IN THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
CASE NUMBER: 562/98
In the matter between:
THE GAUTENG PROVINCIAL LEGISLATURE
APPELLANT
AND
J D KILIAN  AND 29 OTHERS
RESPONDENTS
CORAM : NIENABER, HOWIE, SCHUTZ and ZULMAN JJA
et MTHIYANE AJA
DATE OF HEARING  :
9 NOVEMBER  2000
DATE OF JUDGMENT :
29 NOVEMBER 2000
Powers of the Speaker of the Gauteng Legislature to give an undertaking in
regard to costs concerning the resolution of a dispute as to the constitutionality
of a Bill by the Constitutional Court in terms of ss 98(2)(d) of the Constitution
of the Republic of South Africa Act 200 of 1993
JUDGMENT

ZULMAN JA
[1]  The thirty respondents were at the relevant time members of the appellant (the
Gauteng Provincial Legislature (“the legislature”).  They constituted at least one-third
of the total membership of that body.  Pursuant to the provisions of ss 98(9) of the
Constitution of the Republic of South Africa Act 200 of 1993 (“the interim
Constitution”)  they petitioned the Speaker of the legislature requiring him to request
the Constitutional Court to exercise its jurisdiction in terms of ss 98(2)(d) of the
interim Constitution.
[2]   The subsections provide as follows:-
“98(2) The Constitutional Court shall have jurisdiction in the Republic as the court of final instance
over all matters relating to the interpretation, protection and enforcement of the provisions of this
Constitution, including-
......
......
(d) any dispute over the constitutionality of any Bill before Parliament or a provincial legislature,
subject to subsection (9);
......

......
(9) The Constitutional Court shall exercise jurisdiction in any dispute referred to in subsection
(2)(d) only at the request of the Speaker of the National Assembly, the President of the Senate
or the Speaker of a provincial legislature, who shall make such a request to the Court upon
receipt of a petition by at least one-third of all the members of the National Assembly, the
Senate or such provincial legislature, as the case may be, requiring him or her to do so.”
[3]   The request was directed towards  resolving a dispute which had arisen as to
the constitutionality of certain provisions of the Gauteng School Education Bill,
then awaiting adoption or rejection by  the legislature.  The Speaker  communicated
the request to the Constitutional Court.  The Constitutional Court declared that the
provisions of the Bill were not inconsistent with the interim Constitution.  It
declined to make any order as to the costs of the parties.
[4]  Prior to embarking upon the litigation in the Constitutional Court the
respondents sought an undertaking from the Speaker that their costs would be paid
by the legislature.  The respondents contend that such an undertaking was given.
The appellant denies this and alleges that what was given was a mere ruling.  After

the proceedings before the Constitutional Court were concluded the respondents
sought to recover their taxed costs from the legislature.  When  payment of such
costs was  not  made proceedings were  instituted in the Transvaal Provisional
Division of the High Court for their recovery.  An exception to the particulars of the
respondents’ claim having been dismissed, the trial then proceeded, in which certain
of the respondents gave evidence.   The court a quo (Van Dijkhorst J) granted
judgment in favour of the respondents  for the amount of their taxed costs together
with interest and costs.  The legislature, with the leave of the court a quo,  appeals
against that order.
[5] In order to determine whether an enforceable undertaking was given or an
inconsequential ruling, it is necessary to refer to the following  undisputed facts.
[6] On 7 September 1995 the petition by one-third of the members of the legislature

previously referred to was lodged with the Speaker in terms of s 98(9) of the interim
Constitution.
[7]   On 3 October 1995 the Speaker sent a memorandum concerning the  petition
to the secretary and legal advisor of the legislature in which he stated:
“SUBJECT: PETITION TO THE CONSTITUTIONAL COURT EDUCATION BILL
Please be informed that this petition should be handled as follows:
1.
Should the Constitutional Court request the Speaker to hear oral or legal argument
from both parties on this petition the Legislature will bear the legal costs of counsel
appointed by each side to represent its case.  Please note that as there are two sides
i.e. the petitioners and those opposing the petitions, only one counsel representing each
side will be paid for by the  Legislature.  Should individual members or parties decide
on their own specific legal representative outside the group they then have to foot the
bill for the same.
2.
Should the Legislature appoint counsel for both sides, each side will nominate their
counsel.
3.
The Legislature shall not pay for members who use the amicus curiae procedure and
such members will have to meet their own costs.”
[8]   In a letter dated 13 October 1995 addressed by the registrar of the
Constitutional Court to the Speaker, the views of the President of the Constitutional
Court are set out as follows:-

