Kwazulu-Natal House of Traditional Leaders v Member of the Executive Council of the Province of Kwazulu- Natal for Local Government, Housing and Traditional Affairs and Another (10171/2008) [2008] ZAKZHC 63 (4 September 2008)

IN THE HIGH COURT OF SOUTH AFRICA

NATAL PROVINCIAL DIVISION

CASE NO: 10171/2008

In the matter between:

THE KWAZULU-NATAL HOUSE OF

TRADITIONAL LEADERS Applicant

and

THE MEMBER OF THE EXECUTIVE

COUNCIL OF THE PROVINCE OF

KWAZULU-NATAL FOR LOCAL

GOVERNMENT, HOUSING AND

TRADITIONAL AFFAIRS First Respondent

THE PREMIER OF THE PROVINCE OF

KWAZULU-NATAL Second Respondent

JUDGMENT

McLaren J

1. In this urgent opposed application, Mr Olsen and Ms Annandale appeared for the Applicant. The Respondents were represented by Mr Stewart, Ms Gabriel and Mr du Plessis.

2. The reasons for the urgency appear from paragraphs 80 and 81 of the founding affidavit. There I am enjoined to have a “full hearing of the matter” and to make a “considered adjudication thereof prior to 17 September 2008”. Leaving aside 2 September 2008, when I heard the matter, there were thus 11 “court days” within which I had to dispose of it. In terms of the duty roster which the Deputy Judge President issued on 26 August 2008, I have already been allocated specific duties on 7 of those 11 days. On 3 of the remaining 4 days, the trial roll will be called by the Deputy Judge President and I may be in court on some of those days. In short, my workload between 2 and 17 September 2008 is such that it is extremely unlikely that I will be able to give this matter any greater attention than I have been able to do over these last few days. In preparing for the hearing I was greatly assisted by the comprehensive heads of argument which had been delivered on behalf of the parties. I am indebted to counsel for their efforts. In view of the aforegoing, I concluded that I should deliver this judgment as soon as possible - I can only do the best I can.

3. The Applicant claims the following relief:

“1. The resolution of the executive council of the province of KwaZulu-Natal taken on 11 June 2008 and the similar one taken on 9 April 2008 that the positions of chairperson and deputy chairperson of the KwaZulu-Natal House of Traditional Leaders are to be full time with effect from 1 September 2008 are declared invalid.

2. The respondents are interdicted against taking any steps whatsoever in pursuance of the resolution referred to in paragraph 1 of this order.

3. The first and second respondents are ordered jointly and severally to pay the costs of the application.”

4. The resolution, dated 9 April 2008, (“the first resolution”) is set out in a letter, dated 10 April 2008. This letter is signed by the First Respondent; is addressed to the Applicant’s Chairperson; deals with the subject “Determination of position of Chairperson and Deputy Chairperson of the KwaZulu-Natal House of Traditional Leaders as full-time” and reads as follows:

“The abovementioned matter refers.

All salaries and allowances of Traditional Leaders are determined by the Honourable President in terms of section 5(1) of the Remuneration of Public Office Bearers Act, 1998 (Act No 20 of 1998), and on 14 December 2007, the President published Proclamation No 48 of 2007 in Government Gazette 30596, determining that both the Chairperson and the Deputy Chairperson of a Provincial House of Traditional Leaders may be remunerated on the basis that both positions are determined as full-time.

In light of this provision, the KwaZulu-Natal Executive Council determined on 9 April 2008 that the positions of Chairperson and Deputy Chairperson of the KwaZulu-Natal Provincial House of Traditional Leaders are to be full-time with effect from 1 June 2008, and I hereby wish to advise you accordingly.

In the event that you occupy another full-time position as an office-bearer, and elect not to accept the determination of your position as Chairperson of the House as full-time, I request that you inform me by no later than 25 April 2008 of such decision, to enable me to declare a vacancy in the Executive Committee of the House, as contemplated in the KwaZulu-Natal Traditional Leadership and Governance Act, 2005 (Act No 5 of 2005), and to call for the election of a new Chairperson, as contemplated in regulation 49 of the KwaZulu-Natal Traditional Leadership Regulations, 2006.

