Ex Parte: Minister of Social Development and Others

On 6 September 2004, the Constitutional Court declared Presidential Proclamation R7 of 1996 invalid in Mashavha v President of the RSA because it unconstitutionally assigned administration of the Social Assistance Act 59 of 1992 to provincial governments. The Court suspended the declaration of invalidity for 18 months from the date of the order to allow government to correct the defect through new legislation. The Minister of Social Development and provincial MECs sought to comply by enacting the Social Assistance Act 13 of 2004 and the South African Social Security Agency Act 9 of 2004. However, they failed to bring all necessary provisions into force before the suspension period expired. On Saturday 4 March 2006, two days before what they incorrectly calculated as the expiry date (6 March 2006), the applicants launched an ex parte urgent application seeking to extend the suspension period until 1 April 2006, arguing they needed 25 more days to complete formalities and arrange funding through the Division of Revenue Act.

• Whether the 18-month suspension period expired on 5 March 2006 or 6 March 2006
• Whether the Constitutional Court has power under section 172(1)(b)(ii) to retrospectively extend or revive a suspension order after the suspension period has expired
• Whether the application should have been brought ex parte without notice to the original applicant Mr Mashavha
• What principles govern applications to extend suspension orders of constitutional invalidity
• Whether condonation should be granted for the extremely late and urgent application

The application was dismissed. The Court refused to extend the suspension period, finding it had no power to do so after the suspension had already expired on 5 March 2006.

1. Under the civilian method of time computation, a period of 18 months from a court order expires at midnight on the day preceding the corresponding calendar day 18 months later. 2. Section 172(1)(b)(ii) of the Constitution empowers courts to suspend declarations of invalidity only prospectively, not retrospectively. Once a suspension period expires, the declaration of invalidity takes effect and the court loses power to extend or revive the suspension. 3. A court cannot revive legislation that has been declared constitutionally invalid, as this would constitute judicial legislation in violation of separation of powers and constitutional supremacy. 4. Before a suspension period expires, a court retains power under its "just and equitable" jurisdiction to extend the suspension, but once the period lapses, this power ceases. 5. The boundary of a court's power to suspend invalidity lies at the expiration of the suspension order - before expiration the provision has not yet been declared invalid; after expiration the provision is invalid and cannot be revived.

Van der Westhuizen J observed that while remaining unconvinced, the Court refrained from deciding whether wide governmental powers might permit alternative administrative arrangements to ensure social grant payments during the 25-day gap, and whether the Mashavha judgment necessarily precluded provincial officials from making payments of nationally-determined grants. The Court also noted it was unclear whether any other "just and equitable" order might be available, but no such relief had been specified or sought by applicants. Ngcobo J provided extensive obiter on principles governing extension applications, emphasizing: applications must be brought within reasonable time with sufficient notice; explanations for non-compliance must be full, candid and timely; courts should not assume extensions will be granted as a matter of course even in the public interest; relevant factors include sufficiency of explanation, potential prejudice, prospects of compliance, need for finality, and promotion of the constitutional project. He noted the matter demonstrated the importance of prompt government response to Constitutional Court orders and placing all relevant information before the Court initially. The judgment clarified that nothing prevents persons adversely affected by the refusal to extend from approaching competent courts for relief, and did not suggest that a timely application would necessarily have been refused.

This case definitively establishes the Constitutional Court's limited power to suspend declarations of invalidity under section 172(1)(b)(ii) of the Constitution. It clarifies that: (1) courts cannot retrospectively extend or revive suspension orders once they have expired, as this would amount to judicial legislation and violate separation of powers; (2) the civilian method of time calculation applies to suspension periods; (3) applications for extension must be brought timeously, with full and candid explanations for non-compliance; and (4) the principle of finality in constitutional litigation is paramount. The judgment reinforces that government cannot assume extensions will be granted as a matter of course, even when important social rights are at stake, and must treat court orders with utmost seriousness and urgency. It demonstrates the Court's commitment to upholding constitutional supremacy and the rule of law, even in the face of potential hardship resulting from government's own failures.