“Education policy is a matter of considerable public interest.  Where it is alleged that provisions
of a Bill dealing with educational policy are unconstitutional, the Court would want to allow
every opportunity to the objectors and interested parties to place their views before the Court.”
[9] Arising from this letter various discussions were held with the Deputy Speaker
and the Speaker concerning, inter alia, the payment of costs of attorney and counsel
to represent the petitioners before the Constitutional Court.
[10] The Speaker ruled that the legislature would make payment of the petitioners’
costs, such costs to cover the cost of an attorney, counsel and senior counsel.
This ruling was confirmed by the Deputy Speaker at a meeting held on 11 October
1995.
[11] On 16 October 1995 Mr Richard Mdakane representing the ANC members of
the legislature wrote the following note to the Speaker:
“On behalf of ANC MPL’s I wish to lodge an objection to your apparent decision
allowing the Gauteng Legislature to finance counsel for parties supporting the petition

to the Constitutional Court on the School Education Bill.  It is our view that they
constitute a minority within the Legislature and it is therefore inappropriate that
Legislature monies should be used to finance activities which are contrary to the
democratic wishes of the vast majority of MPL’s and the constituencies they
represent.”
[12]  In a memorandum dated 17 October 1995, sent by the Speaker to senior
whips and leaders of all parties in the legislature, notice was given that a meeting
would be held to discuss the payment for legal representation for the petitioners and
non-petitioners in the dispute concerning the provisions of the Gauteng School
Education Bill.  The memorandum records that:-
“A concern has been raised by the Government and members of the ANC that
payment of such counsel would be a misuse of Legislative funds.”
[13] The envisaged meeting was held on 19 October 1995.  The minutes record that
it was the Speaker’s initial opinion that his office represented the legislature, and
therefore both petitioners and non-petitioners, and that “it would therefore be appropriate
for the office to pay one legal team for each of the parties to the dispute.”
[14] The legal department of the legislature sought the opinion of the state attorney.

His opinion as expressed in a letter of 24 October 1995 was that he could “see no
basis in principle for the Legislature not to pay the legal costs when a portion of its members (whether
a majority or minority) exercise their Constitutional rights”.  The letter concludes by advising
an investigation of the possibility that the question of costs in the matter be put to
the Constitutional Court to be dealt with in terms of s 98(8) of the interim
Constitution.
[15] Under cover of a letter dated 25 October 1995 the respondents’ attorneys sent
a copy of a memorandum dated 24 October 1995 prepared by counsel submitting
that the ruling of the Speaker that the legislature should bear the legal cost of the
petitioners in regard to the determination of the dispute by the Constitutional Court,
was correct.  In the memorandum which was circulated to all members of the
legislature attention is drawn to the views of the President of the Constitutional
Court to which I have referred.  In addition the following is stated:

