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[2016] ZACC 26
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Minister of Agriculture, Forestry and Fisheries v National Society for the Prevention of Cruelty to Animals (CCT186/16) [2016] ZACC 26; 2016 (11) BCLR 1419 (CC) (25 August 2016)
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 186/16
In the matter
between:
MINISTER OF
AGRICULTURE, FORESTRY
AND
FISHERIES
Applicant
and
NATIONAL SOCIETY
FOR THE
PREVENTION
Respondent
OF CRUELTY TO
ANIMALS
Neutral citation:
Minister of Agriculture, Forestry and Fisheries v National Society
for the Prevention of Cruelty to Animals
[2016] ZACC 26
Coram:
Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo
J
Judgment:
The
Court (unanimous)
Decided on:
25 August 2016
Summary:
Extension of period of suspension of order of invalidity —
factors to consider when granting an extension — caution
to be exercised in continually extending court orders — urgency
and potential prejudice established
ORDER
The following order
is made:
1. Paragraph 2 of the order of this Court dated 11 July 2013
in
National Society for the Prevention of Cruelty to Animals v
Minister of Agriculture, Forestry and Fisheries and Others
[2013]
ZACC 26
;
2013 (5) SA 571
(CC);
2013 (10) BCLR 1159
(CC) is varied so
that the period of suspension of the order of invalidity is extended
from 27 August 2016 until 31 July 2017.
2. There is no order as to costs.
JUDGMENT
THE COURT (Mogoeng
CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Madlanga J, Mbha AJ, Mhlantla J, Musi
AJ and Zondo J concurring):
Introduction
[1] The
applicant, the Minister of Agriculture, Forestry and Fisheries
(Minister), brings urgent proceedings requesting a
third extension of
a suspended order of invalidity made by this Court on
11 July 2013.
[1]
The current application was lodged on 4 August 2016.
The suspension of the order of invalidity lapses on
Saturday,
27 August 2016.
[2]
The Minister urges the Court to further extend the suspension for six
months or for a longer period this Court considers
reasonable.
[3]
As was the case in
NSPCA III
, the respondent, the National
Society for the Prevention of Cruelty to Animals (NSPCA), has neither
opposed nor responded to the
application.
[4]
Background
[2] In a
judgment handed down on 15 November 2012, the North Gauteng
High Court, Pretoria (High Court)
[5]
declared sections 2 and 3 of the Performing Animals Protection Act
[6]
(Act) unconstitutional.
[7]
The Court held that these provisions, insofar as they required a
Magistrate to determine applications and issue licenses
for the
training, exhibition or use of animals, were constitutionally invalid
as they unjustifiably infringed the doctrine of separation
of
powers.
[8]
[3] The High
Court held that the function of issuing licenses and certificates, as
envisaged in sections 2 and 3 of the Act,
were “executive or
administrative functions which have nothing to do with the core
judicial functions of Magistrates”.
[9]
The Court emphasised that legislation “that tends to undermine
or confuse separation of powers” is inconsistent
with the
Constitution.
[10]
Since section 165(1) of the Constitution vests judicial
authority only in the courts,
[11]
sections 2 and 3 of the Act were invalid insofar as they threatened
the independence of the Judiciary by obliging Magistrates to
perform
executive or administrative functions.
[12]
[4] This Court
confirmed the declaration of invalidity on 11 July 2013.
[13]
In fashioning a remedy, the Court suspended the order of invalidity
for 18 months from the date of handing down the judgment
to allow
Parliament an opportunity to remedy the constitutional defects
(July 2013 order).
[14]
Before the 18 months expired, the Minister successfully applied
urgently for an extension.
[15]
In an order issued on 27 November 2014, this Court amended
paragraph 2 of the July 2013 order to extend
the period of
suspension of the order of invalidity until 12 July 2015
(November 2014 order).
[16]
[5] On
6 July 2015, the Minister urgently applied for a further
extension. This was because it was practically
impossible to
meet the new deadline the November 2014 order set. The
Minister then requested that the order of invalidity
be further
suspended from 12 July 2015 until 12 July 2016.
Following a temporary suspension until 28 August 2015,
this
Court granted a further extension until 27 August 2016.
[17]
The August 2016
application
[6] The
Minister now requests a third extension. The November 2014
application was lodged about two months before
the suspension
expired. The current application was filed a mere three weeks
before the deadline expired. The July 2015
application was
instituted only one week before expiry. Whether this Court
should grant a third extension depends on, amongst
other things, the
reasons for the delay in failing to remedy the constitutional defects
of the Act,
[18]
as well as the fairness of and need for a further extension.
[19]
Reasons for the
delay
[7] The
Minister
[20]
sets out the various steps undertaken in the process of amending the
offending legislation. He then identifies the fundamental
reason for the delay in remedying the statute ‒ when the
National Council of Provinces (NCOP) voted on the Performing Animals
Protection Amendment Bill (Bill), insufficient delegates were
present. So the necessary quorum was lacking.
