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[2013] ZACC 26
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National Society for the Prevention of Cruelty to Animals v Minister of Agriculture, Forestry and Fisheries and Others (CCT 120/12) [2013] ZACC 26; 2013 (5) SA 571 (CC); 2013 (10) BCLR 1159 (CC) (11 July 2013)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 120/12
[2013]
ZACC 26
In
the matter between:
NATIONAL
SOCIETY FOR THE PREVENTION
OF
CRUELTY TO ANIMALS
........................................................................
Applicant
and
MINISTER
OF AGRICULTURE, FORESTRY
AND
FISHERIES
.................................................................................
First
Respondent
DEPUTY
DIRECTOR GENERAL: COURT SERVICES
DEPARTMENT
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
.........................................
Second
Respondent
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
...........................................
Third
Respondent
and
LICENSED
ANIMAL TRAINERS ASSOCIATION
.........................
Intervening
Party
and
COMMERCIAL
PRODUCERS ASSOCIATION
..........................
First Amicus Curiae
SOUTH
AFRICAN ASSOCIATION
OF
STILLS PRODUCERS
.........................................................
Second
Amicus Curiae
Heard
on : 19 March 2013
Decided
on : 11 July 2013
JUDGMENT
ZONDO
J (Mogoeng CJ, Moseneke DCJ, Froneman J, Jafta J, Khampepe J,
Mhlantla AJ, Nkabinde J and Skweyiya J concurring):
Introduction
[1]
These are confirmatory proceedings brought in terms of section
167(5)
1
read with section 172(2)(d) of the Constitution
2
and Rule 16 of the Rules of this Court
3
arising from an order made by Legodi J in the North Gauteng High
Court, Pretoria (High Court).
4
The order was to the effect that the provisions of sections 2 and 3
of the Performing Animals Protection Act
5
(Act) were inconsistent with the Constitution in so far as they
required a Magistrate to decide applications and issue licences
for
the training or exhibition or use of animals (animal training and
exhibition licences).
6
Issue
for determination
[2]
The issue for determination in this matter is whether a statutory
provision that requires a Magistrate to decide applications
for, and,
issue, animal training and exhibition licences is consistent with the
doctrine of the separation of powers under our
Constitution. The
issue arises within the context of the provisions of sections 2 and 3
of the Act.
7
Parties
[3]
The applicant is the National Society for the Prevention of Cruelty
to Animals (NSPCA), a statutory body created by the Societies
for the
Prevention of Cruelty to Animals Act
8
(SPCA Act). Its objects include the prevention of the ill-treatment
of animals,
9
the promotion of the awareness of the application of laws that affect
animals,
10
making representations in that regard to relevant authorities
11
and doing all things reasonably necessary for the achievement of its
objectives.
12
Section 6 of the SPCA Act makes provision for several functions,
powers and duties of the NSPCA. Section 6 also provides that the
NSPCA may institute or defend legal proceedings relating to its
broader functions.
13
[4]
The first respondent is the Minister of Agriculture, Forestry and
Fisheries. She does not oppose the confirmation of the order
of
invalidity but has filed written submissions. The second respondent
is the Deputy Director-General: Court Services, Department
of Justice
and Constitutional Development. The third respondent is the Minister
of Justice and Constitutional Development. Both
the second and the
third respondents do not oppose the confirmation of the order. They
also did not participate in the proceedings
in the High Court.
[5]
The Licensed Animal Trainers Association (LATA) was joined as an
intervening party.
LATA is an association not for
gain that consists of previously licensed animal trainers in the
animal trainers industry. The industry
relates to the training or
exhibiting of any animal, or using dogs for safeguarding. The order
granted in the High Court has a
direct effect on various persons and
entities that require licences in terms of the Act. Those persons and
entities whose rights
were affected by the order therefore formed
LATA with the intention of approaching this Court jointly as an
association to represent
the business and legal interests of South
African animal trainers. LATA also did not participate in the High
Court proceedings.
[6]
The Commercial Producers Association (CPA) was admitted as the first
amicus curiae (friend of the court). The South African
Association of
Stills Producers (SAASP) was admitted as the second amicus curiae.
Neither amicus participated in the proceedings
in the High Court. The
CPA is an association of commercial film producers
established to represent the business and legal interests of the
commercial production
industry in South Africa which relates to the
production of marketing or advertising campaigns for use on
television or in cinema
theatres. SAASP is an organisation not for
gain, established to represent the business and legal interests of
the stills production
industry in South Africa. This industry relates
to the production of marketing or advertising campaigns for use in
print media.
Statutory
background
[7]
Sections 2 and 3 of the Act read as follows:
“
Magistrate
may issue licence for exhibiting and training of performing animals
and for use of dogs for safeguarding
2.
Any person intending to exhibit or train for exhibition any animal,
or who uses a dog for safeguarding, may apply in writing
in the
prescribed form to the magistrate of the district in which such
person resides, performs or carries on business, for a licence
to do
so, who shall grant the same: Provided that—
(a)
the magistrate is satisfied that such person is a fit and proper
person;
(b)
such licence shall be granted for a calendar year and expire on the
thirty-first December in every year;
(c)
the magistrate may, if in his opinion there is good and sufficient
reason, refuse to renew such licence; and
(d)
the Minister may by regulation prescribe the form of an application
for a licence and the form of the licence, the conditions
subject to
which such licence shall be held, and the fee which shall be paid for
such licence and for the renewal thereof.
Certificate
in respect of licensed animals
3(1)
The holder of a licence referred to in section 2 shall not exhibit or
train any animal or cause it to be exhibited or trained
for
exhibition or use any dog for safeguarding unless he is in possession
of a certificate authorising such exhibition, training
or use of all
animals in respect of which such licence is held.
