986 Act abolished the provincial councils and
transferred their legislative authority to the provincial
administrators, who were members of the executive.
14
What had been the power to pass ordinances became the power to
issue proclamations; and as these were issued by officials
in the
executive branch in terms of the Act, they had the status of
delegated and not original legislation.
15
The
1986 Act provided that all ordinances then in existence remained in
force. However, they could now be amended, repealed
or replaced by
the executive authorities in the province.
16
The Ordinance here under discussion was amended in this way nine
times between 1987 and 1992. The status of ordinances, which
were
now freely subject to amendments that amounted to delegated
legislation, therefore became somewhat uncertain. This remained
the position until 1994.
With
the onset of the constitutional era, ordinances were preserved as
“law existing when the Constitution took effect”,
initially under section 229 of the interim Constitution and then
under Item 2 of Schedule 6, read with section 241, of the
1996
Constitution. Nothing in either document provides that the status
of ordinances should change. Indeed, the effect of
the interim and
1996 Constitutions is, if anything, the opposite. As this Court
has held, the purpose of the continuation
provisions is to preserve
the existing legal order: considerations of practicality made it
unavoidable to hold the pre-constitutional
law in place until such
time as the necessary changes could be made, notwithstanding that
this legislation was the product
of democratically illegitimate
authorities.
17
Although
no specific provision is made for the status of ordinances, we were
referred to a decision of the Durban High Court
which found that
the Constitution does give a decisive answer to the question
whether the Ordinance should be considered to
be a “provincial
Act”.
In
Gold Circle
v Premier, KwaZulu-Natal
18
it was held that the same 1957 Ordinance is not a “provincial
Act” on the basis of a close reading of section 239
of the
Constitution. Section 239 does not define the term “provincial
Act”, but it does provide, in relevant part:
“
In the Constitution,
unless the context indicates otherwise—
. . . .
“
provincial legislation”
includes—
subordinate legislation made
in terms of a provincial Act; and
legislation that was in force
when the Constitution took effect and that is administered by a
provincial government.”
The
Court in
Gold Circle
held that the omission of “provincial
Act” from this section was significant. The term “provincial
legislation”
must, obviously, include provincial Acts. But
it is not limited to provincial Acts: it also includes the
legislation set out
in (a) and (b). What this means, according to
the judgment, is that the drafters clearly saw the term “provincial
Act”
– obviously included in the definition of
“provincial legislation” – as something different
to the
categories of legislation set out in (a) and (b), which were
not so obviously “provincial legislation”. Provincial
ordinances are clearly part of (b): legislation that was in force
when the Constitution took effect and which is administered
by the
provincial government. The conclusion is that the drafters must
have seen ordinances as something different to “provincial
Acts”, and therefore ordinances are not part of that term in
the Constitution.
19
It
is true that a provincial ordinance and a provincial Act are
different things, and, although I express no definite view on
the
point,
Gold Circle
may be correct that this fact is
reflected in the drafting of the definition of “provincial
legislation” in section
239. However, I do not believe this
consideration is determinative of the question before us, namely
whether the order of
invalidation made in respect of the Ordinance
must be confirmed by this Court under sections 167(5) and
172(2)(a).
On
the reasoning of
Gold Circle
, section 239 implies that
“provincial Act” and “provincial Ordinance”
are different terms for the purposes
of the Constitution and this
means that a provincial ordinance does not fall within the meaning
of “provincial Act”
as used in sections 167(5) and
172(2)(a). However, another consideration is also relevant.
Section 239 provides that the definitions it contains apply
“unless the context indicates otherwise”. As was said
earlier, the application of this Court’s confirmation power
under sections 167(5) and 172(2)(a) is based notionally on
the
status of the law or authority reviewed. It must therefore be
asked whether, considering “provincial Act”
in this
context, the present Ordinance should be seen to have status such
that it should be treated as a provincial Act for
the purposes of
these sections.
In
this regard, the treatment of the Ordinance by the KwaZulu-Natal
provincial legislature in the years following 1994 is relevant.
The Ordinance was incorporated by reference into the
KwaZulu-Natal Gambling Act, which, as noted above, only applies to
those
forms of gambling not covered by the Ordinance.
20
The Ordinance was also amended by the legislature twice in 1994
and once again in 1998, to make minor changes to provide for
its
continued functioning and to update references to
pre-constitutional authorities.
21
Section 22(5) itself has not been altered by the legislature.
The
court in
Gold Circle
appears to have been alive to this
history. It stated that, if the particular section of the
Ordinance there invalidated had
itself been substituted by the
KwaZulu-Natal provincial legislature, post-1994, different
considerations might have applied.
22
In its view, therefore, a particular provision of an Ordinance
might have the status of a provincial Act for confirmation
purposes, in virtue of its treatment by a provincial legislature.
If, however, a provision remained as it was before the Constitution
took effect, the textual considerations in section 239 are
decisive: the provision is “legislation in force when the
Constitution took effect”, it therefore falls under part (b)
of the definition in section 239, and it is therefore something
other than a “provincial Act” for purposes of the
Constitution.
