THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No 567/07

THE MINISTER OF FINANCE

First Appellant
THE PRINTING INDUSTRIES FEDERATION OF
SOUTH AFRICA

Second Appellant

and

PAPER MANUFACTURERS ASSOCIATION OF
SOUTH AFRICA

Respondent

Neutral citation: Minister of Finance v Paper Manufacturers Association (567/07)
[2008] ZASCA 86 (2 September 2008)

Coram:
HARMS ADP, STREICHER, MTHIYANE, MAYA JJA, and MHLANTLA

AJA
Heard:
18 August 2008
Delivered:
02 September 2008
Corrected:
Summary:
Interdict preventing Minister from submitting Bill to parliament – legality of
– jurisdiction – Customs and Excise Act 91 of 1964 s 48

ORDER

On appeal from: High Court, Pretoria (Southwood J sitting as court of first instance)

1.
The appeal is upheld with costs, including the costs of two counsel.
2.
The order of the court below is set aside and replaced with an order dismissing
the application with costs, such costs to include the costs of two counsel.

HARMS ADP (STREICHER, MTHIYANE, MAYA JJA and MHLANTLA AJA concurring):

[1] The Minister of Finance gave notice during February 2007 of his intention to
submit a Taxation Laws Amendment Bill, 2007 to Parliament. The Bill contained a
clause 66(1), which read as follows:

‘Continuation of certain amendments of Schedule 1 to 6 and 10 to [the Customs and
Excise] Act 91 of 1964.

(1)
Every amendment or withdrawal of or insertion in Schedules 1 to 6 and 10 to the
Customs and Excise Act 1964, made under section 48 . . . or 75(15) of that Act during the
calendar year ending on 31 December 2006 shall not lapse by virtue of section 48(6) . . . or
75(16) of that Act.’

[2] In terms of s 48(1)(b), the Minister of Finance may from time to time by notice in
the Gazette amend, i.a., Part 1 of Schedule 1 in so far as it relates to imported goods in
order to give effect to any request by the Minister of Trade and Industry. Section 75(15)
is similar, allowing the Minister of Finance to amend, i.a., Schedule 4 in the same
manner. The reason for this kind of provision is explained by R C Williams in Lawsa vol
22(2) para 566:

‘In an economy which employs the tariff as a potent instrument to manipulate economic activity
there is a need for frequent adjustment of the terms of and the rates applied in the tariff. The
Customs and Excise Act accordingly provides that the Minister may from time to time by notice
in the Government Gazette amend the general notes to Schedule 1 part 1 or replace the said
part 1 and amend part 2 of the Schedule in so far as it relates to imported goods.’

[3] These amendments have a limited lifespan and their future is dependent on
parliamentary action. This appears from the provisions of s 48(6) of the Customs and
Excise Act, which reads:

‘Any amendment, withdrawal or insertion made [by the Minister] under this section in any
calendar year shall, unless Parliament otherwise provides, lapse on the last day of the next
calendar year, but without detracting from the validity of such amendment, withdrawal or
insertion before it has so lapsed.’

This provision applies mutatis mutandis in respect of any amendment made under the
provisions of s 75(15), hence the reference to s 75(16) in the proposed Bill.

[4] On 21 July 2006, which is within the period covered by the Bill, the Minister of
Finance had abolished and/or lowered the rates of duty and rebates on paper and
paperboard products by amending Schedules 1 and 4 by notices GN R 691 and R 692.
This means that the relevant changes to the schedules effected by the ministerial
notices would have lapsed by the end of 2007 unless Parliament had provided
otherwise. With this in mind the Minister sought to introduce the mentioned Bill.

[5] These changes to the Schedules had been sought by the Printing Industries
Federation of SA (a respondent in the court below and the second appellant on appeal
and whom I shall call ‘the Printers’) who sought a lower import levy on paper and
paperboard. The Paper Manufacturers Association of SA (the applicant in the court
below and the respondent on appeal to whom I shall refer as ‘the Manufacturers’),
whose members manufacture paper and paperboard locally, objected because the
abolition or lowering of import levies would have made their prices less competitive.