(2)
The certificate referred to in subsection (1) shall be issued by the
magistrate in the prescribed form after submission to him
of the
prescribed information by the licenceholder.
(3)
Upon such certificate shall be specified the form of training,
exhibition and use, as the case may be, of the animal or animals
in
respect of which it is issued.
(4)
It shall be competent for a magistrate upon the application of the
holder of a certificate to amend such certificate by either—
(a)
deleting therefrom animals which are no longer in the possession or
custody of the holder; or
(b)
adding other animals which have since the issue or renewal of the
licence come into the possession or custody of the holder;
or
(c)
modifying the form of training, exhibition or use specified thereon,
and
for such amendment no charge shall be made.”
[8]
In regulations issued under sections 2(d) and 7 of the Act it is
provided in regulation 2(2) that an application for the
granting
or renewal of a licence shall be accompanied by—
“
(a)
a report from the district commissioner of the police district in
which the applicant resides regarding applicant’s fitness
to be
a licensee; and
(b)
R50 in the case of an application for the granting of a licence and
R30 in the case of an application for the renewal of a licence:
Provided that the applicant shall be entitled to the repayment of
half of the fee if the application is refused.”
Regulation
2(3) provides that the Magistrate may—
“
before
considering an application for the granting or renewal of a licence,
request all available information regarding the applicant
from the
records of a local animal welfare organisation and such other
information as he may require from any such organisation
regarding
the type of animal concerned in order to decide whether to grant the
licence applied for.”
Regulation
2(5) reads: “The magistrate shall issue to the applicant a
licence in the form of schedule 2, together with a certificate
in the
form of schedule 3.”
High
Court
[9]
The applicant brought an application in the High Court in which it
challenged the constitutionality of sections 2 and 3 of the
Act in so
far as they require a Magistrate to decide applications for, and,
issue, animal training and exhibition licences for
which provision is
made in sections 2 and 3. The main ground upon which the applicant
contended that these sections were unconstitutional
was that they
offend against the doctrine of the separation of powers under the
Constitution. This contention was based on the
submission that the
issuing of such licences is an administrative function that should be
performed by the Executive and not by
the Judiciary and yet sections
2 and 3 require a member of the Judiciary (that is a Magistrate) to
perform that function.
[10]
The applicant’s case was not based on any specific features of
the licensing function conferred upon a Magistrate. The
applicant
also complained that Magistrates do not have any special knowledge
about animals in order to make correct decisions about
the issuing of
animal training and exhibition licences. It suggested that its
personnel had such knowledge and that they should
be entrusted with
the power to issue licences in terms of sections 2 and 3. However, at
the hearing before this Court, the applicant’s
counsel
indicated that the applicant had retreated from this position.
[11]
The High Court upheld the applicant’s contention and made the
following order:
“
46.1.
Sections 2 and 3 of [the] Performing Animals Protection Act 24 of
1935 are hereby declared constitutionally invalid insofar
as they
relate to Magistrates.
46.2.
The declaration of constitutional invalidity referred to in 46.1
above has no effect until it is confirmed by the Constitutional
Court.
46.3.
The First Respondent is hereby given six months within which to
correct or cure the defect of constitutional invalidity in
sections 2
and 3 from date of confirmation by the Constitutional Court.
46.4.
Pending confirmation and curing of the defect, it is ordered as
follows:
46.4.1.
A committee shall be appointed to exercise the licensing function as
set out in the impugned provisions.
46.4.2.
This committee shall be comprised of two representatives appointed by
the Applicant, two representatives appointed by the
First Respondent
and a representative appointed by the South African Veterinary
Council.
46.4.3.
A review procedure shall lie against the decisions of the committee
to a retired judge, who shall be appointed by the First
Respondent.
46.5.
The First Respondent is hereby ordered to pay wasted costs caused by
the postponements on the 18 October 2012 and 1 November
2012 and such
costs to be on the opposed motion scale.”
The
basis upon which the High Court made the order of constitutional
invalidity was simply that the function of issuing animal training
and exhibition licences in sections 2 and 3 was an
administrative function and, for that reason, should not be performed
by a member of the Judiciary because it offends against the doctrine
of the separation of powers.
14
In
this Court
[12]
As I have said, the question for determination is whether the
requirement in sections 2 and 3 of the Act that a Magistrate
decide
applications and issue animal training and exhibition licences is
inconsistent with the doctrine of the separation of powers.
The
applicant contends that it is, whereas the intervening party contends
that it is not. The amici contend that the impugned provisions
are
consistent with the Constitution. However, they submit that, if this
Court confirms the order of invalidity, it should not
make any order
that would involve the applicant in the issuing of these licences
pending the curing of the deficiency in the Act
by Parliament.
[13]
In seeking to answer the question under consideration, it must be
recalled that:
(a)
there is no universal model of separation of powers and in democratic
systems of government in which checks and balances result
in the
imposition of restraints by one branch of government upon another,
there is no separation that is absolute;
15
(b)
because of the different systems of checks and balances that exist in
countries such as the United States of America, France,
the
Netherlands and Germany, for example, the relationship between the
different branches of government and the power or influence
that one
branch of government has over the others differs from one country to
another;
16
(c)
the separation of powers doctrine is not a fixed or rigid
constitutional doctrine but it is given expression in many different
forms and made subject to checks and balances of many kinds;
(d)
our Constitution does not provide for a total separation of powers
among the Legislature, the Executive and the Judiciary; and
(e)
although judicial officers may, from time to time, carry out
administrative tasks “[t]here may be circumstances in which
the
performance of administrative functions by judicial officers
infringes the doctrine of separation of powers.”
