Physical: 31 MacDougall Street, Monument Heights, Kimberley 8301 Postal: Private Bag X6108, Kimberley, Northern Cape, 8301, South Africa Tel: +27 (0) 81 761 9101 Fax: +27 (0) 53 831 1483. Provincial Gambling Boards: Please follow the links to Provincial Gambling Boards. The Limpopo Gambling Board (the Board) has been established as an entity of the Limpopo Department of Economic Development, Environment and Tourism (LEDET). The existing organisational structure makes provision for four (4) senior managers and the Chief Financial Officer that reports to the Chief Executive Officer.

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National Gambling Board v Premier of KwaZulu-Natal and Others (CCT32/01) [2001] ZACC 8; 2002 (2) BCLR 156; 2002 (2) SA 715 (21 December 2001)

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CONSTITUTIONAL COURT OF SOUTHAFRICA
CCT 32/01
THE NATIONAL GAMBLINGBOARD Applicant
versus
THE PREMIER OF KWAZULU-NATAL FirstRespondent
THE KWAZULU-NATAL GAMBLING BOARD Second Respondent
THEMINISTER OF TRADE AND INDUSTRY
OF THE REPUBLIC OF SOUTH AFRICA ThirdRespondent
ZONKE MONITORING SYSTEMS (PTY) LTD FourthRespondent
MALINI (PTY) LTD Fifth Respondent

Heard on : 8 November2001

Decided on : 21 December2001

JUDGMENT

DU PLESSIS AJ:
[1] The applicant,the National Gambling Board, is a juristic person established by section 2 ofthe National Gambling Act, 1996^[1](the national Act). The third respondent, the Minister of Trade and Industry(the Minister), is the member of the national executive

[1]	responsible for theadministration of the national Act. Although he is cited as a respondent, hehas filed an answering affidavitin support of the relief sought by the NationalBoard.

[2] The first respondent is the Premierof KwaZulu-Natal (KZN). The Premier is the member of the KZN provincialexecutive responsiblefor the administration of the KwaZulu-Natal Gambling Act,1996^[2] (the KZN Act). The secondrespondent, the KwaZulu-Natal Gambling Board (the KZN Board), is a juristicperson established by theKZN Act. The fourth and the fifth respondents arecompanies. Their respective interests in these proceedings are peripheral aswill become apparent in due course. The Premier opposes the application. Theother respondents abide the Court’s decision.
[3] The applicationconcerns the electronic monitoring of gambling machines other than gamblingmachines in casinos. In terms ofsection 44(1)(a)(ii) read with section104(1)(b)(i) of the Constitution and with Schedule 4 thereof, the nationallegislature andprovincial legislatures have concurrent legislative competenceto pass laws concerning gambling.^[3] The national Act provides^[4] thatgambling machines, other than those in casinos, “shall be linked to acentral electronic monitoring system for the purposesof the monitoring anddetection of significant events associated with each gambling machine”.Section 54 of the KZN Act providesthat every “gaming machine that isauthorised by” the KZN Board “for use on licenced premises shall beconnectedto the prescribed electronic monitoring system.”
[4] Theessential dispute between the parties is this: The National Board contends that there may be only one central electronicmonitoring system in the Republic towhich all gambling machines in the country must be linked. The Premier contendsthat each provinceis at liberty to choose not to be connected to the nationalsystem and that it may establish its own central electronic monitoringsystem towhich the gambling machines in that province must be linked. It is convenientto refer to a central electronic monitoringsystem as a “CEMS”, asdid the parties. The National Board seeks relief aimed at declaring that theremay be only oneCEMS and also an interdict to restrain the Premier and the KZNBoard from establishing a provincial CEMS.
The facts
[5] Thenational Act came into operation on 18 April 1997 and established the NationalBoard. The Board started a process to identifythe nature of the monitoringsystem suited for South African needs. It consulted “world renownedexperts”. In addition,the Minister held regular meetings with members ofthe various provincial executive councils (MINMEC meetings). At these meetingsthe nature of the monitoring system to be introduced was also discussed. Atsuch a meeting held on 30 August 1999, it was agreedby all present that onecentralised monitoring system for the country “might be more effective andefficient”. A memberof the KZN executive present at this meeting did notdistance the KZN executive from the decision.
[6] At that stageregulation 58 of the regulations promulgated under the KZN Act provided that themonitoring system contemplatedin section 54 of the Act had to comply withcertain design and operational standards. The regulations did not unequivocallyrefereither to a central system for the province or to a single nationalmonitoring system. On 11 February 2000 the KZN regulations wereamended by theaddition of regulation 58(8) which provides:

“The electronic monitoring system referred to in this regulation ... shallbe a single one operated by the Province or an entitycontracted by the Provincewhich shall have no other interest in respect of gaming in theProvince.”

