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, at a meeting of the Eastern Metropolitan Substructure of the Greater Johannesburg Transitional Metropolitan Council, a dispute arose regarding the voting majority required to approve its budget for the forthcoming financial year commencing 1 July 1997. A majority of members voted in favour of the budget, but not a two-thirds majority. Section 16(5) of the Local Government Transition Act (LGTA) required a two-thirds majority for budget approval, while section 160(3)(b) read with section 160(2)(b) of the 1996 Constitution required only a simple majority. If the budget was not approved by 30 June, the provincial Member of the Executive Council (MEC) could intervene and approve it. The Council and the appellant (the MEC) applied urgently to the Witwatersrand High Court for 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 scrutiny until 30 April 1999. The appellant sought leave to appeal directly to the Constitutional Court or alternatively to the Supreme Court of Appeal or full bench. Snyders J granted leave to appeal to the SCA but refused to issue a positive certificate for direct appeal to the Constitutional Court. The appellant proceeded with the application for leave to appeal to the Constitutional Court despite the negative certificate.

• Whether leave to appeal should be granted to the Constitutional Court directly from the High Court, bypassing the Supreme Court of Appeal
• What procedure should be followed when an applicant seeks leave to appeal directly to the Constitutional Court or alternatively to the Supreme Court of Appeal
• Whether section 16(5) of the Local Government Transition Act is inconsistent with section 160(3)(b) read with section 160(2)(b) of the 1996 Constitution
• The meaning and effect of item 26(2) of Schedule 6 of the 1996 Constitution
• Whether transitional arrangements can differ from the 'new constitutional order' without being unconstitutional
• Whether section 16(5) violates constitutional principles of democratic government, autonomous local government, transparency in local government, and separation of powers

The appeal was dismissed with costs, including costs consequent upon the employment of two counsel. Section 16(5) of the Local Government Transition Act was held to be constitutional and valid until 30 April 1999.

The binding legal principles established are: (1) Transitional provisions in Schedule 6 of the Constitution must be construed as applicable during the transitional period, and conflicting provisions in the main body of the Constitution relating to the 'new constitutional order' are not applicable until the transitional period expires. (2) When determining whether legislation is inconsistent with the Constitution, provisions must be analyzed in the context of the Constitution as a whole, not compared in isolation. (3) Item 26(2) of Schedule 6, which provides that section 16(5) and (6) of the LGTA 'may not be repealed before 30 April 1999', by necessary implication authorizes the continued operation of those provisions during the transitional period notwithstanding any apparent conflict with section 160(3)(b) of the Constitution. (4) When granting leave to appeal directly to the Constitutional Court from the High Court under section 167(6)(b), relevant factors include: whether only constitutional issues are involved; the importance of the issues; saving of time and costs; urgency; prospects of success; and the disadvantages if the Supreme Court of Appeal is bypassed. (5) A High Court cannot grant relief premised on the invalidity of legislation without making a formal declaration of invalidity subject to confirmation by the Constitutional Court under section 172(2).

Chaskalson P made several important observations about appeals in constitutional matters: (1) Section 20 of the Supreme Court Act, if construed as including constitutional matters, may be prima facie inconsistent with section 167(6) of the 1996 Constitution. To be read consistently with the Constitution, it may have to be construed as applying to civil proceedings other than constitutional matters. (2) It is a question for the SCA to decide how appeals to it in constitutional matters should be dealt with, but the Supreme Court Act should not be construed in a way which detracts from section 167(6). (3) Applications for leave to appeal to the Constitutional Court are usually disposed of on papers and it is the exception for such applications to be set down for oral argument. (4) Time limits in Constitutional Court Rules must be observed and practitioners cannot ignore them and assume they can lodge documents 'in good time prior to hearing'. Yacoob J made obiter observations about the impermissibility of obtaining relief based on invalidity without a formal declaration (paragraphs 61-66), noting the constitutional difficulties, the potential for uncertainty and confusion about the status of legislation, and the danger that courts might adopt subjective approaches finding provisions valid for some litigants but not others. The judgment also disapproved of Snyders J's reasoning that the second certification judgment recognized a principle that transitional provisions could be of full force despite violating the Constitution.

This case is significant for establishing important principles regarding: (1) The procedure for direct appeals from the High Court to the Constitutional Court under section 167(6)(b) of the 1996 Constitution in the absence of specific legislation or rules; (2) The criteria for determining when it is in the interests of justice to grant leave for a direct appeal to the Constitutional Court, bypassing the Supreme Court of Appeal; (3) The interpretation of transitional provisions in Schedule 6 of the Constitution and their relationship to substantive provisions in the main body of the Constitution; (4) The principle that transitional arrangements may legitimately differ from the 'new constitutional order' without being unconstitutional, provided they are read harmoniously with the Constitution as a whole; (5) The approach to constitutional interpretation requiring provisions to be read together and harmonized rather than analyzed in isolation; (6) The impermissibility of granting relief based on implied invalidity of legislation without a formal declaration of invalidity subject to confirmation under section 172(2). The case demonstrates the Court's purposive approach to constitutional interpretation and its commitment to ensuring orderly transitions in the constitutional order.