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[2010] ZACC 9
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Minister for Justice and Constitutional Development v Chonco and Others (CCT42/09) [2010] ZACC 9; 2010 (7) BCLR 629 (CC) (8 April 2010)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 42/09
[2010
] ZACC 9
In
the matter between:
MINISTER FOR JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Applicant
and
MQABUKENI CHONCO AND 383 OTHERS
Respondents
Decided on :
8 April
2010
JUDGMENT
THE COURT
:
A
dispute has arisen about the costs order
this
Court granted in
Minister for Justice
and Constitutional Development v Chonco and Others
1
(
Chonco 1
).
In that litigation, even though the appeal of the Minister for
Justice and Constitutional Development (the Minister) succeeded
and
the relief the applicants for pardon obtained in the North Gauteng
High Court, Pretoria (High Court) and the Supreme Court
of Appeal
was set aside, this Court held that a “singular approach to
the costs of the case” was justified.
2
This was because of the long delay in dealing with the applications
for pardon, and the fact that, although they were incorrect,
it was
“understandable” that the pardon applicants sought to
hold the Minister (and not the President) liable in
the litigation.
3
The Court therefore concluded:
“
[J]ustice
requires that Mr Chonco, the 383 other applicants for pardon and
their legal advisors should not be out of pocket because
of their
recourse to legal proceedings. The successful applicant for leave
to appeal, the Minister, should pay the costs of
Mr Chonco and the
383 other applicants for pardon.”
4
The
Court granted an order in the following terms:
“
1.
The
application for leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Supreme
Court of Appeal is set aside and replaced by the following order:
‘
(a) The
appeal is upheld.
(b)
The
application in the High Court is dismissed.
(c)
The
appellant [the Minister] is ordered to pay the costs of the appeal.’
4.
The
applicant [the Minister] is ordered to pay the respondents’
costs in this Court.”
The
dispute
is about whether this order covers
the pardon applicants’ costs in the High Court and in the
Supreme Court of Appeal. The
pardon applicants contend that the
order, read together with the portions of the judgment cited above,
plainly covers all their
litigation costs in the High Court, in the
Supreme Court of Appeal as well as in this Court. However, when
they prepared and
served their bills of costs in all three courts on
the State Attorney, full payment was not forthcoming. They record
that they
were informed that in the view of the State Attorney, “the
costs order was applicable only to the case before the
Constitutional
Court”. Their attorney thereupon wrote to the
Registrar of the Court, requesting that the Chief Justice issue a
ruling.
The Court treated that letter, dated 8 March 2010, as an
application, and referred it to the State Attorney for comment on 18
March 2010, but no response was received. It is therefore
appropriate for the Court to finalise the issue.
Before
determining the dispute, it must be
observed that the composition of the Court has changed since
Chonco
1
was handed down on 30 September
2009. Shortly after that date, four members of the Court (Langa CJ,
Mokgoro, O’Regan and
Sachs JJ) ceased to hold office, their 15
year terms of office having come to an end.
5
Four new members were appointed to replace them: Froneman, Jafta,
Khampepe and Mogoeng JJ.
Does
the
Court, as presently constituted, with
its four new members, have power to decide the dispute about the
meaning and effect of
the order that the Court, as previously
constituted, granted in
Chonco 1
?
The answer is Yes. The Constitution provides that “[t]he
Constitutional Court consists of the Chief Justice of South
Africa,
the Deputy Chief Justice and nine other judges.”
6
It also provides that a matter must be heard “by at least
eight” of the Court’s eleven judges.
7
It has special provisions for the appointment
8
and terms of office of the Court’s members.
9
It is this Court, as constituted from time to time and sitting
en
banc
with a minimum of eight of its
members, to which the Constitution ascribes a specified jurisdiction
and specified powers.
10
The Court’s jurisdiction and powers must be exercised over
matters and causes falling for decision before it, regardless
of
changes in its composition from time to time.
11
In any
event, t
he dispute about the
Chonco
1
costs order is a separately
justiciable dispute, which the Court as presently constituted is
required to decide.
12
It arises from a previous decision of the Court, but the dispute
requires that the meaning and effect of the order then granted
be
determined, without regard to the accident of individual incumbency
or the contingency of the subjective intentions of the
then-members
of the Court. In interpreting the costs order in
Chonco
1
, the Court must be guided by the
basic principle that a court’s order must be read together
with its reasons to ascertain
its meaning.
