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[2015] ZACC 12
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Cross-Border Road Transport Agency v Central African Road Services (Pty) Ltd and Another (CCT163/14) [2015] ZACC 12; 2015 (5) SA 370 (CC); 2015 (7) BCLR 761 (CC) (12 May 2015)
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Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 163/14
In
the matter between:
CROSS-BORDER
ROAD TRANSPORT
AGENCY
..............................................................
Applicant
and
CENTRAL
AFRICAN ROAD SERVICES (PTY)
LIMITED
....................................
First
Respondent
MINISTER
OF
TRANSPORT
..................................................................................
Second
Respondent
and
ROAD
FREIGHT
ASSOCIATION
..................................................................................
Amicus
Curiae
Neutral
citation:
Cross-Border Road
Transport Agency v Central African Road Services (Pty) Ltd and
Another
[2015] ZACC 12
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jappie AJ, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J,
Theron AJ and
Tshiqi AJ.
Judgment:
Jappie AJ (unanimous)
Heard
on:
17 February 2015
Decided
on:
12 May 2015
Summary:
Doctrine of objective constitutional
invalidity — retrospectivity — default position
Orders
properly construed — interpretation — terms and context
of order with judgment as a whole
Declaration
of statutory invalidity — powers of courts to vary the
retrospectivity of an order of constitutional invalidity
—
power to be exercised during suspension period
ORDER
On
appeal from the North Gauteng High Court, Pretoria:
1.
Leave to appeal is granted.
2.
Leave to file a replying affidavit is refused.
3.
The appeal is dismissed with costs.
JUDGMENT
Jappie
AJ (Moegoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron
AJ and Tshiqi
AJ concurring):
Introduction
[1]
On
31 March 2011 the Minister of Transport promulgated amendment
Regulations
[1]
in terms of
section 51 of the Cross-Border Road Transport Act.
[2]
The effect of these Regulations increased the permit fees payable to
the Cross-Border Road Transport Agency (Agency) by cross-border
road
transport operators by a substantial amount.
[2]
Central African Road Services (Pty) Ltd
(Road Services) and Deernam (Pty) Ltd (Deernam) brought an
application in the North Gauteng
High Court, Pretoria (High Court)
for the review and setting aside of the Regulations, contending that
the Regulations were
inconsistent with the Constitution and must
therefore be invalidated. The application was opposed by the
Minister of Transport
(Minister) and the Agency.
[3]
The application came before Makgoka J who,
on 15 February 2013, found for Road Services and Deernam. He
found the Regulations
invalid on various grounds. These were:
(a) they were only published in English, contrary to the
constitutional requirement
that laws must be promulgated in two
official languages; (b) the right to procedural fairness in the
publication and promulgation
of the Regulations had been violated;
(c) proper consultation on the tariff increases had not taken place;
and (d) the Agency’s
board had failed to apply its mind to the
draft regulations.
[4]
He accordingly declared the Regulations
invalid but suspended the order of invalidity for a period of six
months to enable the Minister
and the Agency to republish the
Regulations and thereafter to receive and consider public comment.
The order of Makgoka J
reads as follows:
“
1.
It is declared that the [Regulations] were published in a manner
inconsistent with s 6(3) of the [Constitution], and were invalid
for
the period between 1 April 2011 and 28 October 2011;
2.
The invalidity period referred to in (1) above, shall have no effect
on the permit fees and/or penalties paid during that period
in terms
of the Regulations;
3.
It is declared that the first respondent (the Minister) and the
second respondent (the agency) have failed to comply with their
constitutional obligation to ensure procedural fairness in the
publication and promulgation of the Regulations;
4.
It is declared that the second respondent (the agency) has failed in
its constitutional duty to comply with its duty to facilitate
proper
public comment before publishing the Regulations;
5.
It is declared that the board of the agency has failed in its
statutory duty to properly consider the draft regulations, for
the
sake of consulting with the Minister;
6.
The Regulations are, as a consequence, promulgated in a manner that
is inconsistent with the provisions of
Promotion of Administrative
Justice Act 3 of 2000
and s 33 of the Constitution, and are therefore
invalid;
7.
The order declaring invalid the Regulations is suspended for a period
of six (6) months to enable the agency and the Minister
to republish
the Regulations and thereafter to receive and consider public
comments;
8.
The applicants’ constitutional challenge relating to taxation
or money bill of is dismissed;
9.
The respondents are ordered to pay 80% of the applicants’ costs
including the wasted costs occasioned on 5 March 2012 which
the
respondents are liable to pay 100%.”
[5]
The Minister failed to promulgate valid
regulations within the period of suspension provided for in paragraph
7 of the order and
failed to make an application to extend the
six-month period. It is common cause that the order of
invalidity came into operation
at midnight on 14 August 2013, after
the six-month period lapsed, but the parties dispute whether the
order operates retrospectively
as of the date the Regulations were
promulgated, 31 March 2011, or prospectively from 15 August 2013.
[6]
On 1 October 2013, about a month after the
suspension period lapsed, Road Services brought an urgent application
in the High Court.
