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[2013] ZACC 44
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Minister of Communications v Ngewu and Others (CCT 117/11) [2013] ZACC 44; 2014 (3) BCLR 364 (CC) (5 December 2013)
CONSTITUTIONAL COURT
OF SOUTH AFRICA
Case
CCT 117/11
[2013]
ZACC 44
In the matter between:
MINISTER OF COMMUNICATIONS Applicant
And
PHUMLA RUTH PATRICIA NGEWU First
Respondent
POST OFFICE RETIREMENT FUND Second
Respondent
MINISTER OF FINANCE Third
Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Fourth
Respondent
MAWETHU NGEWU Fifth
Respondent
Heard on : 7
November 2013
Order granted : 7
November 2013
Reasons for order : 5
December 2013
JUDGMENT
MADLANGA J (Moseneke ACJ, Skweyiya ADCJ,
Cameron J, Dambuza AJ, Froneman J, Jafta J,
Mhlantla AJ,
Nkabinde J, Van der Westhuizen J and Zondo J
concurring):
[1]
On
7 November 2013 this Court granted an order in the following terms:
1. The
application for an amendment of this Courts order in Case Number CCT 117/11
handed down on 7 March 2013 to
extend the period of suspension of the order of
invalidity from eight months to 14 months is dismissed with costs.
2. Reasons for this order are to follow.
These are the reasons.
[2]
The
proceedings we entertained on an urgent basis on 7 November 2013 are a sequel
to an order granted by this Court on 7 March 2013.
[1]
That order
declared sections 10 to 10E of the Post Office Act
[2]
invalid for
being inconsistent with section 9(1) of the Constitution. The declaration
of invalidity was suspended for eight
months.
[3]
The constitutional invalidity stemmed from the fact that sections 10 to 10E of
the Post Office Act do not provide for the former
spouse of a member of the
Post Office Retirement Fund, who has been awarded a portion of that members
pension interest in the
fund pursuant to section 7(8) of the Divorce Act,
[4]
to be paid that
portion on divorce or dissolution of a customary marriage (the clean break
principle). By contrast, the Pension
Funds Act
[5]
and the Government Employees Pension Law
[6]
do have a provision of that nature. The upshot of this is that former spouses
of members of pension funds subject to the Pension
Funds Act and Government
Employees Pension Law can claim their share of their former spouses pension
interest at the time of divorce.
[7]
[3]
In
addition, the order of 7 March 2013 said:
If the constitutional defect is not remedied by 7
November 2013, section 24A of the Government Employees Pension Law,
Proclamation
21 of 1996, shall be read into the Post Office Act 44 of 1958 as
section 10F thereof and will take effect.
[8]
The effect of the reading-in was that if the
period of suspension came to an end without any remedial action having been
taken by
Parliament, former spouses of members of the Post Office Retirement
Fund would enjoy benefits in accordance with the clean break
principle.
[4]
As
fate would have it, as late as 4 November 2013 no remedial action had been
taken by Parliament. This was so despite the fact
that prior to the grant of
the order of 7 March 2013, the applicants had indicated to this Court that the
amendment would be finalised
within six months. On 4 November 2013 the
Minister of Communications brought an urgent application asking that the period
of suspension
of the declaration of invalidity be extended from eight to 14
months. The notice of motion gave the respondents until the close
of business
on 6 November 2013 to file opposing affidavits. Ms Ngewu, the only respondent
to oppose the application, filed her
answering affidavit on that day
. The
matter was set down for hearing the following day.
[5]
An
antecedent question which must be answered by this Court is whether, as at 7
November 2013 when the application was heard, the
period of suspension had
expired already. If it had expired, this Court would have lacked competence to
extend or revive it.
[9]
If it had not, on the authority of Zondi,
[10]
this Court was at liberty to extend the period. What then is the answer to the
question?
[6]
Two
paragraphs in the order bear relevance to this enquiry. They are paragraphs 4
and 5.