This amendment escaped theattention of both the National Board and the Minister. Their consultations toidentify the most suitablesystem for the country continued. In May 2000 thosepresent at a MINMEC meeting agreed to finalise a tender for a centralisedmonitoringsystem. In the same month the principle of a single CEMS wasaccepted at a meeting of the National Board. Representatives fromKZN werepresent at both these meetings. At neither did such representatives record anydissent.
[7] Regulations to be promulgated under the national Act were thenprepared. The draft regulations made provision for a single CEMSfor the wholecountry. On 6 November 2000 the Premier wrote to the National Board and made itclear that KZN did not intend to participatein a single, countrywide CEMS, butintended to have its own provincial system. On 21 December the regulationsunder the nationalAct were promulgated. With reference to the CEMScontemplated in section 13(1)(i) of the national Act, regulation 8(2)provides:

“A single central electronic monitoring system shall be operated by aperson appointed on the terms and conditions as laiddown by the Board afterconsultation with the Minister.”

[8] The NationalBoard invited proposals for the installation of the single CEMS. The fourth andthe fifth respondents submittedproposals. It is apparent from a minute of aMINMEC meeting held on 2 March 2001 that the Minister was then again informedthatthe Premier had concerns about the intended single CEMS. The Ministerundertook to address these concerns at a forthcoming meetingwith the Premier. At a meeting of the National Board in April, the KZN representative again madeit clear that the province didnot support the concept of a single CEMS andintended to install its own provincial CEMS. The National Board neverthelessproceededwith the preparations for the single CEMS. On 10 April it resolved toaward the contract to provide and operate a single CEMS tothe fourthrespondent. The fifth respondent instituted proceedings in the High Court toreview and set aside this decision. Inview of their respective interests thefourth and fifth respondents were joined in these proceedings. The reviewapplication hasbeen settled. Nothing turns on it.
[9] The Minister andthe Premier met in May 2001. They discussed the CEMS and the Minister left withthe impression that the Premierhad agreed to the concept of a single CEMS. According to the Premier the impression was mistaken.
[10] By notice inthe provincial gazette of 26 July 2001 the KZN Board invited public proposals toprovide and operate a CEMS forKZN. On 31 July the National Board’sattorneys wrote to the Premier and the KZN Board and sought an undertaking fromeachthat the process calling for proposals would be stopped. They warned thatif the undertakings were not given, their client wouldlaunch urgent courtproceedings. No undertaking was given and the present proceedings were urgentlylaunched in this Court on 8August. On 29 August the application was postponedto 8 November 2001.
The issues
[11] In the first place theNational Board seeks an order that the matter is urgent and should be dealt within terms of Rule 11(1)of the Rules of this Court.
[12] Secondly, theNational Board seeks a declaratory order that there is a dispute as contemplatedby section 167(4)(a) of theConstitution^[5] between it on the onehand and the Premier and the KZN Board on the other hand. The effect of such anorder would be that this Courthas exclusive jurisdiction to decide thematter.
[13] When the case was called on 8 November, the National Boardsought and was granted an amendment to its notice of motion. Interms of theamended notice of motion, the National Board seeks an order granting it directaccess to this Court in the event ofit being held that the dispute does notfall within the Court’s exclusive jurisdiction.
[14] In its thirdprayer the National Board sought an interim interdict restraining the Premierand the KZN Board from “takingany steps whatsoever towards” thecontinuation of the process to award a contract for a CEMS in KwaZulu-Natal. The interiminterdict was sought pending the final adjudication of anapplication for the permanent relief set outhereunder.^[6] No interim relief wasgranted on 29 August 2001. The main application was fully argued on 8 November2001 and will be dealt within this judgment. Accordingly, any need which mayhave existed for an interim interdict has fallen away. For reasons that willbecome apparent, issues relating to the interim interdict must nevertheless bedealt with.
[15] The main application seeks a declaration that theimplementation of a single CEMS falls exclusively within the constitutionalpower of the National Board in consultation with the Minister. The NationalBoard also seeks declaratory orders to the effect thatthere may be only oneCEMS operated throughout the country. Finally, it seeks an interdict torestrain the Premier and the KZN Boardfrom implementing the provincial CEMS andan order for costs.
[16] The Premier opposes the grant of all the orderssought.
Exclusive jurisdiction
[17] The National Boardcontends that in terms of section 167(4)(a) of the Constitution this Court hasexclusive jurisdiction todecide this case. Section 167(4)(a) provides:

“Only the Constitutional Court may -
decide disputes between organs of state in the national or provincial sphereconcerning the constitutional status, powers or functionsof any of those organsof state”.