In Part A of the Notice of Motion, Road
Services sought an order compelling the Agency to issue to it
transport permits in terms
of the Regulations as they stood prior to
the introduction of the invalidated 2011 Regulations.
[7]
In Part B of the Notice of Motion, Road
Services sought a declaratory order that the six-month period
contemplated in paragraph
7 of the order of 15 February 2013
lapsed at midnight on 14 August 2013. It also sought an order
that the invalidity
referred to in paragraph 6 of the order came into
operation with full retrospective effect at midnight on 14 August
2013.
Further that, until the Minister promulgates
constitutionally valid regulations amending the permit fees, the fees
payable by cross-border
road transport operators are those set out in
the existing Regulations.
[8]
The application came before Heaton-Nicholls
J who, on 1 November 2013, granted the following order:
“
1.
The period of 6 months contemplated in paragraph 7 of the order
handed down by this court on the 15 February 2013 . . . lapsed
at
midnight on the 14 August 2013.
2.
The order of invalidity in paragraph 6 of the order, handed down by
this court on the 15 February 2013 . . . accordingly came
into
operation with full retrospective effect at midnight on the
14 August 2013.
3.
Until such time as the 2nd
respondent may promulgate new
constitutionally valid regulations amending the permit fees set out
in the Cross Border Road Transportation
Regulations 1998, published
under Government Notice NoR464 of 3 April 1998, as amended by the
Government Notice Nos R998 of 13 August
1991, R682 of 7 July
2000 and R677 of 2 June 2003 (the existing regulations), the permit
fees payable by Cross Border Road Transport
Operations are those set
out in the existing regulations.
4.
That the respondents pay the costs of this application jointly and
severally except for the applicants’ cost of drafting
the
notice of motion and the founding affidavit which are disallowed.”
[9]
The Agency applied for, but on 18 June 2014
was refused, leave to appeal to the Supreme Court of Appeal. On
16 July 2014,
the Agency then petitioned the Supreme Court of Appeal
for leave to appeal which petition was dismissed on 8 September
2014.
[10]
The Agency now applies to this Court for
the following relief:
“
1.
Granting the applicant leave to appeal against the judgment and order
of the North Gauteng Division of the High Court delivered
on 1
November 2013;
2.
Upholding the appeal with costs, including the costs of two counsel.
3.
Setting aside the order of the High Court and replacing it with an
order in the following terms:
‘
(1)
It is declared that the period of 6 months contemplated in paragraph
7 of the order handed down by this Court on 15 February
2013 . . .
lapsed at midnight on 14 August 2013;
(2)
It is further declared that the order of invalidity in paragraph 6 of
the order handed down by this Court on 15 February 2013
. . .
accordingly took effect from 15 August 2013;
(3)
It is further declared that from 15 August 2013 until such time as
the second respondent promulgates new regulations amending
the permit
fees set out in the Cross-Border Road Transport Regulations, 1998
published in Government Notice No R464 of 3 April
1998, as amended by
Government Notice Nos R464 of August 1999, R682 of July 2000 and R677
of 2 June 2003 (“the existing regulations”),
the permit
fees payable by cross border road transport operators are those set
out in the existing regulations;
(4)
Each party is ordered to pay its own costs.’
4
.
Further or alternative relief.”
Issues
[11]
The question to be considered is what
principles govern the operation of orders of constitutional
invalidity that are suspended
where the suspension period has passed
without the enactment of remedial legislation. And further,
whether a court has the
power to vary a final order made, and if so
whether that power should be exercised.
Jurisdiction
[12]
This
application raises important questions on the principles that govern
declarations of constitutional invalidity as well as a
court’s
power to vary an order where that order, properly construed, is
silent on the question of retrospectivity.
These questions
relate directly to the powers of the Court.
[3]
This is a constitutional matter and the application thus falls within
the jurisdiction of this Court. It is therefore
in the
interests of justice to grant leave to appeal.
The
doctrine of objective constitutional invalidity
[13]
Whether
a law is invalid is determined by an objective enquiry into its
conformity with the Constitution.
[4]
The doctrine of objective constitutional invalidity was laid out in
Ferreira
v Levin
where this Court held that finding a law to be in conflict with the
Constitution “does not invalidate the law; it merely
declares
it to be invalid”.
[5]
A law that has been found to be inconsistent with the Constitution
ceases to have any legal consequences.
[6]
[14]
Due to the impact that the doctrine of
objective constitutional invalidity could have, the interim
Constitution expressly regulated
the consequences of a declaration of
invalidity. The interim Constitution provided, in relevant
part, that—
“
the
declaration of invalidity of a law or a provision thereof—
(a)
existing at the commencement of this Constitution, shall not
invalidate anything done or permitted in terms thereof before the
coming into effect of such declaration of invalidity; or
(b)
passed after such commencement, shall invalidate everything done or
permitted in terms thereof.”
[7]
A
declaration of constitutional invalidity would therefore have
different consequences depending on whether the law was enacted
before the interim Constitution or not.
[15]
The final Constitution no longer draws this
distinction. The power to regulate the consequences of a
declaration of invalidity
however subsists. The Constitution
provides in relevant part:
“
(1)
When deciding a constitutional matter within its power, a court—
.
. .