[11]
Paragraph 4 says that [t]he declaration of invalidity is suspended for eight
months to enable Parliament to cure the defect.
Standing by itself, paragraph
4, according to the civilian computation of time, means that the period of
suspension expired at
midnight when the 6
th
of November 2013 ended.
[12]
Paragraph 5 of
the order specifies that the reading-in will take effect if the defect is not
remedied by 7 November 2013. This
raises the question whether the reading-in
took effect at midnight when the 6
th
ended and the 7
th
began
or at midnight at the end of the 7
th
. The New Shorter Oxford English
Dictionary defines the word by in relation to time to mean, amongst others, a
In the course
of, at, in, on; during . . . b On or before, not later than. The
English Court of Appeals, relying on this dictionary meaning
held, in Eastaugh
[13]
that as a
matter of definition by the date ought to mean on or before the date. The
date specified is thus included.
[7]
Read
separately, the two paragraphs appear to refer to different dates. However,
the proper approach is to read them together in
the context of the entire order
under interpretation. The object of the reading-in was to avoid a lacuna in
the event of the declaration
of invalidity coming into effect. Therefore, what
was envisaged in issuing the order was that on the expiry of the suspension and
if the declaration of invalidity were to take effect, the reading-in would also
come into operation at the same time. I am led
to the conclusion that on a
proper reading of paragraphs 4 and 5 of the order, the period of suspension was
to expire at the end
of 7 November. It is at that point that the
reading-in would take effect. Thus when we heard the urgent application, it
was still open to this Court to extend the period of suspension.
[8]
In
Mvumvu
[14]
Jafta J cautioned:
[I]n view of the principle
that once a court has delivered a final order or judgment, it becomes functus
officio and thus cannot
correct, alter or supplement the order, the power to
extend a period of suspension is not lightly exercised. The Court will
ordinarily
grant an extension if it is just and equitable to do so. In
determining whether it will be just and equitable, the Court must take
into
account factors such as sufficiency of the explanation for failure to carry out
the order within the original period of suspension;
prejudice likely to be
suffered if suspension is not extended; prospects of curing the defect within
the extended period; as well
as the need to promote a functional and orderly
State administration for the benefit of the general public. These factors must
be weighed against the need to have finality in litigation.
[15]
(Footnotes
omitted.)
[9]
It
is on these factors that the applicant failed woefully to convince us that an
extension was warranted. The applicant says that
an amendment Bill had already
been published for public comment on 31 October 2012. The Bill was amended and
presented to Cabinet
by the applicants predecessor in June 2013, and not in
March 2013 as originally intended. Several reasons are given for the
delay. They include the woes faced by the previous Minister, which culminated
in her participation in hearings before Parliaments
Ethics Committee.
[10]
The
applicant avers that Cabinet approved the Bill during the same month it was submitted
to it. He assumed office as recently
as 10 July 2013. Since then, he and his
department have not been guilty of any inaction insofar as the process of
procuring the
legislative amendment is concerned. What gave rise to the delay
was a dispute at a meeting of the Portfolio Committee on Communications
on 8
October 2013. The dispute related to the proper tagging of the Bill. The
applicant says that the tagging issue arises
because the Bill affects the
consequences of dissolution of customary marriages, which may require the Bill
to be dealt with in
accordance with section 76 of the Constitution, rather than
section 75.
[16]
A legal opinion has been sought on this. Parliaments last term for the year
ended on 8 November 2013 and it was not expected
that the opinion would have been
received before that date. Based on what he had been informed by the Portfolio
Committee, the
applicant stated that an extension of six months would suffice.
[11]
Much
as one accepts that, on the available information, the applicant appears to
have acted expeditiously in taking the legislative
process forward, there are
glaring omissions in the explanation. The applicant says that it became
evident in September 2013
that the legislative process would not be
completed before the period of suspension had expired. But the decision to
seek an extension
was only taken on 9 October 2013. No explanation is
given for not taking the decision in September or earlier than 9 October.
