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[2010] ZACC 27
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S v Thunzi and Another (CCT 81/09) [2010] ZACC 27 (2 December 2010)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case
CCT 81/09
[2010]
ZACC 27
In
the matter of:
THE
STATE
versus
KHOLEKILE WITNESS THUNZI
and
SIYABULELA MLONZI
with
MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT
SPEAKER OF THE NATIONAL ASSEMBLY
CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES
Heard
on : 11 November 2010
Decided
on : 2 December 2010
JUDGMENT
FRONEMAN
J:
Introduction
This is a matter that stems from
a referral to this Court for confirmation of an order made by the
Eastern Cape High Court,
Mthatha (High Court). The High Court
declared the “applicability” of section 4 of the
Dangerous Weapons Act (Transkei)
1
(DWA (Tk)) unconstitutional. This was on the basis that it
unfairly discriminated against perpetrators of crime in the
erstwhile Transkei who were subject to its harsher sentencing
regime.
In the majority judgment
2
Skweyiya J found that in declaring the “applicability”
of section 4 of the DWA (Tk) to be unconstitutional, rather
than
the provisions themselves, the order of the High Court was not
subject to confirmation by the Constitutional Court in
terms of
sections 167(5) and 172(2)(a) of the Constitution. However,
because the High Court had confined its order of invalidity
to
cases where the accused had not yet pleaded, leaving the order
intact would perpetuate an injustice against those who had
already
pleaded in terms of section 4 of the DWA (Tk). The Court exercised
its inherent power under section 173 of the Constitution
3
to correct the High Court’s order to the extent that it
perpetuates an injustice.
While considering the matter, it
transpired that there was also parallel legislation regulating the
use of dangerous weapons
in the former homelands of Venda,
4
Bophuthatswana
5
and Ciskei.
6
Unlike the DWA (Tk), none of these Acts created differential
sentencing regimes for persons sentenced. The Court raised the
question whether there was a constitutional obligation on
Parliament to establish uniform legislation on the use of dangerous
weapons.
The issue whether there was a
constitutional obligation on Parliament to establish uniform
legislation on the use of dangerous
weapons, especially considering
that 16 years had passed since South Africa became a constitutional
democracy, was alluded
to in the following terms by Skweyiya J:
“
Parliament has not
established a uniform system of law governing the use of dangerous
weapons. Instead, it has retained the former
TBVC states’
laws, and amended them to replicate the terms of the DWA (SA). The
result is that the different laws governing
dangerous weapons have,
for all apparent purposes, been deliberately retained by the
legislature.
If the
constitutional rationale for retaining old order legislation was
limited and sought only to facilitate an orderly transition
to a new
constitutional order, then the question is whether the Constitution
contemplates that old order legislation could serve
any other
purpose. More specifically, if the transitional provisions
contemplated that the DWA (Tk) and its counterparts in
Bophuthatswana, Venda and Ciskei would continue to exist only until
Parliament establishes a uniform system of law governing
the use of
dangerous weapons, does it not follow that there is a
constitutional
obligation
on Parliament to
establish uniform legislation on the use of dangerous weapons? If
the transitional provisions create such an
obligation, is Parliament
in breach of this obligation by failing to establish a uniform
system of law governing the use of dangerous
weapons? And, if so,
what is the appropriate relief?”
7
Skweyiya J
found that these issues call into question the constitutionality of
the very existence of the multiple Dangerous
Weapons Acts that
continue to operate in South Africa. That issue had
,
however,
not been adequately argued.
Relying
on
Matatiele Municipality
and Others v President of the Republic of South Africa and Others
(
1)
,
8
he considered it necessary to adopt an approach similar to that
adopted in that matter
:
“
. . .
where, on the papers before it, there is doubt as to whether a
particular law or conduct is consistent with the Constitution,
this
Court may be obliged to investigate the matter. This would be
particularly so where, as here, an important constitutional
issue is
involved. In the
Executive Council,
Western Cape Legislature and Others v President of Republic of South
Africa
this Court, subsequent to the
hearing, realised that there were questions regarding section 235(8)
of the interim Constitution
that had not been addressed by counsel
in their written or oral argument. Because of the importance of
these questions, the
Court considered it necessary to afford the
parties an opportunity to make submissions on those questions and
the Court the benefit
of debating them. The parties’ legal
representatives were therefore invited urgently to canvass the
particular issues
at a further hearing which was set down at fairly
short notice. This is the course that must be followed in this
case. It is
in the interests of justice that these important issues
. . . be investigated.” (Footnote omitted.)
Directions
were issued
calling on
the
parties to address the following:
Do the
provisions in item 2 of Schedule 6 to the Constitution
9
impose a constitutional obligation on Parliament to rationalise
the laws governing the use of dangerous weapons in the territories
of the former Transkei, Bophuthatswana, Venda and Ciskei?
If so, is Parliament in
breach of this obligation by failing to establish a uniform system
of law governing the use of dangerous
weapons throughout the
Republic of South Africa?
If question (ii) above is
answered in the affirmative, what order, if any, should this Court
make?
