The Gauteng Provincial Legislature v J D Kilian and 29 Others

Thirty respondents were members of the Gauteng Provincial Legislature, constituting at least one-third of its membership. Pursuant to section 98(9) of the interim Constitution (Act 200 of 1993), they petitioned the Speaker to request the Constitutional Court to exercise its jurisdiction under section 98(2)(d) to resolve a dispute over the constitutionality of provisions in the Gauteng School Education Bill. Prior to the Constitutional Court proceedings, the respondents sought an undertaking from the Speaker that their costs would be paid by the legislature. On 27 October 1995, the Speaker sent a letter undertaking to pay the reasonable fees of one set of attorneys and counsel representing the petitioners. The Constitutional Court subsequently declared the Bill's provisions constitutional and made no order as to costs. The respondents taxed their costs on an attorney and own client scale and sought payment from the legislature. When payment was refused, they instituted proceedings in the High Court. The legislature argued that the Speaker had merely given a ruling, not an enforceable undertaking, and that he lacked authority to bind the legislature to pay costs.

• Whether the Speaker of the Gauteng Provincial Legislature had the power to give an undertaking regarding payment of costs for the resolution of a constitutional dispute under sections 98(2)(d) and 98(9) of the interim Constitution
• Whether the Speaker's communication of 27 October 1995 constituted an enforceable undertaking or merely a ruling
• Whether the taxation of costs without notice to the legislature was valid
• Whether costs incurred in referring a Bill to the Constitutional Court under section 98(9) form part of the legislative process and are properly borne by the provincial legislature

The appeal was dismissed with costs. Judgment was upheld in favour of the respondents for the amount of their taxed costs together with interest and costs.

The Speaker of a provincial legislature has the power, both at common law and under the interim Constitution (sections 131(2) and 41(3)-(10), read with section 31(1) of the Powers and Privileges of Parliament Act 91 of 1963), to give an enforceable undertaking to pay the costs of members who petition for a constitutional review of a Bill under section 98(9) of the interim Constitution. The determination of a constitutional dispute concerning a Bill in its formative process is part of the legislative process and costs incurred are properly borne as part of the costs of administration of the provincial legislature. The Speaker's common law powers include the power to regulate the business of the legislature and to direct expenditure for the legislature's services in relation to the legislative process. When members exercise their constitutional rights under section 98(9), they act in their official capacities as members of the legislature, not in their personal capacities, and should not bear personal liability for costs absent special circumstances.

The Court made critical observations about the Speaker's conduct, stating that he was guilty of an 'obvious about-face' by bowing to political pressures to renege on his undertaking. Zulman JA observed that although the Speaker may be removed by the legislature or have his decisions overridden, he should not submit to political pressure and is required by the duties of his office to exercise and display the impartiality of a judge. The Court further criticized the Speaker for ignoring persuasive and authoritative legal advice and for attempting to justify his position with the unconvincing protestation that he had never given an undertaking but had merely issued a ruling. The Court also noted with approval the principles articulated in the Constitutional Court regarding costs in constitutional litigation, particularly that litigants seeking to test the constitutionality of statutes should not ordinarily be discouraged by the risk of paying costs unless grounds are frivolous, vexatious, or brought from improper motives.

This case is significant for establishing the scope of powers of the Speaker of a provincial legislature under the interim Constitution. It affirmed that: (1) The Speaker has authority to commit the legislature to pay costs incurred in the constitutional referral process under section 98(9); (2) Costs of resolving constitutional disputes concerning Bills before a legislature form part of the legislative process and are properly borne by the legislature as administrative costs; (3) Members exercising their constitutional rights under section 98(9) should not be deterred by personal liability for costs when acting in their official capacities; (4) The Speaker's powers include regulation of the legislature's business and directing expenditure for legislative services. The judgment reinforces the principle that the Speaker must exercise impartiality like a judge and should not bow to political pressure when exercising constitutional functions. The case also clarifies the relationship between constitutional mechanisms for pre-emptive review of legislation and the allocation of costs for such processes.