About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2011
>>
[2011] ZACC 10
|
|
HBR (Hola Bon Renaissance) Foundation v President of the Republic of South Africa and Others (CCT 11/11) [2011] ZACC 10; 2011 (10) BCLR 1009 (CC) (31 March 2011)
Links to summary
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 11/11
[2011] ZACC 10
In the matter between:
HBR (HOLA
BON RENAISSANCE) FOUNDATION
….............................
Applicant
and
PRESIDENT
OF THE REPUBLIC OF
SOUTH
AFRICA
….............................................................................
First
Respondent
MINISTER
FOR PROVINCIAL AND LOCAL
GOVERNMENT
..............................................................................
Second
Respondent
MINISTER
FOR JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
….......................................
Third
Respondent
PREMIER
OF GAUTENG
…...........................................................
Fourth
Respondent
MEC FOR
LOCAL GOVERNMENT, GAUTENG
….......................
Fifth
Respondent
SPEAKER,
GAUTENG PROVINCIAL LEGISLATURE
….............
Sixth
Respondent
MUNICIPAL
DEMARCATION BOARD
….................................
Seventh
Respondent
SPEAKER
OF THE NATIONAL ASSEMBLY
…..........................
Eighth Respondent
CHAIRPERSON
OF THE NATIONAL
COUNCIL
OF PROVINCES
….........................................................
Ninth
Respondent
GREATER
CITY OF JOHANNESBURG
MUNICIPALITY
…...........................................................................
Tenth
Respondent
ELECTORAL
COMMISSION
….................................................
Eleventh
Respondent
Decided
on : 31 March 2011
JUDGMENT
THE
COURT:
Introduction
This is an application for direct access. The applicant sought
leave to have the matter heard on an urgent basis. It further
sought to interdict the President from announcing the date for
local government elections, an order directing the respondents
to
establish a tribunal to investigate the removal of members of the
Municipal Demarcation Board (Board) from office and that
the Board
should consider its application to have a local municipality
established for Soweto.
1
The papers were lodged with the Registrar of this Court in the
afternoon of 9 February 2011. The matter was set down for hearing
on 10 February 2011 at 08h15. After hearing the parties, this Court
issued an order
2
dismissing the relief relating to urgency and the interdict
restraining the President from announcing the date for the local
government elections in the State of the Nation Address, which was
to be delivered in the evening of 10 February 2011.
The determination of the balance of the relief was deferred to a
later date. The order mentioned that directions for the further
conduct of the case would be issued in due course. On 28 February
2011 the Chief Justice issued directions that informed the
parties
that it would not be necessary for them to file written submissions
or further affidavits in the matter.
The Court has decided to dispose of this matter on the papers filed
by the applicant.
3
This judgment, therefore, addresses the balance of the relief, the
determination of which was deferred on 10 February 2011.
Background
The applicant is a non-profit voluntary association whose objective
is to promote and encourage transformation of communities
in the
areas where it operates. On 15 October 2010 it applied to the
Board, seeking the establishment of a local municipality
for
Soweto. Presently, Soweto forms part of the municipal area of the
City of Johannesburg (City). The applicant further sought
that the
boundaries of the City be redetermined.
In reply to the application, the Board pointed out that changes to
municipal boundaries were suspended in September 2008 and
that
decisions on requests for redetermination of boundaries will be
taken after the local government elections in 2011. However,
the
Board indicated that it was willing to consider the request by the
applicant for redetermination of the City’s boundaries
if it
was submitted by the correct body. It drew the attention of the
applicant to section 22
4
of the Local Government: Municipal Demarcation Act
5
(Act).
Section 22 of the Act stipulates that the Board may redetermine
municipal boundaries on its own initiative or on request by
the
Minister responsible for local government or a provincial MEC for
local government or a municipality with the concurrence
of any
other municipality affected by the proposed redetermination. In the
light of this requirement, the Board advised the
applicant to
submit its request through either the City or the MEC for Local
Government in the Province of Gauteng.
It is apparent from the papers that the applicant was unhappy with
the Board’s response which, in its view, had violated
the
Constitution and the relevant legislation. The applicant alleges
that it approached the City and the MEC, both of whom
informed it
that matters relating to changes of municipal boundaries were dealt
with at national level. It was aggrieved that
the Board declined to
deal with the request on the Board’s own initiative. The
applicant demanded the resignation of
the entire Board within 24
hours. The demand was communicated through a letter dated 9
November 2010.
When members of the Board did not resign, the applicant addressed a
letter to the President, demanding the removal of the Board
from
office. It gave the President 14 days within which to carry out its
demand or face litigation in this Court. The applicant’s
letter of demand is dated 24 November 2010. On 3 December 2010 the
applicant dispatched a reminder to the President, appealing
for a
response within 48 hours. It alleges that its letters did not
elicit a response from the President.