17
[14]
In
De Lange v Smuts NO and Others
18
this Court found that statutory provisions giving a non-judicial
officer in a liquidation inquiry the statutory power to commit
an
unco-operative witness to prison infringed the separation of powers
and was, therefore, inconsistent with the Constitution and,
thus,
invalid. After reiterating the statement made in the
First
Certification case
that there is no universal model of separation
of powers, Ackermann J said:
“
I
have no doubt that over time our Courts will develop a distinctively
South African model of separation of powers, one that fits
the
particular system of government provided for in the Constitution and
that reflects a delicate balancing, informed both by South
Africa’s
history and its new dispensation, between the need, on the one hand,
to control government by separating powers
and enforcing checks and
balances and, on the other, to avoid diffusing power so completely
that the government is unable to take
timely measures in the public
interest.”
19
In
regard to the matter before the Court he went on to say:
“
This
is a complex matter which will be developed more fully as cases
involving separation of powers issues are decided. For the
moment,
however, it suffices to say that whatever the outer boundaries of
separation of powers are eventually determined to be,
the power in
question here – ie the power to commit an unco-operative
witness to prison – is within the very heartland
of the
judicial power and therefore cannot be exercised by non-judicial
officers.”
20
It
is clear from this quotation that in
De Lange
the performance
by a non-judicial officer of a function falling within the “very
heartland of the judicial power”, was
found to infringe the
separation of powers.
[15]
Whereas
De Lange
dealt with the case of a statutory provision
which gave power to a non-judicial officer to perform a judicial
function that was
found to lie at the very heartland of judicial
power,
South African Association of Personal Injury Lawyers v
Heath and Others
21
dealt with the case of a statutory provision which empowered a Judge
of the High Court, as head of a Special Investigating Unit
(SIU), to
perform what were clearly non-judicial functions. Section 3(1) of the
Special Investigating Units and Special Tribunals
Act
22
(Tribunals Act) provided that the President had to appoint a Judge or
an Acting Judge of a High Court as head of an SIU. This was
a
full-time position. The head of an SIU in turn appointed the staff of
the SIU. The purpose of the Tribunals Act was—
“
[t]o
provide for the establishment of Special Investigating Units for the
purpose of investigating serious malpractices or maladministration
in
connection with the administration of State institutions, State
assets and public money as well as any conduct which may seriously
harm the interests of the public, and for the establishment of
Special Tribunals so as to adjudicate upon civil matters emanating
from investigations by Special Investigating Units”.
23
[16]
The SIU had extensive powers including powers to investigate
allegations of corruption, maladministration, and unlawful or
improper conduct damaging to State institutions, the power to summon
and interrogate persons and to conduct searches for evidence
that
could be relevant to its investigations and to institute civil
proceedings in respect of allegations contemplated in section
2(2) of
the Tribunals Act. Allegations contemplated in section 2(2) included
allegations of “serious maladministration in
connection with
the affairs of any State institution”, “intentional or
negligent loss of public money or damage to
public property”,
and “unlawful appropriation or expenditure of public money or
property.”
24
The SIU also had power to require any person appearing before it to
produce books, documents or objects, could question anyone
under
oath, could enter and search premises in accordance with the
provisions of the Tribunals Act and, for that purpose, could
“use
such force as may be necessary to overcome resistance against such
entry and search of the premises, including the breaking
of any door
or window”. As head of the SIU the Judge had to determine how
each of the investigations was to be conducted.
For purposes of the
State Liability Act
25
the head of the SIU was equated to a Cabinet Minister.
26
[17]
The Court in
Heath
pointed out that “[t]he separation
required by the Constitution between the Legislature and Executive,
on the one hand, and
the courts, on the other, must be upheld,
otherwise the role of the courts as an independent arbiter of issues
involving the division
of powers between the various spheres of
government and the legality of legislative and executive action
measured against the Bill
of Rights and other provisions of the
Constitution, will be undermined.”
27
This Court said further:
“
Under
our Constitution it is the duty of the courts to ensure that the
limits to the exercise of public power are not transgressed.
Crucial
to the discharge of this duty is that the courts be and be seen to be
independent.”
28
[18]
In dealing with counsel’s submission that the principle of the
separation of powers is not necessarily compromised whenever
a Judge
is required to perform non-judicial functions, the Court pointed out
that the performance by a Judge of functions incompatible
with
judicial office would not be permissible.
29
It said that this statement was consistent with the statement it made
in
SARFU
that “judicial officers may, from time to time,
carry out administrative tasks” but “[t]here may be
circumstances
in which the performance of administrative functions by
judicial officers infringes the doctrine of separation of powers.”
30
[19]
In
Heath
counsel for the applicant referred the Court to
American and Australian cases which the Court said were consistent
with the approach
that the performance by a Judge of functions
incompatible with judicial office would not be permissible.
31
The Court pointed out that in those American and Australian cases no
precise criteria were set out for establishing whether or
not a
particular assignment was permissible. It said that in both countries
the courts “determine this in the light of relevant
considerations referred to in the judgments.”
32
[20]
In
Heath
this Court accepted a certain non-exhaustive list of
factors relevant to a consideration whether under our Constitution it
is permissible
to assign a non-judicial function to a Judge.
33
These factors were whether the non-judicial function:
“
(a)
is more usual or appropriate to another branch of government;
(b)
is subject to executive control or direction;
(c)
requires the Judge to exercise a discretion and make decisions on the
grounds of policy rather than law;
(d)
creates the risk of judicial entanglement in matters of political
controversy;
(e)
involves the Judge in the process of law enforcement;
(f)
will occupy the Judge to such an extent that he or she is no longer
able to perform his or her normal judicial functions.”
