Premier of the Western Cape and Another v Electoral Commission and Another (CCT19/99) [1999] ZACC 6; 1999 (11) BCLR 1209 (2 September 1999)

CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT 19/99

THE PREMIER OF THE PROVINCE OF THE WESTERN CAPE First ApplicantTHE SPEAKER OF THE PROVINCIAL PARLIAMENT OF THE WESTERN CAPE Second ApplicantversusTHE ELECTORAL COMMISSION First RespondentTHE CHIEF ELECTORAL OFFICER Second RespondentHeard on : 26 May 1999Order issued on : 26 May 1999Reasons furnished on : 2 September 1999 JUDGMENTMOKGORO J: [1]On 26 May 1999, and at the conclusion of oral argument in this matter, thefollowing order was unanimously made by the Court: "1. The number of seats in the Western Cape Provincial Parliament is governed by section 13 of the Constitution of the Western Cape 1998, namely 42. 2. The determination made by the first respondent on 17 March 1999, namely that after the election scheduled for 2 June 1999 the Western Cape Provincial Parliament will have 39 seats, is invalid. 3. The respondents are to pay the costs of the application."At the time, it was intimated that reasons for the order would be furnished later. Theseare the reasons. [2]In preparation for the second democratic election in the history of the country, theElectoral Commission ("the Commission") made a determination of the number of seatsfor each provincial legislature. For the Western Cape, the number, based on a formulaof one representative per hundred thousand inhabitants, was set at 39 seats. Theprovincial government of the Western Cape, however, contended that in terms of section13 of the Constitution of the Western Cape ("the provincial constitution"), the provinceis entitled to a total of 42 seats. Much correspondence passed between the parties in aneffort to resolve the conflict, but without success. On 20 May 1999 the applicants, at theeleventh hour, approached this Court for a declarator that would vindicate their position. With the Commission as first respondent, the matter was urgently set down for hearingon 26 May 1999. [3]The applicants argued that this Court had exclusive jurisdiction to hear the matterby virtue of section 167(4)(a) of the Constitution of the Republic of South Africa (theConstitution), which provides: "Only the Constitutional Court may . . . decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state;"Alternatively, in light of the urgent nature of the matter, the applicants sought leave toobtain direct access to this Court in terms of rule 17. [4]It is not clear that section 167(4)(a) governs the current situation. It may be thatthe Commission and its Electoral Officer are organs of state as defined by section 239of the Constitution. However, it is not clear that they are organs of state "in the nationalor provincial sphere" as contemplated by section 167(4)(a). If one has regard to the useof the concept "sphere" in the Constitution, it seems that what is contemplated in section167(4)(a) is a dispute between different spheres of government, whether national orprovincial. This Court has held that the Commission is an independent institution anddoes not form part of government. Moreover, it clearly does not form part of nationalgovernment in contradistinction to provincial government. It is doubtful therefore thatthe respondents constitute organs of state in the national or provincial sphere, asprovided for in section 167(4)(a). [5]Furthermore, there are sound considerations of policy for a narrower reading ofsection 167(4)(a). It would be undesirable if, whenever there is a dispute between anyof the many institutions that are defined as organs of state in section 239, such disputeshad to come to this Court and this Court only. The most obvious of these considerationsis that exclusive jurisdiction holds with it the consequence that this Court acts as courtof first and final instance, a situation which should be avoided for the reasons we have expressed in other decisions. However, as there is merit in the applicants' alternativesubmission in relation to jurisdiction, we do not need to decide this question. The casebefore us dealt with a single crisp issue of constitutional interpretation, which this Courthas had an opportunity to consider before; the declaration sought raises no practicalproblems of any magnitude; the parties were already before the Court and prepared toargue; and the matter was urgent as contended. Accordingly, the clear demands of theinterests of justice required this Court to grant direct access and hear the matter on anurgent basis. [6]The applicants claimed that their right to have 42 seats in the provincial legislatureflowed directly from section 13 of the provincial constitution. This section provides quitesimply that "[t]he Provincial Parliament consists of 42 elected members." Such aprovision, they submitted, was regulated by section 143 of the Constitution which, inrelevant part states: "(1) A provincial constitution . . . must not be inconsistent with this Constitution, but may provide for- (a) provincial legislative . . . structures and procedures that differ from those provided for in [chapter 6 of the Constitution]; or (b) . . . (2) Provisions included in a provincial constitution . . . in terms of [paragraph] (a) . . . of subsection (1)- (a) must comply with the values in section 1 and with Chapter 3; and (b) may not confer on the province any power or function that falls- (i) outside the area of provincial competence in terms of Schedules 4 and 5; or (ii) outside the powers and functions conferred on the province by other sections of the Constitution."The applicants contended that a province is permitted to originate legislative structuresand procedures that differ from those provided for in the Constitution by providing forsuch structures and procedures in its provincial constitution. Thus, they argued, section13 of the provincial constitution is not subject to the requirements of section 105(2) ofthe Constitution. [7]The respondents disagreed. In their submission, section 105(2) of the Constitutionwas the legal standard governing the situation. Section 105(2) states: "A provincial legislature consists of between 30 and 80 members. The number of members, which may differ among the provinces, must be determined in terms of a formula prescribed by national legislation."Their argument was that the number of members of every provincial legislature is to bedetermined in terms of a formula prescribed by national legislation. Such legislation,which includes the formula, had been passed in the form of the Act. The formula,provided for by section 114 read with item 2 to schedule 3 of the Act, prescribed thenumber of seats for the Western Cape as a number equal to 39. In the result, there wasa conflict between a provision in the provincial constitution and national legislation. Such conflicts, they contended, fell