The
delay between 9 October 2013 and 4 November 2013
[17]
is explained on
the basis that the applicant was assembling information necessary to found
an application of this nature. The
narrative given by the applicant could not
have required a period of about a month to put together. Likewise, just by
looking
at its nature, it must have been a matter of relative ease for the
applicant and the departmental officials to collate the information
that makes
up the annexures to the applicants affidavit.
[18]
Absent a cogent explanation, this Court is left in the dark as to why the
applicant approached us three days before the expiry
of the period of
suspension. The explanation given does not come close to being sufficient.
[12]
Ms
Ngewu paints a picture of destitution continuing until Parliament remedies the
defect in the legislation. She is unemployed
and has no means of sustenance. She
has been forced to live on handouts.
[19]
She has nowhere to stay and has had to move from place to place, staying
wherever she can be accommodated. Needless to say, all
of this is quite
demeaning. The prejudice that she would suffer as a result of an extension is
manifest.
[13]
By
contrast, the state is not going to suffer any real prejudice if the extension
is not granted. That is so because the only difference
between the reading-in
in paragraph 5 of this Courts previous order and what is contained in the Bill
is that the reading-in provides
for payment to a former spouse of a fund member
within 60 days of an election having been made, while the Bill provides for
payment
to be made within 30 days, in certain circumstances. The applicant was
candid enough to say that he was constrained to admit that
the administrative
and substantive consequences of the differences are small. However, he argued
that if the extension was not
granted and the reading-in took effect, the
Parliamentary process would have to begin again and the work that had been
undertaken
in procuring the amendment would come to nought. To say the least,
this boggles the mind. Why the process would not simply be
taken forward and
finalised escapes me. And the fact that the applicant has not explained what
he means does not assist either.
[14]
The
applicant further argued that, should the suspension not be extended and the
reading-in come into effect, this Court will be
intervening in an area of
exclusive legislative power at a time when a legislative amendment is on the
verge of being enacted.
I do not agree. Our constitutional jurisprudence has,
for some time now, permitted reading-in in appropriate circumstances.
[20]
In any event,
the applicants predecessor consented to the order of 7 March 2013 well aware
that if remedial action was not taken
during the period of suspension, the reading-in
would take effect. In fact, this Court was assured that the then respondents,
who included the applicants predecessor, were comfortable with the reading-in.
It is apt to quote our original judgment in Ngewu:
Parliament and the Executive should carefully consider
the consequences of failing to remedy this constitutional defect, especially
how the rather extensive reading-in will affect the structure and application
of the relevant legislation. This must be done,
even though counsel for the
respondents when prompted by the Chief Justice during the presentation of
oral submissions gave
the assurance that his clients were comfortable with
the reading-in as well as the period of suspension.
[21]
(Footnote
omitted.)
In these circumstances, the separation of
powers point now raised by the applicant rings hollow.
[15]
Weighing
up all the relevant factors, this Court could not but come to the conclusion
that it was not just and equitable to grant
an extension of the period of
suspension.
[16]
It
was for these reasons that the following order was made on 7 November 2013:
1.
The
application for an amendment of this Courts order in Case Number CCT 117/11
handed down on 7 March 2013 to extend the period
of suspension of the order of
invalidity from eight months to 14 months is dismissed with costs.
For the Applicant:
Advocate S Yacoob
Instructed by the
State Attorney.
For the First
Respondent:
Advocate I Goodman
Instructed by the
Womens Legal Centre.
[1]
Ngewu and Another v Post Office Retirement Fund and Others
[2013] ZACC 4
;
2013 (4) BCLR 421
(CC) (
Ngewu
).
[2]
44 of 1958.
[3]
Para 4 of the order in
Ngewu
above n 1.
[4]
70 of 1979.
