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[2013] ZACC 12
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Justice Alliance of South Africa v Minister for Safety and Security and Others (CCT 02/13) [2013] ZACC 12; 2013 (7) BCLR 785 (CC) (21 May 2013)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 02/13
[2013] ZACC 12
In the matter between:
JUSTICE ALLIANCE OF SOUTH AFRICA
.....................................................
Applicant
and
MINISTER FOR SAFETY AND SECURITY
........................................
First
Respondent
NATIONAL COMMISSIONER OF THE SOUTH AFRICAN
POLICE SERVICE (REGISTRAR OF FIREARMS)
.
........................
Second
Respondent
APPEAL BOARD OF FIREARMS
.......................................................
Third
Respondent
MINISTER FOR FINANCE
.................................................................
Fourth
Respondent
Decided on : 21 May 2013
JUDGMENT
THE COURT
[1] The
applicant
1
seeks leave to appeal against an adverse costs order made against it
in the Supreme Court of Appeal. The costs order was based
on the
finding that the appeal did not raise a constitutional issue and that
the applicant “in the main represent firearm
owners who have a
financial interest in the outcome of these proceedings.”
2
We issued directions calling for written submissions and indicated
that the matter would be decided without oral argument.
3
[2] In its
written submissions the applicant contends that the case falls
squarely within the principles set out in
Biowatch
.
4
The first respondent (Minister) contends that it does not, because
there are no exceptional circumstances justifying an appeal
against
costs only; no constitutional issue was raised; and the Supreme Court
of Appeal exercised its discretion in relation to
costs judicially.
[3]
Biowatch
established that: (1) the award of costs in a
constitutional matter itself raises a constitutional issue and
clothes this Court
with jurisdiction;
5
(2) it will not normally be in the interests of justice to grant
leave solely on costs where no exceptional circumstances exist;
6
(3) it is the nature of the issue, not its characterisation by a
litigant, that is relevant in deciding costs in constitutional
litigation;
7
(4) ordinarily, in constitutional litigation, if the government
loses, it should pay the costs of the other side, and if the
government
wins, each party should bear its own costs;
8
(5) this is not an inflexible rule;
9
(6) the issues raised must be genuine and substantive, and truly
raise constitutional considerations relevant to the adjudication;
10
and (7) in assessing the exercise of judicial discretion in relation
to costs the question is whether the court had committed some
“demonstrable blunder” or reached an “unjustifiable
conclusion”.
11
[4] The
central issue here is whether a genuine and substantive
constitutional issue was at stake.
[5] What
the Supreme Court of Appeal eventually had to decide was whether
persons who voluntarily surrendered firearms under the
Firearms
Control Act
12
(Act) were entitled to compensation in circumstances where the
firearms were not retained by the state.
13
But that was the last step in a process that started much earlier.
[6]
Section 137(5) of the Act provides that the Minister must draft
guidelines for the payment of compensation.
14
The Minister failed to do that for a long time and only did so after
the applicant obtained a declaratory order in the Western
Cape High
Court, Cape Town (High Court) that the failure was “unlawful
and inconsistent with the Constitution”.
The guidelines were
then promulgated at the beginning of November 2009.
[7] In
February 2010 the applicant sought an order in the High Court that
the guidelines “are
ultra vires
, inconsistent with
section 137 of the . . . Act and the Constitution . . . and invalid.”
This application was largely unsuccessful,
except for a minor aspect
decided in favour of the applicant. Of some significance is that the
High Court made no order as
to costs. It also identified one of
the issues as whether the unconstitutionality of any provisions of
the Act should be determined
by the court of its own accord, despite
the fact that the applicant did not challenge the constitutionality
of any of those provisions.
[8]
Although initially relying on section 25 of the Constitution and
vagueness of the guidelines, the applicant did not persist
in these
contentions, limiting itself to the argument that the guidelines
issued by the Minister were
ultra vires
section 137.
[9] The
applicant’s underlying complaint was really that during the
period when there were no guidelines, many people handed
in their
weapons because they wanted to comply with the general aim of the Act
to restrict firearm ownership, but they also did
not want to forsake
their entitlement to compensation. Unfortunately for them, section
136 of the Act made it quite clear that
there would be no
compensation for firearms surrendered and destroyed.
15
On this basis the Supreme Court of Appeal had little difficulty in
finding that the guidelines that provided no compensation for
surrendered and subsequently destroyed firearms were not
ultra
vires
section 137 of the Act.
16
[10] The
Minister contends that because there was no challenge to the
constitutional validity of any of the provisions of the Act,
no
constitutional issue in the
Biowatch
sense was raised. That is
not, without more, a proper basis for finding that no constitutional
issue was raised. The attack on
the validity of the guidelines as
being
ultra vires
section 137 of the Act is based on the
principle of legality. Legality is decidedly a constitutional issue.
17
The interpretation of the provisions of the Act in order to decide
whether the guidelines fell within their ambit is also a
constitutional
issue because statutory interpretation must be done in
accordance with the dictates of the Constitution.
18
In addition it is clear that the original order forcing the Minister
for Police to promulgate guidelines was founded on his failure
to
comply with the provisions of the Constitution.
[11] The
applicant submitted that in addition to misdirecting itself on
whether a constitutional issue was raised, the Supreme Court
of
Appeal also erred in referring to the fact that the applicant was
representing firearm owners who have a financial interest
in the
outcome of the proceedings. The mere fact of having a financial
interest does not necessarily disentitle a litigant from
the benefits
of
Biowatch
in relation to costs if a genuine constitutional
issue has been raised.