to be resolved in favour of the national legislation asrequired by section 147(1)(a) of the Constitution which states: "If there is a conflict between national legislation and a provision of a provincial constitution with regard to . . . a matter concerning which this Constitution specifically requires or envisages the enactment of national legislation, the national legislation prevails over the affected provision of the provincial constitution"Accordingly, in the respondents' submission, the provisions of the Act take precedenceover the provisions of the provincial constitution. [8]The succinct legal issue in this case, therefore, is whether section 105(2) and thelegislation passed pursuant thereto, has any application to the composition of a provinciallegislature which is provided for in a provincial constitution. [9]It does not. Section 143(1) permits provincial constitutions to provide for differentlegislative structures and procedures for provinces who choose to establish their owndistinctive legislatures. It permits such differences subject to the qualification insubsection 2(a) and (b). They must comply with the founding values in section 1 andthe principles of cooperative government in Chapter 3 of the Constitution. Furthermore,a provincial constitution may not bestow powers beyond those conferred upon theprovince by the national Constitution. The respondents correctly did not contend that anyof these qualifications had been violated. If a provincial constitution regulates theprocedures and structures of a provincial legislature and in so doing it does not violatesection 143(2), then the provisions of chapter 6, including section 105(2), have noapplication to that province. One might loosely refer to these provisions of chapter 6 asdefault provisions: they provide the framework for provincial legislative and executivestructures and procedures where none is provided for by a provincial constitution. Ifsection 105(2) has no application, then neither does any legislation authorised pursuantthereto. Any difference in this regard that there might be between the prescripts ofnational legislation passed pursuant to constitutional authorisation and a provincialconstitution is therefore not a conflict envisaged to be resolved by section 147. It is adifference that is exempted from the application of that section because it is sanctionedby another provision of the Constitution. [10]This is not a novel proposition. The issue was squarely before us in the judgmentdelivered by this Court during the certification process of the Western CapeConstitution. In the course of that judgment the Court unanimously held the followingat paragraph 51: "The ANC and the national government also object to [section 13], which provides that the provincial parliament shall consist of 42 members. The basis of the objection was that it was inconsistent with NC 105(2) . . . The objectors also argued that because the NC provides that national legislation must prescribe the formula in terms of which the number of seats of provincial legislatures will be calculated, it was not competent for a provincial legislature to regulate this matter in its constitution. Neither argument is valid. The number of members of a legislature is clearly a part or aspect of a legislative structure or procedure, in respect of which NC 143(1)(a) permits a provincial constitution to provide something different."Once a province has determined its own legislative structures in terms of section 143,such structures cannot be altered by national legislation. It is clearly the intention of theConstitution to exempt provisions of a provincial constitution relating to legislative orexecutive structures or procedures from the application of the constitutional defaultprovisions. In this case, it is the 42 seats determined by section 13 of the provincialconstitution and provided for by section 143 of the Constitution, and not the 39determined in terms of the Act, which prevail. [11]The respondents also submitted that if the Western Cape legislature was entitledto have 42 as opposed to 39 members in its legislature, it would infringe the right toequality and to vote in free and fair elections. Equality would be violated, so they argued,because the province would ultimately have more seats in relation to its population size.The Western Cape would be out of step with the rest of the provinces and the Republicgenerally, and would create a situation where the voting strength would be unequal. Thisin turn would violate the right to free and fair elections. It was further contended that thissituation would place an extra burden on the fiscus. [12]There is no merit in any of these arguments. Because we have a proportionalsystem of representation, the additional number of seats does not increase the strength ofthe vote cast in the Western Cape. The outcome of the election will entitle the parties tobe proportionally represented in the provincial parliament. That is the case irrespectiveof the number of seats. [13]The "bloated" Western Cape parliament will not be able to exercise illegitimate orunequal power in the National Council of Provinces. There the number is fixed at 10members per province. Votes cast in the Western Cape will not only have equal effectwithin that province, but also equal effect in relation to other provinces within theNational Assembly. The differences between provinces do not extend beyond the specificboundaries of any province. Similarly, because of the minimum and maximum limitsstipulated in section 105(2), relative to its population size the Northern Cape has moreseats and Kwa-Zulu-Natal less seats than they would have in terms of the strict applicationof the formula. There is therefore no violation of equality or of the right to vote in freeand fair elections. The complaint about burdening the fiscus is met by the fact that theprovincial constitution was passed by a two-thirds majority, thus democratically andconstitutionally accepting its size and its resulting fiscal implications. [14]What is the effect then of the determination made under the Act as far as theWestern Cape is concerned? It is invalid. Were the Western Cape to amend itsconstitution by removing section 13 so that the provincial constitution no longer regulatedthe number of seats in the provincial legislature, the Commission would then beempowered in terms of the Electoral Act read with section 105(2) of the Constitution tomake an appropriate determination. [15]In this matter, the parties agreed that costs should follow the result.Chaskalson P, Langa DP, Ackermann J, Goldstone J, Madala J, O'Regan J, Sachs J andYacoob J concur in the reasons of Mokgoro J.For the applicants: J Kentridge instructed by Mallinicks Inc., Cape Town.For the respondents: IAM Semenya SC with P Mokoena instructed by Pule, Selebogo & Partners, Marshalltown.