34
(Footnotes omitted.)
The
Court added another factor
35
from Blackmun J’s summary of the American jurisprudence in
Mistretta v United States
,
36
namely, that:
“
Congress
may delegate to the Judicial Branch non-adjudicatory functions that
do not trench upon the prerogative of another Branch
and that are
appropriate to the central mission of the Judiciary.”
37
[21]
Referring to the above factors, this Court pointed out in
Heath
that these considerations seemed relevant “to the way our
law of separation of powers should be developed.”
38
It pointed out that counsel did not dispute their relevance but
submitted that they must be given “a weight appropriate to
the
nature of the function that the Judge is required to perform and the
need for that function to be performed by a person of
undoubted
independence and integrity.”
39
This Court made it clear that—
“
[i]t
is undesirable, particularly at this stage of the development of our
jurisprudence concerning the separation of powers, to
lay down rigid
tests for determining whether or not the performance of a particular
function by a Judge is or is not incompatible
with the judicial
office. The question in each case must turn upon considerations such
as those referred to [above] and possibly
others, which come to the
fore because of the nature of the particular function under
consideration. Ultimately the question is
one calling for a judgment
to be made as to whether or not the functions that the Judge is
expected to perform are incompatible
with the judicial office and, if
they are, whether there are countervailing factors that suggest that
the performance of such functions
by a Judge will not be harmful to
the institution of the Judiciary, or materially breach the line that
has to be kept between the
Judiciary and the other branches of
government in order to maintain the independence of the Judiciary. In
making such judgement,
the Court may have regard to the views of the
Legislature and Executive but, ultimately, the judgment is one that
it must make
itself.”
40
This
Court also pointed out that—
“
[t]he
fact that it may be permissible for Judges to perform certain
functions other than their judicial functions does not mean
that any
function can be vested in them by the Legislature. There are limits
to what is permissible. Certain functions are so far
removed from the
judicial function that to permit Judges to perform them would blur
the separation that must be maintained between
the Judiciary and
other branches of government. For instance, under our system a
judicial officer could not be a member of a legislature
or cabinet,
or a functionary in government, such as the commissioner of police.
These functions are not ‘appropriate to the
central mission of
the Judiciary’.”
41
(Footnote omitted.)
[22]
In
Heath
reference was also made to provisions of the
Constitution which provide for the performance of non-judicial
functions by members
of the Judiciary.
42
These include the functions performed by the Chief Justice in
presiding over the election of the President of the Republic by
Parliament.
43
The Chief Justice also presides over the election of the Speaker of
the National Assembly.
44
Judges designated by the Chief Justice also swear in Premiers and
Members of the Executive Council or cause them to affirm.
45
This Court said that a Judge is appointed to perform these functions
to ensure that they are carried out impartially and strictly
in
accordance with constitutional requirements and this is not
inconsistent with the role of the Judiciary in a democratic society.
46
[23]
The Court also referred to section 178 of the Constitution which
provides for Judges to serve on the Judicial Service Commission
(JSC)
the majority of whose members are not judicial officers. This Court
pointed out that the JSC has an important role to play
in the
appointment of Judges to the various courts and may also give advice
to the government on matters relating to the administration
of
justice. This Court then said: “The functions of the Judicial
Service Commission are not inconsistent with the role of
the
Judiciary in a democratic society.”
47
The Court continued:
“
The
appointment of Judges is crucial to the functioning of independent
courts. The giving of advice on the administration of justice
is also
related to the subject-matter of the judicial office. Government is
not bound by the advice given and, if the subject on
which advice is
sought is contentious, the Judges concerned can decline to
participate in the giving of such advice.”
48
[24]
Furthermore, this Court referred to the question of Judges presiding
over commissions of inquiry or sanctioning the issuing
of search
warrants and said that—
“
much
may depend on the subject-matter of the commission and the
legislation regulating the issue of warrants. In appropriate
circumstances
judicial officers can no doubt preside over commissions
of inquiry without infringing the separation of powers contemplated
by
our Constitution. The performance of such functions ordinarily
calls for qualities and skills required for the performance of
judicial
functions – independence, the weighing up of
information, the forming of an opinion based on information, and the
giving
of a decision on the basis of a consideration of relevant
information. The same can be said about the sanctioning of search
warrants,
where the Judge is required to determine whether grounds
exist for the invasion of privacy resulting from searches.”
49
(Footnote omitted.)
[25]
Applying the considerations discussed above to the facts of the case
in
Heath
, this Court said that, although it accepted that the
head of the SIU should be a person of integrity, Judges were not the
only
persons with that attribute.
50
It pointed out that “[t]he functions that the head of the SIU
has to perform are executive functions that under our system
of
government are ordinarily performed by the police, members of the
staff of the National Prosecuting Authority or the State Attorney.
They are inconsistent with judicial functions as ordinarily
understood in South Africa.”
51
The Court pointed out that those functions included not only the
undertaking of “intrusive investigations, but also litigation
on behalf of the State to recover losses that it has suffered as a
result of corrupt or other unlawful practices.”
52
It said that Judges who perform functions such as presiding over a
commission of inquiry or sanctioning search warrants may also
become
involved in litigation but that, said the Court, is an unwanted
though possibly unavoidable incident of the discharge of
what are
essentially judicial functions.
53
It pointed out that litigation on behalf of the State was an
essential part of the work of the SIU.
54
[26]
The Court held that, by their very nature, the functions that a Judge
who headed the SIU had to perform all related to the
recovery of
money for the State and were partisan.
55
The Court also pointed out that Judge Heath had not performed his
work as a Judge of the High Court for three years. The Court
held
that functions that the head of the SIU was required to perform were
far removed from “the central mission of the Judiciary.”
