Mangope v. Van Der Walt and Another

  • Author: High Court of South Africa, Bophuthatswana General Division
  • Document source:
  • Date:
    18 April 1994

MANGOPE v VAN DER WALT AND ANOTHER NNO 1994 (3) SA 850 (BG)
BOPHUTHATSWANA, GENERAL DIVISION
COMRIE J
1994 April 13, 18
Case No M79/94

Flynote

Constitutional law-Lawfulness of government-Revolutionary government Doctrine of successful revolution-Whether applicable-Government of Bophuthatswana deposed and replaced by administration appointed by Government of South Africa-Such, though constituting breach of Bophuthatswana's sovereign independence, clearly also in conflict with Constitution of Bophuthatswana and accordingly unconstitutional -Having violated Bophuthatswana's sovereign independence, South Africa not entitled to sovereign immunity in Courts of Bophuthatswana in respect of such breach Courts of law not existing in vacuum and not able to ignore fundamental political events -Principles of international law not apposite in dealing with legal position of usurper within territory of which he has acquired control-Issue to be approached as one of constitutional rather than international law-Though change in government effected by foreign government, such inspired by public dissatisfaction with Government of Bophuthatswana and therefore constituting revolution in widest meaning of word -Doctrine of successful revolution applicable-Test generally one of success of revolution and effectiveness of new government In casu, test satisfied and new government recognised

Headnote

After a period of widespread civil unrest in Bophuthatswana early in March 1994, its Government, in terms of existing accords between it and the South African Government, requested the South African Defence Force to intervene militarily. While the SADF was engaged in restoring the peace, the South African Government, in consultation with the (South African) Transitional Executive Council, decided to take the necessary steps to take over the government of Bophuthatswana. The applicant, the then President of Bophuthatswana, was informed that his presidency was no longer recognised and that he could no longer continue as head of the Government of Bophuthatswana. His Cabinet was dismissed and two administrators, the respondents, were appointed to run the country. Among the first steps taken by them was to issue a decree, the Administration of Bophuthatswana Decree I of 1994 (B), in terms of which the Constitution of Bophuthatswana (Act 18 of 1977 (B)) was substantially suspended (certain provisions dealing with the judicature, including those relating to the authority of the present Court, were excluded from the suspension). The applicant approached the Court for a declaratory order rescinding the appointment of the respondents as joint administrators and annulling Decree I of 1994 (B). The submissions for the applicant were based on principles of international law and were to the effect that, although the military intervention had been legitimate, the subsequent unsolicited political intervention had constituted a violation of Bophuthatswana's sovereignty and had been in breach of the rules of international law relating to the duty of one State to respect the territorial and political integrity of another State and not to interfere in the latter's affairs. The respondents raised an objection in limine to the effect that the Court lacked jurisdiction because the respondents had been appointed by South Africa and the Court had no authority over the acts of another State. As to this issue, the Court pointed out that, having violated Bophuthatswana's sovereignty, South Africa could hardly expect to enjoy the privilege of sovereign immunity in the Courts of Bophuthatswana in respect of that very breach. (At 862F/G-G.) As to the merits of the application,

Held, that, although the applicant's submissions were based wholly on principles of international law, these principles were not apposite to the instant case as they were 'quite inappropriate in dealing with the legal position of a usurper within the territory of which he has gained control'. (At 862G/H, 863C/D and E.)

Madzimbamuto v Lardner-Burke and Another [ 1968] 3 All ER 561 (PC) at 573H applied.

Held, further, that the present case had to be dealt with as a constitutional law issue. (At 863D.)

Held, further, that, although no illegality attached to the intervention of the SADF or to its continued presence in Bophuthatswana, the deposition of the applicant from the Presidency, the dismissal of his Ministers, and the assumption of legislative and executive powers by the joint administrators were plainly all in conflict with the Constitution of Bophuthatswana. (At 864B-C.)

Held, further, that decided cases in other jurisdictions accepted that conduct of this nature, though unconstitutional, could, in terms of the doctrine of successful revolution, either be lawful or become lawful with the passage of time (At 864C-C/D.)

Held, further, as to whether this doctrine was applicable in the instant case where the change in power had been effected by a foreign government rather than by insurrectionists or insurgents, that it was of little practical assistance to the community for the Court to issue a blanket annulment if, in reality, the new regime was fully in control, and that the Court was in any event not persuaded by the distinctions the applicant sought to draw, viz that the present change had not arisen from local insurrection or foreign insurgency, but had been effected by a foreign government: the point was that there had nevertheless been a revolution within the widest meaning of the word; moreover, there had been a popular uprising which stemmed from public dissatisfaction with the conduct of the then Government of Bophuthatswana. (At 863H-J.)

Held, further, that the doctrine of successful revolution was accordingly applicable to the instant case. (At 864A/B.)

Held, further, that Courts of law did not exist in a vacuum and could not ignore fundamental political events or changes: faced by a usurpation or attempted usurpation of the existing legal order of government in its own territory, a Court could be called upon (as in the instant case) to decide whether or not to recognise the usurper, and the test applied by the Courts in many parts of the world was essentially one of effectiveness or success. (At 865I-866A.)

Held, further, that effectiveness or success was generally measured by determining whether the new government (1) was firmly established, there being no other government in opposition thereto, and (2) its administration was effective in that the majority of the population were behaving in conformity therewith: although some cases in addition required that such conformity had to be due to popular acceptance of and support for the new regime, such a requirement could create practical difficulties in the way of testing it. (At 867E-F, read with 866F-G.)

Mokotso and Others v H M King Moshoeshoe II and Others [1989] LRC (Const) 24 (Lesotho High Court) at 133 and Matanzima and Another v President of the Republic of Transkei and Another 1989 (4) SA 989 (Tk) at 997A applied.

Held, further, that the evidence in the instant case showed that the respondents had indeed achieved the required success or effectiveness, and that the new regime had to be recognised as lawful. (At 867G-868A/B, in summary.)

Held, accordingly, that the application had to be refused.

Case Information

Application for an order declaring the appointment of the first and second respondents as Administrators of Bophuthatswana of no force and effect and declaring Bophuthatswana Decree 1 of 1994 suspending the Constitution of the Republic of Bophuthatswana null and void. The facts appear from the reasons for judgment.

C D de Jager SC (with him S C Jacobs) for the applicant.