“7.
Should members of a Provincial legislature exercising their Constitutional right
under section 98(9) to petition the Speaker to refer disputes concerning the
Constitutionality of a Bill to the Constitutional Court be required to bear their
own costs in regard to the determination of the disputes, this would effectively
deter members of a Provincial legislature from raising issues of Constitutionality
and thereby effectively serving the electorate and constituencies which they
represent.   It should be borne in mind that the Gauteng Government has at its
disposal the wealth, machinery and expertise available to the State in order to
ensure that its submissions are fully and properly placed before the
Constitutional Court.
In this regard the Petitioners have been given to understand that the Speaker
and the Gauteng Government have already consulted two senior counsel who
specialise in Constitutional Law as well as other Constitutional experts.
8.
The objection raised on 16 October 1995 by RICHARD MDAKANE on
behalf of the ANC members of the Provincial legislature to the decision of the
Speaker that the Petitioners’ costs be borne by the Gauteng Provincial
Legislature, is without merit.  It is the Constitution which is supreme, and not
the ANC as the majority party.   The fact that the ANC holds a majority in the
Provincial legislature and the Petitioners constitute a minority, is irrelevant;   the
essential question is whether the provisions of the Bill objected to are
unconstitutional or not, and the view which the ANC majority may hold cannot
be decisive of that question.”
[16] Thereafter the Speaker addressed a letter dated 27 October 1995 to the
attorneys for the respondents.  He also sent copies to other political parties
represented in the legislature as well as to all members of the legislature.  The letter
is fundamental to the respondents’ case and is the basis of the undertaking upon
which they rely.  The letter, which is on the letterhead of the office of the Speaker,
reads as follows:

“RE: PETITION ON EDUCATION BILL - LEGAL COSTS
Dear Sirs
The Gauteng Legislature is prepared to pay attorneys’ reasonable fees (including Counsel’s
charges) either as agreed or as taxed.
It is clear that there is no agreement between the various political parties making up the body
of Petitioners as to the employment of one firm of attorneys and one set of Counsel to represent
all the Petitioners as a body.  In fact, the memorandum written by myself and dated 3 October
1995 was clearly predicated on the assumption that the Petitioners would be acting as one
body and would utilise the services of one legal team.
It is also clear that those of the Petitioners who are members of the Freedom Front, have
appointed one set of attorneys whereas those of the Petitioners who are members of the
Democratic Party and National Party have appointed another set of attorneys and Counsel.
It appears to us, prima facie, that the appointment of attorneys and Counsel has not yet been
approached on the basis of unanimity between the Petitioners but, to some extent, along party
political lines.
We see no basis for agreeing to pay the costs incurred by members of the Legislature as
members of a political party, rather than as members of the Legislature.  It is not reasonable or
even warranted at this stage at least that the Legislature should incur any costs other than those
incurred on behalf of a body of members of the Legislature, acting as such, unless the
Constitutional Court orders us to do otherwise.
In summary therefore our undertaking is to pay the costs, agreed or taxed as aforesaid,
of one set of attorneys and Counsel.
We suggest you make available to your attorneys a copy of this letter, and that they then
confirm with us if they so then desire, the contents hereof.
Upon conclusion of the matter, their accounts may be submitted to Gauteng Legislature for
payment in accordance with the aforegoing.
Notwithstanding the hereinbefore mentioned decision by myself, there remains a dispute within
the Legislature regarding the responsibility for legal costs.
In this connection I deem it appropriate that the  Constitutional Court should be invited to make
a determination on this matter.  Accordingly members of the Legislature who wish to place
arguments to the Court on this matter are invited to do so.
It follows therefore that the validity of my decision will be subject to the determination of the

Court.
Yours faithfully
(Sgd) T. G. Fowler.”
(Emphasis supplied)
The letter was drafted by a private firm of attorneys and senior counsel engaged by
the Speaker although the last three paragraphs were added by the Speaker himself.
Senior counsel’s advice to the Speaker (not counsel who appeard either in the
Constitutional Court or this court) was that “subject to certain qualifications, that it would
only be fair that their costs should be borne by the Legislature.  In requiring that the Bill be referred to
the Constitutional Court, the petitioners acted, not in their personal capacities, but qua members of the
Legislature.  They acted in a representative capacity and there would be no good reason why they
should have to bear the costs themselves.”
[17] On 30 October 1995 the respondents’ attorneys replied to the Speaker’s letter
of 27 October 1995.  They indicated that:
“In the light of the comments made in the penultimate and last paragraphs of your letter and