In
my view, the treatment of the Ordinance by the provincial
legislature is of broader significance that this: it should be
seen
to affect the status of the whole ordinance and not, as
Gold
Circle
held, only such provisions as the legislature has
altered or substituted. This is so for two reasons. The first
relates to
the effect of incorporation. By providing in the
KwaZulu-Natal Gambling Act that the Ordinance is to regulate forms
of gambling
not covered by the Act, the legislature expressed a
clear intention that the provisions – all the provisions –
of the Ordinance be operable in the province. Secondly, that the
provincial legislature has not amended or substituted a provision
could mean that it has not considered that provision or expressed a
view on it. However, it could also mean that the legislature
accepts the law as it is. Legislative provisions are not read in
isolation. A change in one provision often
reflects
consideration and approval by the Legislature of a particular
regulatory scheme brought about by a piece of legislation.
The
scheme is typically comprised of multiple provisions read together,
and not just the provisions that are altered, to an
extent
impossible to determine from a simple consideration of which
provisions have been altered and which not. For this reason,
it is
in my view sound to consider amendments of some provisions to
affect the status of the whole.
Therefore,
the effect of the amendment and incorporation is that the Ordinance
as a whole should be seen as an expression of
the legislative will
of a provincial legislature and treated accordingly. Following
from the notion of respect and comity
articulated in
SARFU,
its
invalidation should be subject to confirmation by this Court.
23
I do not agree with the finding in
Gold Circle
that the
invalidation of a provision which has not itself been amended or
substituted by a provincial legislature does not
fall to be
confirmed. I conclude that “provincial Act” in
sections 167(5) and 172(2)(a) of the Constitution includes
the
Ordinance. The finding of constitutional invalidity of any of its
provisions by the High Court must accordingly be confirmed
by this
Court.
This
does not necessarily mean that ordinances in respect of which the
legislature has not acted – which have not been
incorporated
into a statute or amended – do not fall within the ambit of
sections 167(5) and 172(2)(a). It is not necessary
to express a
view in this judgment on these ordinances, and I leave the question
open, even though some of the arguments dealt
with above apply to
them also.
The
finding in respect of this Ordinance does, however, potentially
have wider consequences for ordinances that have been treated
similarly by the provincial legislatures. As indicated, there has
until now been no ruling by this Court on whether the invalidation
of provisions of a provincial ordinance has to be referred to this
Court. Ordinances comparable to the present Ordinance might
have
been found to be constitutionally invalid by other courts and the
invalidation might not have been referred to this Court.
The order
made in
Gold Circle
indeed dealt with the same Ordinance
here at issue.
24
The
question of constitutionality is an objective one. The effect of
the Constitution applies as from the date on which it
came into
operation. As was explained in
Ferreira v Levin
, in the
context of an order of invalidity:
“
The 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 . . . 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
that objective nature of the
invalidity.”
25
The
objective theoretical effect of the finding in this judgment would
thus be that all orders of invalidity made by other courts
in
respect of ordinances similar to the present Ordinance are not and
have never been of any force, because they have not been
confirmed
by this Court in terms of sections 167(5) and 172(2)(a). In
principle, it would therefore be necessary that the
orders of
invalidity that have not been referred to this Court now be
referred to this Court for confirmation. However, this
would not
be unproblematic.
Rule 16 of this Court’s Rules and
section 8
of the
Constitutional Court Complementary Act 13 of 1995
set out the
procedure to be followed when an order of invalidity is made by
another court. The time periods there provided
will almost
certainly have expired in respect of orders invalidating provisions
of ordinances that have not been referred to
this Court.
The
question therefore arises whether this Court should make a general
ruling on past orders of constitutional invalidity regarding
ordinances comparable to the present Ordinance which have not been
referred to this Court. This Court may make any order that
is just
and equitable. The duty to give just and equitable relief
recognises that the position dictated by the objective doctrine
may
not always be a feasible one in practice. A decision as to what is
just and equitable involves a balancing of the interests
of the
individuals affected with the interests of good governance and the
smooth administration of justice.
26
We
heard no argument in this matter on the question of a possible
backlog of orders invalidating provisions of ordinances which
were
not referred to this Court. We do not have information as to the
number of ordinances affected, nor was argument presented
as to the
consequences for the administration of justice and other
considerations which may bear on the proper approach to
these
orders.
It is significant in this regard that, in every case in which a
provision of an ordinance was found to be constitutionally
invalid
but not referred to this Court, it would have been open to parties
to appeal the decision and challenge any order if
they wished to do
so. Citizens and the state alike may have treated the orders as
binding, it may now be years since the orders
were made, and the
ordinances might have become irrelevant. New legislation may have
replaced them. This Court held in
Brink v Kitshoff
that
there are cogent reasons of good government against making an order
that may render proceedings which to all intents and
purposes have
been concluded, subject to further challenges and investigation.