[8] Section
75(2) of the Constitution provides:
“
When the National Council of Provinces votes on a
question in terms of this section, section 65 does not apply;
instead—
(a)
each delegate in a provincial delegation has one vote;
(b)
at least one third of the delegates must be present before a vote may
be taken on the question; and
(c)
the question is decided by a majority of the votes cast, but if there
is an equal number of votes on each side of the question,
the
delegate presiding must cast a deciding vote.”
In a letter dated
7 June 2016 addressed to the President, the Leader of the
Opposition in the NCOP, Honourable Elza van
Lingen MP, noted that
there were fewer than 30 delegates present on 25 May 2016
when the NCOP plenary voted on the Bill.
This was fewer than
the required quorum of one-third of the NCOP’s ninety members.
Since this was so, the President
was requested not to assent to the
Bill. This was because “[a]ny further steps taken to pass
the Bill into law without
it first being referred back to the NCOP to
be legitimately voted on would amount to an abuse of process and
would fundamentally
violate the Constitution”.
[9] On
5 July 2016, the President in response wrote to the Speaker
of the National Assembly (Speaker) seeking advice
as to the
appropriate course of action to follow to cure the potential
unconstitutionality arising from the NCOP vote. At
the time the
current application was filed, there had been no response to the
President’s letter. The President then addressed
a further
letter to the Speaker on 8 August 2016. Here, he
expressed the view that the procedure in section 75(2)
of the
Constitution and Rule 61 of the NCOP’s Rules was not adhered to
by the NCOP.
[21]
The President therefore decided not to assent to the Bill, but rather
to refer it back to the National Assembly.
[10] The Minister
states that the time required to cure the defect in the voting of the
Bill is not certain. What is certain
is that additional time is
required.
Urgency
[11] In grounding
urgency, the Minister submits that, although it was apparent from as
early as 11 July 2016 that a further
extension was
required, certain internal protocols had to be met before this
application could be lodged. The Minister seems
to accept that
the explanation is rather weak. He ought to have been aware
from as early as 7 June 2016 ‒
when the petition was
addressed to the President – or, at the very latest,
5 July 2016 – when the President
wrote to the Speaker
‒ that a further extension would be required. Had
immediate action been taken, both adherence
to internal protocols and
a timely application would have resulted.
[12] The late filing
of the application is regrettable. Even so, the matter is
plainly urgent ‒ the suspension of the
order of invalidity is
due to lapse on 27 August 2016.
Principles
[13] In
Zondi
,
[22]
this Court reiterated that the power of this Court to vary an order
must be determined with reference to section 172(1) of the
Constitution, which includes the power to make an order that is “just
and equitable”.
[23]
Relying on section 172(1) of the Constitution, Ngcobo J
held that—
“
this Court not only has the power but also has
the obligation under its just and equitable jurisdiction to vary that
period of suspension
and the conditions attached to the suspension,
if necessary, to reflect the justice and equity required by the facts
of the case.”
[24]
[14] The power to
vary a suspended order of invalidity thus flows from the Constitution
and “falls to be dealt with under
[this] Court’s power to
make an order that is just and equitable.”
[25]
Since new facts and circumstances may emerge during a period of
suspension, this Court retains the power (during the suspended
period) to vary both the duration of the suspension and any
conditions attaching thereto.
[26]
[15] In
Teddy
Bear Clinic II
,
[27]
this Court emphasised that a just and equitable remedy includes an
order suspending a declaration of invalidity to allow Parliament
an
opportunity to cure the constitutional deficiencies. Nkabinde J
pointed out that “when Parliament fails to
correct the defects
during the period of suspension, an application requesting an
extension must be made before the suspension
period expires”.
[28]
[16] What is just
and equitable depends on the facts of each case.
[29]
In determining this, several factors must be taken into
account: the sufficiency of the explanation provided for failing
to
comply with the original (or extended) period of suspension; the
potential prejudice that is likely to follow if an extension
is or is
not granted; the prospects of curing the constitutional defects
within the new deadline; the need to bring finality to
litigation;
and the need to promote the constitutional project and ensure
effective state administration.
[30]
[17] A careful
balancing of the relevant factors is required,
[31]
bearing in mind that the discretionary power of a court to vary its
orders should be “very sparingly exercised, for public
policy
demands that the principle of finality in litigation should generally
be preserved rather than eroded”.
[32]
In particular, an extension cannot just be had for the asking.
[33]
Application of
the factors
[18] Is the
explanation advanced by the Minister for the delay legitimate? Yes.