J P de Bruin SC (with him L C J Maree) for the respondents.

Cur adv vult.

Postea (April 18).

1994 (3) SA P852

JUDGMENT

Comrie J: Until Saturday, 12 March 1994, the applicant, Lucas Mangope, was the elected President of Bophuthatswana. The respondents, Messrs Van der Walt and Mokgoro, are the joint administrators appointed by the South African Government and the Transitional Executive Council (the TEC) to govern Bophuthatswana for the time being in the place of the applicant and his Ministers. The TEC is a body established by s 2 of the Transitional Executive Council Act 151 of 1993, which is a South African law. Where convenient I shall refer to the respondents as the joint administrators. They oppose this application.

The applicant seeks the following substantive relief (as amended):

'(2)Declaring that the appointment of the first and second respondents as Administrators of Bophuthatswana is of no force and effect within the territory of Bophuthatswana and does not empower them to administer the said territory.

(3)Declaring the decree (annexure F hereto) which seeks to suspend the Constitution of the Republic of Bophuthatswana null and void.

Alternatively:

Declaring the suspension of chap 2 of the Constitution of Bophuthatswana null and void.

(4)Confirming the appointment of an interim executive council as set out in annexure AA hereto which executive council shall administer the Republic of Bophuthatswana as set out in the said annexure AA hereto.

(5)Empowering the said Executive Council to review resolutions taken by the respondents and ratify such resolutions as approved by the said Executive Council.

(6)Directing any administrative authority administering the Republic of Bophuthatswana to comply with the provisions of the Constitution as amended in annexure AA and the laws and regulations of Bophuthatswana relating to pensions, gratuities and other benefits of members of the Government and Parliament as well as civil servants.'

Annexure AA reads as follows:

'Resolution of the President and the Executive Council of the Government of Bophuthatswana

1.The functions and powers of the President, executive council and Parliament as described in the Constitution of Bophuthatswana are transferred to an interim executive council which will govern Bophuthatswana in accordance with the Constitution as amended herewith and the laws of Bophuthatswana.

2.The Independent Electoral Commission Act 150 of 1993, the Transitional Executive Council Act 151 of 1993, the Independent Broadcasting Authority Act 153 of 1993 and the Electoral Act 202 of 1993 of the Republic of South Africa shall apply to Bophuthatswana.

3.There shall be an interim executive council consisting of seven members:

(a)The Chief Justice of the Republic of Bophuthatswana or a Judge of Bophuthatswana appointed by him who will act as chairman of the council.

(b)Three members appointed by the President of Bophuthatswana.

(c)Three members appointed by the Government of the Republic of South Africa.

4.The Constitution, as amended in prayer 1, is re-instated until certification by the chairman of the Independent Electoral Commission that a free and fair election had taken place and it is superseded by the Constitution of the Republic of South Africa Act 200 of 1993.'

At the outset of argument counsel for the applicant indicated that he did not insist on prayers 4 and 5 of the notice of motion and he asked that certain words in prayer 6 be omitted. He pressed however for prayers 2 and 3, failing which the alternative to prayer 3.

During the second week of March 1994 there were widespread strikes and stay aways from work in Bophuthatswana, especially among members of the public service. On about Thursday, 10 March, wholesale looting and arson began which continued into the following day. It became unsafe for ordinary folk to move about freely. People were injured or killed. Damage was caused to property running into many millions of rands. The Bophuthatswana security forces, that is the police and the defence force, were unable to cope with the situation, or unwilling to do so, or both. Law and order broke down entirely. On Wednesday, 9 March, the applicant, who was constitutionally the Commander-in-Chief of the defence force, had already discussed possible assistance with General Constand Viljoen. He is a former head of the South African Defence Force (the SADF) who has become a prominent political leader in South Africa. During the next day (the Thursday) the Bophuthatswana Minister of Defence requested General Viljoen's assistance. The latter ordered members of the Afrikaner Volksfront to come into Bophuthatswana in order to stabilise the position. They failed to achieve that objective. There was also, on Friday, 11 March, an incursion into Bophuthatswana by members of a movement known as the Afrikaner Weerstandsbeweging. Their temporary presence did nothing to calm the position, but according to one deponent, aggravated it.

Meanwhile the SADF had begun moving to the South African Embassy in Mafikeng. On Friday afternoon, 11 March, General Turner, as head of the Bophuthatswana Defence Force, requested General Meiring, as head of the SADF, to intervene militarily. The request was made in terms of existing accords between the two Governments. The applicant states that after receiving an assurance, conveyed by General Viljoen, that it was not the intention to topple his government: 'I gave permission that General Meiring could go ahead.' Whatever the source of that assurance, it is clear from the affidavits that it was not the South African Government or the TEC.

General Meiring takes up the story in his affidavit dated 30 March 1994:

'4.1In die laat middag van 11 Maart 1994 het Suid-Afrikaanse troepe begin uitbeweeg. Dit was baie duidelik uit wat hulle gevind het dat daar inderdaad totale chaos in Bophuthatswana geheers het in die sin dat daar plundering en geweldpleging teenoor eiendom en persone op 'n groot-skaalse wyse plaasgevind het. Dit het inderdaad nie net in Mmabatho plaasgevind nie maar ook in ander gedeeltes van Bophuthatswana soos by Mabopane, noord van Pretoria. Daar was burgerlike onrus van die hoogste graad en dringende militêre optrede was nodig.

4.2Gedurende die oggend van 12 Maart 1994 het die toestand begin stabiliseer maar die teenwoordigheid van die SAW is steeds behou, soos dit tans ook nog die geval is.

4.3Tans is die toestand gestabiliseer maar nog nie genormaliseer nie, in die sin dat daar nog van tyd tot tyd aksies voorkom, maar hoegenaamd nie op die skaal waarop dit voorgekom het op die stadium toe die SAW toegetree het nie. Aksies wat tans ontstaan is in elk geval sporadies, geïsoleer en maklik hanteerbaar.'

On Saturday night, 12 March, the applicant was visited by a delegation which was led by Mr R F Botha, who is the Minister of Foreign Affairs in the South African Government. Mr Botha has given the reasons for his visit:

'5.1After the South African Defence Force, which moved into Bophuthatswana on instruction of the South African Government, had stabilised the situation in Bophuthatswana on 12 March 1994, it became clear that military intervention alone was insufficient to keep the situation in a stabilised state. The Government of Bophuthatswana was no longer in control, elements of the defence force and police force in Bophuthatswana had become disloyal, the administration had collapsed and any attempt to put the Government of Bophuthatswana back into power would have the disastrous effects of the preceding days repeated.