27
In
light of these considerations, no general ruling is made as to
court orders in connection with the constitutional validity
of
ordinances that have not been confirmed by this Court. Should the
special circumstances of a specific case mean that any
injustice or
uncertainty does result, parties are of course free to approach
this Court or the High Court to seek relief.
Any possible
application for declaratory or other relief would be better dealt
with in the fact-specific context of the case,
than in the
abstract.
Section
22(5) of the Ordinance and section 9(1) of the Constitution
I
turn to the merits of the present application. The order we are
asked to confirm in this case held that section 22(5) of
the
Ordinance violated section 9(1) of the Constitution. Section 9(1)
provides that everyone is equal before the law and has
the right to
equal protection and benefit of the law. The test for determining
whether section 9(1) is violated was set out
by this Court in
Prinsloo v Van der Linde
and
Harksen v Lane.
28
A law may differentiate between classes of persons if the
differentiation is rationally linked to the achievement of a
legitimate
government purpose. The question is not whether the
government could have achieved its purpose in a manner the court
feels
is better or more effective or more closely connected to that
purpose. The question is whether the means the government chose
are rationally connected to the purpose, as opposed to being
arbitrary or capricious.
29
Before
this Court, the applicants raise three main arguments to show that
section 22(5) violates section 9(1). The first is
that the section
impermissibly differentiates between natural and juristic persons
in KwaZulu-Natal, in that the former may
apply for and hold
bookmaking licences and the latter may not. The second is that the
section impermissibly differentiates
between partnerships and other
forms of business entities, in that partnerships may carry on the
business of bookmaking if
all their members are licensed, but other
entities may not. The third is that the section impermissibly
differentiates between
natural persons in KwaZulu-Natal, who may
not engage in the business of bookmaking via the vehicle of a
juristic person, and
natural persons in the rest of South Africa,
who may. I consider these three arguments in turn.
Can
a juristic person be the bearer of the right to equality before the
law?
Two
of the three kinds of differentiation relied upon affect juristic
persons. The argument that these forms of differentiation
violate
section 9(1) requires it to be shown that juristic persons can be
bearers of the section 9(1) right, under section
8(4) of the
Constitution.
30
The High Court found that juristic persons were entitled to rely
on the section 9(1) right.
31
In view of the conclusion I reach on the applicants’ section
9(1) challenge, it is not necessary to consider the correctness
of
the High Court’s interpretation of sections 8(4) and 9(1).
For purposes of this judgment, I assume in favour of the
applicants
that a juristic person could indeed be the bearer of the right
guaranteed in section 9(1).
The
differentiation between natural and juristic persons
The
first form of differentiation complained of is the obvious one:
natural persons may apply for and hold bookmaking licences
in
KwaZulu-Natal; juristic persons may not. The applicants argue that
the differentiation is not rationally linked to the
legitimate
government purpose of regulating gambling and furthermore that it
no longer serves a legitimate government purpose.
On
behalf of the Premier, it is argued that the regulation of gambling
is a legitimate government purpose. It is more expensive
and
difficult to monitor juristic persons and to hold them accountable,
than it is with regard to natural persons.
32
The policy of restricting licences to natural persons is a
rational way to ensure that, given these practical realities,
gambling activities are properly regulated. The Ordinance does not
provide for the more complicated mechanisms necessary to
regulate
juristic persons, nor does it provide for the collection from the
holders of licences of the greater resources needed
to fund such
enhanced regulatory mechanisms.
The
High Court did not accept this argument. It held that if the aim
of section 22(5) of the Ordinance was to ensure that one
identifiable person could be held accountable, nothing prevented
the legislature from requiring that one person, together with
the
juristic licensee, be responsible to the authorities. The court
noted that this is one of the measures contained in the
2007 Bill.
33
Before
this Court the applicants contend that section 22(5) is obsolete.
Annual Reports of the KwaZulu-Natal Bookmakers Control
Committee
lodged before this Court reflect the view that the Ordinance is
“outdated”. The applicants note that
the Premier
apparently accepts that there are good reasons for a change that
permits juristic persons to hold bookmaking licences,
as these are
set out in the Explanatory Memorandum to the 2003 Bill. They note
in particular that one effect of the restriction
is to make it more
difficult for new people, especially previously disadvantaged
people, to enter the industry, because of
the difficulties they
experience in securing capital by methods other than share capital,
such as loans from banks. We were
referred to a National Gambling
Board Report on the difficulties experienced by new entrants in
this regard. The applicants
therefore contend that the method
adopted by the province – restricting licences to natural
persons – has become
outdated. It is no longer rationally
linked to the goal of regulation, and thus no longer serves a
legitimate government purpose.
The
Premier contends that the fact that a new policy is being developed
is irrelevant to the present enquiry. The only question
is whether
the policy choice that section 22(5) represents is rationally
linked to the aim of regulating gambling. The most
relevant
characteristics of a juristic person are its separate legal
personality and the limited liability of the natural persons
involved. The fact that the corporate veil can only rarely be
pierced means that it is difficult to hold individuals responsible.
Juristic persons are therefore harder to regulate, and it is
rational to respond to this problem by providing that only natural
persons may hold licences.