(b) may make any
order that is just and equitable, including—
(i)
an order limiting the retrospective effect of the declaration of
invalidity; and
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions, to allow the competent authority to
correct the
defect.”
[8]
[16]
In
National
Coalition
this power was characterised as follows: “Under the 1996
Constitution, and in the absence of a contrary order by a competent
court, nothing more is provided other than that it has retrospective
effect”.
[9]
The rule
that retrospectivity follows is derived directly from the doctrine of
constitutional invalidity and is implied by
the power provided for in
section 172(1)(b)(i). Section 172(1)(b)(i) contains a broad
discretionary power that allows courts
to limit the retrospectivity
of a declaration of invalidity provided that it is “just and
equitable” to do so.
[10]
[17]
This
Court in
Executive
Council
[11]
then held:
“
If
exercised, this power has the effect of making the declaration of
invalidity subject to a resolutive condition. If the
matter is
rectified, the declaration falls away and what was done in terms of
the law is given validity. If not, the declaration
of
invalidity takes place at the expiry of the prescribed period and the
normal consequences attaching to such a declaration ensue.
In
the present case that would mean that s 16A and everything done under
it would be invalidated.”
[12]
[18]
The
Agency contended that reference to the “normal consequences”
begs the question and that this passage is not determinative
of
anything. In support of this contention it asserted that the
interim constitutional powers under section 98(5) and (6)
[13]
were more prescriptive and confined when compared to the broad
remedial powers of section 172(1) of the final Constitution.
[19]
The Court in
Executive
Council
went on to explain the
rationale for granting remedial powers to the courts to temper the
effect of an order of constitutional validity
through section 98(5)
and (6) of the interim Constitution:
“
The
powers conferred on the Courts by s 98(5) and (6) are necessary
powers. When the Constitution came into force there were
many
old laws on the statute book which were inconsistent with the
Constitution. If all of them were to have been struck
down and
all action taken under them declared to be invalid, there could have
been a
legislative vacuum and chaotic
conditions
.
.
. .
There
may also be situations in which it is necessary for the Court to act
to avoid or control the consequences of a declaration
of invalidity
of post-constitutional legislation where the result of invalidating
everything done under such legislation is disproportional
to the
harm
which would result
from giving the legislation temporary validity.”
[14]
(Emphasis added.)
The
words “legislative vacuum and chaotic conditions” and
“harm which would result” are plainly in reference
to the
“normal consequences” of retrospective invalidity.
This principled approach in
Executive
Council
is also applicable under the
final Constitution.
[20]
In summary, the consequences that
ordinarily flow from a declaration of constitutional invalidity
include that the law will be invalid
from the moment it was
promulgated. That is, the order will have immediate
retrospective effect. This is the default
position.
Orders
properly construed
[21]
This
default position can, however, be varied by an order of court,
exercising the express power under section 172(1)(b)(i) of the
Constitution, for numerous reasons pertaining to justice and equity.
The language of both this provision and what was stated
in
National
Coalition
[15]
suggests that it is only an order of court that can vary the
consequences that flow from the doctrine of constitutional
invalidity.
[22]
Unless
the order of court expressly varies those consequences, then it would
appear that retrospectivity must follow. However,
this would be
too formalistic. In the Supreme Court of Appeal, Cameron JA in
De
Kock
described this approach as “both too absolute and too
general”
[16]
and held
that “[t]he effect of a declaration of invalidity must rather
depend on the
terms
and context
of the order the Court . . . issues”.
[17]
The order must be interpreted on the terms and the context of the
order together with the judgment as a whole.
[18]
[23]
The
Agency argues that there are a number of orders from this Court which
granted a suspended declaration of invalidity and were
silent on
retrospectivity but where this Court cannot have intended the
declarations to operate retrospectively on expiry of the
suspension
period. It further argues that had the orders in
Steyn
,
[19]
Moseneke
[20]
and
Heath
[21]
come before this Court to consider whether retrospectivity should
apply, this Court may well have construed the orders to limit
the
application of retrospectivity.
[24]
In
De
Kock
,
the Court concluded that the order in
Steyn
did not intend for the declaration of invalidity to have
retrospective effect in the event of Parliament failing to remedy the
defect.
[22]
This was
because the Court that granted the suspension clearly did not
contemplate that, if the condition specified in it
were not
fulfilled, there would be full retrospective invalidity. That
would have entailed large-scale invalidation of possibly
thousands of
criminal convictions, for the most part on purely formal grounds.
[25]
A
court’s decision to suspend the effect of an order of
invalidity entails the exercise of a wide power and can be utilised
for numerous reasons provided it is just and equitable to do so.
This often relates to giving the Legislature time to intervene
but
could equally relate to concerns of the effect an order might have on
the administration of justice.
[23]
The latter could indicate that the order, properly construed, limits
retrospectivity. That is, reasons for limiting
retrospectivity
could be bound up in the reasoning of the judgment and in the
justification provided for suspending the effect
of an order of
invalidity.
[26]
Yet, any indications in the judgment that
ostensibly contextualise the order must be strong. Judges will
be well-apprised
of the consequences of a declaration of
constitutional invalidity and therefore silence in an order cannot
readily be taken to
mean judicial inadvertence. This will be
elaborated on in the course of this judgment.