19
[12] There
is some merit in the contentions that the Supreme Court of Appeal
might have been overhasty in dismissing the constitutional
aspects of
the matter and that the financial interests of the applicant’s
members should not be over-emphasised. But what
must be weighed up
against that is the fact that there was no specifically articulated
right of its members under the Bill of Rights
that the applicant
alleged would be adversely affected by the interpretation of the Act.
The reliance on section 25 of the Constitution
– compensation
upon expropriation – was abandoned.
[13] The
question whether the interpretation of a statute had potential
implication for a litigant’s fundamental rights played
an
important role in establishing constitutional jurisdiction and the
necessary interests of justice in granting leave to appeal
in cases
like
Law Society of South Africa
20
and
Mankayi
.
21
Had the interpretation of the statute held no adverse effect on an
underlying fundamental right, it might have weighed less in
deciding
whether it was in the interests of justice to hear the matter.
[14]
Similar considerations apply here. Are there exceptional
circumstances to justify hearing an appeal on costs only?
[15] We
think not. While the first round of High Court litigation –
aimed at getting the Minister to discharge his statutory
obligations
and to promulgate the relevant guidelines – may have entailed
the exceptional circumstances contemplated in
Biowatch
, namely
to force an organ of state to discharge its public functions, the
same cannot be said of the current litigation. This was
a case about
compensation for surrendered firearms and the focus of the
applicant’s case was on whether the guidelines fell
foul of the
Act – while legality review is a constitutional issue the
applicant did not seek to vindicate any fundamental
right.
[16]
Although an
ultra vires
challenge is also a constitutional
legality challenge, it is not always one that raises exceptional
constitutional considerations.
It did not in this case. Nevertheless,
courts should be careful not to make costs orders that will inhibit
genuine constitutional
issues from being raised.
Order
[17] The
following order is granted:
1. Leave to appeal is refused.
2. There is no order as to costs.
For the Applicant:Advocate D Simonsz instructed by
A Batchelor & Associates.
For the First Respondent: Advocate A Breitenbach
SC and Advocate H Varney instructed by the State Attorney.
1
There
were originally two applicants in the Supreme Court of Appeal. The
False Bay Gun Club, a voluntary association, was the
second
appellant in the Supreme Court of Appeal and was liquidated on
31 March 2012, prior to the judgment of the Supreme
Court
of Appeal on 30 November 2012.
2
Supreme
Court of Appeal judgment at para 18.
3
On
4 February 2013, the Chief Justice issued the following directions:
“
1. The Chief Justice and
other Justices of this Court have considered the application for
leave to appeal and decided, in terms
of rules 11(4) and 19(6)(b) of
the Rules of this Court, to dispose of this matter without hearing
oral argument.
2. The parties must file written submissions on behalf
of—
a) applicant by 13h00 on Monday 18 February 2013; and
b) respondents by 13h00 on Monday 4 March 2013.
3. Further directions may be issued.”
4
Biowatch
Trust v Registrar, Genetic Resources, and Others
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) (
Biowatch
).
5
Id
at para 10.
6
Id
at para 11.
7
Id
at para 17, where this Court stated that “[w]hat matters is
whether rich or poor, advantaged or disadvantaged, they are
asserting rights protected by the Constitution.”
8
Id
at para 22.
9
Id
at para 24.
10
Id
at para 25.
11
Id
at para 31.
12
60
of 2000.
13
Supreme
Court of Appeal judgment at para 2.
14
Section
137(5) of the Act reads as follows:
“
The Minister must, with the
approval of the Minister of Finance, establish guidelines for the
payment of compensation, taking
into account the—
(a) financial constraints on the State and its ability
to meet actual and anticipated claims for compensation; and
(b) interests of persons who have applied or may in the
future apply for compensation.”
15
Section
136 of the Act reads as follows:
“
(1) The Registrar may in
respect of any firearm or ammunition seized by, surrendered to or
forfeited to the State, issue a notice
in the
Gazette
stating that it is the intention of the State to destroy that
firearm or ammunition.
(2) Any person who has a valid claim to the relevant
firearm or ammunition may, within 21 days after the publication of
the notice
in the
Gazette
, make representations to the
Registrar as to why the firearm or ammunition should not be
destroyed.
(3) If the Registrar is satisfied, after consideration
of any representations contemplated in subsection (2), that a valid
claim
to the relevant firearm or ammunition has not been proved, the
firearm or ammunition may be destroyed and no compensation will
be
payable to anyone in respect thereof.”
16
Supreme
Court of Appeal judgment at para 17.
17
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 paras 56-9.
18
Section
39(2) of the Constitution reads as follows:
“
When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote
the spirit, purport and
objects of the Bill of Rights.”
19
Biowatch
above n 4 at paras 16-7 and 23.
20
Law
Society of South Africa and Others v Minister for Transport and
Another
[2010] ZACC 25
;
2011 (1) SA 400
(CC);
2011 (2) BCLR 150
(CC) (
Law Society of South Africa
).
21
Mankayi
v AngloGold Ashanti Ltd
[2011] ZACC 3
;
2011 (3) SA 237
(CC);
2011 (5) BCLR 453
(CC) (
Mankayi
).