The
Premier also argues that the High Court exceeded the bounds of the
rationality enquiry by examining alternative ways in
which juristic
persons could be regulated if licensed. Its conclusion that the
section was irrational was reached on the basis
that, if a
different regulatory policy were followed, juristic persons could
be licence-holders without sacrificing the ability
of the
provincial government to regulate gambling. This, it is argued,
shows that the High Court was improperly substituting
its views for
those of the legislature, contrary to the rationality test set by
this Court.
The
thrust of the challenge to this differentiation is that section
22(5) is outdated and obsolete and that even the Premier
agrees
with this. Specific denials were made by the Premier and the
Bookmakers Control Committee before the High Court in
response to
averments that the industry had received assurances that the
Ordinance would be replaced. That said, it does appear
that the
executive in KwaZulu-Natal has for some time been of the view that
the Ordinance should be replaced. However, even
if that is
accepted, the applicants’ argument cannot be correct, for the
reasons that follow.
The
argument purports to make views expressed by organs of the
executive arm of the provincial government determinative of the
rationality of an ordinance kept in place by the provincial
legislature. No argument was made to explain why the executive’s
views should be taken to prevail in this manner. But there is a
deeper problem. For the applicant’s argument to succeed,
it
would have to be accepted that, once the executive declares that a
piece of legislation should be replaced or substantially
amended,
that legislation becomes irrational. To state the proposition is
to see the flaw: any piece of “old”
legislation would
be unconstitutional as soon as reform is proposed. This result is
not only absurd, but confuses a better
or worse policy with a
rational or irrational one, contrary to this Court’s
rationality jurisprudence. The Premier is
therefore correct that
the nature of the proposals in the Bills and other possible
alternative policies, as well as the fact
that there is a planned
change and that this change has been in the pipeline for some time,
are irrelevant to the section 9(1)
rationality enquiry.
The
remaining issue to be addressed is whether the policy choice
embodied in section 22(5) is rationally linked to the aim of
regulating gambling. The decision to exclude juristic persons
reflects a legislative judgment about the relative difficulties
of
holding accountable natural persons and juristic corporate
structures. Once the argument that the provision is obsolete
is
rejected, the applicants do not provide any reason to suggest that
this legislative judgment was arbitrary or capricious,
but only
that it was arguably unsatisfactory in some respects. This is not
sufficient to show that section 9(1) is breached.
The
applicants’ argument therefore fails to show that the policy
decisions made and being made in KwaZulu-Natal fall outside
the
bounds of legitimate legislative choice. It is for the legislature
to select the means to achieve the objectives of government.
It is
also for the legislature to decide when the moment has arrived to
change methods and reform legislation. If it is not
shown that the
duty to uphold the Constitution requires courts to interfere, these
choices are the legislature’s to make.
It is the failure to
appreciate this that makes the applicants’ contention
unacceptable.
Before
this Court the applicants also argued that the Ordinance no longer
serves a legitimate government purpose. Insofar as
this was an
argument that section 22(5) embodied an inadequate or outdated form
of regulation, it is the same argument as the
one just rejected.
But as expressed in oral argument, the contention was a different
one. It was argued that the purpose
or aim of section 22(5) was in
fact to exclude juristic persons from the bookmaking industry and
that, given modern business
realities and the new constitutional
value of equality, this is no longer a legitimate government
purpose.
This
argument confuses the end with the means, but for the purposes of
the section 9(1) enquiry, it is actually beside the point.
Regulation of gambling is a legitimate government purpose. As
already stated, it has not been shown that the differentiation
between natural and juristic persons is not rationally linked to
the achievement of this purpose. That is the end of the section
9(1) enquiry. The applicants’ perceptions about the aim of
the section do not alter the conclusion that the differentiation
is
rationally linked to the achievement of what is objectively a
legitimate government purpose. That is all that the Constitution
requires. The legislature exercised a legitimate legislative
choice, both in relation to the form of differentiation and in
respect of the timing of its repeal. The challenge to the first
kind of differentiation therefore has to fail.
The
differentiation between partnerships and other business entities
Section
22(5) provides that no licence may be issued in the name of any
partnership, association of persons or juristic person.
The
proviso in the second part of the section states that this
prohibition does not prevent persons from carrying on the business
of bookmaking in partnership, provided that each individual partner
is the holder of a valid licence.
34
The
High Court found that this showed that the exclusion of juristic
persons is arbitrary. The differentiation in section 22(5)
excludes juristic persons on the basis of the difficulty of holding
an individual accountable for the actions of the business,
yet
permits partnerships to engage in the business even though they
could be complex structures of up to 20 partners.
35
The
Premier states that one aim of section 22(5) is to be able to hold
individual licence-holders accountable and to avoid the
difficulties of regulating juristic persons whose shareholders and
management are difficult to hold personally liable. In
that
regard, there is an undeniable distinction between partnerships and
other business entities. Partnerships are not juristic
persons
with separate legal identity and their members are personally
accountable for the actions of the partnership. Juristic
persons
are corporate structures with a separate legal personality and
limited liability. This shows not only that the differentiation
between the two is not arbitrary, but also that it is consistent
with the regulatory purpose of the section, the Premier argues.