[27]
It
is now necessary to deal with the order of Makgoka J. There are
a few noticeable characteristics in the order itself: first,
the
Regulations were declared invalid broadly for four reasons; second,
the order expressly limits the retrospective effect that
the
declaration of invalidity might have in respect of payments made
during the period when the Regulations had not been promulgated
in a
second official language, in this case Afrikaans; third, the order
suspended the effect of the invalidity for a period of
six months;
and lastly, there is no mention of retrospectivity pertaining to the
remaining paragraphs of the order.
[24]
[28]
Makgoka J accepted most of Road Services’
challenges to the Regulations, dismissing only the argument that the
Regulations
constituted a tax. The reasoning in the judgment
essentially mirrors the order. In only one section of the
judgment
does the Judge make reference to the suspension of the order
but no analysis was given as to why ultimately the declaration of
invalidity should be suspended. Unlike in
Steyn
,
the judgment does not detail the reasons behind the suspension order,
except at paragraph 57:
“
It
is common cause that the promulgation of the regulations on 31 March
2011 only in English was inconsistent with section 6(3)(a)
of the
Constitution, and invalid, until they were repromulgated in Afrikaans
on 28 October 2011. The applicants counsel urged
me to
order
refund of the fees paid
by the
applicants during the period of invalidity. In considering this
submission I must keep in mind the common cause fact
that the agency
was effectively bankrupt before the introduction of the regulations.
In addition, it has not been suggested
by the applicants that they
are unable to afford the new tariffs. On the other hand,
there
is every likelihood that should the agency be ordered to refund the
applicants and other hauliers, the agency would simply
collapse
.
I am therefore not inclined to accede to the request. Had the
regulations not been repromulgated in Afrikaans, and
the invalidity
persisted until declared by the court, the court would
most
probably have suspended the order of invalidity for the defect to be
cured. In the present case the defect has been cured
.
I see no reason why the outcome should be different if the
defect has been voluntarily cured.” (Emphasis added.)
[29]
In
my view these comments were made in response to the language defect
that was challenged and do not necessarily pertain to the
other
defects that the Judge analysed. This is apparent from both the
heading “s 6(3) of the Constitution” and
the first
sentence of the paragraph which speak directly to the language
contention raised by Road Services. Despite the
context in
which these comments were made in the judgment, the sentiments
expressed in relation to the Agency’s financial
state must
pertain to all the other defects. I acknowledge that the Judge
would have been able to limit retrospectivity based
on these
sentiments alone if he thought it was just and equitable to do
so.
[25]
I do not think
that that was the case here.
[30]
The comments were in response to a specific
request by the applicants that the Court should order the repayment
of the permit fees
collected during the period in which there was no
compliance with section 6(3) of the Constitution. What is clear
from this
paragraph is that if the Judge had found himself in a
position where the Afrikaans version had not been published, he would
have
suspended the order of invalidity. He reasoned that he
would have taken this approach and provided the Minister with an
opportunity
to rectify the defect as he recognised that the Agency
was in a desperate financial state. Since the Court would have
given
the Minister an opportunity to remedy the defect in respect of
this contention, the Judge reasoned that there is no sense in
ordering
that the money be returned. Despite this, the
Regulations had subsequently been published in Afrikaans and thus the
language
contention was moot.
[31]
The sentiments expressed in relation to the
Agency’s financial position speak to the question of whether to
suspend or not.
They do not speak to whether or not to limit
the retrospective effect should that suspension order lapse.
The paragraph is
silent as to what the Judge would have done if a
fair opportunity had been given to the Minister and the Minister had
failed to
remedy the defect. The possibility where the Minister
fails to do anything was not contemplated. That is, the order,
properly construed, is silent on the question of retrospectivity in
the event that remedial legislation was not enacted.
[32]
Counsel for the Agency then contended that
if this Court were to conclude that the order has retrospective
effect as a result of
the order being silent, this Court would be
imposing an undesirable outcome through, what it argued, was
“judicial inadvertence”.
It would however be wrong
to assume that a judge’s silence can be taken for judicial
inadvertence. Where a judgment
is silent on this issue, it is
to be assumed that a judge has taken a decision not to moderate the
default position.
[33]
In
Moise
[26]
this Court unconditionally confirmed an order of the High Court
declaring a provision of a statute
[27]
unconstitutional. Shortly after the judgment was delivered, the
Women’s Legal Centre approached this Court requesting
a
variation of that order, submitting that this Court ought to have
stated expressly that the order would have retrospective effect.
[28]
They maintained that the order was otherwise ambiguous. This
Court held that this was unnecessary – that silence
indicated
full retrospective effect:
“
The
current position is that the Constitution assumes the full
retrospective effect of constitutional invalidation and empowers
the
Court declaring the invalidation to limit its retrospective effect. .
. . Because the order of the High Court declaring
the section
invalid as well as the confirmatory order of this Court were silent
on the question of limiting the retrospective effect
of the
declaration, the declaration was retrospective to the moment the
Constitution came into effect. That is when the inconsistency
arose. As a matter of law the provision has been a nullity
since that date.”