Is the continued operation of
the Dangerous Weapons Act 71 of 1968 (Transkei), Dangerous Weapons
Act 71 of 1968 (Bophuthatswana),
Dangerous Weapons Act 71 of 1968
(Venda) and Dangerous Weapons Act 71 of 1968 (Ciskei)
unconstitutional and should these
statutes be struck down on any
other basis?
The Court directed that the
Speaker of the National Assembly and the Chairperson of the
National Council of Provinces (Parliament)
be joined as parties to
the proceedings and that they file submissions together with the
Minister for Justice and Constitutional
Development (Minister).
Submissions were filed on behalf of all of them.
Mr
Thunzi, Mr Mlonzi and the Director of Public Prosecutions, Mthatha,
were invited to make submissions if they so wished.
At the hearing Parliament
accepted, and it was common cause, that it had an obligation to
effect rationalisation in order to
have uniform national
legislation regulating the use of dangerous weapons. The Minister
indicated that the process of rationalisation
had begun and that
the necessary legislation would be introduced in Parliament in the
2011 legislative programme. Notices
triggering the operation of
the offending clauses in the different pieces of legislation, which
provided for differential sentencing
regimes, had been withdrawn.
10
The factual situation is thus that parallel legislation exists
regulating the use of dangerous weapons in the former homelands,
but that none of the provisions are operational.
In these circumstances it is not
in the interests of justice for us to consider whether this Court
has exclusive jurisdiction
to consider Parliament’s
obligations in relation to the impugned legislation.
11
It is also not in the interests of justice to consider whether the
mere existence of parallel legislation regulating the use
of
dangerous weapons is unconstitutional or to make any order
invalidating that legislation with immediate effect and making
a
further order in terms of section 172(1)(b) of the Constitution.
We have a solemn undertaking from the other two arms of
government
that the process of rationalisation will be given effect to in the
2011 parliamentary session.
12
That undertaking is formally noted here. The offending
legislation is not presently in operation in any part of the
country
and will thus not adversely affect any person.
In these circumstances, I
consider it appropriate to postpone this matter until 29 November
2011. The Minister and Parliament
will be directed to file
affidavits by 8 November 2011, indicating the steps they have
taken in pursuance of the undertaking.
If the matter is finalised
before then, this date can be anticipated.
This matter concerns only one
aspect of the rationalisation of transitional measures in the
Constitution. Given that this matter
will be before Parliament,
there is no reason not to expect that similar speedy consideration
will be given to other laws that
might owe their existence merely
to the transition from the old to the new order.
Order
The following order is made:
(a) The matter is
postponed to Tuesday, 29 November 2011.
(b) The Speaker of the National Assembly, the Chairperson of the
National Council of Provinces and the Minister for Justice and
Constitutional Development are required to notify this Court by
Tuesday, 8 November 2011 of the legislative steps taken to fulfill
the undertaking to rationalise the laws that are the subject of this
litigation.
Ngcobo CJ, Moseneke
DCJ, Brand AJ, Cameron J, Jafta J, Khampepe J, Mogoeng J, Nkabinde
J, Skweyiya J and Yacoob J concur in the
judgment of Froneman J.
For the State: Advocate S Mbewu instructed by the Director of Public
Prosecutions, Mthatha.
For Mr Thunzi and Mr Mlonzi: Advocate E Crouse instructed
by Legal Aid South Africa, Port
Elizabeth Justice Centre.
For the Minister for Justice and Constitutional Advocate PJJ De
Jager SC and
Development, the Speaker of the National Advocate Holland-Müter
Assembly and the Chairperson of the National instructed by the State
Attorney,
Council of Provinces: Johannesburg.
1
71 of 1968.
2
S v Thunzi and Another
,
Case No CCT 81/09, as yet
unreported, 5 August 2010.
3
Section 173 states that:
“
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.”
4
Act 71 of
1968.
5
Act 28
of
1982.
6
Act 71
of 1968.
7
Above n 1 at paras 65-6.
8
[2006] ZACC 2
;
2006 (5) SA 47
(CC);
2006 (5) BCLR 622
(CC) at para
68.
9
Item 2 of Schedule 6 to the Constitution states:
“
(1) All law that was in force when the new
Constitution took effect, continues in force,
subject to—
(a) any amendment or repeal; and
(b) consistency with the new Constitution.
(2) Old order legislation that continues in force in
terms of subitem (1)—
(a) does not have a wider application, territorially or
otherwise, than it had before the previous Constitution took effect
unless
subsequently amended to have a wider application; and
(b) continues to be administered by the authorities
that administered it when the new Constitution took effect, subject
to the
new Constitution.”
10
See Government Gazette 9414, GN R1047, 10 November 2010 and
Government Gazette 9414, GN R1048, 10 November 2010.
11
Section 167(4)(e) of the Constitution. See also
Women’s
Legal Centre Trust v President of the Republic of South Africa and
Others
[2009] ZACC 20
;
2009 (6) SA 94
(CC).
12
Compare
President,
Ordinary Court Martial, and Others v Freedom of Expression Institute
and Others
[1999] ZACC 10
;
1999 (4) SA
682
(CC);
1999 (11) BCLR 1219
(CC)
at para 8, where this
Court postponed
sine die
the confirmation
of a declaration of invalidity pending the enactment of new
legislation that would regulate the matter.