From: scott@concave.cs.wits.ac.za (Scott Hazelhurst)
Newsgroups: soc.culture.african,sanet.talk.politics
Subject: Re: Conscription of Whites into the SADF
Date: 27 Jul 92 06:35:08 GMT
Article-I.D.: concave.scott.712218908
Organization: Wits University Electrical Engineering

In <1992Jul26.170309.20622@ucthpx.uct.ac.za> gavan@UCT_elc.mth.uct.ac.za (Gavan Tredoux) writes:
[Disputes my view that the  Supreme Court cannot rule on Acts
of Parliament, offers counter-examples and logical argument to support
his view]

Counter-examples offered
Most of the counter-examples are cases that took place before 1960.
In the fifties, when the Nats tried to segregate the voters' roll,
there was considerable conflict between parliament and the courts
when the courts ruled that certain acts were unconstitutional.
Howver, eventually the Nats managed to change the law, and it
is not in the constitution (both 1961 and 1984) that the courts
may _not_ inquire into the validity of acts of parliament
(except in some specified cases like language).

The other counter-examples seem to me to be cases where regulations
promulaged by Ministers or the State President have been attacked.
The example of incorporation of areas of South African into Swaziland
is a case in point. Another example is the forced removal of the people
of Magopa, where the State President purported to act within
powers granted to him by statute. What was thrown out by the courts
was the State President's actions in terms of the statute rather
than the statute itself.

Then Gavan appeals to reason, saying that if acts are contradictory
or unreasonable etc, then they can be thrown out.
No. The courts have a duty to do the best they can in interpreting
Acts of parliament. If an Act is vague ("it is an offence to write
an article with too many vowels"), it may be extremely difficult
to secure a conviction as judges will probably interpret the Act
to an accused's advantage, and it may be impossible to secure
a conviction in fact. However, the court can still not rule it
invalid. If we had an act "it is an offence to write an article with
more a's than b's" even though this is preposterous etc., it i
s clearly enforceable as this can be measured, and courts cannot
rule it invalid.

Delgated powers, like regulations promulagted by ministers,
(and it is such regulations which define who is called up and
for how long) or provincial ordinances, municipal by-laws,
university disciplinary codes etc. can all be attacked on grounds
inlcuidng: vagueness, gross unreasonableness, non application of mind,
etc. and we saw a lot of cases like this in the Emergency.
_However_ in a number of Appeal Court cases where the state
appealed decisions of lower courts, there were significant 
reversals (I don't have the ref, but there was a special issue
of the SA Journal of Human Rights which dealt with this)
on the issue. The Appeal Court, while accepting that these
regulations could be atacked in principle, too such a lenient view
to the executive that it weakened the basis for attack considerably.
It has been argued (to persuasively) that these decisions of the
Appeal Court distorted South African administrative law. This
was under the Rabie Court, and the Corbett court seems to take
a much better attitude.

Then you are right that judges can say what they want. For example,
during the emergency the Durban and Coastal Local Division
struck down regulation 3(1) which was the right of the police
to arrest people (the Tsenoli case). The Minister of Law
and Order released the individual (Tsenoli) but refused to
accept the decision of the court (since he had thousands of
people locked up). He said thatif there were specific court
orders about individuals he would obey them but would not
accept that 3(1) was invalid. (BTW the basis of the decision
was a technical almost grammatical issue). Fortunately for
the minister a few days later the Natal Provincial Division
ruled a few days later in a similar case that the regulations
were valid. This was upheld on appeal.
Fotrunately, one of the few things that everyone agrees on
in the current negotiations is an independent judiciary  with
a justiciable bill of rights.

Scott

 
--

----Scott Hazelhurst-------------------------scott@concave.cs.wits.ac.za---
Department of Computer Science, University of the Witwatersrand
2050 Wits, South Africa         phone 27(11)716-3309 fax 27(11)403-1926
Newsgroups: soc.culture.african