The
proviso to section 22(5) does not provide that licences may be
issued to partnerships. It only provides that natural persons
who
are licence-holders may operate in partnership. It is not
therefore the case that partnerships may hold licences while
juristic persons may not, and so there is no differentiation in
this regard.
There
is differentiation in that partnerships may be part of the
bookmaking industry but juristic persons may not. The High
Court’s
view was that, if it is possible to hold a single person
accountable in the case of a partnership which may have
as many as
20 members, it is possible to do the same for a juristic person,
and so it is arbitrary to exclude the one but not
the other on
regulatory grounds. This argument overlooks the legal differences
between partnerships and juristic persons.
Juristic persons are
separate legal persons and their members have limited legal
liability. Those who control their operations
are only
exceptionally held personally liable for the actions of the
juristic person. In all these respects, juristic persons
are
different to partnerships, and may need to be regulated in
different ways. The fact that partnerships are treated
differently,
therefore, is not arbitrary. It is a legitimate
legislative choice reflecting the different nature of partnerships
and juristic
persons.
The
proviso in section 22(5) permitting natural persons who are
licensed to operate in partnership is therefore not inconsistent
with the achievement of the legitimate government purpose of
regulating gambling. The differentiation is rationally linked
to
the achievement of this purpose. The second challenge to section
22(5) must fail.
The
differentiation between natural persons in KwaZulu-Natal and other
provinces
The
applicants raised for the first time before this Court the argument
that section 22(5) differentiates between natural persons
in
KwaZulu-Natal and the rest of the country, because only natural
persons in KwaZulu-Natal are prevented from engaging in
the
business of bookmaking through the vehicle of a juristic person.
This
submission amounts to a challenge to the
national
gambling
regime. The complaint is that there is a differentiation between
the legal regime in one province and that in other
provinces.
However, the challenge before this Court is only to the
constitutionality of the 1957 KwaZulu-Natal Ordinance.
Gambling
is an area of concurrent national and provincial legislative
competence.
36
This is not a situation, as provided for in section 146 of the
Constitution, where there is a conflict between national and
provincial legislation. The
National Gambling Act does
not require
that juristic persons be entitled to bookmakers’ licences.
It is permissive on the point. The Act provides
that each
provincial licensing authority has exclusive jurisdiction, to the
extent provided in provincial law, to issue licences
37
and obliges provincial boards to refuse licences to those
disqualified from holding them in terms of provincial law.
38
Provinces
have the right to regulate their own gambling industries. There
can be no objection in this case to the KwaZulu-Natal
legislative
regime simply on the ground that it is different to that in other
provinces. This is not to say that the situation
in other
provinces may not be referred to when challenging provincial
legislation. But the fact that there are differences
between the
legal regimes in provinces does not in itself constitute a breach
of section 9(1). The third challenge must accordingly
also fail.
Unfair
discrimination
The
High Court held that, in addition to breaching section 9(1),
section 22(5) of the 1957 Ordinance also breached section 9(3)
of
the Constitution. It found that section 22(5), objectively
speaking, treats different categories of persons differently
and
that, in view of its finding that this differentiation was not
rationally connected to the control of gambling, this amounted
to
unfair discrimination.
39
The applicants did not rely on this argument before this Court.
The
argument presupposes that juristic persons can be bearers of the
section 9(3) right not to be unfairly discriminated against.
It is
less easy to assume that juristic persons are bearers of the
section 9(3) right than the right protected in section
9(1). While
it is probably undesirable to separate wholly the one from the
other,
40
the content of the two aspects of the right is different.
41
Whereas the core of section 9(1) is the idea that no-one is above
or beneath the law and that all persons are subject to law
impartially applied and administered,
42
the core of the right against discrimination in section 9(3) is
dignity. Differentiation becomes unfair discrimination when
it is
based on grounds that have the potential to impact upon the
fundamental dignity of human beings.
43
As this Court has held, these are grounds that—
“
have the potential, when
manipulated, to demean persons in their inherent humanity and
dignity . . . . In some cases they relate
to immutable biological
attributes or characteristics, in some to the associational life of
humans, in some to the intellectual,
expressive and religious
dimensions of humanity and in some cases to a combination of one or
more of these features.”
44
It
is not easy to conceptualise the application of a right of this
nature to juristic persons separately from the natural persons
involved in them. However, the point was only briefly argued
before us and it is not desirable to decide the matter finally
in
this case. I therefore assume, for the purposes of this judgment,
that juristic persons can be bearers of the right protected
in
section 9(3).
For
it to be found that section 22(5) of the Ordinance is unfairly
discriminatory, it would need to be shown that the kind of
differentiation it embodies is based on attributes or
characteristics that have the potential to impair the fundamental
dignity of persons as human beings or to affect them in a
comparably serious fashion.