56
Ultimately, the Court found that the appointment of a Judge to occupy
the position of head of the SIU was inconsistent with the
separation
of powers. The statutory provisions which required the President to
appoint a Judge or Acting Judge as head of the SIU
were found to be
inconsistent with the Constitution and invalid. It seems to me that
the functions which the Tribunals Act assigned
to a Judge as head of
the SIU could also be said to fall “within the very heartland”
of executive power just like the
function of committing an
unco-operative witness to prison was found to fall “within the
very heartland of the judicial power”
in
De Lange.
57
[27]
In
Van Rooyen and Others v The State and Others (General Council
of the Bar of South Africa Intervening)
58
one of the issues that this Court had to decide was whether section
14(2) of the 1993 Magistrates Act
59
was consistent with judicial independence. Section 14(2) reads
as follows:
“
The
Minister may, after consultation with the [Magistrates Commission],
make regulations conferring on or assigning to magistrates
administrative powers and duties which do not affect the judicial
independence of magistrates, including regulations empowering
the
Minister, after consultation with the [Magistrates Commission], to
confer or assign administrative powers and duties of a general
nature
on or to magistrates.”
It
was contended that section 14(2) was inconsistent with judicial
independence. The basis upon which this contention was made was
that
the power to make the regulations to which section 14(2) refers was
vested in the Minister of Justice and Constitutional Development.
[28]
In
Van Rooyen
this
Court dealt with the historical background to Magistrates’ Courts
with regard to their independence from the executive
and in
particular with regard to their performance of administrative
functions unrelated to the core functions of courts, namely,
the
adjudication of disputes. After referring to the fact that in the
Orange Free State and Transvaal, Magistrates’ Courts
replaced
the landdrost’s court as the principal inferior tribunal in
1902, Chaskalson CJ pointed out two primary characteristics
that he
said different Magistrates’ Courts shared. He identified one of
these as being “the fact that magistrates were
part of the
civil service, performing both judicial and administrative
functions.”
60
He also pointed out that, although section 14(2) of the 1993
Magistrates Act confers power on the Minister of Justice and
Constitutional
Development to assign at least some administrative
functions to Magistrates through regulations after consultation with
the Magistrates
Commission, that Act “constituted a decisive
shift from past practice in that it set out mechanisms for the
appointment,
discipline and removal of Magistrates instead of, as was
the case previously, regarding magistrates as public servants to whom
the Public Service Act applied.”
61
[29]
This Court also said:
“
As
this history makes clear, there has always been a distinction between
the higher Courts and the lower courts. At the time of
the
Harris
case
magistrates were still part of the public service as they had been
since that office was first created in South Africa. Unlike
Judges,
who have never had such duties, magistrates had extensive
administrative responsibilities, particularly in rural areas,
where
they discharged important functions for the government.”
62
(Footnote
omitted.)
[30]
It went on to say:
“
During
the past decade there has been a greater acceptance of the need to
break the links that existed between government and magistrates.
The
Magistrates Act passed in 1993 removed magistrates from the public
service, gave them greater protection against impeachment
than they
previously had, and established the Magistrates Commission to ensure
that appointments, promotions, transfers and disciplinary
action were
carried out without favour or prejudice. But magistrates continued to
perform administrative duties, and had less institutional
security
than Judges did.”
63
[31]
This Court rejected the challenge to section 14(2) in so far as it
was based on the mere fact that the power to make regulations
vested
in the Minister of Justice and Constitutional Development. However,
it made some important remarks regarding the separation
of powers and
the assignment of administrative duties or powers to Magistrates. It
said:
“
Section
14(2) makes provision for the assignment of administrative duties and
functions to magistrates. Ideally, magistrates
should not be
required to perform administrative duties unrelated to their
functions as judicial officers. To require them
to do so may
make them answerable to the Executive and, if that happens, the
separation of powers that should exist between the
Executive and
Judiciary would be blurred.
I
have previously drawn attention to the fact that there are certain
statutes that confer administrative powers and duties on
magistrates.
In effect, section 14(2) empowers the Minister to
make regulations which would add to those administrative powers and
duties.
This
Court has previously had occasion to draw attention to the
difficulties confronting government in attempting to carry out its
constitutional mandate to transform our society, to the extensive
demands made upon it in relation to basic needs such as housing,
health, education and social welfare and to the need to make prudent
use of scarce resources. There may be reasons why existing
legislation that makes provision for administrative functions and
duties to be performed by magistrates is necessary, and is not
at
present inconsistent with the evolving process of securing
institutional independence at all levels of the court system.”
64
(Footnotes omitted.)
[32]
This Court then pointed out that—
“
[t]he
question whether administrative duties unrelated to their judicial
functions can properly be assigned to magistrates was not
the basis
on which the constitutionality of section 14(2) was challenged.”
65
The
present matter raises precisely the issue whether the assignment to a
Magistrate, by the Act, of the administrative function
of issuing
animal training and exhibition licences is consistent with the
separation of powers envisaged in our Constitution.
[33]
Counsel for the intervening party submitted that sections 2 and 3 of
the Act do not infringe the separation of powers. He emphasised
that
the mere performance of an administrative function by a member of the
Judiciary did not offend the separation of powers. He
referred to the
factors listed in
Heath
66
and submitted that, when regard is had to those factors, it could not
be said that the performance of the functions under consideration
in
the present case by a Magistrate offended the separation of powers.