particularly because of the fact that you are not prepared to unreservedly accept responsibility
for the legal fees of the petitioners you leave us no alternative but to approach the court for a
declaratory order in this regard.”  They went on  to contend  that the Speaker’s
failure to accept responsibility for payment of the petitioners’ legal fees
frustrates the petitioners in the proper preparation of their case.
[18] On the next day the Speaker, by way of a memorandum, informed the whips
of the various parties of the receipt of the aforementioned letter.   He attached a
copy of the letter  and advised that he did not intend opposing the threatened
application to court  but would leave it to members who were not parties to the
petition to decide whether  to oppose the application.
[19] On 31 October 1995 the petitioners had second thoughts.   Their attorneys
wrote to the Speaker advising him that they had reconsidered the matter and on

their understanding that the legislature undertook to pay the reasonable fees of one
firm of attorneys and one set of counsel representing the petitioners as a body, they
would not approach the court for  a declaratory order, but that appropriate
argument would be addressed to the Constitutional Court on the question of costs,
in so far as the Constitutional Court might be prepared to hear such argument and
make a determination as envisaged by the Speaker.    There was no reply to this
letter.
[20] The matter was thereafter heard in the Constitutional Court.  The same counsel
who appeared before us was briefed by the Speaker to argue the matter of costs.
The Constitutional Court  was not prepared to hear him as the Speaker was not a
party to the proceedings.
[21] Judgment was delivered by the Court on 4 April 1996.  The Court refused to

award costs against the unsuccessful petitioners who are the respondents before
this Court.  The issue of the undertaking given by the Speaker in the letter of
27 October 1995 was not raised in the Constitutional Court and the judgment of
that Court does not seek to deal with the issue which is now before this Court.
[22] The respondents’ attorneys then drafted a bill of costs and presented it to the
Speaker.  The state attorney acting on behalf of the Speaker informed the
respondents’ attorney that he had been instructed to oppose the taxation of the bill
of costs and that as there had been no award of costs by the Constitutional Court,
the Speaker would not accept liability for payment of the costs or agree to the
taxation thereof on an attorney and own client basis.
[23] The respondents’ attorneys then advised the state attorney that they would
proceed with taxation of the bill of costs, would ask the taxing master to tax the bill
on an attorney and own client scale and would thereafter issue summons to recover

the costs if they were not paid.   The bill was thereafter taxed on the attorney and
own client scale without any further notification to the state attorney.
[24]  Section 98(9) of the interim Constitution afforded a pre-emptive power to the
Speaker of a provincial legislature to request the Constitutional Court, upon receipt
of a petition by at least one-third of all the members of that legislature, to exercise
jurisdiction in regard to any dispute referred to in ss 98 (2)(d) of the interim
Constitution.  Section 98(2)(d), in turn, conferred jurisdiction on the Constitutional
Court to deal with a dispute concerning the Constitutionality of any bill before a
provincial legislature.   Interpretation of s 98(9) is, of course, a matter outside this
Court’s jurisdiction (see s 101(5)) but its scope and purpose appear clearly enough
from two cases decided in the Constitutional Court.  In Ex parte Gauteng
Provincial Legislature : In re Dispute Concerning  The Constitutionality of
Certain Provisions of the Gauteng School Education Bill of 1995, 1996 (3) SA

