The President of the Republic of South Africa and Others v United Democratic Movement

South Africa has an electoral system based on proportional representation for the National Assembly and provincial legislatures. The interim Constitution (Act 200 of 1993) contained anti-defection provisions requiring members to vacate their seats upon ceasing to be members of their nominating party. The 1996 Constitution contained no such provision in its body, but Schedule 6 (transitional provisions) kept anti-defection provisions alive until the second election under the new Constitution. On 19 June 2002, the President signed into law four Acts of Parliament that suspended the anti-defection provisions during specified "window periods" for the National Assembly, provincial legislatures, and local government. The United Democratic Movement (UDM), a political party represented in Parliament and some provincial legislatures, challenged the constitutionality of this legislation. The UDM brought an urgent application to the Cape High Court on 20 June 2002. Nel J granted an interim order suspending commencement of the Acts. On 24 June 2002, the Full Court confirmed this suspension pending a Constitutional Court application. The President and other appellants opposed the relief and sought to appeal against the High Court orders, arguing those courts lacked jurisdiction to suspend Acts of Parliament.

• Whether the High Court had jurisdiction to grant interim relief suspending the commencement or operation of Acts of Parliament
• Whether such jurisdiction extends to Acts amending the Constitution
• What are the limits on High Court jurisdiction where the Constitutional Court has exclusive jurisdiction to decide constitutional validity under section 167(4) of the Constitution
• What standard should apply when determining whether to grant interim relief suspending legislation
• Whether the interests of justice require interim relief in the circumstances of this case

1. The appeal was upheld and the order of the High Court was set aside. 2. Each party was ordered to pay its own costs.

1. While it is not necessary to definitively decide whether a High Court has jurisdiction to suspend the operation of national or provincial legislation, a High Court has jurisdiction to grant interim relief designed to maintain the status quo or prevent violation of constitutional rights where legislation alleged to be unconstitutional might, through action pursuant to it, cause irreparable harm of a serious nature. 2. Such interim relief should only be granted where it is strictly necessary in the interests of justice, the constitutional standard in sections 80(3) and 122(3) of the Constitution. 3. In determining the interests of justice, the court must balance the interests of the person seeking interim relief against the interests of others who might be affected by the grant of such relief. 4. The interim relief should be strictly tailored to interfere as little as possible with the operation of the legislation, and all the more so where the legislation relates to an amendment to the Constitution. 5. An applicant for such relief must demonstrate manifest prejudice or prejudice established on the facts, not mere assertion of potential harm. 6. The jurisdiction of the High Court to grant interim relief is not expressly ousted by the Constitution even where the Constitutional Court has exclusive jurisdiction to decide constitutionality, but such relief must not decide the constitutionality of the legislation itself.

The Court made several important observations beyond the strict ratio: 1. The Court noted the "fundamental difference between abstract judicial review and a specific inquiry into an inconsistency between one or more provisions of a statute and some right or value protected by the Constitution." 2. The Court observed that the three branches of government are "partners in upholding the supremacy of the Constitution and the rule of law," while also noting the "very special role" of the legislature as law-maker consisting of duly elected representatives. 3. The Court commented on the practical challenges of convening the Constitutional Court urgently, particularly during recess periods when members disperse to their homes, noting that it is "not always possible to convene a quorum of the Court at very short notice during a recess." 4. The Court emphasized that having regard to "the importance of the legislature in a democracy and the deference to which it is entitled from the other branches of government, it would not be in the interests of justice for a court to interfere with its will unless it is absolutely necessary to avoid likely irreparable harm and then only in the least intrusive manner possible." 5. The Court noted that where legislation achieves "the special support required by the Constitution" (as with constitutional amendments), "courts should be all the more astute not to thwart the will of the legislature save in extreme cases." 6. The Court observed that the omission from the 1996 Constitution of a provision equivalent to section 101(7) of the interim Constitution (which expressly allowed the High Court to grant interim interdicts suspending Acts of Parliament) was a relevant consideration, though not determinative. 7. The Court expressed regret that neither the High Court nor the Full Court furnished reasons for their orders, depriving the Constitutional Court "of the benefit of the views of those courts on the constitutionality of the legislation in question and the grounds for the grant of the orders."

This case is a landmark decision on the separation of powers and the limits of High Court jurisdiction to interfere with legislation through interim relief. It established important principles for the balance between judicial review and legislative supremacy in South Africa's constitutional democracy. The judgment clarifies the respective roles of the High Court and Constitutional Court in reviewing legislation, particularly constitutional amendments. It sets strict standards for when courts may grant interim relief affecting legislation, requiring demonstration of actual irreparable harm rather than mere assertion of prejudice. The case reinforces the principle that interim relief must be tailored to be minimally invasive of legislative will, particularly where constitutional amendments are involved. It provides important guidance on the "interests of justice" standard and the need to balance competing interests when considering interim relief. The judgment also addresses practical considerations around the Constitutional Court's accessibility for urgent matters during recess periods, while maintaining that deference to the legislature requires courts to exercise restraint in interfering with enacted laws.