As mentioned earlier, the present application was launched on 9
February 2011, the day preceding the date on which the State
of the
Nation Address was to be delivered. The applicant cited the
President of the Republic of South Africa; the Minister
for
Provincial and Local Government; the Minister for Justice and
Constitutional Development; the Premier of Gauteng; the MEC
for
Local Government, Gauteng; the Speaker, Gauteng Provincial
Legislature; the Municipal Demarcation Board; the Speaker of
the
National Assembly; the Chairperson of the National Council of
Provinces; Greater City of Johannesburg Municipality and
the
Electoral Commission, as the first to eleventh respondents.
With regard to the balance of the relief sought, the applicant
asked for an order directing the respondents to set up an
independent tribunal to investigate the removal of the Board from
office. It also sought an order that a reconstituted Board
be
directed to consider its application to establish a local
municipality for Soweto and redetermine the City’s
boundaries.
Direct access
As this is an application for direct access contemplated in section
167(6)(a) of the Constitution,
6
it can be entertained only with leave of this Court and may be
granted upon the applicant showing that it is in the interests
of
justice for the Court to hear the matter. Applications like this
are regulated by Rule 18 of this Court’s Rules.
7
It requires the supporting affidavits filed by the applicant to set
out, among other factors, the grounds on which it is contended
that
it is in the interests of justice for leave to be granted.
It is now settled that direct access to this Court is permitted
only in exceptional circumstances provided the interests of
justice
justify it.
8
The determination of where the interests of justice lie involves a
consideration of a number of factors, including prospects
of
success on the merits of the case.
9
The affidavit filed by the applicant in support of the notice of
motion does not comply with Rule 18 in that it does not set
out any
ground on which it is contended the interests of justice warrant a
hearing of the matter. Nor does it give reasons
why the High Court
was not approached for the relief sought. In many cases this Court
has stated that it is undesirable for
it to sit as a court of first
and last instance.
10
In addition, the applicant has failed to establish prospects of
success for the grant of the relief sought. As mentioned above,
this is one of the considerations that is taken into account in
determining whether it is in the interests of justice to give
leave. For it would be a futile exercise to grant leave for direct
access where the application in respect of which leave is
granted
is doomed to fail.
The establishment of a local municipality in Soweto lies at the
heart of the applicant’s request to the Board. It must
precede any redetermination of the City’s boundaries because
without it there would be no reason warranting the change.
But the
Board, to which the request was directed, lacks authority to
establish a municipality. The Constitution confers on
provincial
governments the power to establish municipalities.
11
The applicant’s failure to submit the request to the Gauteng
Provincial Government therefore stands in the way to granting
the
relief sought.
Moreover, the Board’s response to the applicant’s
request does not amount to misconduct, incapacity or incompetence,
which are the necessary triggers for the appointment of an
investigating tribunal.
12
In terms of section 13 of the Act, members of the Board can only be
removed from office on the grounds of misconduct, incapacity
or
incompetence. The decision to remove must be based on a positive
finding to that effect made by a tribunal appointed by
the
President.
In this case it will be recalled that what the Board did was to
point out to the applicant that section 22 of the Act identifies
bodies which may submit requests to it for determination of
municipal boundaries. The response triggers none of the bases for
investigating and removing members of the Board from office. In all
the circumstances the applicant has failed to make out
a case for
the relief sought. It follows that direct access should be refused.
However, the fact that the application ought to be dismissed does
not mean that the applicant, as the losing party, must pay
the
costs. The general rule for awarding costs in constitutional
litigation between the State and a private party is that if
the
private party is unsuccessful it is not ordered to pay costs.
13
But if the private party is successful, a costs order is awarded
against the State. We, therefore, consider that there should
be no
order as to costs.
Order
The following order is made:
The application is dismissed.
Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Mogoeng J, Mthiyane AJ, Nkabinde J, Van der Westhuizen
J and
Yacoob J
For the Applicant: B Preddy Mothopeng, Chairperson, HBR
(Hola Bon Renaissance) Foundation.
For the First to Sixth, Eighth
and Ninth Respondents: KG Lekabe instructed by the State
Attorney, Johannesburg.
For the Seventh Respondent: Advocate S Budlender instructed by
MacRobert Inc.
1
In
papers drawn by a layperson, the applicant sought an order in the
following terms:
“
(a) Granting the urgency of
the application in terms of the rules of the Constitutional Court
Part VI, rules 12.
(b) Granting the applicants leave to approach this
court by way of direct access in terms of section 167(6)(a) of the
constitution.
Interdict the
Honourable President Jacob Gedleyihlekisa Zuma State of the
national address from announcing the date of the
local government
elections. In terms of the rules of the constitutional court, Part
III, rule 5(1). The authority responsible
for the executive or
administrative Act has violated the constitution of RSA (Act No
108 of 1996), the Municipal demarcation
Act (Act No 27 of 1998)
and the Municipal Structures Act (Act 108 of 1998) hereby referred
to is the municipal demarcation
board in join proceeding with the
head of State.
