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[2009] ZACC 2
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Van Straaten v President of the Republic of South Africa and Others (CCT106/08) [2009] ZACC 2; 2009 (3) SA 457 (CC) ; 2009 (5) BCLR 480 (CC) (24 February 2009)
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 106/08
[2009] ZACC 2
SHANE VAN
STRAATEN Applicant
versus
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA First Respondent
MINISTER
FOR
JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Second
Respondent
SPEAKER
OF THE NATIONAL ASSEMBLY Third Respondent
Decided
on : 24 February 2009
JUDGMENT
THE
COURT:
This
is an urgent application for direct access in terms of section
167(4)(d) of the Constitution. That provision provides
for the
exclusive jurisdiction of this Court to decide the validity of a
constitutional amendment.
1
The applicant, Mr van Straaten, who is representing himself, is
seeking an order to declare the National Prosecuting Authority
Amendment Bill, 2008 and the South African Police Service Amendment
Bill, 2008 to be invalid. Together, these bills disband
the
Directorate of Special Operations unit, the so-called Scorpions,
and, in its place, establish a new specialised unit to
fight crime.
The applicant has cited as respondents, the President, the
Minister for Justice and Constitutional Development
and the Speaker
of the National Assembly. He alleges that Parliament has recently
passed these two bills.
The
gravamen of his complaint is that some members of the ruling party
(the African National Congress), who voted in
favour
of these two bills, should not have participated in the
consideration of these bills because these members were biased
against
the Scorpions. He alleges that these members were either
under investigation by the Scorpions or were facing criminal
charges.
He also alleges that their conduct in voting on these
bills was unlawful, unconstitutional and constituted corruption.
He
makes further allegations that are not necessary to repeat.
The
applicant appears to confuse these bills with a constitutional
amendment. Hence the allegation that this matter is brought
to
this Court under section 167(4)(d) of the Constitution.
The
applicant is asking us to consider the constitutional validity of
parliamentary bills. The jurisdiction of this Court to
consider
the constitutionality of a bill is limited to specific
circumstances contemplated in section 167(4)(b). It may do
so
either at the instance of the President in terms of section
79(4)(b)
2
or at the instance of a Premier in terms of section 121(2)(b).
3
Both in the
President of the Republic of South Africa and
Others v
United Democratic Movement and Others
4
and in
Doctors for Life International v Speaker of the National
Assembly and Others
,
5
we held that the Constitution contains clear and express provisions
which preclude any court from considering the constitutionality
of
a bill save in the limited circumstances referred to in sections 79
and 121 of the Constitution. This case does not fall
within the
limited circumstances mentioned in these two sections.
It
is true that the President has recently signed these bills into
law. And this Court would ordinarily have jurisdiction to
consider
the constitutional validity of these bills once they have been
enacted into law. However, as we pointed out in
Doctors for
Life International
, the “crucial time for determining
whether a court has jurisdiction is when the proceedings
commenced.”
6
Therefore the question whether this Court has jurisdiction must be
determined at the time when the present proceedings were
instituted
and not when the Court considers the matter.
7
This
Court therefore has no jurisdiction to consider the present
application.
There
is one matter which calls for comment. The papers in this
application were served on the State Attorney, Johannesburg
on 11
December 2008. In terms of Rule 1(8) of the Rules of this Court,
8
read with Rule 4(9) of the Uniform Rules of Court,
9
notice of application may be served on the State Attorney. Service
of the papers on the State Attorney, Johannesburg by the
applicant
therefore constituted proper service on the President and the
Minister for Justice and Constitutional Development.
The
dies
have expired. No communication has been received from
the office of the State Attorney. Nor have the offices of the
President
and the Minister responded to the application. Whether
the latter were made aware of the present application by the State
Attorney is not easy to tell. But at least we are entitled to
assume that, in the fulfilment of its professional obligation and
its duty to this Court, the State Attorney must have made the
offices of the President and the Minister aware of the present
application.
This
is not the first occasion that the state has not responded to a
matter that is before this Court.
10
This failure on the part of the state is regrettable. The state
has an obligation to respond to court processes. It cannot
simply
disregard court processes. It must lead by example. While, as
pointed out above, we cannot identify precisely where
the fault
lies, we can, with confidence, lay the blame squarely at the office
of the State Attorney, Johannesburg. That office
was served with
the papers. It had an obligation to respond to the application.
That this was not done is cause for grave
concern in a country
governed by the rule of law.
Having
regard to the number of occasions on which a situation such as the
present has occurred, we have considered whether this
is an
occasion to make an order that the office of the Minister for
Justice and Constitutional Development provide us with
a report
setting out steps to be taken in order to avoid a recurrence of
this situation. After anxious consideration we have
decided
against that course. However, to ensure that this situation is not
repeated, the Registrar is requested to send a
copy of this
judgment to the offices of the President and the Minister for
Justice and Constitutional Development. We are
confident that
these offices will take appropriate steps to prevent a situation
like this from occurring again.
