Government of Lebowa v Gorvenment of Republic of South Africa and Another (371/86) [1987] ZASCA 110; [1988] 4 All SA 16 (AD) (29 September 1987)

371/86/AV

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:THE GOVERNMENT OF LEBOWA AppellantAND

THE GOVERNMENT OF.THE REPUBLIC OF

SOUTH AFRICA 1st Respondent

THE GOVERNMENT OF KWA NDEBELE 2nd Respondent

CORAM: RABIE, ACJ, JOUBERT, HEFER, GROSSXOPF, VIVIER, JJA

HEARD: 7 September 1987 DELIVERED: 29 September 1987

JUDGMENT GROSSKOPF, JA

The appellant applied in the Transvaal

Provincial 2 Provincial Division for an order declaring that the district of Moutse as defined in clause 2 of the schedule to Proclamation R 224 of 1972 forms part of the self-governing territory of Lebowa; and an order declaring Proclamations R 227 and R 228 of 1985 to be null and void and of no force and effect. The last-mentioned Proclamations were intended, broadly speaking, to incor-porate the district of Moutse into the area of the Kwa Ndebele legislative assembly, and to effect amendments to the constitution of Lebowa which were consequential on the excision of Moutse from its territory. I deal later in greater detail with these Proclamations. The application came before VAN DYK J. He dismissed it with costs, but

granted 3 granted the applicant leave to appeal to this court. It will be convenient to commence with a short historical survey. For this purpose I shall be referring to laws which have not only been amended from time to time, but which now bear different titles from those under which they were promulgated. Save where otherwise stated, my references will be to the legislation as amended up to the present, and to the titles currently in use.

For present purposes, the starting point is the Black Authorities Act, no 69 of 1951. This Act made

provision for the establishment of Black tribal, community, regional and territorial authorities. It is not neces-

sary

4

sary to go into the respective powers and functions ofthese various authorities save to say that a territorial authorityhad more extensive powers than any of the others (sec. 7of the Act), and exercised these powers over an area inwhich a number of the other authorities had been establish-

ed (sec. 2 of the Act). By Government Notice R 1274 of

1962 the Lebowa Territorial Authority was established.

The evolution of Black authorities was taken

a step further by the promulgation of the National States

Constitution Act, no 21 of 1971 ( "the 1971 Act" ) . Sec. 1

of this Act reads as follows:

"(1) The State President may, after consulta-tion by the Minister with a territorial authority, by proclamation in the Gazette establish a legislative assem-

bly

5

bly for the Black area for which that territorial authority has been es-tablished or for such area as modified by the State Presidenr by the said proclamation. (2) The Black area for which a legislative assembly is established may consist of various Black areas, shall be defined in the proclamation referred to in subsection (1) and may, after consulta-tion by the Minister with the executive council of the area concerned, be amended from time to time by the State President by proclamation in the Gazette."

Sections 2 and 5 of the Act authorize theState President to make provision by proclamation for theconstitution of a legislative assembly and an executive

council for an area defined pursuant to section 1. By

Proclamation R 156 of 1971 the State President, acting in

terms 6 terms of sections 1,2 and 5 of the 1971 Act, established a legislative assembly, to be known as the Lebowa Legis-lative Assembly, for the area described in the schedule to the Proclamation. The Proclamation also laid down the manner in which the legislative assembly and the executive council for the area were to be constituted. According to the schedule, the area of the Lebowa Legis-lative Assembly was to consist of the areas of ten re-gional authorities listed in the schedule as items (a) to (j).

By Proclamation R 224 of 1972 the area of the Lebowa Legislative Assembly was amended pursuant to the above-quoted section 1(2) of the 1971 Act by the

substitution

7

substitution of an entirely new schedule. For convenienceI shall hereafter, where appropriate, refer to this scheduleas "the substituted schedule". In terms of the substitutedschedule the territory of Lebowa was to consist of the areasdescribed in five numbered paragraphs. The first paragraph

listed a number of districts. The second read:

"the area of the district of Moutse excluding the following farms: ..."

It is not necessary to set out the descrip-

tions of the farms which were excluded from the district of Moutse, since nothing turns on this exclusion for pre-sent purposes. It is the area of Moutse as defined in paragraph 2 of the substituted schedule which fórms the subject matter of the present dispute.

Paragraphs 3,4 and 5 define certain other

areas

8

areas which a're not relevant for present purposes.

Shortly after the amendment of its area, the

Lebowa Legislative Assembly underwent a change of status.