Setting up an
independent tribunal for thoroughly investigate and make a finding
on the matter that includes the removal of
municipal demarcation
board members. In term of the demarcation process that is governed
by three different pieces of legislation
which all relate to each
other. These are: the constitution of RSA (Act No 108 of 1996),
the Municipal demarcation Act (Act
No 27 of 1998) and the
Municipal Structures Act (Act 108 of 1998).
The municipal
demarcation board reinstate its suspended activity that of which
is its core mandate of determining municipal
boundaries in
accordance with the municipal demarcation Act (Act No 27 of 1998)
with immediate effect that fast track the
process of Soweto to be
a Municipal.
Further and/or
alternative relief as the above Honourable Court may grant.”
2
The
Court made the following order:
“
1. The relief sought in
prayer (a) of the notice of motion to hear this application as a
matter of urgency is refused.
The
application for an order interdicting the President of the Republic
of South Africa from announcing the date of the local
government
elections in his State of the Nation address today as set out in
prayer (c) of the applicant’s notice of motion
is dismissed.
The
relief sought by the applicant in prayers (b), (d) and (e) of the
notice of motion is postponed.
The
costs of today’s hearing are reserved.
Further directions on the further conduct of this case
will be issued.”
3
Rule
18(5) of the Rules of the Constitutional Court empowers the Court to
summarily dispose of an application for direct access.
It provides:
“
(5) Applications for direct
access may be dealt with summarily, without hearing oral or written
argument other than that contained
in the application itself:
Provided that where the respondent has indicated his or her
intention to oppose in terms of subrule
(3), an application for
direct access shall be granted only after the provisions of subrule
(4)(a) have been complied with.”
4
Section
22(1)(a) of the Local Government: Municipal Demarcation Act
provides:
“
(1) The Board performs the
function mentioned in section 21(1)
̶
(i)
on its own initiative;
(ii) on request by the Minister or a MEC for local
government; or
(iii) on request by a municipality with the concurrence
of any other municipality affected by the proposed determination or
redetermination”.
5
Act
27 of 1998.
6
Section
167(6)(a) of the Constitution provides:
“
(6) National legislation or
the rules of the Constitutional Court must allow a person, when it
is in the interests of justice
and with the leave of the
Constitutional Court
̶
to
bring a matter directly to the Constitutional Court.”
7
Rule
18(1) and (2)(a) provides:
“
(1) An application for direct
access as contemplated in section 167(6)(a) of the Constitution
shall be brought on notice of motion,
which shall be supported by an
affidavit, which shall set forth the facts upon which the applicant
relies for relief.
(2) An application in terms of subrule (1) shall be
lodged with the Registrar and served on all parties with a direct or
substantial
interest in the relief claimed and shall set out
̶
(a) the grounds on which it is contended that it is in
the interests of justice that an order for direct access be
granted.”
8
Bruce
and Another v Fleecytex Johannesburg CC and Others
[1998] ZACC
3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) at para 4 and
Satchwell v President of the Republic of South Africa and Another
[2003] ZACC 2
;
2003 (4) SA 266
(CC);
2004 (1) BCLR 1
(CC) at para 6.
9
See
Bruce
above n 8 at para 7;
Transvaal Agricultural Union v
Minister of Land Affairs and Another
[1996] ZACC 22
;
1997 (2) SA
621
(CC);
1996 (12) BCLR 1573
(CC) at para 46.
10
Most
of those cases are collected in
Zondi v MEC for Traditional and
Local Government Affairs and Others
[2004] ZACC 19
;
2005 (3) SA
589
(CC);
2005 (4) BCLR 347
(CC) at footnote 18. In that case
Ngcobo J said at paragraph 13:
“
An important factor, which
this Court has emphasised time and again, is the undesirability of
this Court sitting both as the court
of first and final instance in
a matter in which other courts have jurisdiction. In terms of
section 169 of the Constitution,
the High Courts have constitutional
jurisdiction, including the jurisdiction to make an order concerning
the validity of a provision
in an Act of Parliament or a provincial
Act. The Constitution contemplates that such orders will be referred
to this Court for
confirmation. Effect must be given to this by
ensuring that courts are not bypassed in matters that fall within
their jurisdiction
unless there are compelling reasons to do so.”
(Footnotes omitted.)
11
Section
155(6) of the Constitution provides:
“
(6) Each provincial
government must establish municipalities in its province in a manner
consistent with the legislation enacted
in terms of subsections (2)
and (3) and, by legislative or other measures, must
̶
provide
for the monitoring and support of local government in the province;
and
promote the development of local government capacity to
enable municipalities to perform their functions and manage their
own
affairs.”
12
Section
13(4)
of the
Local Government: Municipal Demarcation Act 27 of 1998
provides:
“
(4) (a) The President may
remove a member of the Board from office, but only on the ground of
misconduct, incapacity or incompetence.
(b) A decision to remove such a member of the Board on
the ground of misconduct or incompetence must be based on a finding
to
that effect by an investigating tribunal appointed by the
President.
(c) The President may suspend a member of the Board who
is under investigation under paragraph (b).”
13
Biowatch
Trust v Registrar, Genetic Resources, and Others
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at paras 21 and 43.