[18] Section 239 of theConstitution defines “organ of state” as:

“(a) any department of state or administration in the national, provincial or local sphere of government;or

(b) any other functionary or institution -

(i)exercising a power or performing a function in terms of the Constitution or aprovincial constitution; or

(ii) exercising a public power or performing a public function in terms ofany legislation, but does not include a court or a judicialofficer”.
[19] The parties are agreed that the National Board, theMinister, the Premier and the KZN Board are “organs of state”,andrightly so. The National Board and the KZN Board are institutions“exercising a public power or performing a public functionin terms of anylegislation” as provided for in paragraph (b)(ii) of the definition. ThePremier and the Minister are functionaries“exercising a power orperforming a function in terms of the Constitution or a provincialconstitution” as envisagedin paragraph (b)(i) of thedefinition.^[7]
[20] Theparties are also correctly agreed that they are organs of state “in thenational or provincial sphere.” Thiscountry’s government isconstituted as “national, provincial and local spheres ofgovernment.”^[8] In section167(4)(a) the national and provincial spheres are identified in order to excludefrom the ambit of the subsection organsof state in the local sphere ofgovernment. The National Board and the Minister are organs of state in thenational sphere. ThePremier and the KZN Board are organs of state in theprovincial sphere.

[21]

( In IndependentElectoral Commission v LangbergMunicipality[9] this Courtconsidered the meaning of the phrase “national sphere ofgovernment”. It was said that “the nationalsphere of governmentcomprises at least Parliament, the President and the Cabinet . . . . Thesestate organs comprise the nationalsphere of government and are within it. Theyare not section 239 organs of state because they are neither departments noradministrationswithin the national sphere of government.” WhetherParliament, the President and the Cabinet are organs of state within thedefinition in section 239 was not an issue in the Langeberg case. As itstands, the quoted words may be understood too widely. In context they meanthat Parliament, the President and theCabinet are not organs of sate within themeaning of paragraph (a) of the definition. Further, the quoted words do notmean thatonly Parliament, the President and the Cabinet comprise the nationalsphere of government.