5.2The South African Government, in consultation with the Transitional Executive Council, decided to take the necessary steps to take over the Government of Bophuthatswana and administer it through an administrator.'

In the course of the meeting Mr Botha informed the applicant

'that his presidency was no longer recognised by the South African Government and the Transitional Executive Council and that in the circumstances he could no longer continue as bead of the Government of Bophuthatswana'.

According to Mr Botha the applicant was further informed that the first respondent, hitherto the South African ambassador here, was as an interim measure placed in charge of the administration of Bophuthatswana. The applicant requested the opportunity of addressing Parliament on 15 March. This request was declined, as was an alternative request to address the people of Bophuthatswana. The applicant summarises the discussion as follows:

'Mr Botha informed me bluntly that the South African Government was taking over my government and that steps would follow to incorporate the (Republic of Bophuthatswana) into the Republic of South Africa and thereby depriving the Tswana people of their sovereignty and land without consulting them or the elected Parliament or me.'

According to the applicants sons' other matters were discussed at the meeting that night. According to General Meiring, Mr Botha exercised 'merkbare diplomasie'. Whatever else may have been discussed, and whether the Foreign Minister was blunt or diplomatic, one thing is clear: the applicant was removed from office by the South African Government whose defence force was engaged in restoring peace in Bophuthatswana.

The first respondent took up the reins of civilian rule. There is some reference in the affidavits to what is common knowledge, namely that the applicant's Ministers were dismissed summarily. Parliament was prevented from sitting on Tuesday, 15 March 1994. The first respondent was joined by the second respondent, hence the expression 'the joint administrators', which has already passed into the language of Mafikeng/Mma-batho. Among the first steps taken by them was to issue a decree, the Administration of Bophuthatswana Decree 1 of 1994. It suspends substantial parts of the Constitution of Bophuthatswana contained in Act 18 of 1977, including the declaration of fundamental rights contained in chap 2. Excluded from the suspension is chap 7 which deals with the judicature. The authority of this Court remains intact (see ss 2(2) and 9), though the laws to be applied have changed. Apart from the Constitution, by a subsequent decree further statutory provisions have been suspended by the joint administrators. Decree 1 of 1994 (B) contains certain other significant provisions to which I shall call attention later in this judgment.

In his affidavit dated 31 March 1994 the first respondent states:

‘…I can state without fear of contradiction that the majority of the people of Bophuthatswana, by word and behaviour, have accepted our administration and that they acquiesce in and act in conformity with our mandates and actions. To interfere with our appointment and the firmly established administration will, so do I and the second respondent believe, in all probability, lead to renewed unrest, violence and uncertainty.

4.2I do not at all mean to convey to this honourable Court that there are no problems. There are still from time to time incidents of unrest and disruption, but not nearly on the same scale as before. What is clear, however, is that the majority of these incidents are not politically motivated in the sense that it is "anti-State", "anti-Administration" or "anti-Government". In fact, I have the clear understanding that some of the demands made are born from a desire to, as far as possible, get rid of anything which can still be related to the former Government of Bophuthatswana.'

Those of us who live and work in Mafikeng/Mmabatho are well aware of the strikes, stoppages, 'meetings', demands and petitions which have confronted the joint administrators since they assumed office. Theirs has not been an easy task. It appears to me, however, that the present situation in Bophuthatswana is not materially different to that to be found in many parts of South Africa at this volatile time.

To place this application in its proper perspective, I need to relate in broad terms some recent political history. To the extent that I may travel beyond the evidence contained in the affidavits, the facts are so well and widely known -'notorious' in legal parlance - that I take judicial notice of them. Hoffmann and Zeffertt SA Law of Evidence 4th ed at 417. In late 1989 and early 1990 the ruling party in South Africa abandoned the policy known as 'apartheid'. A process termed national reconciliation was instituted with two main purposes: first, to enfranchise the multitude of people who were without the vote; and second, to fashion a new Constitution. Bophuthatswana, whose people already had the vote, participated in the ensuing talks and negotiations. The initial attitude of the Bophuthatswana Government, from the umbrella of its independence gained in 1977, was one of 'wait and see'. If acceptable terms were proposed for Bophuthatswana's re-incorporation into South Africa, the people would be consulted by way of a referendum. In the second half of 1993 negotiations for a new Constitution reached an advanced stage.

Bophuthatswana joined the Freedom Alliance, a negotiating group, and thereafter the alliance withdrew from the negotiations. By the end of 1993 a new Constitution was agreed upon by the negotiating participants and was enacted into law by the South African Parliament as the Constitution of the Republic of South Africa Act 200 of 1993, better known as the interim Constitution. It is to take effect on 27 April 1994, which is the date set for elections to commence. Though Bophuthatswana had not agreed to join in, the interim Constitution provided that it should do so. By s 230(l), read with Schedule 7, the Status of Bophuthatswana Act 89 of 1977 was to be repealed, and by s 124, read with Schedule 1, all of Bophuthatswana's territory was to form part of South Africa, mostly within a new North-West Province. Early in 1994 the interim Constitution was amended to allow a double ballot and to change the powers of the new provinces.

Talks between interested parties, including Bophuthatswana, continued to take place. Aside from the pressing question of whether Bophuthatswana would re-incorporate or not, a new set of problems arose. If Bophuthatswana joined in, would there be time to register for the election and canvass for votes? If Bophuthatswana refused to join, would the government allow political activity from across the South African border? Deadlines came and went. Without giving a final no to re-incorporation, the Bophuthatswana Government did not say yes. The Bophuthatswana nation was kept in suspense. Parliament was not convened at that stage. No referendum was held. Eventually strikes and protests began; they gathered momentum; and culminated in the events of the second week of March which I have earlier described. The applicant lays the blame for the tumult at the doors of various parties, though he does not blame himself. Some of those who stand accused by the applicant are not litigants in this application. Subject to one aspect which I shall mention later, it is not possible to resolve issues of blame in these proceedings.