165 (CC) concerning the referral to which the present issue relates, Mahomed DP
said at para 36 at 182F - 183C:
“It was submitted by Mr Trengove that the costs of the proceedings before us should be paid
by the petitioners if they are unsuccessful in their attack on the impugned provisions.  We were
referred, in this regard, to the well-known rule in the Supreme Court that ordinarily, and subject
to the discretion of the Supreme Court, costs should follow the result and the losing party
should be directed to pay the costs of the successful party.7  There are obviously attractive
grounds of policy which support such an approach in ordinary litigation between litigants in the
Supreme Court and in the magistrates’ Courts.  It does not follow, however, that it should also
be the general rule in the Constitutional Court and more particularly the rule in cases brought
to the Constitutional Court in terms of s98(9) of the Constitution at the request of the Speaker.
A litigant seeking to test the Constitutionality of a statute usually seeks to ventilate an important
issue of Constitutional principle.  Such persons should not be discouraged from doing so by the
risk of having to pay the costs of their adversaries, if the Court takes a view which is different
from the view taken by the petitioner.   This, of course, does not mean that such litigants can
be completely protected from that risk.  The Court, in its discretion, might direct that they pay
the costs of their adversaries if, for example, the grounds of attack on the impugned statute are
frivolous or vexatious or they have acted from improper motives or there are other
circumstances which make it in the interest of justice to direct that such costs be paid by the
losing party.
7. Fripp v Gibbon & Co 1913 AD 354 at 357-8; Merber v Merber 1948 (1) SA 446(A)
at 452."
The other case is Ex parte Speaker of the National Assembly: In re Dispute
Concerning the Constitutionality of Certain Provisions of the National Education
Policy Bill 83 of 1995, 1996 (3)SA 289 (CC) at 308 D-H, in which Chaskalson P,
said:

[43] “We were asked by counsel for the Minister to lay down guidelines for the referral of
issues to this Court under s 98(2)(d) and (9) of the Constitution.  It was submitted that
it would have been more appropriate for this matter to have been referred to the Court
after the debate on its provisions had been completed......
[44] It would no doubt have been better in the circumstances of this case if the objectors
had raised the Constitutional issue during the debate and deferred lodging the petition
with the Speaker until after the government’s attitude to the disputed clauses had been
clarified.  If this procedure had been followed the disputed issues might have been
resolved within Parliament.  Parliament controls its own proceedings and there may be
good reasons for the procedure whereby the petition was lodged at the commencement
of the debate.  The procedure to be followed in such matters is within the domain of
Parliament and in my view it would not be appropriate for this Court to make any
suggestions to Parliament in that regard.”

The pre-emptive power conferred by s 98(9) was thus  obviously designed to
facilitate good governance in the public interest and was  not simply a general
power allocated to the Speaker.  The determination of a bona fide dispute
concerning the constitutionality of a Bill, in advance of the  Bill  becoming law, was
clearly a determination in the interests of the provincial legislature and its effective
and efficient functioning.   Moreover,  the petitioners acted at all relevant times not
in their personal capacities, but in their capacities as members  of the legislature
and, absent a special order such as referred to by Mahomed DP, were not

personally liable for costs.
[25]   Did the Speaker have the requisite power to give the undertaking in question
and did he do so?     Any reliance upon a contractual undertaking brought about by
the making of an offer by the Speaker and the acceptance thereof by the
respondents was wisely abandoned by counsel for the respondents.  The act of the
Speaker was not one properly  to be categorised as a contractual undertaking.  On
a proper construction of the undertaking evidenced in the letter of 27 October 1995,
viewed in the light of the circumstances in which it came to be given, it amounted
to a clear undertaking by the Speaker, enforceable without the need for acceptance,
to pay the petitioners’ costs.   As correctly pointed out by Van Dijkhorst J, “it states
so in so many words”.  Indeed,  the appellant in its plea categorised the action of the
Speaker as an “undertaking”.   The  last three paragraphs of the letter of undertaking
detracted in no way from the undertaking.  They did not make it  provisional.

Plainly, if the Speaker acted ultra vires in giving the undertaking, it could not be
enforced.   However, he clearly intended that in the absence of a determination by
the Constitutional Court that the undertaking was ultra vires, it would stand.
[26]    As to his authority, in my view  the Speaker was empowered to give the
undertaking.   Firstly, in giving the undertaking he acted in his official  capacity.  As
to that capacity,  Sir William Holdsworth,  in his monumental work on the   history
of English law,  draws attention to the fact that the Speaker of the  House of
Commons is the representative and spokesman “of the House in its collective capacity” (A
History of English Law - Volume IV 176 n6).  Referring to Redlich’s  Procedure
of the House of Commons, Holdsworth comments that the position of the Speaker
in relation to the law  “is strikingly similar to the relation of a judge to the common law and to the
rules of his court”;  the orders of the Speaker are a regular part “of the apparatus of the
House”;   these orders “cover almost the whole field of the regulation of its business” (vol II  433,