To understand this change one has to refer again to cer-

tain provisions of the 1971 Act. Section 26(1) reads as

follows:

"The State President may, after consultation

by the Minister with a legislative assembly, by proclamation in the Gazette declare that the area, as defined from time to time, for which that legislative assembly has been es-tablished, shall under the name mentioned in the proclamation be a self-governing ter-ritory within the Republic in accordance with the provisions of this Act."

Section 29 of the Act provides that the execu-

tive government of a self-governing territory is to vest

in 9 in a cabinet consisting of ministers drawn from the members of the legislative assembly of the territory. The powers of the legislative assembly of a self-governing territory are set out in section 30, read with the first schedule to the Act. These powers - which I need not detail - are more extensive than those enjoyed by a legislative assembly under section 3 of the Act.

To revert to the history of Lebowa: by Proclamation R 22 5 of 1972 the area for which the Lebowa Legislative Assembly had been established (i.e., the area described in the substituted schedule) was declared to be a self-governing territory with a constitution as set out

in

10

in the proclamation. I shall refer to this Proclamationas the Lebowa Constitution Proclamation. It came intoforce on 2 October 1972.

After 1972 the area of Lebowa was changed

from time to time. These changes were effected by amendments

to the subsituted schedule pursuant to section 1(2) of

the 1971 Act, which is quoted above. There were, inter

alia, amendments in 1977,1978 and 1979. These call for

no comment. The next purported amendment - by Procla-

mation R 210 of 1980 - was however of great importance

in the present dispute. This Proclamation read as

"AMENDMENT OF PROCLAMATION R. 156 OF 1971.-EXCISION OF THE DISTRICT OF MOUTSE FROM

THE

11

THE AREA FOR WHICH THE LEBOWA LEGISLATIVE ASSEMBLY HAS BEEN ESTABLISHED By virtue of the powers vested in me by section 1(2) of the National States Con-stitution Act,1971 (Act 21 of 1971), I hereby amend,with effect from 1 November 1980, Proclamation R 156 of 1971, by the deletion of paragraph (2) of the Schedule."

The intended effect of this Proclamation was,as indicated by the heading, to excise the district ofMoutse from the area of Lebowa. The members of the government of Lebowa (the present appellant) were dis-satisfied with this excision, and made it known that they considered the Proclamation invalid. In particular they contended that there had not been proper consultation. as required by section 1(2) of the 1971 Act, and that the Proclamation was in any event invalid on legal grounds

with 12 with which I deal later.

The matter was then taken up by the legis-lature. Section 16 of the Laws on Co-operation and Development Act, no 102 of 1983 ("the 1983 Act") reads as follows:

(1) The Schedule to Proclamation No. R.156 of 1971 is hereby amended by the deletion of paragraph (2). (2) Proclamation No. R.210 of 1980 is hereby repealed. (3) Subsections (1) and (2) shall be deemed to have come into operation on 1 November 1980."

1 November 1980, the date on which this pro-

vision was deemed to have come into operation was, it

will have been noted, the date on which Proclamation

R 210 of 1980 purported to take effect. The purpose of

section

13

section 16 of the 1983 Act was clearly to replace Proclama-tion R210 of 1980 with legislation having the same effect asthat sought to be achieved by the Proclamation. The legis-

lation obviously did not require prior consultation, as the

Proclamation did, and consequently the dispute about whether

there had been proper consultation fell away. However, some

areas of dispute still remained. The present appellant con-

tended that section 16 of the 1983 Act suffered from the same

legal defect as Proclamation R 210 of 1980, viz., that it a-

mended the substituted schedule to Proclamation R 156 of 1971

whereas what should have been amended in order to alter the

area of Lebowa, so it was contended, was the Lebowa Constitu-

tion Proclamation, R 225 of 1972, by which the self-governing

territory of Lebowa had been established.