13
It
therefore follows
that the Court as
presently constituted has the power and duty to determine the
meaning and effect of the order granted in
Chonco
1
.
On
this approach,
the pardon applicants’
contention that the
Chonco 1
order covers the costs incurred in the High Court seems plainly
correct. This is because it was expressly stated in the original
judgment that the pardon applicants and their legal advisors “
should
not be out of pocket because of their recourse to legal
proceedings.
”
14
This cannot but cover the costs in the High Court as well as in the
Supreme Court of Appeal.
However,
the order failed to make that explicit. It
makes
clear that the Minister is to pay the pardon applicants’ costs
in this Court and in the Supreme Court of Appeal.
But, while
upholding the appeal against the order of the High Court, and
dismissing the application there, it orders the Minister
only to pay
“the costs of the appeal”,
15
while not stating explicitly who should pay the costs in the High
Court.
Against
this background, t
he State Attorney’s
reported contention that the order does not cover costs in the
Supreme Court of Appeal is somewhat surprising.
About that, the
order lacks no explicitness. This Court substituted the order
granted in the Supreme Court of Appeal with one
that expressly
ordered the Minister to pay “the costs of the appeal”.
That plainly covers costs in the Supreme Court
of Appeal.
It is
only t
he costs in the High Court that the
order does not expressly mention. The dispute makes it necessary
for the Court to remedy
this. It has power to do so under Rule 29
of its Rules. This provides that, with such modifications as may be
necessary, Rule
42 of the Rules of the High Court apply to
proceedings in this Court.
16
Rule 42 provides in relevant part that, in addition to any other
powers it may have, “the Court” may, of its own
accord
or on application, rescind or vary “an order or judgment in
which there is an ambiguity, or a patent error or omission,
but only
to the extent of such ambiguity, error or omission”.
17
In view of the Constitution’s requirement that “at
least eight judges” of this Court must hear a matter before
it, and this Court’s practice of sitting
en
banc
, with all available judges, it is
appropriate to read “the Court” in this Rule as
referring to the quorate Court,
as constituted from time to time.
Whether
the failure in
Chonco 1
to stipulate expressly that the Minister was to pay the applicants’
costs in the High Court can or should strictly be classified
as an
omission or an ambiguity does not matter. The Rule covers both
cases.
18
It is worth noting that in many cases – such as the present –
there may be an overlap between an omission and an
ambiguity.
Indeed, it is the omission in the order that gives rise to the
ambiguity, and hence the dispute.
Th
e
fact that Rule 42 applies to the proceedings of this Court makes it
unnecessary to consider the question, which arises from
time to time
in the Supreme Court of Appeal, where Rule 42 does not apply, in
what circumstances a court of final appeal may
at common law vary
its orders,
19
or the related question that may arise in this Court under its
inherent power to protect and regulate its own process, and to
develop the common law, taking into account the interests of
justice.
20
It is also not necessary to consider the question whether section
172 of the Constitution
21
confers additional powers on this Court to correct its own orders,
which this Court has previously left open.
22
Order
In the
result, the
pardon applicants are entitled
to have the order in
Chonco 1
varied. The following order is granted:
The
order in
Minister for Justice and
Constitutional Development v Chonco and Others
(CCT
42/09)
[2009] ZACC 25
is replaced with the following:
1.
The application for leave to appeal is granted.
2.
The appeal is upheld.
3.
The order of the
Supreme Court of Appeal is set aside and replaced by the following
order:
“(a) The
appeal is upheld.
(b) The application
in the High Court is dismissed.
(c) The appellant, the Minister for Justice and Constitutional
Development, is ordered to pay the respondents’ costs incurred
in the High Court as well as the costs of the appeal.”
4.
The applicant, the
Minister for Justice and Constitutional Development, is ordered to
pay the respondents’ costs in this
Court.
Ngcobo CJ, Moseneke DCJ, Cameron J,
Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J,
Van der Westhuizen J
and Yacoob J.
1
[2009] ZACC 25
;
2010 (2) BCLR 140
(CC).
2
Above n 1 at para 47.
3
The favourable costs award in
Chonco
1
was, in part, the basis on which the
applicants were denied a favourable costs award when they later
brought proceedings against
the correct party, the President, in
Mqabukeni Chonco and 383 Others v
President of the Republic of South Africa
[2010] ZACC 7
, Case No CCT 94/09, 16 March 2010, as yet unreported
(
Chonco 2
).
4
Chonco 1
above n 1 at para 47.