There
is no suggestion here that the differentiation contained in section
22(5) has this kind of effect. The applicants did
not contend that
it does and there is nothing in the High Court judgment to suggest
this. It is also not the case that the
differentiation is on a
ground listed in section 9(5), in which case there would be a
presumption of unfair discrimination.
As the High Court noted,
none of the kinds of differentiation raised in this case is based
on a listed ground.
45
There is accordingly no basis for a finding of unfair
discrimination and the High Court’s conclusion in this regard
must be rejected.
Conclusion
The
High Court’s finding that section 22(5) of the Ordinance
breaches sections 9(1) and 9(3) of the Constitution was therefore
incorrect. The forms of differentiation imposed by section 22(5)
are not arbitrary and are rationally linked to a legitimate
government purpose. The appeal must succeed and the application
for confirmation of the order of invalidity has to fail.
Costs
The
first and third respondents were ordered to pay the applicants’
costs before the High Court.
46
That order now has to be set aside. Before this Court, the
applicants initially accepted that if the appeal succeeded, the
respondents would be entitled to their costs, but revised this
stance in response to questioning from the Bench and asked that
no
order as to costs be made. The Premier indicated that he had no
objection to each party paying their own costs if the appeal
was
successful.
Costs
are ultimately a matter for the discretion of the Court. The
ordinary rule in this Court is that where litigants unsuccessfully
raise important constitutional issues against the state, costs will
not be awarded against them. There is an exception to
this rule;
this is when the litigation is pursued for private commercial
gain.
47
The Court has also held that a litigant should not be mulcted in
costs associated with the High Court litigation where a substantial
constitutional issue is raised.
48
The
present litigation was embarked upon by a businessman and a company
seeking to engage in a commercial venture which is allegedly
prohibited under the current laws of KwaZulu-Natal. However, I do
not think sight should be lost of the fact that the litigation
is a
challenge to a law which it is alleged the applicants have
contravened. Any person contravening the Ordinance is guilty
of an
offence and subject to a fine of up to R5000 or two years’
imprisonment or both.
49
In my view, this Court should be careful not to dissuade litigants
from challenging the constitutionality of laws of the state
under
which they face statutory penalties. The rationale for this
caution lies in the rule of law and applies equally to all
legal
actors, in the commercial sphere or otherwise. I conclude that the
High Court costs order should be set aside and that
there should be
no order as to costs in the High Court or this Court.
Order
The
following is therefore ordered:
The
applicants’ application for condonation is granted.
The
third respondent’s application for condonation is refused.
The
appeal is upheld.
The
Court declines to confirm the order of unconstitutionality made by
the Pietermaritzburg High Court on 29 February 2008
and,
accordingly, the order of constitutional invalidity made by the
High Court is set aside.
There
is no order as to costs in the High Court or in this Court.
Langa
CJ, Moseneke DCJ, Madala J, Mokgoro J, Ngcobo J, O’Regan J,
Sachs J and Yacoob J concur in the judgment of Van der
Westhuizen
J.
For the First and Second Applicants: Advocate Norman Arendse SC and
Advocate Max du Plessis instructed by Garlicke & Bousfield
Inc.
For the First and Third Respondents: Advocate AJ Dickson SC and
Advocate AA Gabriel instructed by JH Nicolson Stiller & Geshen.
1
Michael Weare and Another v Mr Joel Sibusisio
Ndebele NO and Others,
Case no
8337/06, handed down on 29 February 2008, unreported.
2
Section 9(1) states: “Everyone is equal
before the law and has the right to equal protection and benefit of
the law.”
3
Section 9(3) states:
“
The state may not unfairly discriminate directly
or indirectly against anyone on one or more grounds, including race,
gender,
sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience,
belief,
culture, language and birth.”
4
Gambling appears in Part A of Schedule 4 of the
Constitution. Matters listed therein fall within the authority of
both the national
and provincial spheres of government, in terms of
sections 44(1)(a) and 104(1)(b) respectively of the Constitution.
See also
National Gambling Board v Premier, KwaZulu-Natal,
and Others
[2001] ZACC 8
;
2002 (2) SA 715
(CC);
2002 (2) BCLR
156
(CC) at para 3.
5
See clause 34(4) of the KwaZulu-Natal Racing and Betting Bill (2003)
and clause 94(4) of the KwaZulu-Natal Gambling and Betting
Bill
(2007).
6
Zondi v MEC for Traditional and Local Government Affairs
[2004]
ZACC 19
;
2005 (3) SA 589
(CC);
2005 (4) BCLR 347
(CC) at paras
29-30.
7
Minister of Home Affairs v Liebenberg
[2001]
ZACC 3
;
2002 (1) SA 33
(CC);
2001 (11) BCLR 1168
(CC) at para 9;
Booysen and Others v Minister of Home
Affairs and Another
[2001] ZACC 20
;
2001 (4) SA 485
(CC);
2001 (7) BCLR 645
(CC) at para 1;
Dawood
and Another v Minister of Home Affairs and
Others; Shalabi and Another v Minister of Home Affairs and Others;
Thomas and Another
v Minister of Home Affairs and Others
[2000]
ZACC 8
;
2000 (3) SA 936
(CC);
2000
(8) BCLR 837
(CC) at para 11.