[6] The Manufacturers applied to the High Court, Pretoria, for an interim interdict,
prohibiting the Minister from introducing the Bill to the extent that it related to these
items to Parliament. The High Court obliged. Subsequently it granted leave to appeal to
this Court realizing that the interdict, although framed as an interim interdict, was final in
effect and, accordingly, appealable. Metlika Trading Ltd v Commissioner for SA
Revenue Service 2005 (3) SA 1, [2004] 4 All SA 410 (SCA). What was though not taken
into account in the main judgment is the rule that if an interdict is final in effect, the
applicant has to prove a clear right – a  prima facie right is insufficient – and that the
balance of convenience does accordingly not arise. We conclude that the
Manufacturers had no right to the relief sought and we uphold the appeal for the
reasons that follow.

[7] The International Trade Administration Act 71 of 2002 (the ITA Act) repealed the
Board on Tariffs and Trade Act 107 of 1986 and replaced the Board on Tariffs and
Trade with the International Trade Administration Commission (ITAC). The differences
between the two Acts are not of any relevance to this case. On the contrary, the issues

in this case turn on similar provisions in the two Acts. The earlier Act was the subject of
the judgment in Chairman, Board on Tariffs and Trade v Brenco Inc 2001 (4) SA 511
(SCA). One of the ITA Act’s objects is to provide for the control of the import and export
of goods on a continuous basis, and for the amendment of customs duties. For this,
ITAC must investigate and evaluate applications for the amendment of customs duties
and issue recommendations regarding the rates of duty and rebate provisions in the
Customs and Excise Act. It is then required to take appropriate steps to give effect to its
recommendations (s 22). A report is provided to the minister responsible for trade and
industry who, if the recommendations are adopted, requests the Minister of Finance to
amend schedules to the Customs and Excise Act (which is the responsibility of this
Ministry) by notice in the Government Gazette.

[8] The ITAC report is not only an important link in the administrative and legislative
chain; it is indeed a jurisdictional fact for the ministerial actions that follow. It is
consequently not surprising that the ITA Act makes special provision for the review of
any determination, recommendation or decision of ITAC (s 46). A fatal flaw in the
process at the ITAC stage affects the whole process (Brenco at para 10.)

[9] Prior to publication of the intention to submit the Bill to Parliament, the
Manufacturers had lodged a review application in the Pretoria High Court, citing not only
ITAC but also the two ministers and the Printers. This case is still pending. The
Manufacturers sought the interdict, which is the subject of this appeal, on the allegation
that the adoption of the Bill would have led to the demise of its review application. The
whole thrust of the interdict application, consequently, was to protect the reviewability of
ITAC’s report on which the two ministers had acted.

[10] The case as formulated in the founding affidavit was that if the Bill were to be
adopted the court’s review jurisdiction would have been ousted and this would have
amounted to an infringement of the Manufacturers’ enshrined constitutional right to have
a pending dispute decided in a fair public hearing and its right to administrative justice.
The High Court accepted this reasoning. The essence of the argument is that if the
legislation were to be adopted the administrative process would have been superseded
by a legislative one and since legislation cannot be reviewed in terms of the definition of
‘administrative action’ in s 1 of the Promotion of Administrative Justice Act 3 of 2000,
the Manufacturers’ right of review would have been lost.

[11] For this conclusion the Manufacturers relied on the judgment of Spoelstra J in
Kennasystems South Africa CC v Chairman, Board on Tariffs and Trade 1996 (1) SA 69
(T) at 74D-H where the learned judge dealt with a similar case. He said:

‘The sole effect [of the legislation] is that the amendment [effected by the Minister of Finance to
the Schedule] does not lapse. Parliament can achieve this in one of two ways: (i) by passing an
Act amending the Schedule and thereby imposing a tax independent of the Minister's measure
or (ii) by passing an Act preventing the lapsing of the amendment, as it has done in this case.
Although the practical effect may be identical, the submission is that, from an administrative-law
perspective, the two methods attract different consequences. Method (i) would probably
establish sovereign parliamentary legislation. Method (ii) is not equivalent to sovereign
parliamentary legislation because it merely prevents the lapsing of a ministerial measure which
would have come to an end but for its extension by Parliament. It remains a ministerial
amendment which could be scrutinised by this Court. The distinction between these two
methods seems more apparent than real. In both cases Parliament ratifies and adopts the
Minister's amendment. Parliament enacts that it shall remain in force. The manner in which
Parliament elects to do this, cannot change the nature of what it has done. A Court of law is
precluded from excluding from the provisions of an Act of Parliament what the Legislature has
expressly included therein.’