I mentioned earlier that Parliament was prevented from sitting on Tuesday, 15 March. Late during the preceding week the applicant was visited by Judge Kriegler, who is chairman of the (South African) Independent Electoral Commission. In the course of their discussion it emerged that the Bophuthatswana Parliament was to sit on 15 March and that the applicant was 'prepared to recommend to Parliament that Bophuthatswana should register provisionally to partake in the South African election after international mediation'.

By the time that conversation took place, the violence had erupted and intervention by the SADF was underway. It was this meeting of Parliament that the applicant asked (of Mr Botha) to be allowed to address. As I have said the request was refused and Parliament did not sit. The proposal contained in annexure A is motivated by the applicant as follows ('RB' meaning the Republic of Bophuthatswana):

'13.As indicated above I would recommend to the Parliament of RB that the RB should partake in the elections for a new dispensation in South Africa and that we should allow the Independent Electoral Commission to function and operate within the Republic of Bophuthatswana. Participation in the election would of necessity have the result that certain enactments of the Republic of South Africa would apply in Bophuthatswana as mentioned in para 7 of the decree (annexure B hereto).

14.I wish to point out that it was stated by the Government of South Africa that my Government does not have the support and confidence of the constituents of the RB. If that is in fact the position, which I deny, then it may be that the Government of the RB should be substituted by another governing body exercising its powers in terms of the Constitution. The RB should not be ruled by dictators suspending the Constitution, suspending the Bill of Fundamental Rights and ignoring each and every provision of the Constitution except those empowering them to control the finances. I appreciate the fact that they at least acknowledge the existence of a sound judiciary.

15.It is not my intention to impose myself or my Government on the people of Bophuthatswana. I do say, however, that Bophuthatswana should enter a new dispensation as far as possible under the provisions of a recognised and democratic constitution. The Constitution of the RB has served the citizens of Bophuthatswana well and should form the basis of any transitional government. As already indicated I had the intention to recommend to my Parliament that the RB should partake in the envisaged elections and that we accept the laws and enactments to do so. I can, however, not accept a foreign government suspending the entire Constitution (excepting certain sections) and governing the country like dictators.

16.With a view to facilitating an orderly and as far as possible a constitutional transition, I attempted to consult each and every parliamentarian, seeing that I was not afforded the opportunity to convene Parliament. I and my representatives acting on my behalf attempted to contact the members of Parliament enquiring from them whether they would consent to the institution of a council to govern the country in terms of the provisions of the Constitution. The said council should have all the powers vested in the President, the Executive Council and the Legislature. It should further operate in terms of the Constitution. This means that all the powers vested in me, the Executive Council and the Legislature, would by virtue of the consent of Parliament be transferred to the said proposed council which will rule the country in accordance with the Constitution accepting participation in the elections due to be held in the Republic of South Africa and adopting the enactments considered necessary for such an election.

17.The proposed council should be constituted as follows:

(a) ... (b) ... (c) ...

As stated above this council should have all the powers and execute all the functions which vest in terms of the Constitution in the President, the Executive Council and the Legislature until the certification by the chairman of the Independent Electoral Commission that a free and fair election had taken place and the Constitution of the Republic of South Africa Act 200 of 1993 has been implemented.

18.The people of the RB have since the inception of the RB been governed democratically and constitutionally and the Government of RB, although hampered by the Government of the Republic of South Africa and revolutionary forces, begs this honourable Court for an order as set out in the notice of motion.

I wish to emphasise that I would have preferred Parliament to take a decision in the disciplined manner prescribed by the Constitution and adhered to up till now. Seeing that this was, however, not possible, I ask the Court to accept the procedure adopted by me in obtaining the approval of the members of Parliament to this proposal.

19.The outcome of my enquiry is that I could not manage to contact all members but I could succeed to contact 90 members who approved of the proposal. No members disapproved. Parliament consists of 108 members not including myself.

20.I wish to stress that although approval was obtained for the functions and powers which vested in myself as President, the Executive Council and in the National Assembly, no dissolution of the said institutions will in fact take place. Therefore the members would be entitled in accordance with existing legislation to all the benefits, eg salaries, pensions, gratuities, etc until their terms of offices are terminated when the new constitution comes into operation. Seeing that the proposed executive council would be bound by all the laws and the Constitution, all the civil servants would be treated on the same basis.'

What I have written thus far has been taken from the notice of motion, the applicant's founding affidavits, and the respondents' answering affidavits, plus here and there facts of which I have taken judicial notice. Among the matters dealt with in the applicant's replying affidavits are the following. In justifying the suspension of the Bill of Rights (chap 2 of the Constitution), the first respondent deposes:

'We have been advised that it was necessary in the Decree to suspend parts of the Bophuthatswana Constitution, including the Bill of Rights, in view of the fact that retention thereof can seriously hamper administration of Bophuthatswana in a critical and demanding situation.'

The applicant replies:

'I humbly submit that the grounds advanced for suspending the Bill of Rights are vastly inadequate and can never weigh up to the disadvantages for the citizens in depriving them of their basic rights. The suspension of the Bill of Rights protecting citizens' rights could only have been done to hamper citizens in taking legal action against the respondents. This is a fundamental encroachment of their rights which is unheard of in any modern State. Even if I do not succeed in obtaining an order as to all the prayers in my notice of motion I shall urge my legal representatives for an order reinstating the Bill of Fundamental Rights in the Constitution so that the citizens of Bophuthatswana could act, if necessary, against the respondents. The immediate suspension of the Bill of Fundamental Rights by the South African Government acting with the support of the Transitional Executive Council is contrary to what they advocate as a cornerstone of the new constitutional dispensation in South Africa which they insist Bophuthatswana should adopt. I maintain that the decree (annexure F to my founding affidavit) is illegal since it nullifies the Bill of Fundamental Rights.'

Regarding the success or otherwise achieved by the respondents, the applicant says:

'I deny that the administration of the respondents is acceptable to the people of Bophuthatswana. The administration is upheld by the South African Defence Force. I receive hundreds of complaints from supporters. . . .' I may mention that there are prima facie disputes on the papers as to the popularity of the applicant and the extent of his support among the people, as to the ability of applicant's government to have continued (with SADF backing), and as to the support and success enjoyed by the respondents. Another point made by the applicant in this connection is that there was insufficient time between the successful intervention by the SADF and the applicant's deposition for the South African Government properly to have evaluated the Bophuthatswana Government's ability to continue. The applicant states that the intervention by the members of the Afrikaner Weerstandsbeweging was not approved by him, that he requested that they should not come, and that they left Bophuthatswana before the SADF intervened. The applicant states further that General Turner acted in accordance with his (the applicant's) instruction and the instruction of the Minister of Defence.

