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[2015] ZACC 27
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Minister of Agriculture, Forestry and Fisheries v National Society for the Prevention of Cruelty to Animals (CCT 122/15) [2015] ZACC 27; 2015 (11) BCLR 1387 (CC) (28 August 2015)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 122/15
DATE:
28 AUGUST 2015
In the matter
between:
MINISTER OF
AGRICULTURE,
FORESTRY
....................................................................
Applicant
AND FISHERIES
And
NATIONAL SOCIETY
FOR
THE
.......................................................................................
Respondent
PREVENTION OF
CRUELTY TO ANIMALS
Neutral citation:
Minister
of Agriculture, Forestry and Fisheries v NSPCA
[2015]
ZACC 27
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J,
Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der
Westhuizen J, Wallis
AJ and Zondo J
Judgments:
Zondo J
Decided on:
28 August
2015
Summary:
Extension
of suspension of order of invalidity — depends on what is just
and equitable — Court takes into account various
factors,
including steps taken to comply with original deadline for curing
defect — explanation why that period was not enough
—Prejudice
to the public— Court to be approached timeously —suspension
of order of invalidity extended
ORDER
The following order
is made:
The order suspending
the operation of the order of constitutional invalidity made by this
Court on 11 July 2013 concerning sections
2 and 3 of the Performing
Animals Protection Act 24 of 1935, as amended, is hereby extended
from 28 August 2015 to 27 August 2016.
JUDGMENT
ZONDO J (Mogoeng
CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J,
Matojane AJ, Nkabinde J, Van der Westhuizen
J and Wallis AJ
concurring):
Introduction
[1]
This is an application by the
Minister of Agriculture, Forestry and Fisheries (Minister or
applicant) for an order extending the
period of suspension of
operation of an order of invalidity that was made by this Court on 11
July 2013.
[1]
This application was launched as an urgent application on 6 July
2015. The suspension was due to lapse on 12 July 2015.
After receipt of the application, as a holding measure, we extended
the suspension to 28 August 2015. The Chief Justice
simultaneously issued directions affording the respondent an
opportunity to deliver opposing affidavits, if so advised, and for
both the applicant and the respondent to deliver written submissions
by fixed dates. The respondent did not deliver any opposing
affidavits or written submissions. This being the case, the
application must be determined as an unopposed application.
I
hasten to say that the fact that the application is not opposed does
not relieve this Court of its obligation to satisfy itself
that there
is a proper basis for it. This is because an order extending the
period of suspension of the operation of an order of
invalidity
cannot be had for the asking.
Background
[2]
The founding affidavit in support of
this application was deposed to by Mr Tembile Songabe who is the
Director: Veterinary
Public Health in the Department of Agriculture,
Forestry and Fisheries in the Department’s offices in Pretoria
(Department).
He says he was duly authorised to depose to the
affidavit and, in support of this, refers to annexure “A”
to his affidavit
dated 29 June 2015. Although annexure “A”
reveals that the Minister approved that this application be brought
to this Court, there is nothing in annexure “A” that
shows that Mr Songabe was authorised to depose to the founding
affidavit. However, I am prepared to assume that he was duly
authorised to do so but simply failed to provide the correct
proof of
his authorisation. I set out below the background to the matter
as it can be gathered from Mr Songabe’s affidavit.
[3]
On 11 July 2013 this Court made an
order confirming a declaratory order previously made by the North
Gauteng High Court, Pretoria
that sections 2 and 3 of the Performing
Animals Protection Act as amended, (PAP Act),
[2]
were constitutionally invalid in so far as they relate to the
requirement that a Magistrate decide applications for, and issue,
licences referred to in those sections. The operation of the
order of invalidity was suspended for a period of eighteen months
from the date of the handing down of the judgment of this Court to
enable Parliament to cure the constitutional defect. The
period
of eighteen months was to expire on 10 January 2015.
[4]
By November 2014 — about two
months or so before the expiry of the deadline — it had become
clear to the Department
that the constitutional defect would not be
cured before the deadline. Accordingly, the applicant brought
an application
in this Court asking for an order extending the period
of suspension of the operation of the order of invalidity for six
months.
It is not necessary for present purposes to deal with
the reasons advanced at that time why the period of eighteen months
had not
been adequate for the defect to be cured. It is enough
to say that on 27 November 2014 this Court granted an order
extending the period of suspension of the operation of the order of
invalidity for a further period of six months from 12 January
2015. That period would expire on 12 July 2015. It is to
be noted that, when the applicant approached the Court for
the first
extension, he did so at least two months before the expiry of the
period of suspension. When he approached this
Court this time,
he did so only one week before the extended deadline. It is
unacceptable for the applicant to have delayed
for so long in
bringing this application.
[5]
On 10 December 2014 the Cabinet
approved the Bill that had been prepared for the purpose of curing
the constitutional defect once
passed and assented to by the
President. On 20 January 2015 the Bill was submitted to the
State Law Advisors for “final
certification”. On 3
March 2015 the Bill was submitted to Parliament in terms of
Parliament’s Joint Rule 159.
On the same day the Bill was
introduced into the National Assembly under Rule 247(58) and was
referred to the relevant Portfolio
Committee.
[6]
On 12 May 2015 the Portfolio
Committee held public hearings on the Bill. On 26 May 2015 the
Parliamentary support staff and
the Department made presentations to
the Portfolio Committee. Whereas the Minister had sought to
amend only sections 2 and
3 of the PAP Act, on 5 June 2015 the
Portfolio Committee took a resolution that it was necessary to amend
other sections as well
as a consequence of the proposed amendments.
