Marius Kruger v The President of the Republic of South Africa and Others

The President issued two proclamations in July 2006 to bring sections of the Road Accident Fund Amendment Act 19 of 2005 into operation. The First Proclamation (R27, published 19 July 2006) erroneously stated it would bring sections 4, 6, 10, 11 and 12 of the Amendment Act into operation on 31 July 2006, when the President actually intended to bring sections 1, 2, 3, 4 and 5 into operation. The error arose because sections 1-5 of the Amendment Act amended sections 4, 6, 10, 11 and 12 of the main Road Accident Fund Act. Before 31 July 2006, the President realised the error and issued a Second Proclamation (R32, published 31 July 2006) purporting to amend the First Proclamation by substituting references to sections 4, 6, 10, 11 and 12 with references to sections 1, 2, 3, 4 and 5. The applicant, an attorney specializing in personal injury work, challenged the validity of the First Proclamation in the Pretoria High Court, which declared it null and void and referred the matter to the Constitutional Court for confirmation under section 172(2)(a). The Road Accident Fund applied for direct access to the Constitutional Court seeking certainty about the status of the Second Proclamation.

• Whether the First Proclamation was invalid ab initio due to the error in identifying the sections to be brought into operation
• Whether the President had the power to amend a proclamation bringing legislation into force
• Whether the Second Proclamation successfully amended the First Proclamation
• What constitutes a just and equitable order under section 172(1)(b) of the Constitution where a proclamation is found to be invalid
• Whether the applicant had locus standi to challenge the proclamations
• Whether the Road Accident Fund should be granted direct access to the Constitutional Court

The High Court's order declaring Proclamation R27 invalid was confirmed with effect from 31 July 2006. Proclamation R32 was declared invalid with effect from 31 July 2006. The President was ordered to issue a new proclamation within 30 days bringing sections 1, 2, 3, 4 and 5 of the Amendment Act into effect from 31 July 2006. Notwithstanding the invalidity, the Fund could continue to act for 30 days as if the sections were brought into force, and everything done by the Fund since 31 July 2006 on that basis was deemed valid. The first and second respondents were ordered to pay the applicant's costs in both courts, including costs of two counsel. The application for condonation was granted, and the Fund's application for direct access was granted.

A proclamation issued by the President to bring legislation into force that refers to incorrect sections due to error is objectively irrational and invalid ab initio. The President does not have the power to amend a proclamation that has already come into force, as this would amount to an improper exercise of executive power encroaching on legislative functions. An invalid proclamation (a nullity) cannot be amended. However, where a proclamation is invalid due to a bona fide error, it is just and equitable under section 172(1)(b) for a court to allow the President to issue a corrected proclamation with retrospective effect and to preserve administrative actions taken in reliance on the invalid proclamation, to avoid disruption and to give effect to the legitimate intention of the Executive.

The Court observed that proclamations must be couched in clear and unambiguous language because they form part of the legislative process and the public should not need to depend on lawyers to interpret their meaning. The Court noted that while section 38 of the Constitution (regarding standing for Bill of Rights violations) was not directly applicable, a generous approach to standing should be adopted in constitutional litigation generally, particularly in South Africa where many people lack education about their rights. The Court suggested that a legal practitioner who can establish that a proclamation is of direct and central importance to their field of practice and that its validity affects the administration of justice may have standing to challenge it, but emphasized this should not be based purely on financial self-interest. Yacoob J (in minority) observed that compelling parties to approach a court to set aside an obviously erroneous decision when it has been corrected before coming into force would be inconsistent with constitutional principles of responsive government. The judgment distinguished this case from Pharmaceutical Manufacturers, noting that in that case the error influenced the exercise of public power itself, whereas here the error arose only in recording the decision.

This case clarifies important principles regarding the President's power to bring legislation into force through proclamation under section 81 of the Constitution. It establishes that: (1) the power to issue proclamations bringing legislation into force must be exercised lawfully and rationally; (2) proclamations must be clear and unambiguous to comply with the rule of law; (3) the President does not have power to amend a proclamation after it has come into force, though he may withdraw one before it takes effect; (4) errors in proclamations cannot be corrected by amending a nullity; (5) the doctrine of objective invalidity applies to proclamations, but courts have discretion under section 172(1)(b) to limit retrospective effect and make just and equitable orders; and (6) courts should adopt a generous approach to standing in constitutional litigation, particularly where legal uncertainty affects the administration of justice. The case demonstrates the tension between formalism and substantive justice in administrative law, and the Court's willingness to preserve legitimate administrative actions taken in good faith reliance on invalid instruments.