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[2013] ZACC 24
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Daniel v President of the Republic of South Africa and Another (CCT 34/13) [2013] ZACC 24; 2013 (11) BCLR 1241 (CC) (27 June 2013)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 34/13
[2013] ZACC 24
In the matter between:
FREDERICK COENRAD DANIEL
...............................................................
Applicant
and
PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA
...........................................................................
First
Respondent
GOVERNMENT OF THE REPUBLIC
OF SOUTH AFRICA
.......................................................................
Second
Respondent
Judgment delivered on: 27 June 2013
JUDGMENT
THE COURT:
[1] The
applicant, Mr Frederick Coenrad Daniel, seeks an order setting aside
an earlier order issued by this Court. This application
is a sequel
to the application lodged in this Court by the applicant under case
CCT 106/12 (first application). In that case the
applicant sought an
order declaring that the President’s failure to appoint an
independent Commission of Inquiry was inconsistent
with the
Constitution. In addition, the applicant sought an order directing
the President to establish the Commission within ten
days.
[2] In the
first application (as is the case here) the President and the
Government of the Republic of South Africa were cited as
respondents.
In November 2012 this Court issued directions calling upon the
President to respond to the first application. Indeed,
on 12 December
2012, the President filed his response which set out in detail his
opposition to the relief sought. In the main,
the affidavit filed on
behalf of the President contended that the direct access procedure
was inappropriate for the case and listed
a number of considerations
militating against it.
[3] Having
considered the papers filed in that application, this Court issued an
order on 31 January 2013 in the following terms:
“
The
Constitutional Court has considered the application for direct access
and concluded that the application should be dismissed,
as it is not
in the interests of justice to grant the applicant direct access.
Order:
1. The application is dismissed.
2. There is no order as to
costs.”
[4] The
rescission of this order is sought on the ground that it was
erroneously granted. The applicant asserts that this Court
fell into
error in characterising the first application as being one for direct
access. The Rules of this Court, read with the
Uniform Rules of
Court, permit a party to seek relief such as the present.
1
[5] The
general principle is that once a court has duly pronounced a final
order, it becomes
functus officio
and has no power to alter
the order. However, Rule 42 of the Uniform Rules creates exceptions
to this principle. The Rule empowers
courts to rescind or vary orders
in certain defined circumstances. In this case the applicant relies
on only one of the grounds
listed in Rule 42. He contended that the
order “was made in error”. This falls under the first
ground listed in Rule
42. It authorises rescission of an order
erroneously granted in the absence of a party affected by it.
[6] The
applicant is required to show that, but for the error he relies on,
this Court could not have granted the impugned order.
In other words,
the error must be something this Court was not aware of at the time
the order was made and which would have precluded
the granting of the
order in question, had the Court been aware of it.
2
[7]
Regarding the error, the applicant contended that the first
application concerned an issue that falls exclusively within the
jurisdiction of this Court. Therefore, he did not seek direct access
but approached the Court in the ordinary course of seeking
relief
obtainable only from this Court. This argument obliges us to examine
the nature of the claim made in the first application.
[8] Before
dismissing the first application, this Court considered the matter
and held that it was not in the interests of justice
to grant direct
access to the applicant. This finding was based on the fact that the
grounds advanced by the applicant did not
justify bringing the
application in this Court to have the dispute determined by it as a
court of first and last instance. Implicit
in this was the fact that
the applicant was free to approach another competent court for the
relief sought.
[9] But
now the applicant argues that the above finding was made in error
because his claim falls squarely within the exclusive
jurisdiction of
this Court. The submission advanced now is that the President’s
failure or refusal to appoint a Commission
of Inquiry constitutes a
failure to fulfil a constitutional obligation contemplated in
section 167(4)(e) of the Constitution.
3
[10] In
opposing rescission, the President contends that section 84(2)(f) of
the Constitution confers a discretionary power on him
to appoint
Commissions of Inquiry. The President disputes that the section
imposes a constitutional obligation and submits that
the applicant’s
claim does not fall within the exclusive jurisdiction of this Court.
The applicant is free to approach other
courts for the same relief,
argues the President. Consequently, the order issued on 31 January
2013 was not, he contends, erroneously
granted.
[11] The
question whether conduct of the President constitutes a failure to
fulfil a constitutional obligation has been considered
by this Court
before. In
Doctors for Life International v Speaker of the
National Assembly and Others
4
this Court construed section 167(4)(e) in the context of
section 167(5) read with section 172(2)(a) of the Constitution
and
concluded that the words “fulfil a constitutional
obligation” should be given a narrow meaning “because a
broader
meaning would result in a conflict with section 172(1)(a)
which empowers the Supreme Court of Appeal and the High Courts to
make
orders concerning the constitutional validity of the conduct of
the President.”
5
[12]
Drawing from
Doctors for Life International,
this Court in
Von
Abo v President of the Republic of South Africa
,
6
held that “obligation” in section 167(4)(e) means a duty
specifically imposed on the President to perform specified
conduct.
Examined in this context, section 84(2)(f) does not impose a duty on
the President but a power which may be exercised
at his discretion.
Accordingly, the President’s failure to appoint a Commission of
Inquiry does not amount to a failure to
fulfil a constitutional
obligation.
[13] This
view is reinforced by the decision of this Court in
President of
the Republic of South Africa and Others v South African Rugby
Football Union and Others
.
7
In that case this Court rejected the argument that a High Court did
not have jurisdiction to pronounce on the President’s
decision
to appoint a Commission of Inquiry. Consequently, it would be
incorrect to read the relevant provisions as allowing a
High Court to
decide issues relating to the appointment of Commissions of Inquiry
while excluding their jurisdiction when it comes
to a refusal to
appoint a Commission.
[14] It follows that the failure to appoint the Commission of Inquiry
in this case does not constitute an issue that falls within
the
exclusive jurisdiction of this Court. This finding inevitably leads
to the conclusion that the impugned order was not granted
erroneously. Accordingly the application for rescission must fail.
[15] In
the result the application is dismissed.
Attorneys
for the Applicant: Van Wyk and Ayre Attorneys.
Attorneys
for the Respondents: The State Attorney.
1
Rule
29 of the Rules of this Court extends the application of Rule 42 of
the Uniform Rules to Constitutional Court. Rule 42
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.”
2
Naidoo
and Another v Matlala NO and Others
2012 (1) SA 143
(GNP) at
para 6 and
Nyingwa v Moolman NO
1993 (2) SA 508
(Tk) at
510D-G.
3
Section
167(4) provides:
“
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.”
4
[2006]
ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC).
5
Id
at para 20.
6
[2009]
ZACC 15
;
2009 (5) SA 345
(CC);
2009 (10) BCLR 1052
(CC) at para 36.
7
[1998]
ZACC 21
;
1999 (2) SA 14
(CC);
1999 (2) BCLR 175
(CC).