I trust that you will find the above in order, and await your urgent reply.”

5. The resolution, dated 11 June 2008, (“the second resolution”) is set out in a letter, dated 17 June 2008, from the Respondents’ attorneys to the Applicant’s attorneys, which reads thus:

“We refer to the above matter and wish to advise that the matter was considered by the Executive Council on 11 June 2008.

The Executive Council resolved that, having considered the representations from the Chairperson and House of Traditional Leaders, that the positions of Chairperson and Deputy Chairperson of the KwaZulu-Natal House of Traditional Leaders are to be full time with effect from 1 September 2008.

The Chairperson and Deputy Chairperson are to be given 90 days to make the necessary administrative arrangements to give effect to the above resolution.

In the event that the Chairperson and Deputy Chairperson fail to give effect to the resolution of the Executive Council, then the MEC for Local Government, Housing and Traditional affairs is directed to take such steps to give effect to the resolution of the Executive Council.

We trust that your clients will give effect to the resolution.”

6. The source of and the reason for the 17 September 2008 “deadline” appear from paragraph 5.

7. Although the terms of the first resolution and the second resolution differ, they do have one common feature, namely that they both convey that a decision was taken by the KwaZulu-Natal Executive Council (“the Executive Council”) “that the positions of the Chairperson and the Deputy Chairperson of the KwaZulu-Natal House of Traditional Leaders are to be full-time” (“the decision”). It appears from a consideration of the affidavit evidence before me, that the second resolution confirmed the first resolution.

8. Although the second resolution does not set out the “steps” which the First Respondent has to take in order to give effect thereto, it is safe to assume that those steps are envisaged in the pen-ultimate paragraph of the letter quoted in paragraph 4.

9. The real issue is the question whether the Executive Council had the power to take the decision (“the power”). If the power does not exist, it seems to me to follow that no authority exists to take the steps referred to in paragraph 8.

10. I think the background history of the dispute between the parties is of limited relevance and should not be allowed to cloud the issue referred to in paragraph 9. The answer to that issue is to be found in the relevant legislative provisions. The views of any party regarding the existence, or otherwise, of the power are irrelevant. The determination of the said issue involves a consideration and interpretation of the said provisions, in accordance with well-established legal principles. In performing this task, I am not concerned with what the parties think or say about the existence of the power.

11. The application papers run into 267 pages, but, in the light of the urgency of the matter, the time constraints for the disposal thereof and, perhaps most importantly, my views set out in paragraphs 9 and 10, there will be limited reference herein to the facts set out in those papers.

12. The following is said in paragraph 3 of the Applicant’s heads of argument:

“As it is necessary in the light of the approach the applicant adopts in relation to this application to have regard to several items of legislation, the applicant has prepared a bundle of the relevant legislation which will be delivered evenly with these heads of argument. “

13. The so-called “legislation bundle” comprises 138 pages and contains excerpts from or the full text of 5 relevant Acts and the relevant Regulations. In addition to these legislative provisions, the Applicant placed before me, as Annexure “A” to the founding affidavit, the 29 pages of the Applicant’s “Standing Rules” (“the Rules”).

14. In response to the letter referred to in paragraph 4, the addressee wrote a long letter, dated 23 April 2008, to the First Respondent and, on page 3 thereof, he said the following:

“I can find no legislative authority which permits the Executive of the Province of KwaZulu-Natal either to determine that the positions of Chairperson and Deputy Chairperson of the Provincial House are full time or part time, or to declare a vacancy as you propose to do, according to your letter under reply. Your ‘determination’ seeks to undermine the autonomy of the Provincial House and override the Act, which allows any member of the House to be elected as Chairperson or Deputy Chairperson. In the event that you believe there to be such authority, please would you indicate precisely from whence it emanates.”