The applicant also states that Mr Botha, in deposing him, acted contrary to the agreed basis for intervention by the SADF, contrary to the inter-governmental accords, and contrary to law. He continues:

'(b)I note the averment that the South African Defence Force stabilised the position within one day.

(c)I submit that it is impossible to judge within hours whether this stabilised position could not also be maintained under the lawful Government of Bophuthatswana whilst the administration which rules by unlawful decree needs the support of the South African Army.

(d)Whilst the situation was stabilised in terms of the treaty, no further steps to overthrow my government were necessary. There was no reason for an attempt to overthrow my government on the evening of 12 March 1994 when an emergency situation no longer existed.

(e)I deny that there was a permanent collapse of the Government of Bophuthatswana and the conclusion drawn by the deponent that the disastrous effects of the preceding days would be repeated.'

A fourth affidavit was tendered and by consent received. In this affidavit the first respondent deals with the applicant's allegation that the joint administrators' government lacks efficacy. The first respondent mentions the remuneration of the applicant and his Ministers and indicates the present position of the secretaries of various government departments, officers commanding the Bophuthatswana security forces, governors appointed in terms of Act 20 of 1990, and certain other officers in government departments and parastatal bodies. In one instance a judicial commission of enquiry has been appointed. With regard to the suspension of the Bill of Rights the first respondent states: I

‘... we were advised by legal experts that the Bill of Rights as contained in the Bophuthatswana Constitution Act should also be suspended to ensure the smooth running of the administration of Bophuthatswana in a critical and demanding situation. For example, it would have been impossible to have a free and fair election in Bophuthatswana during the election scheduled for the end of April 1994, should the Bill of Rights still be enforced in the Republic of Bophuthatswana. In terms of the Bill of Rights only citizens of Bophuthatswana would have been entitled in terms of the said Bill, as recently amended, to freedom of speech and freedom of association. Obviously such a provision in the Bill of Rights is in conflict with the aims of the Transitional Executive Council Act 151 of 1993.'

The first respondent avers that ample protection exists at common law for the applicant and other individuals, and that by Decree 2 of 1994, s 75 of the Constitution (liability of the State for the acts of its servants) has been re-instated.

The first respondent deposes further:

'As already mentioned in para 4.2 of my answering affidavit I do not claim that there are no problems being encountered by the joint administration. However, of these problems, most, if not all, appear to have been created by the circumstances preceding the replacement of the applicant's government. These problems are being addressed vigorously and would, with the information now at my administration's disposal, be exceedingly complicated if the previous Government or representatives thereof were re-instated or even involved in any manner in the administration.

The essential role of the South African Defence Force in contributing to the present state of stability cannot be denied.'

And:

'It was and still is my belief that the majority of the people in Bophuthatswana were extremely dissatisfied with the Government of Bophuthatswana as was manifested by the events which culminated in the replacement of that Government.'

In the light of the aforegoing review of the facts I turn to consider the relief claimed by the applicant. It will be noted that he does not ask for the withdrawal of the SADF. He does not seek his own re-instatement as President, nor does he seek the re-instatement (except financially) of his dismissed Ministers. He now accepts, without international mediation, that Bophuthatswana shall re-incorporate into South Africa and that the people of Bophuthatswana shall participate in the forthcoming election. This is apparent in particular from paras 2 and 4 of annexure AA which acknowledge the package of South African laws that are intended to take the country through the election and beyond. To this extent therefore the applicant accepts the status quo. The above package of laws mirrors the laws to be found in ss 5(l)(c) and 7 of Decree 1 of 1994. By those sections the joint administrators are required to provide free political activity, to facilitate the holding of free and fair elections, and to work towards the implementation of the interim Constitution. In this respect at least, the applicant and the joint administrators appear to have the same agenda. The main purpose of this application, it seems to me, was to achieve a change in the interim government: the applicant desired to replace the joint administrators by an executive council of seven, three of whose members were to be nominated by him. The government would be temporary because it would endure, according to annexure AA, only 'until certification by the chairman of the Independent Electoral Commission that a free and fair election had taken place and it is superseded by the Constitution of the Republic of South Africa Act 200 of 1993', which I suppose will be a few days after 27 April and less than a month hence. In effect, therefore, I was asked to decide who shall preside over the imminent demise of Bophuthatswana. Given the indications at the commencement of argument, that has changed because the applicant no longer insists on the council of seven. Now the applicant presses for a declaratory order annulling the appointment of the joint administrators within Bophuthatswana and annulling Decree I of 1944. 1 asked Mr De Jager who would govern Bophuthatswana if I were to grant prayers 2 and 3. He said that the status quo ante, meaning the previous government, would be restored, or that the order prayed might lead to a compromise between his client and the South African Government.

Certain objections in limine were raised in the respondents' answering affidavits. Only one was argued. It was put in this way:

'This honourable Court has no jurisdiction to grant the relief sought in prayer 2 of the notice of motion in as much as second respondent and I were appointed by resolution of the Government of the Republic of South Africa and the Transitional Executive Council (TEC) established in the Republic of South Africa by Act 151 of 1993. This honourable Court has no jurisdiction over the acts and the decisions of a government of another State.'

In S v Banda and Others 1989 (4) SA 519 (B) it was held in this Court (per Friedman J) that Bophuthatswana was a sovereign independent State. The above paragraph appears to accept that that is still the position. (See, too, the applicant in reply, para 3. 1 (f).) It is common cause that South Africa is a sovereign independent State. It was argued that in this Court and at this juncture, therefore, the South African Government (including the TEC) has to be regarded as the government of a foreign State. The rule is well-established that foreign sovereign States, and their governments, are immune from litigation in the Courts of another State (except perhaps in respect of commercial transactions). Leibowitz and Others v Schwartz and Others 1974 (2) SA 661 (T); Inter-Science Research and Development Services (Pty) Ltd v Republica Popular De Mo cambique 1980 (2) SA 111 (T). Compare Lendalease Finance (Pty) Ltd v Corporacion de Mercadeo Agricola and Others 1976 (4) SA 464 (A) at 44 (and at first instance Lendalease Finance Co (Pty) Ltd v Corporacion de Mercadeo Agricola and Others 1975 (4) SA 397 (C)). Since we are not concerned with commercial transactions, it follows - thus the argument - that, if the true respondents in this matter are not the joint administrators, but the government which appointed them, then prior to 27 April that government (viz of South Africa) cannot be impleaded against its will in the Courts of Bophuthatswana. That position would not be altered by the fact that the South African Government no longer recognises the applicant's presidency. If Bophuthatswana as a country is still independent, at any rate nominally, it will only lose such independence on 27 April next, when the interim Constitution comes into force.