The other sections included sections 4, 5 and 7 of the PAP Act.
[7]
Mr Songabe explains that the
Portfolio Committee’s resolution means that more time must be
allowed for the Portfolio Committee
to complete its task on the Bill.
He states that the Committee requires the permission of the
National Assembly before it
can work on amendments of sections in the
PAP Act other than the sections which the Bill was intended to amend
when it was introduced
into the National Assembly.
[8]
He also points out the journey that
the Bill must travel before it can be passed by Parliament and
ultimately assented to by the
President. I do not consider it
necessary to set out all those processes in this judgment. It
suffices to say that,
depending on various factors, the journey can
still be protracted. In this regard I mention that Mr Songabe
has also pointed
out that the Bill was labelled as a section 75 Bill
when it was introduced in Parliament.
[3]
He indicates that, as a section 75 Bill, it will also have to be
referred to the National Council of Provinces.
Principles governing the
extension of suspension orders
[9]
The principles governing
applications for the extension of the suspension of orders of
invalidity have been dealt with in various
decisions of this
Court.
[4]
It is, therefore, not necessary to go into any detailed discussion of
those principles. It suffices to say that the
Court will
consider various factors and determine what would be just and
equitable. If it would be just and equitable to
grant the
extension, the Court should grant it. If it would be just and
equitable to refuse it, the Court should refuse it.
One of the
factors is an explanation as to why the period that was previously
granted by the Court was not adequate to ensure that
the
constitutional defect was cured. Another is whether the
applicant acted diligently in taking steps aimed at ensuring
that the
defect was cured within the period fixed by the Court. The
Court is also required to consider what the consequences
to the
public, Government or Parliament will be if the application for an
extension is dismissed.
Is it just and
equitable to extend the suspension?
[10]
When the applicant first approached
this Court for an extension, an explanation was given as to what had
been done between the time
when the order of invalidity was made and
the time when the application was launched. For purposes of the
present application,
it is not necessary to refer to the steps that
were taken during that period. The steps that are relevant for
present purposes
are the steps that were taken after the grant of the
first extension in November 2014 to the date when the present
application
was launched. What has happened from November 2014
to the date of the launch of this application is set out in
paragraphs
[5] to [8] above and need not be repeated. I am
unable to say that what happened during those months reveals that the
applicant
did not act diligently in pursuit of compliance with the
order of this Court. For that reason, there is nothing in what
happened
during that period that counts against the grant of the
extension order.
[11]
Another factor that must be taken
into account in determining whether an application for an extension
of the period of suspension
of an order of invalidity should be
granted are the possible consequences of a dismissal of such an
application. In the present
case Mr Songabe says that, if the
suspension is not extended, the PAP Act will become unworkable.
He also points out
that it will not be possible to issue new licences
in terms of the PAP Act. The effect will be that those
employing animals
in their business operations, such as security
companies using guard dogs, will be required to have a licence but
there will be
no practical mechanism for them to obtain one. He
states that members of the public who may wish to renew their
licences
will also not be able to renew them. These
consequences weigh heavily with me because, as far as possible, the
public should
be protected from such consequences as they are not to
blame for any delays in the processing of the Bill. A failure
to extend
the suspension will result in an untenable situation.
[12]
I am satisfied that it would be just
and equitable for this Court to extend the suspension of the
operation of the order of invalidity
to give the applicant and
Parliament more time to finalise the Bill, pass it into Act and have
it assented to by the President.
[13]
As to the period by which the
suspension should be extended, the applicant has asked for 12 months
or such period as this Court
may consider reasonable. This
Court initially gave Parliament 18 months within which to cure the
defect. Then it was
asked to add six months which it did.
Now the Court is asked to add a further 12 months. If this
Court extends
the period of suspension by 12 months, by the end of
that period Parliament will have had three years since the
commencement of
the suspension period to cure the defect. In my
view that will have been more than enough time for the Bill to be
passed
into law and assented to by the President if all concerned
give the matter the urgent attention it deserves. The period of
suspension
will be extended by 12 months. In granting this
extension, it need hardly be said that the Court takes the Minister
at his
word regarding the period finally required to pass the Bill
into law.
Order
[14]
The following order is made:
The order suspending
the operation of the order of constitutional invalidity made by this
Court on 11 July 2013 concerning sections
2 and 3 of the Performing
Animals Protection Act 24 of 1935, as amended, is hereby extended
from 28 August 2015 to 27 August 2016.
For the Applicant:
G C Muller SC and M S Mangolele
Instructed by the
State Attorney.
[1]
This Court derives its power to make such an
order from section 172(1)(b)(ii) of the Constitution.
[2]
24 of 1935.
[3]
That is section 75 of the Constitution. A
section 75 Bill is a Bill other than a Bill to which the procedure
set out in
section 74 or 76 applies. Section 74 refers to
Bills amending the Constitution. Section 76 deals with
ordinary Bills
affecting provinces.
[4]
See, for example
:
Acting Speaker of the National
Assembly v Teddy Bear Clinic for Abused Children and Another
[2015] ZACC 16
;
Minister
of Transport and Another v Mvumvu and Others
[2012] ZACC 20
;
2012 (12) BCLR 1340
(CC); and
Ex
Parte
Minister
of Social Development and Others
[2006]
ZACC 3
;
2006 (4) SA 309
(CC);
2006 (5) BCLR 604
(CC).