15. The First Respondent replied to the letter referred to in paragraph 14. In paragraph 40 of the answering affidavit, the First Respondent said this about these 2 letters:

“On 23 April the applicant’s chairperson wrote to me. A copy of this letter is attached to the founding papers marked ‘D’ wherein he questioned the legislative authority for the resolution. I responded to that letter as is reflected in annexure ‘E’ to the founding papers setting out the factors that had been considered by the Executive Council, including:

(a) the recognition of the status and stature of the offices of the chairperson and deputy-chairperson of the applicant;

(b) the recognition of the duties and obligations of the chairperson and deputy-chairperson of the applicant;

(c) the need to ensure that the applicant met its governance mandates;

(d) the need to create accountability;

(e) the fact that such resolution was in accordance with national policy;

(f) the fact that remuneration (in the form of salaries) as opposed to allowances was determined by the President to be on a full time basis.

(g) that the resolution had been taken after consultation with various stakeholders;

(h) that the resolution had been taken after considering the applicant’s submissions on this issue;

(i) that the resolution had been taken after considering the views of the National House of Traditional Leaders; and

(j) the other factors referred to therein.”

16. In the replying affidavit, the deponent said the following with regard to the First Respondent’s letter referred to in paragraph 15 and the answering affidavit:

“Neither the letter nor the affidavit answers the central question posed in my letter.”

17. The “central question” is, of course, the one relating to the source of the power.

18. Mr. Olsen submitted that there is no legislative provision which expressly confers the power on the Executive Council. In my view that submission is unassailable. Indeed, the following is stated in paragraph 30 of the Respondents’ heads of argument:

“While it is so that there are no legislative or constitutional provisions which talk expressly to the power or the Executive Council to determine that traditional leadership positions will be full as opposed to part time, the Executive Council’s power to so decide is clearly within its constitutional ambit.”

In my view it is advisable to first consider the Respondents’ submissions regarding the issue referred to in paragraph 17 and thereafter to deal with the Applicant’s submissions.

The essence of the Respondents’ submissions is encapsulated in paragraphs 12, 25 and 26 of their heads of argument, which read thus:

“12. We submit that both the legislative and the executive arms of the different spheres of government have been accorded the competence to take decisions that are – in their considered view – necessary to give effect to existing policy or legislation or to implement new policy or legislation, particularly where their decisions are motivated out of respect for constitutional values or constitutional obligations.

25. In summary: the impugned resolutions are the means by which the Executive Council has chosen to implement the Framework Act in the Province; the resolutions flow from the Executive Council’s powers to develop and implement provincial policy in respect of the position of traditional leaders; and the resolutions are sourced in the Executive Council’s responsibility to co-ordinate the functions of the provincial administration and its departments.

26. In our submission the Council was empowered to act under any of these sections; that is, its decision is lawful on the basis of any of the powers accorded to it under any or all of sections 125(2)(a), (b), (d) or (e) of the Constitution.”

21. In the Respondents’ heads of argument, reference is made to authorities which support a “liberal interpretation” of the powers of a province and the Executive Council under the Constitution. I accept those authorities and the principles enunciated in them, but agree with the following submission in paragraph 10 of the Applicant’s supplementary heads of argument:

“When seeking guidance to answer the question of whether the executive required legislative authority in this particular instance to implement its policy decision, we submit that cases such as Minister of Public Works v Kyalami Ridge Environmental Association, Bullock NO v Provincial Government, North West Province and Grays Marine Hout Bay (Pty) Ltd v Minister of Public Works are of limited use as these decisions were all concerned with the power of the executive to deal with state owned land.”

22. I deal seriatim in paragraphs 23 and 24 with the various provisions on which the Respondents relied as constituting the source of the power.

23. Section 125(2)(a) and (b) of the Constitution.

23.1 In terms of these provisions, the Executive Council has the power to implement “provincial legislation” and certain “national legislation” in KwaZulu-Natal. Such legislation includes the Traditional Leadership and Governance Framework Act, 41 of 2003 (“the Framework Act”), the KwaZulu-Natal Traditional Leadership and Governance Act, 5 of 2005 (“the KwaZulu-Natal Act”) and the Remuneration of Public Office Bearers Act, 20 of 1998 (“the Remuneration Act”).

23.2 The implementation of national legislation in terms of section 125(2)(b) of the Constitution is subject to the limitation set out in section 125(3) of the Constitution, namely that the executive authority is limited “to the extent that the province has the administrative capacity to assume effective responsibility”. For present purposes, I assume the existence of such “administrative capacity”. I, however, make no finding in this regard, nor in respect of the issue whether it is incumbent on the Respondents to establish such existence or on the Applicant to demonstrate the absence thereof.