There are two difficulties in the way of this objection. In the first place the apparent acceptance in the paragraph quoted above of Bophuthatswana's continuing independence does not entirely accord with what is said elsewhere in the affidavits or with the objective facts. Thus when the applicant alleges that South Africa recognised Bophuthatswana as an independent sovereign State on 6 December 1977 and thereafter, the first respondent, without denying the allegation, adds:

'I however wish to point out that in terms of the Constitution Act of the Republic of South Africa Act 200 of 1993 the Status Act is repealed with effect from 27 April 1994.'

On the next page the first respondent says:

'13.5 I admit that the South African Government, in the past, recognised Bophuthatswana as a legal Government of an independent State.'

Note the words 'in the past'. Later the first respondent observes:

'25.2 In addition I have been advised that consultation with 90 members of the former Parliament by various persons such as representatives of the applicant cannot in law ever constitute a resolution validly adopted by a Parliament which was so am I advised, at the stage when the procedures was followed, in any event no longer in existence.'

'33. I deny that the deponent is presently still a Minister in the Bophuthatswana Cabinet. I further also deny that the Bophuthatswana Cabinet is presently in existence.'

The objective facts are that: the SADF is here to maintain law and order; the President has been deposed; his Ministers have been dismissed; the Cabinet no longer functions; Parliament is not allowed to sit; substantial parts of the Constitution have been suspended; the administration of Bophuthatswana is conducted by two appointees of the South African Government; and it is part of their mandate to ensure that the people of Bophuthatswana participate in the elections and re-incorporate into South Africa. On these facts I would have thought that there is considerable scope for the conclusion that Bophuthatswana has already been annexed by South Africa, prior to 27 April; that it is presently no longer sovereign or independent; and that the coming into force of the interim Constitution on 27 April represents no more than a legal formality confirming the existing state of affairs. If that be the correct assessment, then there would be no bar to the Court's jurisdiction.

It is unnecessary, however, for me to take a final view on this point because of the second difficulty. The joint administrators are not here by invitation. They have been imposed upon us, which may be a good or bad thing according to one's point of view. In my opinion the political (as distinct from military) intervention by the South African Government, that is the replacement of the applicant and his Ministers by the joint administrators, backed by the SADF (which was already here), constituted a breach of Bophuthatswana's then sovereign independence. On first principles it appears to me that the South African Government cannot have it both ways. Having violated Bophuthatswana's sovereignty, South Africa cannot expect to enjoy the privilege of sovereign immunity in the Courts of Bophuthatswana in respect of that very breach. That being so, it is unnecessary to consider Mr De Jager's alternative argument based on waiver.

This brings me to the merits of the application. The submissions for the applicant were based wholly on the principles of international law which, it has been held, are in general part of South African law. Nduli and Another v Minister of Justice and Others 1978 (1) SA 893 (A). In summary the argument ran as follows. As at 11 and 12 March 1994 Bophuthatswana and South Africa were both independent sovereign States. Military intervention by the SADF to quell the disorder then prevailing in Bophuthatswana was legitimate because it was requested by General Turner, and carried the blessing of the applicant; and because it took place in terms of existing accords between the two governments. The subsequent unsolicited political intervention, beginning with the deposition of the President, was submitted to have been a serious violation of Bophuthatswana's sovereignty and in breach of several established rules of international law, such as the duty of one State to respect the territorial and political integrity of another State and not to interfere in the latter's affairs. Since the political intervention was backed by the existing presence of the SADF, it was also submitted that the South African Government was in breach of the non-aggression pact (annexure J) between the two countries. So counsel for the applicant submitted that the appointment of the joint administrators (prayer 2), and the promulgation by them of Decree 1 of 1994 (prayer 3), stemmed from those illegalities and should in consequence be annulled. Counsel stressed that the government of the joint administrators had only been in power for one month and had not achieved the necessary permanence, by the standards of international law, to receive recognition as a lawful government. The doctrine of successful revolution, to which I shall come, was distinguished upon the basis that the present case does not arise from local insurrection or foreign insurgency. It is a case of the government of one State having acted against, and indeed replaced, the government of another.

I do not consider that the principles of international law, to which I was referred, are apposite to a case of the type now before me. I think it is a question of constitutional law. As Lord Reid observed in Madzimbamuto v Lardner-Burke and Another [1968] 3 All ER 561 (PC) at 573H-B:

'With regard to the question whether the usurping government can now be regarded as a lawful government much was said about de facto and de jure governments. Those are conceptions of international law and in their Lordships' view they are quite inappropriate in dealing with the legal position of a usurper within the territory of which he has acquired control. As was explained in Carl-Zeiss-Stiftung v Rayner and Keeler Ltd (No 2) when a question arises as to the status of a new regime in a foreign country the court must ascertain the view of Her Majesty's Government and act on it as correct. In practice the government has regard to certain rules, but those are not rules of law. And it happens not infrequently that the government recognises a usurper as the de facto government of a territory while continuing to recognise the ousted Sovereign as the de jure government. But the position is quite different where a court sitting in a particular territory has to determine the status of a new regime which has usurped power and acquired control of that territory. It must decide. And it is not possible to decide that there are two lawful governments at the same time while each is seeking to prevail over the other.

It is a historical fact that in many countries - and indeed in many countries which are or have been under British sovereignty - there are now regimes which are universally recognised as lawful but which derive their origins from revolutions or coups d'etat. The law must take account of that fact. So there may be a question how or at what stage the new regime became lawful.'