[12] This extract should be read in context. It was written on the assumption of the
existence of “sovereign parliamentary legislation”.  (The same applies to the cases that
followed this judgment such as Lead Laundry Equipment (Pty) Ltd v Minister of Finance
[1996] 3 All SA 516 (N).) I agree with the submission referred to by Spoelstra J that by
passing an Act preventing the lapsing of a ministerial amendment, the ‘sovereignty’ of
parliament does not arise ‘because it merely prevents the lapsing of a ministerial
measure which would have come to an end but for its extension by Parliament.’ I do,
however, disagree that the distinction is more apparent than real. (The first postulate
referred to by him did not arise because the Bill was not intended to impose a tax
independently of the ministerial measure.)

[13] All depends on an interpretation of the Bill. The Manufacturers’ argument is
premised on the alleged retrospectivity of the consequent Act: it would have legalised
the Minister’s notice ex tunc, i.e., from the date of its promulgation. I disagree. There
was no need for legislation to cover the period before end 2007. The validity or invalidity

of the notice until then was independent of any legislation as appears from the
concluding words of s 48(6), namely that Parliament’s failure to prevent the lapse of the
notice does not detract from the validity of such amendment, withdrawal or insertion
before it has so lapsed. The object of the Bill was to extend the changes to the
Schedules beyond 1 January 2008 and preventing their automatic lapsing by virtue of s
48(6). In other words, the intention of the Bill was to legislate for the future, beginning on
1 January 2008.

[14] As mentioned, the report is a jurisdictional fact for the validity of the Minister’s
notice and, consequently, the subsequent legislation. In other words, the legislative
chain requires a ‘valid’ ITAC report. Therefore, an ‘invalid report’ invalidates subsequent
legislation pro tanto. The situation is comparable to the failure of Parliament to comply
with a precondition for legislation, which could affect the validity of the resultant
legislation. King v Attorneys Fidelity Fund Board of Control 2006 (1) SA 474,
[2006] 1 All SA 458 (SCA); Doctors for Life International v Speaker of the National
Assembly  2006 (6) SA 416 (CC). On this premise, too, the supposition that the
adoption of the Bill would have brought an end to the review application was
misconceived.

[15] In Regina v Secretary of State for Health, ex parte US Tobacco International Inc
[1992] 1 QB 353 the lower court had set aside regulations made under a statute. They
had been laid before Parliament and had come into force because Parliament did not by
resolution set them aside. The Court of Appeal, upholding the judge’s decision, said:

‘Although the Regulations were subject to annulment by negative resolution of the House of
Commons but were not so annulled, Parliament would be concerned only with the objects of the
Regulations and would be unaware of any procedural impropriety. It is therefore to the courts,
by way of judicial review, that recourse must be had to seek a remedy.’

(Quoted in Secretary of State for the Foreign & Commonwealth Affairs v Bancoult
[2007] EWCA Civ 498.) In the present case Parliament would have been unaware of the
alleged procedural defect attached to the Bill and by parity of reasoning the adoption of
the Bill would not have cured the defect.

[16] Underlying the Manufacturers’ argument is the proposition that all legislation with
retrospective effect is unconstitutional although counsel did not put it in those terms.
Instead he argued that this particular Bill would have given rise to legislation that was
unconstitutional. First, it was said, the Minister’s decision to submit the Bill to Parliament
with knowledge of a pending review application was irrational. There is no merit in the
submission. An allegation of irrationality was never made on the papers. In addition, at
the time the Minister took his decision he only knew of an allegation (albeit under oath)
that the ITAC report was reviewable. There is nothing to show that he knew that it was
in fact bad, something that has not yet been decided. Furthermore, if a minister acts in
this regard irrationally, that does not make the legislation unconstitutional. If anything, it
is the content of legislation that determines whether or not it is irrational; nothing else.