23.3 Section 219(1) of the Constitution envisages national legislation to establish “a framework for determining … the salaries of traditional leaders and members of any councils of traditional leaders”.

23.4 Section 219(4) of the Constitution provides that the Executive Council may implement the national legislation referred to in paragraph 23.3, but that it may only do so ”after considering any recommendations of the commission established in terms of subsection (2)”.

23.5 I assume that the Executive Council considered the relevant recommendations referred to in paragraph 23.4. Again, I refrain from making any finding with regard to the identity of the party who must establish compliance with this pre-requisite for the exercise of the power of implementing the Remuneration Act in KwaZulu-Natal.

23.6 For convenience, I attach a copy of the relevant 2 pages of Government Gazette 30596, dated 14 December 2007, which form part of annexure “B” to the founding affidavit. This is the Government Gazette referred to in the second paragraph of the letter quoted in paragraph 4.

23.7 The First Respondent is, of course, quite correct when he says, in the letter referred to in paragraph 23.6, that Proclamation 48 of 2007 (“the Proclamation”) provides for payment of salaries to “full-time” incumbents of the positions of Chairperson and Deputy Chairperson of the Applicant.

23.8 It is also equally plain that the Proclamation envisages that one or both those incumbents may occupy the position/s, otherwise than on a full-time basis.

23.9 Section 5(4) of the Remuneration Act provides that the “salaries, allowances and benefits” of members of Provincial Houses of Traditional Leaders “shall be paid from monies appropriated for that purpose by ……. a provincial legislature”.

23.10 The Remuneration Act does not distinguish between “members” or “Deputy Chairperson” or “Chairperson”. In other words, the positions of a Deputy Chairperson and a Chairperson of the Applicant are not created in the Remuneration Act.

23.11 In my view the Remuneration Act and the Proclamation create the mechanism by which the promulgated salaries may be paid to a full-time incumbent of the position of Chairperson of the Applicant. The same conclusion goes for the position of the Deputy Chairperson. If those incumbents are such in part-time capacities, the payment to them of their allowances would be done in the implementation of national legislation. I do not think that it can be said that because the payment of salaries to full-time incumbents of these positions is authorised, the decision amounts to the implementation of national legislation in terms of section 125(2)(b) of the Constitution.

23.12 To put the matter differently. Let us assume that both incumbents held their positions full-time. The Proclamation authorises the payment of allowances to part-time incumbents of those positions. Assume, further, that the “determination” by the Executive Council was to the effect that the positions would henceforth be ”part-time”. Could it then be said that the “determination” amounts to the implementation of national legislation? I do not think so.

23.13 It remains to consider whether it can be said that the decision implements provincial legislation, i.e. that the source of the power lies in section 125(2)(a) of the Constitution.

23.14 In my view there is no provision in the KwaZulu-Natal Act or the Regulations or the Rules which suggests that the decision can, in any way, be construed as being the implementation thereof. On the contrary, I agree with the general tenor of Mr Olsen’s submissions that the decision flies in the face of and is irreconcilable with these legislative provisions. In other words, it cannot, in my view, be said that the decision was taken in the implementation of this provincial legislation.

24. Section 125(2)(d) and (e), read with section 195, of the Constitution.

24.1 In terms of these provisions, the Executive Council exercises its executive authority by “developing and implementing provincial policy” and by “co-ordinating the functions of the provincial administration and its departments”, according to the “basic values and principles” enumerated in section 195 (1) (a) – (i) (“the good governance principles” – as counsel referred thereto during the course of argument).

24.2 I accept that the relevant national policy (“the policy”) is set out as follows in the White Paper which the First Respondent placed before me as annexure “MM1” to his answering affidavit:

“Remuneration of Members of National and Province Houses

Since members of the National and Provincial Houses of Traditional Leaders serve on a part-time basis, the status quo, in relation to their remuneration, should be maintained subject to decisions taken from time to time by the Remuneration Commission. In other words, they will be paid allowances in line with the sessional nature of their work. The position of the Chairpersons and Deputy Chairpersons, at both national and provincial levels, stands on a different footing. They will get salaries in accordance with their full-time status as full-time members of the Houses.”