[29]
[34]
It must be accepted that the Judge did not
exercise the Court’s broad remedial powers to alter the default
position.
It follows, as Heaton-Nicholls J concluded, that the
declaration of constitutional invalidity is retrospectively invalid
from the
date the Regulations were promulgated.
Discretion
to vary an order
[35]
At the hearing the Agency belatedly argued
that this Court should develop the common law and exercise a
discretion to vary Makgoka
J’s order and limit its
retrospective effect. In other words, that there is a
discretion on the part of a second court,
after the lapse of the
period of suspension, to limit the retrospective effect of the order
of invalidity issued by the original
court. The Agency
acknowledged that this may entail the development of the common law.
[36]
On
numerous occasions, this Court has held that it is undesirable for
parties to raise a new issue for the first time at this stage
of the
litigation.
[30]
An apex
court benefits immeasurably from the proper and extensive ventilation
of issues in the courts below. Failure
to do this could have
the effect of causing prejudice to the other party involved in the
litigation.
[31]
We are
however not obliged to decide this matter. Even if we were, it
would not affect the outcome. As will become
apparent in a
moment, the point has no merit.
[37]
If
this Court has the power to vary the retrospective nature of an
order, after the lapse of suspension, and once it has taken effect,
that power is either located in section 172(1) or in section 173
of the Constitution. Section 173 provides that certain
courts
have the inherent power to regulate their own processes.
[32]
I evaluate both options.
[38]
A
court does not normally have the power to vary its own final order.
This is because ordinarily a court’s order should
be final and
immutable.
[33]
A court
becomes
functus
officio
which means that its jurisdiction in the case has been “fully
and finally exercised” and its authority over the subject
matter has ended.
[34]
This
principle is essential for certainty and the rule of law.
Chaskalson P in
Ntuli
held:
“
The
principle of finality in litigation which underlies the common law
rules for the variation of judgments and orders is clearly
relevant
to constitutional matters. There must be an end to litigation
and it would be intolerable and could lead to great
uncertainty if
Courts could be approached to reconsider final orders made in
judgments declaring the provisions of a particular
statute to be
invalid.”
[35]
[39]
Exceptions
to this general rule have, however, been recognised.
Firestone
,
approved by this Court in
Ntuli
,
outlined some exceptions to the rule which include the need to
correct errors of expression, to explain ambiguities, to address
accessory or consequential matters which were seemingly “overlooked
or inadvertently omitted” or to correct cost orders
if they
were made without the benefit of argument on the issue.
[36]
This list was not held to be exhaustive.
[37]
The ability of a court to depart from the general rule has been held
to flow from the court’s inherent power to regulate
its own
processes.
[38]
[40]
This
Court has in
Ntuli
,
Zondi
and
Minister
of Social Development
[39]
addressed whether an extension of a suspension order, sought out of
time or at the final hour, could be granted.
[40]
Any power to do so was said to be housed in section 172(1) of the
Constitution.
[41]
The
Court in
Zondi
held:
“
When
the facts on which the period of suspension was based have changed or
where the full implications of the order were not previously
apparent, there seems to be no reason both in logic and in principle
why this Court should not,
before
the expiry of the period of suspension
,
have the power to extend the period, if to do so would be just and
equitable.”
[42]
(Emphasis added.)
[41]
A
court has the power to extend a suspension period of a declaration of
invalidity because the decision to suspend was ultimately
premised on
facts and circumstances applicable to the time the order was issued.
These facts and circumstances may well change
and a court must be
alive to that possibility. But that power can only be exercised
“before the expiry of the period
of suspension”.
[43]
[42]
A court does not have the power to vary a
suspension order once the suspension period has lapsed.
Minister of Social Development
makes this plain:
“
Ntuli
and
Zondi
make
clear that the boundary of a court’s power lies at the
expiration of the suspension order. Before the expiration
of
the suspension order, the provision has not yet been declared invalid
and a court retains its power under s 172(1)(b)(ii)
to make a
just and equitable order suspending the declaration of invalidity or
extending an existing suspension. However,
once the suspension
period lapses, the provision is invalid and a court’s
suspension power under s 172(1)(b)(ii) has
ended. The time
of suspension and extension ceases, and the realm of revival and
resuscitation begins. In short, the
Constitution grants a court
the power to suspend an order of constitutional invalidity. It
does not grant a court the power
to revive a law that has already
become invalid.”
[44]
[43]
The Court went on to detail the rationale
behind this “time bar”:
“
There
are important reasons of constitutional principle underlying the
conclusion that a court is not empowered to resuscitate legislation
that has been declared invalid. To do so, a court would, in
effect, legislate. Such an exercise would offend both the
separation of powers principle, in terms of which lawmaking powers
are reserved for the Legislature, and the principle of constitutional
supremacy, which renders law that is inconsistent with the
Constitution invalid.
In
this case, the period of suspension expired on 5 March 2006. At
the moment the suspension expired, this Court’s declaration
of
invalidity took effect. Having declared the presidential
proclamation invalid, this Court reached the boundary of its
power.