However, when asked from the Bench during the hearing what
justification there was for sections 2 and 3 to assign what is
clearly an administrative function to a member of the Judiciary
as
opposed to assigning it to a non-judicial officer, counsel was unable
to advance any justification. Although section 170 of
the
Constitution provides that Magistrates’ Courts and all other
courts may decide any matter determined by an Act of Parliament,
a
provision of an Act of Parliament that assigns the functions which,
if performed by a Magistrate, would offend the separation
of powers
would be inconsistent with the Constitution and invalid. The issuing
of licences can hardly be described as deciding
a matter as a court
of law.
[34]
Although in
Heath
this Court accepted the factors listed
therein as relevant to determining the permissibility of the
assignment of non-judicial
functions to a Judge, a few points need to
be borne in mind. Firstly, the list is not exhaustive. Secondly, the
Court was dealing
with a clear case where a statutory provision
required a Judge to perform non-judicial functions which fell within
the very heartland
of executive power. Furthermore, this Court’s
judgment in
Heath
must be read as a whole. This Court said in
Heath
that the list of factors set out therein “should
be given a weight appropriate to the nature of the function that the
Judge
is required to perform and
the need for that function to be
performed by a person of undoubted independence and integrity.
”
67
(My emphasis.) Two paragraphs after the Court had listed the factors,
it said:
“
Ultimately
the question is one calling for a judgement to be made as to whether
or not the functions that the Judge is expected
to perform
are
incompatible with the judicial office and,
if
they are, whether there are countervailing factors
that
suggest that the performance of such functions by a Judge will not be
harmful to the institution of the Judiciary, or materially
breach the
line that has to be kept between the Judiciary and the other branches
of government in order to maintain the independence
of the
Judiciary.”
68
(Emphasis added.)
[35]
In
Van Rooyen
this Court made, among others, the point that:
“
Ideally,
magistrates should not be required to perform administrative duties
unrelated to their functions as judicial officers.
To require them to
do so may make them answerable to the Executive and, if that happens,
the separation of powers that should exist
between the Executive and
Judiciary would be blurred.”
69
(Footnote omitted.)
[36]
In the light of the above it seems to me that, in dealing with the
separation of powers and the performance by Magistrates
of
administrative functions unrelated to their judicial functions, the
following factors must be borne in mind:
(a)
Although both Judges and Magistrates are members of the Judiciary,
there are differences between them which may make it justifiable
for
a Magistrate to perform certain administrative functions but
unjustifiable for a Judge to perform the same function.
70
(b)
Although, as this Court said in
Van Rooyen
, “[i]deally,
magistrates should not be required to perform administrative duties
unrelated to their functions as judicial
officers”,
71
there may be cases where the performance of
certain
administrative
functions by Magistrates, for example in rural areas, may be
justifiable and will not offend the separation of powers.
(c)
What will offend the separation of powers is the performance by a
Magistrate of administrative duties unrelated to his or her
judicial
functions in circumstances where there is no justification for that
non-judicial function to be performed by a Magistrate
in that, for
example, it can be performed by a non-judicial officer, eg an officer
or official in the public service, without much
difficulty. However,
the performance by a Magistrate of a non-judicial function unrelated
to his or her core functions where that
can be justified does not
offend the separation of powers.
[37]
What then is the appropriate approach to the determination of whether
the performance by a member of the Judiciary of non-judicial
functions offends the separation of powers envisaged in our
Constitution? It seems to me that an appropriate approach that we
should adopt in this regard must be one that takes into account
various considerations. Although it must be based upon an acceptance
of the reality that our model of the separation of powers is not one
that requires a complete or total separation and that it permits
the
performance of some non-judicial functions by the Judiciary, it must
be an approach that promotes rather than dilutes the principle
of
separation of powers and the independence of the Judiciary. In other
words, while the approach we adopt should enhance and promote
the
separation of powers, it must at the same time be based upon an
acceptance that there will always be some administrative functions
that members of the Judiciary will perform from time to time without
infringing the doctrine of the separation of powers. How do
we do
this?
[38]
Obviously, the performance by the Judiciary of administrative
functions which the Constitution sanctions does not offend the
separation of powers. Furthermore, it also seems to me that the
performance of certain administrative functions by the Judiciary
that
are closely connected with the core function of the Judiciary does
not offend the doctrine of the separation of powers. In
the light of
this I am of the view that an appropriate approach to the
determination of whether the performance of a function by
a member of
the Judiciary offends the separation of powers would involve the
following questions:
(a)
Whether the function complained of is a non-judicial function. If it
is a judicial function, that is the end of the inquiry
as there can
be no concern. If it is a non-judicial function, the inquiry proceeds
to (b) below.
(b)
Whether the performance of the non-judicial function by a member of
the Judiciary is expressly provided for in the Constitution.
If it
is, that is the end of the inquiry as there can be no infringement of
the separation of powers. If it is not, the inquiry
proceeds to (c)
below.
(c)
Whether the non-judicial function is closely connected with the core
function of the Judiciary. If it is, then the doctrine
of the
separation of powers is not offended. If it is not, the inquiry
proceeds to (d) below.
(d)
Whether there is any compelling reason why a non-judicial function
which is not closely connected with the core function of
the
Judiciary should be performed by a member of the Judiciary and not by
the Executive or a person appointed by the Executive
for that
purpose. If there is, the separation of powers is not offended. If
there is not, the separation of powers is offended
and the relevant
statutory provision, or, the performance of such a function by a
member of the Judiciary, is inconsistent with
the Constitution and
must be declared unconstitutional.
[39]
In this case the answer to question (a) is in the affirmative. This
answer requires that we proceed to the second question.
The answer to
question (b) is in the negative and then we must move to question
(c). The answers to questions (c) and (d) are in
the negative.