[17] A related submission was based on s 77(3) of the Constitution. It provides that all
money Bills must be considered by Parliament in accordance with the procedure laid
down in s 75, which deals with the parliamentary procedure applicable to the adoption
of ordinary bills that do not affect provinces. It adds that ‘an Act of Parliament must
provide for a procedure to amend money Bills before Parliament’. Because no such Act
has been adopted the argument is that the adoption of any money Bill would be
unconstitutional. The failure of Parliament to adopt legislation envisaged in the
Constitution is notorious especially in relation to legislation to which no time frame was
added. That, it appears to me, cannot mean that if legislation is not adopted within a
reasonable time, and there is an existing procedure, everything done under the existing
procedure is unconstitutional. See the transitional provisions of the Constitution in
Schedule 6, particularly s 21 and s 23. However, intriguing though the question may be,
the Manufacturers were not entitled to rely on this failure of Parliament before either the
High Court or this Court because the failure of Parliament to fulfil a constitutional
obligation falls within the exclusive jurisdiction of the Constitutional Court (Constitution s
167(4)(e)).

[18] This raises another question, which was not considered by the High Court or
dealt with in the written submissions, namely the jurisdiction of the High Court to prevent
the responsible Minister from submitting a Bill to Parliament. In Doctors for Life
International v Speaker of the National Assembly 2006 (6) SA 416 (CC) the
Constitutional Court said in paras 68 and 69 (footnotes omitted):

‘Courts in other jurisdictions, notably in the Commonwealth jurisdictions, have
confronted this question. Courts have traditionally resisted intrusions into the internal
procedures of other branches of government. They have done this out of comity and, in
particular, out of respect for the principle of separation of powers. But at the same time they
have claimed the right as well as the duty to intervene in order to prevent the violation of the
Constitution. To reconcile their judicial role to uphold the Constitution, on the one hand, and the
need to respect the other branches of government, on the other hand, courts have developed a
“settled practice” or general rule of jurisdiction that governs judicial intervention in the legislative
process.

The basic position appears to be that, as a general matter, where the flaw in the law-
making process will result in the resulting law being invalid, courts take the view that the
appropriate time to intervene is after the completion of the legislative process. The appropriate
remedy is to have the resulting law declared invalid. However, there are exceptions to this
judicially developed rule or “settled practice”. Where immediate intervention is called for in order
to prevent the violation of the Constitution and the rule of law, courts will intervene and grant
immediate relief. But intervention will occur in exceptional cases, such as where an aggrieved
person cannot be afforded substantial relief once the process is completed because the
underlying conduct would have achieved its object.’ [Emphasis added.]

[19] The Constitutional Court chose to leave the question open whether the ‘test’ set
out in the emphasised sentences applies. In effect, the test represents the
Constitutional Court’s summation of the test formulated by the Privy Council in
Bahamas District of the Methodist Church in the Caribbean and the Americas v The
Hon Vernon J Symonette MP (Bahamas) [2000] UKPC 31. The Privy Council, it should
be noted, did not seek to formulate a rule of universal application but sought to interpret
the constitution of The Bahamas.  The ‘rule’ must also be read in the context of the
allegations in that case. The applicant church, which was a body corporate, sought to
prevent the introduction of a Bill on the ground that the adoption of the Bill would have
dissolved the church and that, accordingly, after adoption of the Bill the church’s right to
attack the constitutionality of the subsequent Act would have become nugatory because
the church would not have been able to litigate because it no longer existed. In that
context the possibility was mooted of someone who cannot be afforded substantial relief
once the process is completed because the underlying unconstitutional conduct would
have achieved its object. But even applying that test, there is nothing exceptional about

this case and, as set out earlier, it is not a case where the Manufacturers cannot be
afforded substantial relief once the Bill is enacted.

[20] I would with some diffidence like to revisit the foreign cases referred to by the
Constitutional Court in this regard.  The Canadian cases are of no assistance to the
Manufacturers because they were brought under Canadian legislation permitting, for
instance, the Lieutenant Governor in Council to refer ‘any matter’ to the court: Reference
Re Canada Assistance Plan (BC) [1991] 2 SCR 525, (1991) 83 DLR (4th) 297. The
Canadian provinces have similar legislation, which explains the judgment in In re
Amendment of the Constitution of Canada (1981) 125 DLR (3d) 1 (SCC).  The High
Court of Australia’s judgment in Cormack v. Cope (1974) 131 CLR 432 concerned an
alleged constitutional irregularity in the law-making process and likewise is no authority
for the proposition relied on by the Manufacturers. Rediffusion (Hong Kong) Ltd v.
Attorney-General of Hong Kong [1970] AC 1136 (PC) dealt with the position of a colony,
which had no elected legislative council and had limited legislative authority. These
distinguishing features, and many others, were stressed by the Privy Council (at 1153F-
1154D). The question it had to judge was whether a court could a priori decide whether
a particular Bill fell within the legislative competence of the colony, and it held in the
affirmative. That does not justify the broad rule and is also hardly comparable to the
present case.

