Zantsi v Council of State, Ciskei and Others

Zantsi was dismissed from the Ciskei Defence Force on 22 April 1991. He was barred from instituting action for wrongful dismissal due to failure to comply with section 71 of the Defence Act 17 of 1986 (Ciskei), which required civil proceedings to be instituted within six months. In June 1993, Zantsi applied to the Ciskei Provincial Division to have section 71 declared unconstitutional on the basis that it conflicted with article 1(2) of the Ciskei Bill of Rights (Schedule 6 to the Republic of Ciskei Constitution Decree 45 of 1990), which provided that "all persons shall be equal before the law." The application was heard after 10 June 1994, by which time the three respondents (Council of State, Chairman of the Council of State, and Minister of Defence, Ciskei) no longer existed following the transition to the 1993 Constitution. The Ciskei Provincial Division (Pickard JP and Heath J) declared section 71 unconstitutional but also referred a jurisdictional question to the Constitutional Court under section 102(8) of the 1993 Constitution.

• Whether provincial and local divisions of the Supreme Court have jurisdiction to inquire into the constitutionality of Acts passed by the legislatures of South Africa (pre-1994) and the TBVC States before the commencement of the 1993 Constitution
• What is the meaning of 'Act of Parliament' in sections 98(2)(c) and 101(3)(c) of the 1993 Constitution
• Whether section 101(2) entrenches the Supreme Court's inherent jurisdiction to review Acts of Parliament
• Whether section 102(8) was properly invoked to refer this jurisdictional issue to the Constitutional Court

The Constitutional Court answered the referred question as follows: (1) A provincial or local division has no jurisdiction to inquire into the constitutionality of an Act of Parliament passed by the South African Parliament, irrespective of whether such Act was passed before or after the commencement of the 1993 Constitution. (2) A provincial or local division of the Supreme Court has jurisdiction under section 101(3)(c) to inquire into the constitutionality of any law passed or made by any of the legislatures of the former TBVC States applicable within its jurisdiction.

The ratio decidendi consists of the following binding principles: (1) 'Act of Parliament' in sections 98(2)(c) and 101(3)(c) of the 1993 Constitution means an Act passed by the South African Parliament (sitting in Cape Town), whether before or after commencement of the Constitution, and does not include laws passed by TBVC legislatures. (2) The Constitutional Court has exclusive jurisdiction under section 98(3) read with section 98(2)(c) to inquire into the constitutionality of Acts of Parliament. (3) Section 101(2)'s entrenchment of the Supreme Court's inherent jurisdiction is 'subject to this Constitution' and therefore subordinate to sections 98(2) and 98(3). The phrase 'subject to' establishes what is dominant and what is subordinate; in case of conflict, that to which a provision is 'subject' prevails. (4) The inherent jurisdiction entrenched in section 101(2) does not include the power to review Acts of Parliament, as such power would conflict with the Constitutional Court's exclusive jurisdiction under section 98(3). (5) Section 101(3)(c) confers jurisdiction on provincial and local divisions to inquire into the constitutionality of 'any law...other than an Act of Parliament,' and this exclusion is absolute—it does not modify the Constitutional Court's exclusive jurisdiction over Acts of Parliament. (6) Provincial and local divisions have jurisdiction under section 101(3)(c) to inquire into the constitutionality of laws passed by TBVC legislatures, as these do not constitute 'Acts of Parliament.'

Chaskalson P's concurring judgment contains important obiter dicta on the use of section 102(8): (1) Courts should ordinarily not anticipate constitutional questions in advance of necessity or formulate constitutional rules broader than required by the precise facts—a principle drawn from US jurisprudence but applicable in South Africa. (2) This principle is consistent with section 102 of the Constitution and the decision in S v Mhlungu, which held that where it is possible to decide a case without reaching a constitutional issue, that course should be followed. (3) Section 102(8) applies only to cases that have been disposed of and should be invoked only in exceptional circumstances where there is compelling public interest requiring the reference. (4) It is not ordinarily desirable for a court to give rulings in the abstract on issues not subject to actual controversy and only of academic interest. Section 102(8) should not be invoked to refer issues that were not relevant to the case that had to be decided. (5) The Court noted (but did not decide) that it was unclear when a matter can be said to have been 'disposed of' within the meaning of section 102(8), particularly where an appeal might be noted. Trengove AJ noted (obiter) agreement with Didcott J's comments in Bux v Officer Commanding regarding the purpose of section 98(3), though expressly not expressing opinion on interim relief disputes. The Court also noted that the question of whether the Supreme Court's inherent jurisdiction before the Constitution included power to review Acts of Parliament need not be definitively decided, as the answer did not affect the outcome.

This case is foundational for understanding the jurisdictional architecture established by the 1993 Interim Constitution regarding constitutional review. It definitively establishes the Constitutional Court's exclusive jurisdiction to review Acts of (South African) Parliament and clarifies the division of jurisdiction between the Constitutional Court and other divisions of the Supreme Court. The judgment addresses critical questions about constitutional continuity and the status of pre-constitutional legislation. It affirms the Constitutional Court's role as the apex court for constitutional matters and guardian of the Constitution. The case also establishes important principles about the interpretation of jurisdictional provisions and the interaction between sections 98 and 101 of the 1993 Constitution. Chaskalson P's judgment provides guidance on the proper use of section 102(8) referrals and endorses the principle of constitutional avoidance (deciding cases without reaching constitutional issues where possible). The case demonstrates the Court's methodical approach to constitutional interpretation, emphasizing textual analysis, purposive interpretation, and consideration of the constitutional scheme as a whole.