This Court cannot turn back time to ‘retrospectively
extend’ a suspension order that no longer exists.
We
cannot revive the invalid proclamation.”
[45]
[44]
By logical extension courts’ powers
in respect of retrospectivity under section 172(1)(b)(i) must
similarly be restricted.
The period of suspension expired at
midnight on 14 August 2013. Once the suspension period expired,
the Regulations were
invalid retrospectively. The Regulations
have been invalid for over a year and a half. The Court cannot
now limit retrospectivity
as that would amount to reviving the
Regulations.
[45]
Further,
should a second court be allowed to limit retrospectivity after the
fact it will amount in substance to the powers of section
172(1)(a)
and (b) being utilised disjunctively.
Ntuli
found that the powers in section 172 could not be exercised at
different moments in time.
[46]
Zondi
,
explaining what was meant in
Ntuli
,
reasoned as follows:
“
What
the Court held is that it is impermissible for a court to make a
declaration of invalidity without making an order suspending
the
declaration of invalidity, and then later, in different proceedings,
to make an order suspending the declaration of invalidity.
The
decision stresses two points: first, an order suspending the
declaration of invalidity must be made at the same time
as the
declaration of invalidity; and second,
if
the declaration of invalidity is not suspended
or
the period of suspension has lapsed, a court has no power to suspend
the declaration of invalidity
,
for to do so would be to revive the constitutionality of a provision
that it has already declared invalid.”
[47]
(Emphasis added.)
[46]
Again, by logical inference, if the
original order properly construed does not limit the retrospective
effect of the declaration
of invalidity, then a second court has no
power to limit retrospectivity after the fact.
[47]
The
question now is whether it is in the interests of justice for this
Court to develop the common law and allow for a discretion
to be
exercised. I pause here to note again that the manner in which
this application was pleaded demonstrates the unfavourable
position
that a final appellate court finds itself in where a crucial
submission, in relation to the discretion question, is canvassed
for
the first time during oral submissions. In any event
Zondi
and
Ntuli
hinted at the possibility of this development under the Court’s
inherent powers to regulate its own processes but did not
take a view
on the matter.
[48]
I am
prepared to assume that in an appropriate case another court may
subsequently vary the retrospective effect of a declaration
of
invalidity but this is not an appropriate case.
[48]
The Agency contends that it will not be
able to afford to pay the permit fees collected from 1 April 2011,
the date the Regulations
took effect, until 15 August 2013.
It contends that the refund would amount to R318 988 280.
Road
Services disputes that this is the amount that would be owed and
submits that it is not supported by audited financial statements
or
records of the Agency. Road Services contends that the Agency
misled Makgoka J in the High Court about its financial position
claiming that it was not in a position to repay permit fees when it
in fact had an accumulated surplus. I do not believe
that these
factual discrepancies are relevant to a finding before this Court.
[49]
Makgoka J provided the Minister with a
reasonable opportunity to remedy the defects but the Minister failed
to promulgate new regulations.
The Minister has made no
representations to this Court, filing only a notice of intention to
abide. Moreover, the Minister
has not proffered any
explanation regarding the failure to make use of the period of
suspension, to facilitate the promulgation
of remedial regulations,
before the lapse of the period of suspension. The Agency too
has failed to provide facts in this
regard.
[50]
Although the Agency’s financial
position is unfortunate, the possibility of insolvency has been
brought about by the Agency’s
own actions. It has only
itself to blame. Its plight, which can be remedied, is best
done so by the Executive or the
Legislature and not by the courts.
In any event, if a discretion were to exist it ought only to be
exercised sparingly and
the circumstances warranting such exercise
must be quite compelling indeed. These circumstances are not
present here.
[51]
I now turn to the approach by
Heaton-Nicholls J. It is true, as the Agency contended, that
the Judge was under the impression
that, as the second Court, it had
no discretion to deal with retrospectivity at all.
Heaton-Nicholls J indicated as follows:
“my hands are tied”
as the validity of the Regulations “would automatically kick in
after the expiry of the 6
month period, as a matter of law”.
No doubt it would have assisted clarity if the second Court had
analysed the judgment
of the first Court in order to contextualise
the order, as this Court has now done, but ultimately the second
Court was correct,
it had no discretion to limit the retrospectivity
of the declaration of invalidity after the fact.
Replying
affidavit
[52]
The
applicant attempted to file a replying affidavit with this Court.
The Rules of this Court for good reason do not make
provision for a
replying affidavit to be filed. This Court retains the
discretion to admit further affidavits if it is in
the interests of
justice to do so.
[49]
The replying affidavit relates to the factual dispute between the
parties. This factual dispute is not relevant to
the issues
before this Court and therefore leave to file the replying affidavit
is refused.
Conclusion
[53]
The relief sought by
the Agency is to be refused.
Order
[54]
In the result, the following order is
issued:
1.
Leave to appeal is granted.
2.
Leave to file a replying affidavit is refused.
3.
The appeal is dismissed with costs.
For
the Applicant: W Trengove SC and I Goodman
instructed
by Savage, Jooste and
Adams
Incorporated.
For
the First Respondent: M Chaskalson SC instructed by Marius
Swart
Attorneys.