24.3 I also accept that, generally stated, the Executive Council is empowered to “adopt” the policy, i.e. to make it the provincial policy, and to develop and implement it as such.

24.4 I accept that the Executive Council adopted the policy.

24.5 Finally, I accept the following submission in the Respondent’s heads of argument:

“The evidence shows that the resolutions were intended to give effect to the Executive Council’s responsibility in terms of section 195 of the Constitution of ensuring effective public administration.”

24.6 Despite the assumptions made in paragraphs 24.2 – 24.5, the question of the validity of the decision still has to be answered. In other words, I am of the view that those assumptions do not necessarily mean that the decision was valid.

24.7 I again refer to paragraph 30 of the Respondents’ heads of argument, quoted in paragraph 18. In my view the adoption or acceptance by the Executive Council of the policy falls within the “constitutional ambit”, referred to in the heads of argument, despite the absence of a specific empowering provision. The “development” of that policy (for instance, by modifying or supplementing it) would, in my view, also fall within the power conferred on the Executive Council by section 125(2)(d) of the Constitution.

24.8 I am, however, of the view that the decision goes much further than “developing” the provincial policy and that it amounts to the administrative implementation thereof.

24.9 In amplification of paragraph 24.8, I can do no better than to compare the policy with the terms of the letter set out in paragraph 4. In short, the policy was adopted by no later than 9 April 2008. On 10 April 2008, the Applicant’s Chairperson was informed of the decision and he was put to his election (i.e. accept or reject your position as being a full-time one) and he was informed that, unless he so accepted, the First Respondent would do the following: declare a vacancy (allegedly in terms of the KwaZulu-Natal Act) and call for the election of a new Chairperson (allegedly in terms of the Regulations). A similar letter was sent to the Applicant’s Deputy Chairperson.

24.10 In support of my conclusion that the decision (and the conveyance of the terms thereof to the Applicant’s Chairperson and the Deputy Chairperson) go beyond the executive power conferred by section 125(2)(d) and (e), read with section 195, of the Constitution and that it amounts to administrative action, I refer to the following illustrative and authoritative passages in the judgment of Nugent JA in Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works, 2005(6) SA 313 (SCA) 323G, 324 A – B and 325 B – C:

“Whether particular conduct constitutes administrative action depends primarily on the nature of the power that is being exercised rather than upon the identity of the person who does so.……….

Administrative action is rather, in general terms, the conduct of the bureaucracy (whoever the bureaucratic functionary might be) in carrying out the daily functions of the State, which necessarily involves the application of policy, usually after its translation into law, with direct and immediate consequences for individuals or groups of individuals.…….

There will be few administrative acts that are devoid of underlying policy – indeed, administrative action is most often the implementation of policy that had been given legal effect – but the execution of policy is not equivalent to its formulation. The decision in the present case was not one of policy formulation but of execution.”

24.11 I accept the following submission in the Respondents’ heads of argument:

“In our submission the Executive Council has the constitutional power to take a decision that falls within the ordinary or normal course of government administration. As Professor Cora Hoexter has written, ‘while authority for administrative action is usually to be found in a specific piece of legislation, one should bear in mind that it may sometimes reside in a more general constitutional duty’.”

24.12 It is also clear that the following submissions in the Applicant’s supplementary heads of argument are sound:

“8.

Whilst the executive does not always require legislation to act, the exercise of its executive authority is subject to the Constitution and the principle of legality.

City of Cape Town v Robertson [2004] ZACC 21; 2005 (2) SA 323 (CC) at {60} / 350 – 351

Masetlha v President of the Republic of South Africa [2007] ZACC 20; 2008 (1) SA 566 (CC) at [78] / 593 F – 594 A

9.

