Member of the Executive Council for Development Planning and Local Government in the Provincial Government of Gauteng v The Democratic Party and Others

In May 1997, the Eastern Metropolitan Substructure of the Greater Johannesburg Transitional Metropolitan Council held a vote on its budget for the forthcoming financial year. A majority of members voted in favor, but not a two-thirds majority. This created a dispute: section 16(5) of the Local Government Transition Act (LGTA) required a two-thirds majority for budget approval, while section 160(3)(b) of the 1996 Constitution required only a simple majority. The Council and the appellant (the MEC) brought an urgent application in the Witwatersrand High Court seeking a declaration that a simple majority was sufficient. Snyders J dismissed the application, holding that item 26(2) of Schedule 6 of the 1996 Constitution insulated sections 16(5) and (6) of the LGTA from constitutional review until 30 April 1999. The appellant sought leave to appeal directly to the Constitutional Court, which was granted.

• Whether section 16(5) of the LGTA, requiring a two-thirds majority for municipal budget approval, is inconsistent with section 160(3)(b) of the 1996 Constitution, which requires only a simple majority
• The proper interpretation and effect of item 26(2) of Schedule 6 of the 1996 Constitution and whether it immunizes section 16(5) from constitutional review
• The appropriate procedure for appeals from the High Court to the Constitutional Court in constitutional matters under the 1996 Constitution
• Whether a court can grant relief based on a finding of invalidity of legislation without making a formal declaration of invalidity
• Whether section 16(5) violates principles of democratic government, autonomous local government, transparency, and separation of powers

The appeal was dismissed with costs, including costs for two counsel. Section 16(5) of the LGTA was held to be constitutionally valid and applicable until 30 April 1999.

When the Constitution perpetuates a transitional arrangement in Schedule 6 that appears to conflict with a substantive provision in the body of the Constitution, both provisions must be read together and harmonized in context of the Constitution as a whole. A transitional provision specifically protected from repeal and authorized to operate during a defined transition period (in this case, section 16(5) of the LGTA protected by item 26(2) of Schedule 6 until 30 April 1999) is not inconsistent with a substantive constitutional provision (section 160(3)(b)) that applies after the transition period. The two provisions apply sequentially, not simultaneously, and are therefore compatible. The Constitution contemplates that the "new constitutional order" will be established comprehensively at the end of the transition, not piecemeal. When a party seeks relief based on the invalidity of legislation, a formal declaration of invalidity must be sought in accordance with section 172 of the Constitution; it is impermissible to obtain consequential relief based on an assumed or implicit finding of invalidity without a formal declaration subject to confirmation by the Constitutional Court.

Chaskalson P made important observations on the procedure for appeals in constitutional matters under the 1996 Constitution, noting that different considerations apply to direct appeals versus direct access applications. Direct appeals bypass only one level of appeal and come with the benefit of a High Court judgment, reducing concerns about this Court sitting as a court of first and last instance. The interests of justice analysis for direct appeals should consider: the importance of constitutional issues, time and cost savings, urgency, prospects of success, disadvantages of bypassing the Supreme Court of Appeal, and the Court's workload. Where only constitutional issues are involved, direct appeal may often be appropriate. Yacoob J observed that section 172(1) obliges courts to declare invalid any law inconsistent with the Constitution, and section 172(2)(a) provides that invalidity declarations by lower courts have "no force" until confirmed by the Constitutional Court. Allowing relief based on implicit invalidity findings would create uncertainty about legislative status, risk unequal application of the law, and potentially lead to provisions being valid for some litigants but not others, contrary to principles of legal certainty. The judgment also clarified that the second certification judgment did not recognize a principle that transitional provisions could violate the Constitution or constitutional principles; rather, it held that certain transitional provisions were consistent with those principles.

This case is significant for establishing important principles regarding transitional constitutional arrangements in South Africa. It clarifies that transitional provisions in Schedule 6 of the Constitution must be read harmoniously with substantive constitutional provisions, and that measures applicable during transition may differ from the "new constitutional order" without being inconsistent with the Constitution. The judgment establishes that all provisions must be read in context of the Constitution as a whole, not in isolation. It confirms that transitional provisions cannot be immunized from constitutional review, but may operate during a limited period despite apparent conflicts with other constitutional provisions if the Constitution itself so provides. The case also provides guidance on appeals procedures in constitutional matters and the requirement for formal declarations of invalidity under section 172 of the Constitution.