For
the Amicus Curiae: K Hopkins instructed by Glyn Marais
Incorporated.
[1]
Cross-Border
Road Transport Act, 1998 (Act No. 4 of 1998): Amendment Regulations,
2011, GN R284
GG
34168, 11 March 2011 (Regulations).
[2]
4
of 1998.
[3]
See
section 172 of the Constitution which is set out at [15]. See
also section 173 of the Constitution which is set out
at n 32.
[4]
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
[1995]
ZACC 13
;
1996
(1) SA 984
(CC);
1996 (1) BCLR 1
(CC) (
Ferreira
v Levin
)
at para 26.
[5]
Id
at para 27.
[6]
Id
at para 26.
[7]
Section
98(6).
[8]
Section
172.
[9]
National
Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others
[1998] ZACC 15
;
1999 (1) SA 6
(CC);
1998 (12) BCLR 1517
(CC)
(
National
Coalition
)
at para 84.
[10]
Id
at para 87.
[11]
Executive
Council, Western Cape Legislature, and Others v President of the
Republic of South Africa and Others
[1995] ZACC 8
;
1995 (4) SA 877
(CC);
1995 (10) BCLR 1289
(CC)
(
Executive
Council
).
[12]
Id
at para 106.
[13]
Section 98 provided in part:
“
(5)
In the event of the Constitutional Court finding
that any law or any provision thereof is inconsistent with this
Constitution,
it shall declare such law or provision invalid to the
extent of its inconsistency: Provided that the Constitutional Court
may,
in the interests of justice and good government, require
Parliament or any other competent authority, within a period
specified
by the Court, to correct the defect in the law or
provision, which shall then remain in force pending correction or
the expiry
of the period so specified.
(6)
Unless the Constitutional Court in the interests of justice and good
government orders otherwise, and save to the extent that
it so
orders, the declaration of invalidity of a law or a provision
thereof—
(a)
existing at the commencement of this Constitution, shall not
invalidate anything done or permitted in terms thereof before
the
coming into effect of such declaration of invalidity; or
(b)
passed after such commencement, shall invalidate everything done or
permitted in terms thereof.”
[14]
Executive
Council
above
n 11 at para 107.
[15]
National
Coalition
above
n 9 at para 87 where this Court held: “Under the 1996
Constitution, and in the absence of a contrary
order
by a competent court, nothing more is provided other than that it
has retrospective effect.” (Emphasis added.)
[16]
De
Kock and Others v Van Rooyen
[2004] ZASCA 136
;
2005 (1) SA 1
(SCA) at para 25.
[17]
Id
at para 27 (emphasis added).
[18]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA) at para 18, cited with approval by a
majority of this Court in
National
Credit Regulator v Opperman and Others
[2012] ZACC 29
;
2013 (2) SA 1
(CC);
2013 (2) BCLR 170
(CC) at fn
105. See also
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[2013]
ZASCA 176
;
2014 (2) SA 494
(SCA) at paras 10 2.
[19]
S
v Steyn
[2000] ZACC 24; 2001 (1) SA 1146 (CC); 2001 (1) BCLR 52 (CC).
[20]
Moseneke
and Others v The Master and Another
[2000]
ZACC 27; 2001 (2) SA 18 (CC); 2001 (2) BCLR 103 (CC).
[21]
South
African Association of Personal Injury Lawyers v Heath and Others
[2000] ZACC 22; 2001 (1) SA 883 (CC); 2001 (1) BCLR 77 (CC).
[22]
De
Kock
above n 16 at para 27, where Cameron JA held:
“
The
Court may order (or its order on a proper construction may mean)
that if Parliament does not intervene timeously the declaration
of
invalidity takes effect retrospectively. That does not seem to
me to have been the intention or the effect of the order
in
Steyn
.
There the Court stated expressly that ‘upon the expiry of [the
period of suspension] automatic appeals will be restored’.
In addition, it gave a range of further reasons for suspension.”
(Footnote omitted.)
[23]
Id
at para 25.
[24]
The
“remaining paragraphs” refer to paragraphs 3 to 6 of the
order at [4].
[25]
The
broad discretion provided in section 172 of the Constitution ensures
that a judge can limit retrospectivity for
any
reason
that he or she thinks is just and equitable. That is, the
interpretative exercise does not need to be shaped by concerns
only
for the administration of justice. The Road Freight
Association was granted leave to be admitted as amicus curiae
(a
friend of the court). It made submissions on the retrospective
effect of orders of invalidity in foreign jurisdictions.
In
Sanderson
v Attorney-General, Eastern Cape
[1997]
ZACC 18
;
1998 (2) SA 38
(CC);
1997 (12) BCLR 1675
(CC) at para 26,
this Court acknowledged the benefit of foreign law but also warned
that “the use of foreign precedent
requires circumspection and
acknowledgment that transplants require careful management.”
The foreign jurisdictions
cited by the Road Freight Association
differ from South Africa in two marked respects: They do not have
the express power to
limit retrospectivity built into their
Constitutions and further, in South Africa, that power can be
exercised for any reason
that is “just and equitable”.
These cases were unable to assist this Court as a result.