The answers to all sorts of practical questions may depend upon this Court's determination. It is of little practical assistance to the community for me to issue a blanket annulment if in reality the new regime is fully in control. I am not persuaded by the distinctions sought to be drawn, namely that the change in power was effected by a foreign government rather than by insurrectionists or insurgents. It was nevertheless a revolution within the widest meaning of that word. On the facts moreover there was a popular uprising. Whether or not nourished from elsewhere, I am satisfied that a major cause was public dissatisfaction with the persistent refusal (until it was too late) of the applicant and his Ministers to allow Bophuthatswana to re-incorporate and allow its people to vote in the forthcoming election. The political decision to topple the applicant's government rather than support it was influenced by the prospect that unrest might resume in Bophuthatswana if the latter course was followed. For these reasons it seems to me more appropriate to apply the doctrine of successful revolution.

It is clear that no illegality attaches to the arrival of the SADF in Bophuthatswana, or to the fact of its intervention here, or to its continued presence as such. The deposition of the applicant from the presidency, however, and the dismissal of his Ministers, and the assumption of legislative and executive power by the joint administrators, were plainly all in conflict with the Constitution of Bophuthatswana, and accordingly unconstitutional. Decided cases in other jurisdictions accept two situations in which conduct of that nature, though unconstitutional, either is lawful or may become lawful after the passage of time. One is known as the doctrine of successful revolution (or revolutionary legality). It has been much influenced by the writings of Professor H Kelsen General Theory of Law and State (being his theory of the 'grundnorm'). The other is the doctrine of necessity.

The matter being urgent, time does not permit me the luxury of a lengthy survey and analysis of the case law, such as was undertaken by Haynes P in Mitchell and Others v Director of Public Prosecutions and Another [1986] LRC (Const) 3 5 (Grenada, Court of Appeal), and by Cullinan CJ in Mokotso and Others v H M King Moshoeshoe II and Others [1989] LRC (Const) 24 (Lesotho, High Court). For Mitchell's case, see too Mitchell and Others v Director of Public Prosecutions and Another [1985] LRC (Const) 127 (Grenada, High Court) and Mitchell and Others v Director of Public Prosecutions and Another [ 1987] LRC (Const) 127 (Grenada, Court of Appeal). I acknowledge my indebtedness to the two learned Judges for their researches and for their considered reasoning. I have also had the opportunity of studying Madzimbamuto v Lardner-Burke NO and Another NO; Baron v Ayre NO and Others NNO 1968 (2) SA 284 (RA), and on appeal to the Privy Council Madzibamuto v Lardner-Burke and Another (supra), which followed upon the unilateral declaration of independence in the then Southern Rhodesia. See too R v Ndhlovu and Others 1968 (4) SA 515 (RA). The most recent reported decision available to me is Matanzima and Another v President of the Republic of Transkei and Another 1989 (4) SA 989 (Tk).

I have already quoted a passage from the opinion of Lord Reid in Madzimbamuto's case supra, on appeal to the Privy Council. The learned Law Lord continued at 574B-I:

'A recent example occurs in Uganda v Comr of Prisons, Ex p Matovu (1966) EA 514. On Feb 22, 1966, the Prime Minister of Uganda issued a statement declaring that in the interests of national stability and public security and tranquility he had taken over all powers of the government of Uganda. He was completely successful, and the High Court had to consider the legal effect. In an elaborate judgment Sir Udo Udoma CJ said ((1966) EA at 535):

"... we hold, that the series of events, which took place in Uganda from Feb 22 to April 1966 when the 1962 Constitution was abolished in the National Assembly and the 1966 Constitution adopted in its place, as a result of which the then Prime Minister was installed as Executive President with power to appoint a Vice-President could only appropriately be described in law as a revolution.

These changes had occurred not in accordance with the principle of legitimacy. But deliberately contrary to it. There were no pretensions on the part of the Prime Minister to follow the procedure prescribed by the 1962 Constitution in particular for the removal of the President and the Vice-President from office. Power was seized by force from both the President and Vice-President on the grounds mentioned in the early part of this judgment. "

Later he said ((1966) EA at 539):

"...our deliberate and considered view is that the 1966 Constitution is a legally valid constitution and the supreme law of Uganda; and that the 1962 Constitution having been abolished as a result of a victorious revolution in law does no longer exist nor does it now form part of the Laws of Uganda, it having been deprived of its de facto and de jure validity".

Pakistan affords another recent example. In The State v Dosso (1958) 2 PSCR 180 the President had issued a proclamation annulling the existing Constitution. This was held to amount to a revolution. Muhammed Munir CJ said ((1958) 2 PSCR at 184):

"It sometimes happens, however, that a Constitution and the national legal order under it is disrupted by an abrupt political change not within the contemplation of the Constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing Constitution but also the validity of the national legal order."

Their Lordships would not accept all the reasoning in these judgments but they see no reason to disagree with the results. Sir Udo Udoma CJ, of Uganda said ((1966) EA at 533): "The Government of Uganda is well established and has no rival." The Court accepted the new Constitution and regarded itself as sitting under it. Muhammed Munir CJ of Pakistan said ((1958) 2 PSCR at 185): "Thus the essential condition to determine whether a Constitution has been annulled is the efficacy of the change." It would be very different if there had been still two rivals contending for power. If the legitimate government had been driven out but was trying to regain control it would be impossible to hold that the usurper who is in control is the lawful ruler, because that would mean that by striving to assert its lawful right the ousted legitimate government was opposing the lawful ruler.'

I interpose here to say that the decision in The State v Dosso (supra) has been criticised inter alia on the ground that it was premature. In Mitchell's case supra Liverpool JA said at 113i:

'In Dosso's case the Constitution of Pakistan was abrogated on 7th October 1958. Martial law was imposed by the President. Three days later the Laws (Continuance in Force) Order, 1958 was issued, and the question which arose for determination was whether that Order had the effect of suspending the fundamental rights which had been enshrined in the Constitution. On 27th October the Supreme Court of Pakistan held that those rights were abrogated and also went on to accord de jure recognition to the regime, describing it as a successful revolution and, therefore, a fresh law creating organ. The next day the President resigned and was packed out of the country.' It is my firm impression that Dosso's case has been overruled in Pakistan: see Jilani v Government of Punjab (1972) PLD SC 139, the report of which is not available to me.