There
has been no opposition in this matter. The issue of costs does not
therefore arise.
In
the event, the Court makes the following order:
The application is dismissed.
The Registrar is directed to send copies of this judgment to the
offices of
the
President and the Minister for Justice and Constitutional
Development.
Langa
CJ, Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J,
O’Regan J, Sachs J, Skweyiya J, Van der Westhuizen
J and
Yacoob J
1
Section 167 provides:
“
(1) The Constitutional Court consists of the
Chief Justice of South Africa, the Deputy Chief Justice and nine
other judges.
(2) A
matter before the Constitutional Court must be heard by at least
eight judges.
(3) The
Constitutional Court—
(a) is
the highest court in all constitutional matters;
(b) may decide only constitutional matters, and issues
connected with decisions on constitutional matters; and
(c) makes the final decision whether a matter is a
constitutional matter or whether an issue is connected with a
decision on a
constitutional matter.
(4) Only the Constitutional Court may—
(a) decide disputes between organs of state in the
national or provincial sphere concerning the constitutional status,
powers
or functions of any of those organs of state;
(b) decide on the constitutionality of any
parliamentary or provincial Bill, but may do so only in the
circumstances anticipated
in section 79 or 121;
(c) decide applications envisaged in section 80 or
122;
(d) decide on the constitutionality of any amendment to
the Constitution;
(e) decide that Parliament or the President has failed
to fulfil a constitutional obligation; or
(f) certify
a provincial constitution in terms of section 144.
(5) 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.
(6) 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; or
(b) to appeal directly to the Constitutional Court from
any other court.
(7) A constitutional matter includes any issue
involving the interpretation, protection or enforcement of the
Constitution.”
2
Section 79 provides:
“
(1) The
President must either assent to and sign a Bill passed in terms of
this Chapter or, if the President has reservations
about the
constitutionality of the Bill, refer it back to the National
Assembly for reconsideration.
(2) The
joint rules and orders must provide for the procedure for the
reconsideration of a Bill by the National Assembly and
the
participation of the National Council of Provinces in the process.
(3) The
National Council of Provinces must participate in the
reconsideration of a Bill that the President has referred back
to
the National Assembly if—
(a) the President’s reservations about the
constitutionality of the Bill relate to a procedural matter that
involves the
Council; or
(b) section 74(1), (2) or (3)(b) or 76 was applicable
in the passing of the Bill.
(4) If,
after reconsideration, a Bill fully accommodates the President’s
reservations, the President must assent to and
sign the Bill; if
not, the President must either—
(a) assent to and sign the Bill; or
(b) refer it to the Constitutional Court for a decision
on its constitutionality.
(5) If the Constitutional Court decides that the Bill
is constitutional, the President must assent to and sign it.”
3
Section 121 provides:
“
(1) The Premier of a province must either assent
to and sign a Bill passed by the provincial legislature in terms of
this Chapter
or, if the Premier has reservations about the
constitutionality of the Bill, refer it back to the legislature for
reconsideration.
(2) If,
after reconsideration, a Bill fully accommodates the Premier’s
reservations, the Premier must assent to and sign
the Bill; if not,
the Premier must either—
(a) assent to and sign the Bill; or
(b) refer it to the Constitutional Court for a decision
on its constitutionality.
(3) If
the Constitutional Court decides that the Bill is constitutional,
the Premier must assent to and sign it.”
4
President of the Republic of South Africa and Others v United
Democratic Movement (African Christian Democratic Party and Others
Intervening; Institute for Democracy in South Africa and Another as
amici curiae)
[2002] ZACC 34
;
2003 (1) SA 472
(CC);
2002 (11)
BCLR 1164
(CC) at para 26.
5
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC) at
para 43.
6
Id at para 57.
7
Id.
8
Rule 1(8) provides:
“
Subject
to rule 5, the provisions of rule 4 of the Uniform Rules shall
apply, with such modifications as may be necessary, to
the service
of any process of the Court.”
9
Rule 4(9) provides:
“
In
every proceeding in which the State, the administration of a
province or a Minister, Deputy Minister or Administrator in his
official capacity is the defendant or respondent, the summons or
notice instituting such proceeding may be served at the Office
of
the State Attorney situated in the area of jurisdiction of the court
from which such summons or notice has been issued: Provided
that
such summons or notice issued in the Transvaal Provincial Division
shall be served at the Office of the State Attorney,
Pretoria, and
such summons or notice issued in the Northern Cape Division shall be
served at the Bloemfontein Branch Office of
the State Attorney.”
10
South
African
Liquor Traders Association and Others v Chairperson, Gauteng Liquor
Board and Others
[2006] ZACC 7
;
2006
(8) BCLR 901
(CC);
Nyathi v MEC for
Department of Health, Gauteng and Others
[2008] ZACC 8
;
2008 (5) SA 94
(CC);
2008 (9) BCLR 865
(CC).