Section 7(8) of the Divorce Act provides:
Notwithstanding the provisions of any other law or of the rules of
any pension fund
(a) the court granting a decree of divorce in respect of a
member of such a fund, may make an order that
(i) any part of the pension interest of that member
which, by virtue of subsection (7), is due or assigned to the other
party to
the divorce action concerned, shall be paid by that fund to that other party
when any pension benefits accrue in respect
of that member;
(ii) the registrar of the court in question forthwith
notify the fund concerned that an endorsement be made in the records
of that
fund that that part of the pension interest concerned is so payable to that
other party and that the administrator of the
pension fund furnish proof of
such endorsement to the registrar, in writing, within one month of receipt of
such notification;
(b) any law which applies in relation to the reduction,
assignment, transfer, cession, pledge, hypothecation or attachment
of the
pension benefits, or any right in respect thereof, in that fund, shall apply
mutatis
mutandis
with regard to the right of that other party in respect of that
part of the pension interest concerned.
[5]
24 of 1956.
[6]
Proclamation 21 of 1996.
[7]
Ngewu
above n 1 at
para
1.
[8]
Para 5 of the order in
Ngewu
above n 1.
[9]
Ex Parte
Minister of Social Development and Others
[2006] ZACC 3
;
2006 (4) SA 309
(CC);
2006 (5) BCLR 604
(CC) at para 27.
[10]
Zondi v MEC, Traditional and Local Government Affairs, and
Others
[2005] ZACC 18
;
2006 (3) SA 1
(CC);
2006 (3)
BCLR 423
(CC) at
para
40.
[11]
See
[3] above.
[12]
According to the civil computation method a period of time expressed in months
expires at the end of the day preceding the corresponding
calendar day in the last
month. It is settled law that the commencement of a period of time in curial
calculation is governed
by the ordinary civilian method where any unit of time
other than days is used. See Cameron Time in Joubert et al (eds) LAWSA
(reissue) vol 27 at paras 423-34 and 438.
[13]
Eastaugh and Others v Macpherson
[1954] 3 All ER 214
(CA) (
Eastaugh
) at 215B-C.
[14]
Minister for Transport and Another v Mvumvu and Others
[2012] ZACC
20
;
2012 (12) BCLR 1340
(CC) (
Mvumvu
).
[15]
Id at p
ara 7.
[16]
Section 75 regulates the procedure to be followed when Parliament considers
ordinary Bills not affecting provinces. Section 76,
on the other hand, governs
the procedure to be followed when Parliament considers ordinary Bills that do
affect provinces. Ordinary
Bills do not include Bills amending the
Constitution (section 74) and money Bills (section 77).
[17]
4 November 2013, being the date the urgent application was
lodged.
[18]
The documents that make up the relevant annexures are:
(a) an affidavit by Minister Dina Pule requesting the
eight month suspension that was granted on 7 March 2013;
(b) Minutes of Portfolio Committee on Communications
(National Assembly) meeting of 6 August 2013;
(c) Minutes of Portfolio Committee on Communications
(National Assembly) meeting of 17 September 2013;
(d) Minutes of Portfolio Committee on Communications
(National Assembly) meeting of 18 September 2013;
(e) Minutes of Portfolio Committee on Communications
(National Assembly) meeting of 8 October 2013; and
(f) Portfolio Committee Amendments to South African Post
Office SOC Limited Amendment Bill.
[19]
For example, on 5 September and 2 October 2013 Ms Ngewu asked for
financial assistance from her attorneys of record, the Womens
Legal Centre.
[20]
See for example
Minister of Home Affairs and Another v Fourie and Another
(Doctors for Life International and Others,
Amici Curiae
); Lesbian and
Gay Equality Project and Others v Minister of Home Affairs and Others
[2005] ZACC 19
;
2006 (1) SA 524
(CC);
2006 (3) BCLR 355
(CC) and
Lawyers for
Human Rights and Another v Minister of Home Affairs and Another
[2004] ZACC
12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC).
[21]
Ngewu
above n 1 at para 18.