vol VI 89).  Kilpin,  Parliamentary Procedure in South Africa (3rd Ed (1955) 153),
refers  to Sir Erkine May’s nine editions of his treatise, The Law, Privileges,
Proceedings and Usage of Parliament where the point is made that the duties of
the Speaker of the House of Commons “are as various as they are important”.   Kilpin
concludes his discussion of the Speaker’s duties by referring to a letter of 6
December 1905 by a Mr Speaker Lowther in which it is stated that: “The Speaker is
the interpreter and custodian of the rights and privileges of the members of the House.”   Kilpin then
states that:-
“The plain fact is that Mr Speaker’s duties are too numerous to set out in detail.  In the Union
of South Africa they are specifically referred to in the South Africa Act, the Powers and
Privileges of Parliament Act, the Electoral Act and the Standing Rules and Orders of the House
of Assembly, but they depend so much on tradition that no better summary can be given than
that which May originally wrote.”
(p 153)
[27]   The Speaker’s common law powers therefore includes the power to regulate
the business of the legislature and its business was the legislative process.

[28]   Secondly, as far as the interim Constitution conferred powers on the
Speaker, regard must be had to s 131(2) read with s 41(3) to (10).  Section 41(3)
declared that the Speaker of the National Assembly was vested with all the powers
and functions assigned to him or her by the Constitution, an Act of Parliament and
the rules and orders.  A provincial Speaker acted mutatis mutandis under the same
authority.     In so far as national legislation is concerned, s 31(1) of the Powers and
Privileges of  Parliament Act 91 of 1963 provides that the control of the expenditure
and the appropriation of moneys for the service of Parliament “shall be vested in the
Speaker” and that his “authorization for such expenditure and appropriation of moneys” be taken
subject to the provisions of the section, “to be in all respects good, valid and effectual.”
[29] It follows that the Speaker in this case, like the Speaker of Parliament, had the
authority to direct the expenditure of moneys for the legislature’s services in relation
to the legislative process.   The court a quo correctly held, therefore, that the

determination of the dispute concerning the constitutionality of a bill in its formative
process is a determination in the interests of the provincial legislature and its
effective and efficient functioning.  As such it is part and parcel of the legislative
process.  It follows that the costs incurred in order to bring about a resolution by
the Constitutional Court of the disputes which have arisen within the legislature are
costs  which should properly be borne as part of the costs of administration of
such provincial legislature.   The Speaker was thus empowered to give an
undertaking on behalf of the legislature to pay the costs of the minority incurred in
the referral of a pending bill to the Constitutional Court under the interim
Constitution.
[30]   I believe that the Speaker in this case was guilty of an obvious  about-face.
Having given the undertaking, he bowed to political pressures to renege upon it.
Notwithstanding the fact that the Speaker may be removed by the legislature or that
his decisions may be overridden by it, he should not submit to such pressure.  He

is required by the duties of his office to exercise, and display, the impartiality of a
judge.  Having obtained persuasive and authoritative legal advice he chose to ignore
it.  Not only that.  He attempted to justify himself in evidence with the unconvincing,
and unbecoming, protestation that he had never given an undertaking but had
merely issued a ruling.
[31] Counsel for the appellant contended that because no notice of taxation had
been given that there was no basis for recovering the taxed amount of the costs
from the appellant.  This contention is also without merit.  It was not disputed that
the fees and disbursements in the bill which was taxed were reasonable after
taxation and were regarded as such by the taxing master.  The taxation was between
attorney and own client.  The clients were the plaintiffs.  There is no obligation in
law upon a taxing master to require notification of non-parties to a taxation.  The
state attorney had in any event been informed of the fact that a bill

was to be taxed but indicated that he was not prepared to participate in such
taxation.
In the circumstances  the appeal is dismissed with costs.

R H ZULMAN JA
NIENABER JA
)
HOWIE JA
) CONCUR
SCHUTZ JA
)
MTHIYANE AJA
)