[26]
Moise
v Greater Germiston Transitional Local Council: Minister of Justice
and Constitutional Development Intervening (Women’s
Legal
Centre as Amicus Curiae)
[2001] ZACC 21; 2001 (4) SA 491 (CC); 2001 (8) BCLR 765 (CC).
[27]
Section
2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local
Authorities) Act 94 of 1970.
[28]
Ex
Parte Women’s Legal Centre: In re Moise v Greater Germiston
Transitional Local Council
[2001]
ZACC 2; 2001 (4) SA 1288 (CC).
[29]
Id
at para 13.
[30]
S
v Molimi
[2008]
ZACC 2
;
2008 (3) SA 608
(CC);
2008 (5) BCLR 451
(CC) at para 49;
Crown
Restaurant CC v Gold Reef City Theme Park (Pty) Ltd
[2007] ZACC 2
;
2008 (4) SA 16
(CC);
2007 (5) BCLR 453
(CC) at para
5;
Du
Toit v Seria
[2006] ZACC 25
;
2006 (8) BCLR 869
(CC) at paras 4-5; and
Lane
and Fey NNO v Dabelstein and Others
[2001] ZACC 14
;
2001 (2) SA 1187
(CC);
2001 (4) BCLR 312
(CC) at
para 5.
[31]
Everfresh
Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd
[2011] ZACC 30
;
2012 (1) SA 256
(CC);
2012 (3) BCLR 219
(CC) at
paras 51-2.
[32]
Section
173, entitled “Inherent power”, provides:
“
The
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa each has the inherent power to protect
and regulate
their own process, and to develop the common law, taking into
account the interests of justice.”
[33]
See
Mpofu
v Minister for Justice and Constitutional Development and Others
[2013] ZACC 15
;
2013 (2) SACR 407
(CC);
2013 (9) BCLR 1072
(CC) at
para 14, referring to the civil case of
Evins
v Shield Insurance Co Ltd
1980 (2) SA 814
(A). See also
Ka
Mtuze v Bytes Technology Group South Africa (Pty) Ltd and Others
[2013] ZACC 31
;
2013 (12) BCLR 1358
(CC) at para 18.
[34]
Firestone
South Africa (Pty.) Ltd. v Genticuro A.G.
1977
(4) SA 298
(A) (
Firestone
)
at 306F-G.
[35]
Minister
of Justice v Ntuli
[1997] ZACC 7
;
1997 (3) SA 772
(CC);
1997 (6) BCLR 677
(CC) at para
29.
[36]
Id
at paras 22-6 and
Firestone
above
n 34 at 306G-308A. See also
Zondi
v
Member of the Executive Council for Traditional and Local Government
Affairs and Others
[2005]
ZACC 18; 2006 (3) SA 1 (CC); 2006 (3) BCLR 423 (CC).
[37]
See
Ntuli
id at paras 22-3 and
Firestone
id at 309A.
[38]
Zondi
above n 36 at paras 34-5.
[39]
Ex
Parte Minister of Social Development and Others
[2006]
ZACC 3
;
2006 (4) SA 309
(CC);
2006 (5) BCLR 604
(CC) (
Minister
of Social Development
).
[40]
See
also
Minister
of Justice and Constitutional Development v Nyathi and Others
[2009]
ZACC 29
;
2010 (4) SA 567
(CC);
2010 (4) BCLR 293
(CC) where the
Minister of Justice and Constitutional Development applied for an
extension one day before the expiry of the suspension
order. A
limited extension order was granted. In
Minister
of Communications v Ngewu and Others
[2013]
ZACC 44
;
2014 (3) BCLR 364
(CC) the Minister urgently applied for an
extension of the suspension period three days before it was due to
expire. This
Court, relying on
Minister
of Transport and Another v Mvumvu and Others
[2012]
ZACC 20
;
2012 (12) BCLR 1340
(CC), where it was held that a
suspension period would only be extended if it was just and
equitable to do so, concluded that
it would not be just and
equitable to provide for an extension of the suspension period.
[41]
Zondi
above
n 36 at para 38.
[42]
Id
at para 40, see also paras 44-5.
[43]
Id
at para 40.
[44]
Minister
of Social Development
above n 39 at para 38.
[45]
Id
at paras 39-40.
[46]
Ntuli
above n 35 at para 25 held:
“
In
my view subparas (a) and (b) of s 172(1) should not be read
disjunctively so as to permit a Court to order that a declaration
of
invalidity may be suspended in different proceedings to those in
which the declaration of invalidity is made. They should
rather be read together to mean that when a Court declares a
statutory provision inconsistent with the Constitution to be
invalid,
as it is required to do, it may also suspend that order if
there are good reasons for doing so.”
[47]
Zondi
above n 36 at para 43.
[48]
Id
at para 36 and
Ntuli
above n 35 at para 27.
[49]
See
rule 19 of the Rules of this Court read with
Ka
Mtuze
at
para 15 and
Oriani-Ambrosini,
MP v Sisulu, MP, Speaker of the National Assembly
[2012] ZACC 27
;
2012 (6) SA 599
(CC);
2013 (1) BCLR 14
(CC) at para
16.