8
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
[1998] ZACC 21
;
1999 (2)
SA 14
(CC);
1999 (2) BCLR 175
(CC) at para 29.
9
South Africa Act (1909) at sections 70 and 85;
Republic of South Africa Constitution Act, 1961 at sections 68 and
84.
10
Middelburg Municipality v Gertzen
1914
AD 544
at 550.
11
Joyce and McGregor Ltd v Cape Provincial
Administration
1946 AD 658
at 669; see
also Id at 554.
12
See
Kruse v Johnson
[1898] 2 QB 91
at 99, as interpreted by
our courts during this period; see for example
Feinstein v Baleta
1930 AD 319
at 325-6;
Sinovich v Hercules Municipal Council
1946 AD 783
at 787-92 (and also the discussion in the dissenting
judgment of Schreiner JA at 801-3);
R v Abdurahman
1950 (3)
SA 136
(A) at 150C-E;
R v Lusu
1953 (2) SA 484
(A) at 489E-G;
Mandela v Minister of Prisons
1983 (1) SA 938
(A) at 960A-B.
See also Hahlo and Kahn
The South African Legal System and its
Background
(Juta & Co, Cape Town 1968) at 53-4, 148-9, 158;
Baxter
Administrative Law
(Juta & Co, Cape Town 1984) at
192, 490-4; and Wiechers
Administrative Law
(Butterworths,
Durban 1985) at 239-42 and the cases there cited.
13
Du Plessis
Re-Interpretation of Statutes
(LexisNexis-Butterworths, Durban 2002)
at 43; 25(1)
LAWSA
(reissue) at para 285.
14
S
ections 2 and 14 of the 1986 Act.
15
See Du Plessis above n 13 at 34-5, 42-3; Basson
et al
South African Constitutional Law
(Juta & Co, Cape Town 1988) at
288-9; 25(1)
LAWSA
(reissue)
at paras 284-6.
16
Sections 4 and 14 of the
1986 Act.
17
S v Basson
[2004]
ZACC 13
;
2005 (1) SA 171
(CC);
2004 (6) BCLR 620
(CC)
at para 106 (separate concurring
judgment of Chaskalson CJ);
S v
Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[1999]
ZACC 8
;
1999 (4) SA 623
(CC);
1999 (7) BCLR 771
(CC) at para 2;
Member of the Executive Council for
Development Planning and Local Government, Gauteng v Democratic
Party and Others
[1998] ZACC 9
;
1998
(4) SA 1157
(CC);
1998 (7) BCLR 855
(CC) at para 44;
Ynuico
Ltd v Minister of Trade and Industry and Others
[1996]
ZACC 12
;
1996 (3) SA 989
(CC);
1996 (6) BCLR 798
(CC) at para 7;
S
v Makwanyane and Another
[1995] ZACC
3
; 1995 (3) 391 (CC)
[1995] ZACC 3
; ;
1995 (6) BCLR 665
(CC) at para 32.
18
Gold Circle (Pty) Ltd and Another v Premier,
KwaZulu-Natal
2005 (4) SA 402
(D).
19
Id
at 415F-417B.
20
Sections 1 and 3 of the KwaZulu-Natal Gambling
Act 10 of 1996.
21
See the KwaZulu-Natal Horse Racing and Betting Control Consolidation
Amendment Act 4 of 1994; the KwaZulu-Natal Horse Racing
and Betting
Control Consolidation Second Amendment Act 5 of 1994; and the
KwaZulu-Natal Regulation of Racing and Betting Ordinance
Amendment
Act 8 of 1998.
22
Above n 18 at 841A-B
.
23
See above [22].
24
Above n 18.
25
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.
26
Section 172(1)(b) of the Constitution states:
“
When deciding a constitutional matter within its
power, a court—
(b) may make any order that is just and equitable,
including—
(i) an order limiting the retrospective effect of an
order of invalidity; and
(ii) an order suspending the declaration of invalidity
for any period and on any conditions, to allow the competent
authority
to correct the defect.”
See in
this regard
S v Steyn
[2000]
ZACC 24
;
2001 (1) SA 1146
(CC);
2001 (1) BCLR 52
(CC) at para 38;
National Coalition for Gay and Lesbian
Equality and Another v Minister of Justice and Others
[1998]
ZACC 15
;
1999 (1) SA 6
(CC);
1998 (12) BCLR 1517
(CC) at paras 94-7;
S v Ntsele
[1997]
ZACC 14
;
1997 (2) SACR 740
(CC);
1997 (11) BCLR 1543
(CC) at paras
12-4;
S v Bhulwana; S v Gwadiso
[1995]
ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC) at para 32;
S v Zuma and Others
[1995]
ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at para 43.
These findings, in the criminal context, are applicable more broadly
to all cases where the retrospectivity
of an order is at issue: see
Brink v Kitshoff NO
[1996]
ZACC 9
;
1996 (4) SA 197
(CC);
1996 (6) BCLR 752
(CC) at para 55.