The lack of quorum in the NCOP when
the Bill was voted on is
not the Minister’s fault – nor something he could have
foreseen or anticipated. And
the constitutional issue is
serious, since the inquorate plenary in the NCOP could invalidate the
Bill in its entirety. Indeed,
as is apparent from the petition
addressed to the President, should the President assent to the Bill
before these issues are resolved,
this might be in violation of
section 75(2) of the Constitution and may render the Bill
unconstitutional.
[19] And, as we
indicated last time, public order and state administration will be
disrupted if a further extension is not
granted
. This is because, as the
Minister
submits, absent sections 2 and 3 of the Act, no authority will
be vested with the power to issue or renew licenses. Orderly
state administration will be severely implicated if no authority is
able to issue licenses in relation to these provisions.
This
will lead to prejudice on the part of both potential applicants and
existing license holders.
[34]
It is no doubt for this reason that the NSPCA did not oppose the
previous extension applications, and does not oppose this.
[20] The potential
prejudice (if any) if the period of suspension is further extended is
far less than the prejudice that would
result if the further
extension were denied. This is buttressed by the fact that this
Court left intact sections 2 and 3
of the Act pending Parliament’s
intervention to cure the unconstitutionality of these provisions.
[35]
[21] Of course, the
need to attain finality in the process cannot be gainsaid. As
emphasised in
Zondi
, it is “an important consideration
too. It engenders confidence in the rule of law and,
ultimately, in the judicial
process.”
[36]
Counter-balancing this is the need to promote the constitutional
project. This includes allowing Parliament an opportunity
to
cure legislative deficiencies in a constitutionally compliant
manner.
[37]
Just and
equitable to grant a further extension
[22] In
Nyathi
,
[38]
this Court noted that the state is under a constitutional obligation
to pass legislation within specific time frames.
[39]
In emphasising that extensions of orders of invalidity should not be
granted lightly, Mokgoro J invoked the founding
values of
constitutional supremacy and the rule of law:
[40]
“
One of the fundamental values in the Constitution
gives express recognition to South Africa as a constitutional
democracy founded
on the supremacy of the Constitution and the rule
of law. The Constitution also provides that no person or organ
of State
shall interfere with the functioning of the courts. It
stipulates that organs of State have a duty to assist and protect the
courts to ensure, amongst other imperatives, the dignity and
effectiveness of the courts. Similarly, the Constitution
provides
that an order or decision by a court binds all persons to
whom and organs of State to which it applies. The Constitution
further places an obligation upon the public administration, which
encompasses a value-based public service, to be accountable.”
[41]
[23] Bearing this in
mind, the rule of law requires adherence to and observance of a court
order by “all persons to whom and
organs of state to which it
applies”.
[42]
Caution must be exercised in continually granting extensions to
suspended orders of invalidity.
[43]
We underscore that extensions will not be granted simply as a matter
of course or at the last minute.
[44]
As Zondo J has stated, “an order extending the period of
suspension of the operation of an order of invalidity cannot
be had
for the asking”.
[45]
[24] But there is a
good explanation for the unusual number of extensions here, as well
as for this further extension. It
is necessary, and just and
equitable, to grant the Minister additional time to remedy the
impugned provisions.
[25] The Minister
asked this Court to extend the period of suspension for six months or
for a period of time it considers reasonable.
To ensure that
Parliament has enough time to remedy the defects in the NCOP voting,
it seems appropriate to extend the period
of suspension of the order
of invalidity to 31 July 2017.
[26] Given that this
is the third extension (and more than three years since the original
declaration of invalidity), it need hardly
be said that further
requests may encounter more stormy waters.
Order
[27] The following
order is made:
1. Paragraph 2 of the order of this Court on 11 July 2013
in
National Society for the Prevention of Cruelty to Animals v
Minister of Agriculture, Forestry and Fisheries and Others
[2013]
ZACC 26
;
2013 (5) SA 571
(CC);
2013 (10) BCLR 1159
(CC) is varied so
that the period of suspension of the order of invalidity is extended
from 27 August 2016 until 31 July 2017.
2. There is no order as to costs.
For the
Applicant: The
State Attorney.
[1]
NSPCA v Minister of Agriculture, Forestry and
Fisheries, and Others
[2013] ZACC 26
;
2013
(5) SA 571
(CC);
2013 (10) BCLR 1159
(CC) (
NSPCA
II
) at para 43.
[2]
Minister of Agriculture, Forestry and
Fisheries v National Society for the Prevention of Cruelty to
Animals
[2015] ZACC 27
;
2015 (11) BCLR 1387
(CC) (
NSPCA III
) at
para 14.
[3]
The Minister requested an extension until 31 October 2016,
alternatively for six months or for such longer period as
this Court
considers reasonable.
[4]
See para 1 of
NSPCA III
above n 2 which states that the respondent did not oppose the
application requesting the second extension of the suspended order
of invalidity.
[5]
Now known as the High Court of South Africa, Gauteng Division,
Pretoria.
