Provincial Minister for Local Government, Environmental Affairs and Development Planning, Western Cape v Municipal Council of the Oudtshoorn Municipality (CCT05/15) [2015] ZACC 24 (18 August 2015) per Molemela AJ: (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Nkabinde J, Theron AJ and Tshiqi AJ concurring):

Summary:

Local Government: Municipal Structures Act 117 of 1998 —constitutional validity of section 30(4)— section is constitutionally invalid

Wide language in section 30(4)— any question— inconsistent with section 160(3)(b) of the Constitution

ORDER

Application for confirmation of the order of the Western Cape Division of the High Court, Cape Town (Davis J):

(1)        The order granted by the High Court is confirmed.

(2)        There is no order as to costs.

Extracts with footnotes omitted

Introduction

[1]     This is an application for confirmation of an order of the High Court of South Africa, Western Cape Division, Cape Town (High Court) declaring section 30(4) of the Local Government: Municipal Structures Act (Structures Act) constitutionally invalid as contemplated in section 172(2)(a) of the Constitution of the Republic of South Africa, 1996 (Constitution).

. . . .

Reading-in

[27]     The question that arises is whether this Court should read words into section 30(4) of the Structures Act in order to render it compatible with section 160(3)(b) of the Constitution.  The starting point is captured in Gaertner where this Court held that “reading- in” should be resorted to sparingly because the “actual act of writing or editing legislation may constitute a possible encroachment by the Judiciary on the terrain of the Legislature and, therefore, a violation of the separation of powers”.  This Court, however, held that depending on its nature and extent, reading-in does not unduly encroach on the terrain of the Legislature.

. . . . .

Should the order operate retrospectively?

[31]     The National Minister emphasised that it is crucial for this Court to limit the reach of the declaration of invalidity so that it operates prospectively only.  In Cross- Border, this Court confirmed that the default position when it comes to an order of constitutional invalidity is that the order “will have immediate retrospective effect”.   This is so unless the Court making the declaration declares otherwise for reasons pertaining to justice and equity.

[32]     An order of full retrospective force would render unlawful all decisions taken by Municipal Councils in which section 30(4) of the Structures Act was invoked.  The parties submitted that an order that operates retrospectively would be disastrous to the many municipalities that took decisions on matters referred to in section 160(2) of the Constitution through the exercise of a casting vote and subsequently implemented them.  That result would also adversely affect third parties who contracted with these municipalities.  An appropriate order would therefore be one that prospectively declares section 30(4) inconsistent with the Constitution and invalid.