[21] I would venture to suggest that the answer is to be sought in the Constitution
itself and not on an interpretation or application of foreign constitutions or judgments.
The Constitutional Court, as highest court in constitutional matters, has a circumscribed
jurisdiction. Importantly, only it may pronounce on the constitutionality of a Bill. Even
then its powers are limited: it may do so (in the case of parliamentary bills) but only in
the circumstances anticipated in s 79 of the Constitution (s 167(4)(b)). Section 79
envisages the case where the President has reservations about the constitutionality of a
Bill twice considered by Parliament and refers the question to that Court for a decision.
Conscious of the limitations of the expressio unius est exclusio alterius rule, I would
nevertheless consider it strange if the Constitutional Court were to have a greater
jurisdiction and otherwise be able to prevent the introduction of Bills.

[22] That leaves the question whether a high court may issue an interdict in these
circumstances. Once again, I believe that the answer must be sought in the
Constitution, more particularly s 172, which deals with the powers of other courts in
constitutional matters. Sub-section (2) states that this Court, a high court or a court of
similar status may make an order concerning the constitutional validity of ‘an Act of
Parliament, but an order of constitutional invalidity has no force unless it is confirmed by
the Constitutional Court.’ It furthermore states that if an order of constitutional invalidity
issues, the court may grant a temporary interdict, pending a decision of the
Constitutional Court on the validity ‘of that Act’. This language is quite specific. It does
not include a decision on the constitutional invalidity of a Bill. The reason appears to me
to be obvious. If a high court could decide on the constitutionality of a bill, and issue an
interdict, which is final in effect (compare National Gambling Board of SA v Premier of
KwaZulu-Natal 2002 (1) SA 715 (CC) at para 50), preventing its submission to
Parliament, it short-circuits the constitutional process and emasculates the requirement
that the Constitutional Court has to confirm any order of invalidity before it takes effect.

[23] The appeal has accordingly to succeed and the following order is made:
1.
The appeal is upheld with costs, including the costs of two counsel.
2.
The order of the court below is set aside and replaced with an order dismissing
the application with costs, such costs to include the costs of two counsel

_______________________
L T C HARMS
ACTING DEPUTY PRESIDENT

APPEARANCES:
FOR APPELLANT  1)
C E PUCKRIN SC

M B MATLEJOANE

2)
A P JOUBERT SC

C J McASLIN

FOR RESPONDENT:
E W DUNN SC

V BRONSTEIN

ATTORNEYS:
FOR APPELLANT 1)
THE STATE ATTORNEY

PRETORIA

THE STATE ATTORNEY

BLOEMFONTEIN

2)
JAN S DE VILLIERS ATTORNEYS

c/o COUZYN HERTZOG & HORAK

PRETORIA

NAUDES ATTORNEYS

BLOEMFONTEIN

FOR RESPONDENT:
H MILLER ACKERMANN & BRONSTEIN

c/o JACOBSEN & LEVY

PRETORIA

ISRAEL & SACKSTEIN

BLOEMFONTEIN

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:  The Registrar, Supreme Court of Appeal
Date:  02 SEPTEMBER 2008
Status: Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

THE
MINISTER
OF
FINANCE
AND
ANOTHER
v
PAPER
MANUFACTURERS ASSOCIATION OF SOUTH AFRICA

The SCA today upheld an appeal from the High Court, Pretoria, which had
issued an interdict preventing the Minister of Finance from submitting a Bill to
Parliament. The object of the Bill was to amend Schedules to the Customs
and Excise Act. The effect was to reduce or remove or lower rates of duty and
rebates on paper and paperboard products. The basis for the interdict was
that
the
Paper
Manufacturers
Association
wished
to
review
the
recommendation by the International Trade Administration Commission which
gave rise to the Bill.

The SCA held that the Minister cannot be interdicted from presenting a Bill to
Parliament, particularly under the circumstances of this case.

---ends---