[6]
24 of 1935.
[7]
National Society for the Prevention of
Cruelty to Animals v Minister of Agriculture, Forestry and Fisheries
and Others
[2012] ZAGPPHC 329 (
NSPCA
I
) at para 46.
[8]
Id at para 27. Legodi J declared sections 2 and 3 of the Act
constitutionally invalid insofar as they required a Magistrate
to
issue licenses for the exhibiting or training of performing animals
or for the use of dogs in safeguarding. The declaration
of
constitution invalidity was said to have no effect until confirmed
by the Constitutional Court.
[9]
Id at para 27.
[10]
Id at para 20.
[11]
Section 165(1) of the Constitution provides: “The judicial
authority of the Republic is vested in the courts.”
[12]
NSPCA I
above n 7 at
paras 19 and 27.
[13]
NSPCA II
above n 1 at
para 43.
[14]
Id.
[15]
NSPCA III
above n 2
at para 4.
[16]
After considering the request for a further six month extension of
the suspended order, the Court concluded that sound reasons
existed
for granting the extension.
[17]
NSPCA III
above n 2
at para 14.
[18]
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
) at para 50(g) where Ngcobo J
(in a concurring judgment) stated that:
“
The explanation for failure to correct the
constitutional defect within the time limit set out in the court
order must be set
out fully, candidly, timeously and in a manner
that conforms with the Rules of the Court.”
[19]
NSPCA III
above n 2
at para 9 where Zondo J stated that:
“
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.”
[20]
The Minister is Mr Senzeni Zokwana.
[21]
Rule 61 of the Rules of the National Council of Provinces 9
th
Edition (NCOP’s Rules) states:
“
(1) When a question before the Council is to be
decided by the votes of individual members and fewer than one third
of the members
are present when the vote is to be taken, the bells
must be rung for three minutes.
(2) If at least one third are still not present after
the bells have been rung, the presiding officer must postpone the
decision
of the question.”
[22]
Zondi v MEC, Traditional and Local Government
Affairs, and Others
[2005] ZACC 18
;
2006 (3)
SA 1
(CC);
2006 (3) BCLR 423
(CC) (
Zondi
).
[23]
Id at para 38. Section 172(1) of the Constitution states:
“
When deciding a constitutional matter within its
power, a court—
(a) must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency;
and
(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.”
[24]
Zondi
above n 22 at
para 39.
[25]
Id at paras 44-6. In
Firestone South
Africa (Pty) Ltd v Genticuro AG
1977 (4) SA
298
(A) (
Firestone
)
at 306F-G, the Court canvassed the common law principles governing a
court’s authority to vary its orders:
“
The general principle, now well established in
our law, is that, once a court has duly pronounced a final judgment
or order, it
has itself no authority to correct, alter or supplement
it. The reason is that it thereupon becomes
functus
officio
: its jurisdiction in the case having been fully and
finally exercised, its authority over the subject-matter has
ceased.”
[26]
Zondi
above n 22 at
para 39.
[27]
Acting Speaker of the National Assembly v
Teddy Bear Clinic for Abused Children and Another
[2015]
ZACC 16
;
2015 (10) BCLR 1129
(CC) (
Teddy Bear
Clinic II
).
[28]
Id at para 11.
[29]
Zondi
above n 22 at
para 47.
[30]
Id. See also
Minister of Social
Development
above n 18 at para 50 and
Teddy
Bear Clinic II
above n 27 at para 12.
[31]
Zondi
above n 22 at
para 47.
[32]
Firestone
above n 25
at 309A.
[33]
NSCPA III
above n 2
at para 1.
[34]
See para 11 of
NSCPA III
above n 2, where Zondo J expressed similar concerns when extending
the period of suspension of the order of validity to 27 August 2016.
[35]
NSPCA II
above n 1 at
para 41.
[36]
Zondi
above n 22 at
para 64.
[37]
Id.
[38]
Minister for Justice and Constitutional
Development v Nyathi and Others
[2009] ZACC
29
;
2010 (4) SA 567
(CC);
2010 (4) BCLR 293
(CC) (
Nyathi
).
[39]
Id at para 1.
[40]
Id at para 28. Section 1(c) of the Constitution provides that:
“
The Republic of South Africa is one, sovereign,
democratic state founded on the following values:
(c) Supremacy of the constitution and the rule of law.”
[41]
Nyathi
above n 38 at
paras 28-9.
[42]
Section 165(5) of the Constitution provides: “An order or
decision issued by a court binds all persons to whom and organs
of
state to which it applies.”
[43]
NSCPA III
above n 2
at para 1.
[44]
Minister of Social Development
above
n 18 at para 50(h), where Ngcobo J stated that “it should not
be presumed that an extension of the period will be
granted as a
matter of course and in the public interest.”
[45]
NSPCA III
above n 2
at para 1.