Question (d) seeks to establish whether there is any compelling
reason why the function should be performed by a
member of the
Judiciary and not by the Executive or some other person appointed by
the Executive. In this case none was advanced
and I cannot think of
any. I do not see why, if, for example, a non-judicial body or
officer can be given the power to issue casino
or liquor licences, a
judicial officer such as a Magistrate should be assigned the function
of issuing animal training and exhibition
licences. If we were to
hold that it accords with this country’s model of separation of
powers for a statutory provision
to require a member of the Judiciary
to issue animal training and exhibition licences and that does not
offend the separation of
powers, where will the requirement for the
performance of administrative functions by Magistrates stop?
Accordingly, the performance
of this function by a Magistrate offends
the separation of powers and is, therefore, inconsistent with the
Constitution.
[40]
In the light of the above I conclude that the provisions of sections
2 and 3 of the Act are inconsistent with the Constitution
and are,
therefore, invalid to the extent that they require a Magistrate to
decide applications for, and, issue, animal training
and exhibition
licences. The order of constitutional invalidity of sections 2 and 3
of the Act made by the High Court was contained
in paragraph 46.1 of
the judgment of the High Court. The order in paragraph 46.3 sought to
give the first respondent time to cure
the defect. I think that the
Court a quo may have meant to refer to Parliament and not to the
first respondent. This order was
unjustified as the order of
constitutional invalidity could not come into operation prior to
confirmation by this Court. The orders
contained in paragraphs 46.4.1
to 46.4.3 do not appear to me to have been justified or to have had a
proper basis. However, even
though the High Court should not have
made those orders, it will not be necessary to set them aside in this
judgment because, upon
the handing down of this judgment, their
operation comes to an end in any event since they were meant to
govern the position pending
the judgment of this Court. I do not
think that I should interfere with the order of wasted costs
contained in paragraph 46.5 of
the judgment of the High Court.
Remedy
[41]
As to the remedy, it seems to me that the proper course of action
would be to suspend the declaration of invalidity for a period
of 18
months to give Parliament the opportunity of curing the deficiency in
sections 2 and 3 of the Act. The suspension of the
order of
invalidity means that until the expiry of the period of suspension of
the order or until Parliament cures the deficiency,
whichever occurs
first, sections 2 and 3 of the Act will continue to operate.
Costs
[42]
It seems to me that no order as to costs should be made in this
matter.
Order
[43]
In the result the following order is made:
1.
The order of the North Gauteng High Court, Pretoria in paragraph 46.1
of the judgment declaring sections 2 and 3 of the Performing
Animals
Protection Act 24 of 1935, as amended, to be constitutionally invalid
in so far as they relate to the requirement that
a Magistrate decide
applications for, and, issue, the licences referred to therein is
confirmed.
2.
The declaration of the order of invalidity is suspended for a period
of eighteen (18) months from the date of the handing down
of this
judgment to enable Parliament to cure the constitutional defect in
sections 2 and 3 of the Performing Animals Protection
Act 24 of 1935
as amended.
3.
There is no order as to costs.
For
the Applicant: Advocate K Hopkins and Advocate D van Zyl
instructed by Marston & Taljaard.
For
the First Respondent: Advocate G C Muller SC and Advocate M S
Mangolele instructed by the State Attorney.
For
the Intervening Party: Advocate M G Roberts SC and Advocate C G van
der Walt instructed by J. Leslie Smith & Co.
For
the First and Second Amicus Curiae: Advocate A J Dickson SC and
Advocate E Roberts instructed by J. Leslie Smith &
Co.
1
Section
167(5) of the Constitution reads: “The Constitutional Court
makes the final decision whether an Act of Parliament,
a provincial
Act or conduct of the President is constitutional, and must confirm
any order of invalidity made by the Supreme
Court of Appeal, a High
Court, or a court of similar status, before that order has any
force.”
2
Section
172(2)(d) of the Constitution reads: “
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.”
3
Rule
16 reads:
“
Confirmation
of an order of constitutional invalidity
(1) The Registrar
of a court which has made an order of constitutional invalidity as
contemplated in section 172 of the Constitution
shall, within 15
days of such order, lodge with the Registrar of the Court a copy of
such order.
(2) A person or
organ of state entitled to do so and desirous of appealing against
such an order in terms of section 172(2)(d)
of the Constitution
shall, within 15 days of the making of such order, lodge a notice of
appeal with the Registrar and a copy
thereof with the Registrar of
the Court which made the order, whereupon the matter shall be
disposed of in accordance with directions
given by the Chief
Justice.
(3) The appellant
shall in such notice of appeal set forth clearly the grounds on
which the appeal is brought, indicating which
findings of fact
and/or law are appealed against and the order it is contended ought
to have been made.
(4) A person or
organ of state entitled to do so and desirous of applying for the
confirmation of an order in terms of section
172(2)(d) of the
Constitution shall, within 15 days of the making of such order,
lodge an application for such confirmation with
the Registrar and a
copy thereof with the Registrar of the court which made the order,
whereupon the matter shall be disposed
of in accordance with
directions given by the Chief Justice.
(5) If no notice or
application as contemplated in subrules (2) and (4), respectively,
has been lodged within the time prescribed,
the matter of the
confirmation of the order of invalidity shall be disposed of in
accordance with directions given by the Chief
Justice.”
4
The
High Court made the following order:
“
46.1.
Sections 2 and 3 of the Performing Animals Protection Act 24 of 1935
are hereby declared constitutionally invalid insofar
as they relate
to the Magistrates.
46.2. The
declaration of constitutional invalidity referred to in 46.1 above
has no effect until it is confirmed by the Constitutional
Court.
46.3. The First
Respondent is hereby given six months within which to correct or
cure the defect of constitutional invalidity
in sections 2 and 3
from date of confirmation by the Constitutional Court.