5
Section 176(1) of the Constitution provides that:
“
A Constitutional Court judge
holds office
for a non-renewable term of
12 years, or until he or she attains the age of 70, whichever occurs
first, except where an Act of
Parliament extends the term of office
of a Constitutional Court judge.”
Section
4
(1) of the
Judges’ Remuneration and
Conditions of Employment Act 47 of 2001
provides that a
Constitutional Court judge whose 12 year term of office expires
before he or she has completed 15 years’
active service must
in certain circumstances continue to perform active service until he
or she has completed 15 years’
active service.
6
Section 167(1) of the Constitution.
7
Section 167(2) of the Constitution.
8
Section 174(4)-(5) of the Constitution.
9
Section 176(1) of the Constitution.
10
Section 167(3)-(7) and sections 172-3 of the Constitution.
11
Section 167(3)-(5) and section 172(1) of the Constitution.
12
Minister of Justice v Ntuli
[1997] ZACC 7
;
1997 (3) SA 772
(CC);
1997 (6) BCLR 677
(CC) at para 13.
13
Firestone South Africa (Pty) Ltd v Genticuro
AG
1977 (4) SA 298
(A) at 304E-F.
Trollip JA said:
“
Thus, as in the case of a
document, the judgment or order and the court’s reasons for
giving it must be read as a whole
in order to ascertain its
intention. If, on such a reading, the meaning of the judgment or
order is clear and unambiguous, no
extrinsic fact or evidence is
admissible to contradict, vary, qualify, or supplement it.”
See
also
Administrator, Cape, and
Another v Ntshwaqela and Others
1990 (1) SA 705
(A) at
715F-716C.
14
Chonco 1
above n 1 at para 47.
15
Chonco 1
above n 1 at para 49.
16
Rule 42 of the Uniform Rules provides:
“
(1)
The
court may, in addition to any other powers it may have,
mero
motu
or upon the application of any
party affected, rescind or vary:
(a
) An
order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
(b) an order or judgment in which there is an
ambiguity, or a patent error or omission, but only to the extent of
such ambiguity,
error or omission;
(c) an order or judgment granted as the result of a
mistake common to the parties.
(2) Any party desiring any relief under this rule shall
make application therefor upon notice to all parties whose interests
may
be affected by any variation sought.
(3) The court shall not make any order rescinding or
varying any order or judgment unless satisfied that all parties
whose interests
may be affected have notice of the order proposed.”
17
Rule 42(1)(b).
18
See
University of
Witwatersrand Law Clinic v Minister of Home Affairs and Another
[2007] ZACC 8
;
2008 (1) SA 447
(CC), where Rule 42(1)(b) was applied to correct a
patent error in a judgment, which wrongly attributed a submission
reflecting
negatively on it to the applicant.
19
See
Firestone South
Africa (Pty) Ltd v Genticuro AG
above
n 13 at 306-8, adopted in
Minister of Justice v Ntuli
above n 12 at paras 22-4 and
Ex Parte Women’s Legal Centre:
In re Moise v Greater Germiston Transitional Local Council
[2001] ZACC 2
;
2001 (4) SA 1288
(CC).
20
Section 173 of the Constitution provides:
“
The Constitutional Court, Supreme Court of
Appeal and High Courts have the inherent power to protect and
regulate their own process,
and to develop the common law, taking
into account the interests of justice.”
21
Section 172 of the Constitution provides:
“
(1) When deciding a constitutional matter within
its power, a court—
(a)
must
declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency;
and
(b)
may
make any order that is just and equitable, including—
(i)
an
order limiting the retrospective effect of the declaration of
invalidity; and
(ii) an order suspending the declaration of invalidity
for any period and on any conditions, to allow the competent
authority
to correct the defect.
(2)
(a)
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.
(b)
A
court which makes an order of constitutional invalidity may grant a
temporary interdict or other temporary relief to a party,
or may
adjourn the proceedings, pending a decision of the Constitutional
Court on the validity of that Act or conduct.
(c)
National
legislation must provide for the referral of an order of
constitutional invalidity to the Constitutional Court.
(d)
Any
person or organ of state with a sufficient interest may appeal, or
apply, directly to the Constitutional Court to confirm
or vary an
order of constitutional invalidity by a court in terms of this
subsection.”
22
See
Minister of Justice v Ntuli
above n 12 at para 27 and
Ex parte Women’s Legal Centre: In
re Moise v Greater Germiston Transitional Local Council
above n
19 at para 7.