The Premier of the Province of the Western Cape and Another v The Electoral Commission and Another

In preparation for the second democratic election scheduled for 2 June 1999, the Electoral Commission determined the number of seats for each provincial legislature based on a formula of one representative per 100,000 inhabitants. For the Western Cape, this formula resulted in 39 seats based on a population of 3,956,875 inhabitants. However, section 13 of the Constitution of the Western Cape, 1997 provided that the Provincial Parliament consists of 42 elected members. Despite correspondence between the parties to resolve the conflict, no resolution was reached. On 20 May 1999, thirteen days before the election, the Premier and Speaker of the Western Cape Provincial Parliament urgently approached the Constitutional Court seeking a declarator that the province was entitled to 42 seats in terms of its provincial constitution.

• Whether the Constitutional Court had exclusive jurisdiction under section 167(4)(a) to decide the dispute
• Whether section 105(2) of the national Constitution and the Electoral Act applied to determine the number of seats in a provincial legislature where the provincial constitution provided for a specific number
• Whether section 13 of the Western Cape Constitution was inconsistent with section 105(2) of the national Constitution and the Electoral Act
• Whether the determination by the Electoral Commission of 39 seats for the Western Cape was valid
• Whether having 42 seats instead of 39 would violate the rights to equality and free and fair elections

The Court ordered: (1) The number of seats in the Western Cape Provincial Parliament is governed by section 13 of the Constitution of the Western Cape 1998, namely 42 seats; (2) The determination made by the Electoral Commission on 17 March 1999 that the Western Cape Provincial Parliament would have 39 seats after the June 1999 election was declared invalid; (3) The respondents were ordered to pay the costs of the application.

Where a provincial constitution validly provides for legislative structures and procedures in terms of section 143(1) of the Constitution, including the number of members in a provincial legislature, such provisions take precedence over section 105(2) of the national Constitution and any national legislation passed pursuant to it. Section 105(2) and the Electoral Act operate as default provisions that only apply where a provincial constitution does not regulate these matters. The number of members of a legislature is clearly a part or aspect of legislative structure or procedure in respect of which section 143(1)(a) permits a provincial constitution to provide something different. Once a province has determined its own legislative structures in terms of section 143, such structures cannot be altered by national legislation, provided the provincial constitutional provisions comply with section 1 values, Chapter 3 principles, and do not confer powers beyond provincial competence.

The Court expressed doubt about whether section 167(4)(a) conferred exclusive jurisdiction in this matter, noting that the Electoral Commission is an independent institution that does not form part of government and may not constitute an 'organ of state in the national or provincial sphere' as contemplated by that section. The Court observed that it would be undesirable if disputes between any institutions defined as organs of state in section 239 automatically fell within this Court's exclusive jurisdiction, as this would make the Court act as court of first and final instance in too many cases. The Court also commented that the application was brought inappropriately late (13 days before the election), noting that earlier legal action would have been more appropriate when the parties' positions became clear on 17 April 1999. The Court noted that if the Western Cape were to amend its constitution by removing section 13, the Electoral Commission would then be empowered to make a determination under the Electoral Act.

This case is significant for establishing the constitutional relationship between national and provincial legislative frameworks in South Africa's federal system. It confirms that provinces may adopt their own provincial constitutions that differ from the default provisions in Chapter 6 of the national Constitution regarding provincial legislative structures and procedures, provided they comply with section 143(2) requirements. The judgment clarifies that section 143(1) creates a constitutional space for provincial autonomy and diversity in legislative design, and that such validly adopted provincial constitutional provisions take precedence over national legislation that would otherwise apply. It reinforces the principle that provincial constitutions, once properly adopted, cannot be altered or overridden by national legislation in areas where section 143 permits differentiation. The case also demonstrates the Constitutional Court's willingness to grant direct access in urgent matters involving crisp constitutional questions, even where exclusive jurisdiction may not clearly exist.