See also
Minister of Home Affairs v
National Institute for Crime Prevention and the Reintegration of
Offenders (NICRO) and Others
[2004]
ZACC 10
;
2005 (3) SA 280
(CC);
2004 (5) BCLR 445
(CC) at para 74.
27
Brink
above n 26
at para 56; see also the judgment of Ackermann J in
De
Lange v Smuts NO and Others
[1998]
ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at paras 104-5
and
Manamela and Another v S
1999
(2) SACR 177
(W);
[1999] 4 All SA 161
(W) at para 80. Compare
National Coalition
above
n 26
at
para 98.
28
See
Prinsloo v Van
der Linde and Another
[1997] ZACC 5
;
1997 (3) SA 1012
(CC);
1997 (6) BCLR 759
(CC) at para 24-6,
interpreting section 8(1) of the interim Constitution. This
interpretation was adopted and applied to section
9(1) in
Harksen
v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC) at para 43;
1997 (11) BCLR 1489
(CC) at para
42.
29
See
Jooste v Score
Supermarkets Trading (Pty) Ltd (Minister of Labour Intervening)
[1998] ZACC 18
;
1999 (2) SA 1
(CC) at
para 17
[1998] ZACC 18
; ;
1999 (2) BCLR 139
(CC) at para 16;
East
Zulu Motors (Pty) Ltd v Empangeni/Ngwelezane Transitional Local
Council and Others
[1997] ZACC 19
;
1998 (2) SA 61
(CC);
1998 (1) BCLR 1
(CC) at para 24;
Prinsloo
above n 28 at para 25.
30
Section 8(4) states: “A juristic person is
entitled to the rights in the Bill of Rights to the extent required
by the nature
of the rights and the nature of that juristic person.”
31
Above n 1 at paras 30-43.
32
The Premier refers in this regard to the
decisions of this Court in
Ferreira v
Levin
n 25 above at 151 and
Bernstein
and Others v Bester and Others NNO
[1996]
ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC) at para 50.
33
Above n 1 at paras 47-50.
34
The proviso reads:
“
Provided
that nothing hereinbefore contained shall be deemed to prevent the
carrying on of a bookmaker’s business in partnership
by two or
more persons each of whom is the holder of a valid bookmaker’s
licence issued to him in terms of this Ordinance.”
35
Above n 1 at paras 50-1.
36
It appears in Part A of Schedule 4 of the Constitution. See above n
4.
37
Section 30(1)(a) provides:
“
Each
provincial licensing authority has exclusive jurisdiction within its
province, to the extent provided in provincial law,
to investigate
and consider applications for, and issue provincial licenses in
respect of casinos, racing, gambling and wagering
. . . ”.
38
Section 50(3) provides, inter alia, that a provincial licensing
authority must refuse to issue a licence to a person who is
disqualified from holding that licence in terms of provincial law.
39
Above n 1 at para 54.
40
Prinsloo
above n
28 at para 22.
41
According to section 8(4) of the Constitution – quoted above n
30 – whether a juristic person is the bearer of a
right
depends on the nature of the right and the nature of the juristic
person. That is chiefly an interpretative exercise:
see
Ex
parte: Chairperson of the Constitutional Assembly: In re:
Certification of the Constitution of the Republic of South Africa,
1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) at para 57. See also
City of Cape Town v Ad Outpost (Pty)
Ltd and Others
2000 (2) SA 733
(C) at 743F-744A;
2000 (2) BCLR
130
(C) at 138-9.
42
Prinsloo
above n
28
at
para 22.
43
National Coalition
above n 26 at paras 15-26 (and also the
concurring judgment of Sachs J at paras 120-9);
Dawood
above
n 7 at para 35;
Harksen
above
n 28
at
paras 43-53 (SA); paras 42-52 (BCLR);
President of the
Republic of South Africa and Another v Hugo
[1997] ZACC 4
;
1997
(4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at para 41;
Brink
v Kitshoff
above n 26 at paras 40-1;
Prinsloo
above n 28
at
paras 26-33.
44
Harksen
above n 28 at para 50 (SA); para 49 (BCLR).
45
Above n 1 at para 54.
46
Id at para 60.
47
See
South African
Commercial Catering and Allied Workers Union (SACCAWU) and Others v
Irvin & Johnson Ltd (Seafoods Division Fish
Processing)
[2000]
ZACC 10
;
2000 (3) SA 705
(CC);
2000 (8) BCLR 886
(CC) at para 51,
with reference to
Fedsure Life
Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998]
ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at para 116.
48
Se
e
Sanderson v
Attorney-General, Eastern Cape
[1997]
ZACC 18
;
1998 (2) SA 38
(CC);
1997 (12) BCLR 1675
(CC) at para 44
and
African National Congress and
Another v Minister of Local Government and Housing, KwaZulu-Natal,
and Others
[1998] ZACC 2
;
1998 (3) SA
1
(CC);
1998 (4) BCLR 399
(CC) at para 34.
49
Section 43(2)(c) of the Ordinance
.