46.4. Pending
confirmation and curing of the defect, it is ordered as follows:
46.4.1. A committee
shall be appointed to exercise the licensing function as set out in
the impugned provisions.
46.4.2. This
committee shall be comprised of two representatives appointed by the
Applicant, two representatives appointed by
the First Respondent and
a representative appointed by the South African Veterinary Council.
46.4.3. A review
procedure shall lie against the decisions of the committee to a
retired judge, who shall be appointed by the
First Respondent.
46.5 The First
Respondent is hereby ordered to pay wasted costs caused by the
postponements on the 18 October 2012 and 1 November
2012 and such
costs to be on the opposed motion scale.”
5
24
of 1935
.
6
Sections
2 and 3 of the Act read as follows:
“
Magistrate
may issue licence for exhibiting and training of performing animals
and for use of dogs for safeguarding
2 Any person
intending to exhibit or train for exhibition any animal, or who uses
a dog for safeguarding, may apply in writing
in the prescribed form
to the magistrate of the district in which such person resides,
performs or carries on business, for a
licence to do so, who shall
grant the same: Provided that—
(a) the magistrate
is satisfied that such person is a fit and proper person;
(b) such licence
shall be granted for a calendar year and expire on the thirty-first
December in every year;
(c) the magistrate
may, if in his opinion there is good and sufficient reason, refuse
to renew such licence; and
(d) the Minister
may by regulation prescribe the form of an application for a licence
and the form of the licence, the conditions
subject to which such
licence shall be held, and the fee which shall be paid for such
licence and for the renewal thereof.
Certificate in
respect of licensed animals
3(1) The holder of
a licence referred to in section 2 shall not exhibit or train any
animal or cause it to be exhibited or trained
for exhibition or use
any dog for safeguarding unless he is in possession of a certificate
authorising such exhibition, training
or use of all animals in
respect of which such licence is held.
(2) The certificate
referred to in subsection (1) shall be issued by the magistrate in
the prescribed form after submission to
him of the prescribed
information by the licenceholder.
(3) Upon such
certificate shall be specified the form of training, exhibition and
use, as the case may be, of the animal or animals
in respect of
which it is issued.
(4) It shall be
competent for a magistrate upon the application of the holder of a
certificate to amend such certificate by either—
(a) deleting
therefrom animals which are no longer in the possession or custody
of the holder; or
(b) adding other
animals which have since the issue or renewal of the licence come
into the possession or custody of the holder;
or
(c) modifying the
form of training, exhibition or use specified thereon,
and for such
amendment no charge shall be made.”
7
See
n 6 above.
8
169
of 1993.
9
Section
3(c) of the SPCA Act.
10
Id
section 3(e).
11
Id.
12
Id
section 3(f).
13
Id
section 6(2)(e).
14
National
Society for the Prevention of Cruelty to Animals v Minister of
Agriculture, Forestry and Fisheries and Others
[2012] ZAGPPHC
329 (High Court judgment) at para 27.
15
Ex
parte Chairperson of the Constitutional Assembly:
In re
Certification of the Constitution of the Republic of South Africa,
1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) (
First Certification case
) at para 108.
16
Id.
17
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) (
SARFU
) at para 141 fn 107.
18
[1998]
ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC).
19
Id
at para 60.
20
Id
at para 61.
21
[2000]
ZACC 22
;
2001 (1) SA 883
(CC);
2001 (1) BCLR 77
(CC) (
Heath
).
22
74
of 1996.
23
Preamble
to the Tribunals Act.
24
Section
2(2)(a), (c) and (e) of the Tribunals Act.
25
20
of 1957.
26
Section
13(2) of the Tribunals Act.
27
Heath
above n 21 at para 26.
28
Id
at para 25.
29
Id
at para 27.
30
Id.
See also
SARFU
above n 17 at para 141.
31
Heath
above n 21 at para 28.
32
Id.
33
Id
at para 29.
34
Id.
35
Id.
36
Mistretta
v United States
[1989] USSC 9
;
488 US 361
(1988).
37
At
para 388.
38
Heath
above n 21 at para 30.
39
Id
at para 30.
40
Id
at para 31.
41
Id
at para 35.
42
Id
at para 32.
43
Section
86(2) of the Constitution.
44
Id
section 111(2).
45
Id
sections 95 and 135 read with Schedule 2.
46
Heath
above n 21 at para 32.
47
Id.
48
Id.
49
Id
at para 34.
50
Id
at para 38.
51
Id.
52
Id
at para 39.
53
Id.
54
Id.
55
Id
at para 40.
56
Id
at para 45.
57
Above
n 18 at para 61.
58
[2002]
ZACC 8
;
2002 (5) SA 246
(CC);
2002 (8) BCLR 810
(CC) (
Van
Rooyen
).
59
90
of 1993.
60
Van
Rooyen
above n 58 at para 76.
61
Id
at para 79.
62
Id
at para 84.
63
Id
at para 85.
64
Id
at paras 231-3.
65
Id
at para 234.
66
Heath
above n 21 at para 29.
67
Heath
above n 21 at para 30.
68
Id
at para 31.
69
Van
Rooyen
above n 58 at para 231.
70
In
this regard I point out that in
Van Rooyen
this Court made a
similar distinction between Judges and Magistrates in regard to
judicial independence. It said that the need
for judicial
independence is greater in regard to Judges than in regard to
Magistrates in view of the fact that Judges’
responsibilities
include adjudicating the constitutional validity of Acts of
Parliament and the conduct of the President and
Magistrates have no
jurisdiction in regard to such matters (
Van Rooyen
above n 58
at paras 20-8).
71
Van
Rooyen
above n 58 at para 231.