Once more the legislature stepped in. The

Laws

14Laws on Co-operation and Development Amendment Act, No 91 of 1985 ("the 1985 Act") was introduced, according to the long title, inter alia "to remove any possible doubt concerning the area of the self-governing territory of Lebowa". Section 9 of this Act contains an interpreta-tion of the Lebowa Constitution Proclamation in order to settle the dispute about the excision (or purported ex-

cision) of Moutse. I deal with this section in detail later. Provision had earlier been made in sections 17 and 18 of the 1983 Act for amendments to the constitution of Lebowa consequential on the excision of Moutse, which

was one of the electoral divisions for the election of members of the legislative assembly. These sections of

the 15the 1983 Act were brought into operation by Proclamation R 228 of 1985.This concludes my resume of events concerning Lebowa, and I turn now to Kwa Ndebele. The Kwa Ndebele Legislative Assembly was established, pursuant to sec-tions 1,2 and 5 of the 1971 Act, by Proclamation R 205 of 1979. The area in respect of which the legislative assembly was established was defined in the first schedule to the Proclamation, and did not include the district of Moutse. Kwa Ndebele became a self-governing territory by virtue of Proclamation R 60 of 1981. Its area was defined as "the area described in Schedule 1 to Procla-mation R 205 of 1979". By Proclamation R 227 of 1985

this 16 this Schedule 1 was amended by adding a paragraph to in-clude the district of Moutse into the area of Kwa Ndebele.

The effect of these various legislative amendments to the territories of Lebowa and Kwa Ndebele, if valid, thus was to transfer the district of Moutse from Lebowa to Kwa Ndebele. It is the validity of this transfer which is in issue in the present appeal. The declarations which the appellant seeks are, as I indicated at the commencement of this judgment, firstly that the district of Moutse, as defined in clause 2 of the sub-stituted schedule, forms part of the self-governing territory of Lebowa; and secondly that Proclamations R 227 and R 228 of 1985 are null and void. Pro-

clamation 17 clamation R 227, it will be recalled, incorporated Moutse into the area of Kwa Ndbele, and Proclamation R 288 in

effect caused the constitution of Lebowa to be amended consequential upon the excision of Moutse from its area. The appellant did not launch an independent attack on the validity of these Proclamations but contended that they would have to be struck down if the appellant succeeded in its first claim, i.e., if this Court were to declare that Moutse still forms part of Lebowa.

It seems remarkable that the dispute about Moutse should still be open for debate where the legislature has twice, in 1983 and 1985, sought to determine it. It seems appropriate therefore to commence my consideration of the merits of this dispute by dealing with the most

recent

18

recent legislative attempt to resolve this issue, viz.,

section 9 of the 1985 Act.

Section 9 serves to interpret the Lebowa

Constitution Proclamation, R 225 of 1972. In section 2

of the Proclamation the area of Lebowa is defined as the "area described in the Schedule to Proclamation R 156 of 1971". What section 9 of the 1985 Act does is to give a statutory meaning to this definition. The section reads

as follows:

"For the purpose of section 2 of the Lebowa Constitution Proclamation, 1972, any reference to the area for which the self-governing ter-ritory of Lebowa has been established, shall be interpreted as a reference to the area defined in the Schedule to Proclamation No. R.156 of 1971, as substituted by Proclamation No. R.224 of 1972 and amended by Proclamations Nos. R.126 of 1977, R.217 of 1978, R.247 of 1979, R.210 of 1980 (read with section 16

of 19

of the Laws on Co-operation and Development Amendment Act, 1983 (Act No. 102 of 1983)), R.123 of 1981 and R.35 of 1983, and as it

may thereafter be amended under section 26 of the National States Constitution Act, 1971 (Act No. 21 of 1971)."

The section thus provides, broadly speaking,that the area of

Lebowe should be understood to consist of the area defined in thesubstituted schedule as it was amended up to the date ofthe 1985 Act, and as it might be amended in the future.

(I return later to future amendments). The amendments

specifically mentioned in the section are firstly those

of 1977, 1978 and 1979, which, as I have indicated above,

have no bearing on the present matter. Then there is the

reference to Proclamation R 210 of 1980 (read with section

16 of the 1983 Act). This is the crucial provision of

the

20

the section for present purposes. The further amendmentsmentioned in the section are also not relevant.

Section 9 of the 1985 Act consequently refers

to the following provisions which are relevant to the in-

clusion or excision of Moutse: the substituted schedule,

which contained a reference to Moutse in paragraph 2;

Proclamation R 210 of 1980, which purported to delete

paragraph 2 from the substituted schedule, and section 16

of the 1983 Act, which repealed Proclamation R 210 of

1980 but gave statutory effect to the deletion of para-

graph 2 of the schedule. Consequently the net result of

these.amendments, if they are all given their full effect,

was to delete paragraph 2 from the substituted schedule.

And

21

And it is the area defined in the schedule as thus amendedwhich, in terms of section 9 of the 1985 Act, must be

taken to be the area for which the self-governing territo-

ry of Lebowa was established.