Courts of law do not exist in a vacuum and they cannot ignore fundamental political events or changes. Faced by a usurpation or attempted usurpation of the existing legal order of government in its own territory, a Court may be called upon to decide (as I am in this case) whether or not to recognise the usurper. The test applied by the Courts of many lands is essentially one of efficacy or success. In Mokotso's case supra at 90, Cullinan CJ quotes this sentence from Jennings The Law and the Constitution 5th ed:

'All revolutions are legal when they have succeeded, and it is the success denoted by acquiescence which makes their constitutions law.'

Thus revolutionary success begets its own legality (to borrow an expression from the unreported judgment of Hogan P in Controller of Taxes v Valabhaji (1981, Seychelles, Court of Appeal)) and the laws of the successful usurper are retrospectively validated ab initio. The classic example, often cited, was the rebellion by the United States, as then constituted, against the lawful authority of the English Crown. As everybody knows, that revolution succeeded. Cullinan CJ quotes the explanation given by Prof Glanville Williams in Salmond on Jurisprudence 11th ed at 101:

'Each of these communities thereupon established a constitution for itself, by way of popular consent expressed directly or through representatives. By virtue of what legal power or authority was this done? Before these constitutions were actually established, there was no law in these colonies save that of England, and it was not by the authority of this law, but in open forcible defiance of it, that these colonial communities set up new states and new constitutions. Their origin was not merely extra-legal, it was illegal. Yet, so soon as these constitutions succeeded in obtaining de facto establishment in the rebellious colonies, they received recognition as legally valid from the courts of those colonies. Constitutional law followed hard upon the heels of constitutional fact.'

The decided cases are not entirely harmonious on the question of how the success or effectiveness of the revolution is to be measured. In Mokotso's case supra at 133, Cullinan CJ expressed the test to be applied as follows:

'A court may hold a revolutionary government to be lawful, and its legislation to have been legitimated ab initio, where it is satisfied that (a) the government is firmly established, there being no other government in opposition thereto; and (b) the government's administration is effective, in that the majority of the people are behaving, by and large, in conformity therewith.'

In Matanzima's case supra the Court (Davies J and Lombard J) said thereof at 997A:

'This test certainly fits in with the Kelsenian theory and is, moreover, a practical test. We would prefer, with respect, however, to formulate it in what is perhaps a more positive manner, as follows:

A revolutionary government becomes lawful and its legislation is legitimated ab initio when

(a)it is firmly established, there being no real danger that it will itself be ousted from power, and

(b)its administration is effective, in that the people, by and large, have acquiesced in and are behaving in conformity with its mandates.'

In Mitchell's case supra Haynes P (speaking for Granada or the Caribbean as a whole) said at 71:

'I would hold that for a revolutionary government to achieve de jure status, that is, to become internally a legal and legitimate Government, the following conditions should exist: (a) the revolution was successful, in that the government was firmly established administratively, there being no other rival one; (b) its rule was effective, in that the people by and large were behaving in conformity with and obeying its mandates; and (c) such conformity and obedience was due to popular acceptance and support and was not mere tacit submission to coercion or fear of force; and (d) it must not appear that the regime was oppressive and undemocratic.'

Liverpool JA in the same case said at 115:

'In my view when a government in power has effective control with the support of a majority of the people and is able to govern efficiently, that government should be recognised as legal.'

After referring to De Smith Constitutional and Administrative Law and to Bryce Studies in History and Jurisprudence, the learned Judge of Appeal continued:

'I am of the view that sovereignty, or revolutionary legality, or de jure status, by whatever name it is called, ultimately depends on consent or acceptance by the people in the particular country under consideration which is manifested by the obedience to the precepts of those claiming to exercise authority over them. Once this is firmly established, it is trite law that in the case of a successful revolution the validity of the new government's laws date back to the day when the revolution first broke out.'

So Haynes P and to lesser extent Liverpool JA emphasised popular acceptance or support. From his exposition of the facts (at 118b-c) it would seem that Peterkin JA was of substantially the same view. With respect to the learned Judges who decided Mitchell's case supra, my own opinion is closer to that expounded in the cases of Mokotso and Matanzima, both supra. Important as is the element of acquiescence there may be practical difficulties in the way of testing it by elections or a referendum. Thus in the present case there will be elections at the end of this month to choose represenatives for the national and provincial governments. I very much doubt that it will be possible to interpret the results, even within a new North-West Province, either as an affirmation or a rejection by the voters of the interim government of the joint administrators. As for requirement (d) suggested by Haynes P, I think it introduces unnecess-arily subjective criteria.

On the issue of whether the joint administrators have achieved success or efficacy, the evidence goes nearly all one way. So much so that Mr De Jager did not address me on the point. I am conscious of the risk of a premature recognition of legality in mediis rebus. But there are other factors to be borne in mind. In the first place, the applicant is not a serious rival for power. As I have pointed out, he does not seek (except perhaps indirectly) his own re-instatement or that of his Ministers. Secondly, he now accepts that Bophuthatswana shall re-incorporate and that its people may vote in the elections, which coincides with the mandate of the joint administrators. Thirdly, the joint administrators should not be considered in isolation. They represent the existing South African Government and, as the applicant himself has indicated, they are backed by the might of the SADF. They may relinquish power voluntarily after the election, but it seems improbable that they will be dislodged against the will of whatever government comes to power in that election. Fourthly, acquiescence by the people of Bophuthatswana in the new regime, by and large, to which the first respondent has deposed, is not inconsistent with my own impression of the position, despite the many difficulties which the joint administrators have faced and continue to face. I would recognise the new regime as lawful, though it only intends to govern for an interim period, and I would accordingly refuse prayers 2, 3 and 6. There is therefore no need for me to examine the applicability of the doctrine of necessity.

With regard to the alternative prayer relating to the bill of rights, it seems to me that the joint administrators, having assumed legislative power, must decide on the legislation which should prevail in Bophuthatswana for the time being. As a matter of constitutional principle that is their prerogative, provided I am correct in recognising their administration as lawful. Having said that, I would add that the need to maintain the suspension of the entire Bill of Rights (as distinct from particular sections thereof) is not apparent from the first respondent's affidavits. I express the hope that they will reconsider.

The application is refused with costs of suit which shall include the costs of employing two counsel. Applicant's Attorneys: Papadopulo-Romanos, Mmabatho. Respondents' Attorney State Attorney, Pretoria

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