One of the implications of this principle is that policy determinations cannot override, amend or be in conflict with laws. As Harms JA observed in Akani Garden Route (Pty) Limited v The Pinnacle Point Casino (Pty) Limited 2001 (4) SA 501 (SCA) at [7] / 509:

‘I prefer to begin by stating the obvious, namely that laws, regulations and rules are legislative instruments, whereas policy determinations are not. As a matter of sound government, in order to bind the public, policy should normally be reflected in such instruments. Policy determinations cannot override, amend or be in conflict with laws (including subordinate legislation). Otherwise the separation between the Legislature and Executive will disappear.’”

Section 33(14) of the KwaZulu-Natal Act provides that:

“A Provincial House may establish and elect an executive committee comprising no more than 10 members of that Provincial House.”

24.14 I agree with the following submission in paragraph 15 of the Applicant’s supplementary heads of argument:

“15.

However hard a task it may be to define the precise point at which the executive can go no further in the implementation of a policy without legislative authority, it is clear that once the implementation of the policy decision would be such as to take away vested rights, the executive requires legislative authority because, per Harms JA in Akani Garden Route supra

‘The Cabinet cannot take away with one hand that which the lawgiver has given with another.’”

24.15 On the facts of this matter, it seems to me that the decision and its intended implementation (about which there can be no doubt – hence also the urgency of the matter) are and will be in conflict with, at the very least, the rights of the Applicant’s members to freely elect from their peers any two persons for the positions of its Chairperson and Deputy Chairperson. Section 33 (14) of the KwaZulu-Natal Act (quoted in paragraph 24.13), read with Regulations 15 and 49, as well as Rule 6, provides that the Applicant may elect an executive committee, including a Chairperson and a Deputy Chairperson. There is no requirement in these legislative provisions that any incumbent of any one of these positions must have any qualification other than those set out in Rule 7. In particular, there is no requirement that, in order to qualify for such a position, the prospective incumbent must fill or hold the position full-time. The absence of any such requirement is in keeping with section 19(3)(b) of the Constitution, which provides that “every adult citizen has the right to stand for public office and, if elected, to hold office”. The Applicant’s Chairperson and Deputy Chairperson were duly elected. The decision and its implementation may have the result that they have to vacate their posts. In future, only a person who can occupy any one of the said positions in a full-time capacity will be eligible therefor. In my view these 2 results (there may be others) infringe the vested rights of all the members of the Applicant.

24.16 I am satisfied that the First Respondent has no power to put the Applicant’s Chairperson and Deputy Chairperson to their election (as set out in paragraph 24.9) nor to “declare a vacancy”, nor to “call for the election of a new Chairperson” or Deputy Chairperson. The provisions of the KwaZulu-Natal Act, the Regulations and the Rules militate against the procedure, which the First Respondent intends to follow to implement the decision. There is simply no room for such a procedure.

24.17 Section 41(1)(f) of the Constitution provides that the Executive Council “must not assume any power or function except those conferred on (it) in terms of the Constitution”. I agree with Mr. Olsen’s submission that the KwaZulu-Natal Act, the Regulations and the Rules deal exhaustively with the composition and election of the Applicant’s executive committee. Mr. Olsen further submitted that these legislative provisions are not “silent” on the positions of the Applicant’s Chairperson and Deputy Chairperson – they just do not prescribe any requirement that any one of those positions must be held by a full-time or a part-time incumbent. It seems to me that the decision flies in the face of section 41(1)(f) of the Constitution, inasmuch as it relies on the assumption of a power or function by the Executive Council which has not been conferred on it by the Constitution.

For these reasons, I conclude that the Executive Council cannot rely on section 125(2)(d) and (e), read with section 195, of the Constitution as being the source of the power.

25. From the aforegoing, it follows that the decision offends against the principle of legality (as to which, see also Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another, 2001(3) S.A. 1151 (CC) 1172 D – E) and, therefore, it must be set aside.

26. I grant an order in terms of paragraphs 1 – 3 of the Notice of Motion, including an order that the Applicant’s costs will include the fees of 2 counsel.

McLaren J

Date heard: 1 September 2008

Date of judgment: 4 September 2008

For the Applicant: P. J. Olsen SC

A. M. Annandale

Instructed by: Larson Falconer Incorporated

For the Respondents: A. M Stewart SC

A. Gabriel

M. du Plessis

Instructed by: PKX Incorporated