Mr Gordon, who appeared for the appellant,

sought to escape the above interpretation by relying on

the brackets which enclose the reference to section 16 of

the 1983 Act in section 9 of the 1985 Act. The effect

of the brackets is, he said, that regard is to be had to

section 16 only in so far as it qualifies Proclamation

R 210 of 1980, and for no other purpose. Since the only

effect which the 1983 Act had on Proclamation R 210 of 1980

was to repeal it, the result then is, he contended, that

22

the substituted schedule should be read for purposes of the 1985 ACt as if it still contained paragraph 2 (since, according to the argument, section 16 (1) of the 1985 Act, which in effect re-enacted the Proclamation, was to be ignored because it did not qualify the Proclamation). The position would have been different, he said, if the reference to section 16 of the 1983 Act had not been placed in brackets, but if the parenthesis had been indicated in some other way, e.g., by placing the reference between com-mas or semi-colons. If that had been the punctuation used, section 16 of the 1983 Act would, for the purposes of sec-tion 9 of the 1985 Act, have had to be read together with

all

22 A

all the Proclamations mentioned in section 9, and wouldthen have been given its full effect of not only repealingProclamation R 210 of 1980, but also of replacing it with

a legislative provision which removed the reference to i

Moutse from the substituted schedule.

Mr

23

Mr Gordon quoted no authority for the propo-sition that words in parenthesis were to be differentlyinterpreted depending on whether the parenthesis was in-dicated by brackets rather than by commas or semi-colons.The lack of authority for this proposition is not surprising

since punctuation is a matter to which little or no regard

is had in the interpretation of statutes. In Duke of

Devonshire and Others v. O'Connor (1890) 24 QBD 468 (CA)

LORD ESHER M R said (at p. 478):

"To my mind ... it is perfectly clear that in an Act of Parliament there are no such things as brackets any more than there are such things as stops."

This passage has been approved in South Africa.

See e.g. Bosman's Trustee v. Land and Agricultural Bank of

SA

24

SA and Registrar of Deeds, Vryburg 1916 CPD 47 at p. 54 and Sigcau v. Sigcau 1941 CPD 334 at p. 345. However, Steyn, Uitleg van Wette, 5th ed. at p. 150 disapproves of this view as being unrealistic. I need not come to any firm conclusion on the matter since it is at least clear that no sanctity attaches to punctuation - indeed, an in-terpretation supported only by the use of a particular punctuation mark must inevitably yield to one based on the intention of the legislature as it appears from the meaning of the words used read in their context. (Cf. S v. Yolelo 1981(1) SA 1002 (A) at p. 1011 A-B - a pas-sage which deals with the related topic of the division of a section into paragraphs).

And 25 And our courts have shown no hesitation in ignoring brackets where the sense of a provision required it. See Swanepoel v. Bloemfontein Town Council 1950(3) SA 536 (0) at p. 541 B-G, De Beer v. Coetzee 1956(3) SA 263 (T) at pp. 267 D - 268 B, R v. Le Roux 1959(4) SA 342 (C) at p. 347 C-F and S v. Le Riche 1965(4) SA 757 (T) at p. 758 D-G. In the present case the use of the brackets would, according to Mr Gordon's argument, have the result that section 16 of the 1983 Act should, for the purpose of section 9 of the 1985 Act, be read as if it did nothing more than to repeal Proclamation R 210 of 1980; whereas if section 16 of the 1983 Act were read on its own it also in effect re-enacted the proclamation. It

seems

26

seems quite inconceivable that the legislature wouldhave set out a list of the amendments to the substituted

schedule but would have intended to ordain, merely by

using brackets instead of commas or semi-colons, that

one of the amendments which appears in the list should

be disregarded. Assuming that in linguistic theory

brackets can have such an effect on the meaning of words,

I can do no better than to quote the following dictum by

FRY LJ (Duke of Devonshire v. O'Connor (supra) at p. 483):

"Now, whether brackets can or cannot be looked at if they appear on the Parliament Roll, I express no opinion; but ... in the present case ... I must read through them and pay no attention to them, for the sense is too strong for me to pause at these miserable brackets."

It

27 It follows, therefore, that section 9 of the 1985 Act legislatively interpreted the Lebowa Consti-tution Proclamation so as to exclude Moutse from the area

of Lebowa. This conclusion would by itself be a complete answer to the appellant's claims. However, for complete-ness' sake I propose commenting briefly also on section 16 of the 1983 Act. Before doing so, I should, however, mention one last aspect of section 9 of the 1985 Act. As appears from its terms which I have quoted above, this section refers also to possible future amendments to the area of Lebowa, and expresses the contemplation that such amendments would be effected "under section 26" of the 1971 Act (in Afrikaans, "kragtens artikel 26"). It

was 28 was common cause in argument before us that section 26 of the 1971 Act does not grant any such powers of amend-ment and I express no view on the correct interpretation to be placed on the reference to that section.

I turn now to section 16 of the 1983 Act, and, in particular, the amendment which it effected to the substituted schedule by the deletion of paragraph 2 thereof which related to Moutse. The argument adduced on behalf of the appellant was that the substituted sche-dule served only to define the area of Lebowa prior to its becoming a self-governing territory. Once Lebowa achieved that status, so it was contended, the substituted schedule, and Proclamation R 156 of 1971 of which it formed a part,

became

29

became of historical interest only. Amendments to theschedule could therefore not affect the area of the self-governing territory of Lebowa.

An examination of the 1971 Act demonstrates,

in my view, that this argument is fallacious. Moreover

this Court has already interpreted the relevant provisions

of the Act in a sense contrary to that put forward in the

argument, as I shall show. I repeat briefly the effect

of the relevant sections of the Act. Section 1, which I

have quoted above, makes provision for the establishment

of legislative assemblies in Black areas and for the de-

fining of areas in respect of which such legislative as-

semblies would have legislative power. In sub-section (2)

there 30 there is provision for the amendment of such areas.The transition to self-governing status is governed by section 26(1) of the 1971 Act. The area in respect of which self-governing powers may be granted is described in that sub-section as "the area, as defined from time to time, for which that legislative assembly has been established". Now the area for which the legis-lative assembly was established, is that defined in the Proclamation issued pursuant to section 1(1) of the 1971 Act. In terms of section 1(2) this area may "be amended from time to time" after consultation with the "executive

council

31

council" of the area concerned. And, in terms of sec- |tion 29 of the 1971 Act, the provisions of the Act withregard to an executive council shall mutatis mutandis

apply to a Cabinet of a self-governing territory. The

effect of these provisions on the amendment of the area

of a self-governing territory was expressed by this Court

as follows in Government of the Republic of South Africa

and Another v. Government of Kwa Zulu and Another 1983(1)

SA 164 (A) at p. 199 H in fin:

"The State President's power to amend an area which has been declared by him to be a self-governing territory is not unlimited, for, since such an area is an area for which a legislative assembly has been established in terms of the provisions of s 1(1), an amendment thereof may be made only after

consultation

32

Consultation by the Minister with the Cabinet of the territory concerned: see s 1(2) read with s 29 of the 1971 Act."

(See also at p. 201 C-E and 206 D-G).

It is common cause that the above passagesformed a part of the Court's ratio decidendi. However,Mr. Gordon suggested in argument before us that this pointmay possibly not have been pressed vigorously in the

argument in the Kwa Zulu case. (It was common cause

though that it had been debated in the heads of argument -

see at pp. 176 H and 189 D to 190 F of the report). Be

that as it may, this Court has given a considered judgment

on the point in issue, and we should not depart from it

unless, at the very least, we are satisfied that it is

clearly 33 clearly wrong. See the authorities quoted in Tucker's Land and Development Corporation (Pty) Ltd v. Strydom 1984(1) SA 1 (A) at pp. 16 G to 17 D. Far from being so satisfied, I consider the above passages from the Kwa Zulu case to be clearly correct in view of the unambiguous terms of the provisions which I have summarized.

My conclusion accordingly is that the area of Lebowa was, both before and after its transition to self-governing status, defined in the substituted schedule. When the legislature amended the schedule by section 16 of the 1983 Act it thereby altered the area of Lebowa. The nature of the alteration was, of course, to excise the district of Moutse.

To 34 To sum up: Section 16 of the 1983 Act served to excise Moutse from the area of the Lebowa self-goveming territory. Section 9 of the 1985 Act thereafter pro-vided a legislative interpretation of the area of the Lebowa self-governing territory which again, in effect, ordained that Moutse was to be regarded as excluded. It follows that the interpretation which the legislature placed on the Lebowa Constitution Proclamation was the one which I consider to be legally correct in any event. For the reasons which I have given, the ap-pellant is not entitled to the relief claimed by it.

The appeal is dismissed with costs, including

the costs of two counsel.

E M GROSSKOPF, JA

RABIE, ACJ )

JOUBERT, JA ) Concur

HEFER, JA )

VIVIER, JA )