[22] The essential issuein this part of the case is whether there is, between the parties, a dispute“concerning the constitutionalstatus, powers or functions of any of thoseorgans of state”. Mr Prinsloo, who appeared for the National Board,submittedthat for a twofold reason, the present dispute falls within thesubsection. He submitted that in view of the wide meaning of theterm“constitutional matter” in section167,^1[0] “constitutionalstatus, powers or functions” in section 167(4)(a) must bear the same widemeaning. The second leg ofMr Prinsloo’s contention was that the trueorigin of the present dispute is the concurrent legislative powers of thenationalParliament and provinces as regards gambling. That concurrent poweroriginates in Schedule 4 of the Constitution with the result,so it wascontended, that the dispute concerns a constitutional power.
[23] Inessence Mr Prinsloo’s argument is that every power that is traceable tothe Constitution is a “constitutionalpower” within the meaning ofsection 167(4)(a). The same would apply to constitutional status and functions.It is true thatin a constitutional state all public power is derived from theConstitution.^1[1] It follows thatevery act of an organ of state concerns, in the widest sense, a constitutionalstatus, power or function. Therefore,on Mr Prinsloo’s argument it wouldfollow that every dispute between organs of state concerning their status,powers or functionswould be a matter exclusively within this Court’sjurisdiction. On the argument, the word “constitutional” inthephrase “constitutional status, powers or functions” serves nopurpose.
[24] The purpose of the word “constitutional” insection 167(4)(a) must now be determined. The word is there used inthe contextof the status, powers or functions of organs of state. In paragraph (b) of thedefinition of organ of state, a distinctionis made between an institution orfunctionary “exercising a power or performing a function in terms of theConstitution”and those doing so “in terms of anylegislation”. The word “constitutional” in section 167(4)(a)encapsulatesthe same distinction: It refers to status, powers or functionsexplicitly or by implication provided for in terms of the Constitutionasopposed to those provided for in terms of any legislation. Put differently, theterm “constitutional status, powers orfunctions” in section167(4)(a) means status, powers or functions derived directly from theConstitution. (Status, powersor functions derived from a provincialconstitution are not presently relevant.)
[25] The provisions of section167(4)(a) must now be applied to the present matter. The dispute is whether theKZN Board has thepower to establish its own provincial CEMS. Whether it hasthe power depends in the first place on the correct interpretation ofthenational Act and the KZN Act. Therefore, the dispute concerns “a power interms of any legislation” and not a constitutionalpower as envisaged insection 167(4)(a).
[26] There was an argument before us as to whetherthere is a conflict between the two Acts. Save for what I say in the nextparagraph,neither party disputed that Parliament and the province had the powerto enact respectively the national Act and the KZN Act. Thedispute, such as itis, is not about the power of either the province or Parliament to legislate ona particular matter, but howa perceived conflict between the legislation inquestion is to be resolved under section 146, read with section 148 to150^1[2] of the Constitution. Thedispute is about the effect of the legislation and not the power to make it. Itis accordingly not a disputeenvisaged by section 167(4)(a) of the Constitutionand therefore does not fall within this Court’s exclusivejurisdiction.
[27] Mr Prinsloo contended that, to the extent thatregulation 58(8) of the KZN regulations creates a conflict between the two Actsread with the respective regulations, regulation 58(8) does not fall within thepremier’s powers in terms of the KZN Act. That dispute concerns thestatutory power to make the regulation and not a power in terms of theConstitution itself.
[28] It is concluded that while the dispute betweenthe parties is a constitutional matter, it does not concern the constitutionalstatus, powers or functions of the relevant organs of state and accordingly doesnot fall within the exclusive jurisdiction of thisCourt under section 167(4)(a)of the Constitution.
The application for directaccess
[29] Direct access to this Court is only granted when it is inthe interest of justice to doso.^1[3] It has been pointed outthat it is not generally desirable for a court to sit as a court of first andlast instance^1[4] and that thisCourt should do so only in exceptionalcircumstances.^1[5] Where thelitigants are organs of state, a further consideration applies. Chapter 3(sections 40 and 41) of the Constitution dealswith cooperativegovernment.
[30] Section 40(2) provides:

“All spheres of government must observe and adhere to the principles inthis Chapter and must conduct their activities withinthe parameters that theChapter provides.”

[31] Relevant to thegrant of direct access to organs of state, section 41(1)(h)(vi) enjoins allorgans of state to “avoidlegal proceedings against one another”. In terms of section 41(2)(a) an Act of Parliament must “establish orprovidefor structures and institutions to promote and facilitateintergovernmental relations”. The Act of Parliament must also“providefor appropriate mechanisms and procedures to facilitatesettlement of intergovernmental disputes” (subsection (2)(b)). Section41(3) provides:

“An organ of state involved in an intergovernmental dispute must makeevery reasonable effort to settle the dispute by means of mechanisms andprocedures provided for that purpose, and must exhaust all other remediesbefore it approaches a court to resolve the dispute.” (underliningsupplied.)

Section 41(4) provides:

“If a court is not satisfied that the requirements of subsection (3) havebeen met, it may refer a dispute back to the organsof stateinvolved.”

[32] The Act of Parliamentenvisaged in section 41(2) has not been enacted yet. In view of the words insubsection 3 that have beenunderlined, it could be argued that the failure ofParliament to comply with its obligation in terms of subsection 2 has renderedthe important provisions of subsections 3 and 4 inoperative. For reasons thatfollow, it is not necessary to decide that now. However,even the possibilitythat such an argument could be raised emphasises the urgent need for theenvisaged legislation. Cooperativegovernment is foundational to ourconstitutional endeavour.^1[6] Thefact that the Act envisaged in section 41(2) has not been passed requires theattention of the Minister for Justice and ConstitutionalDevelopment.
[33] It is unnecessary to decide the effect of the failureto pass the Act envisaged in section 41(2), because section 41(1)(h)(vi)obligesorgans of state to avoid litigation against one another. The obligation tosettle disputes is an important aspect of cooperativegovernment which lies atthe heart of Chapter 3 of the Constitution. If this Court is not satisfied thatthe obligation has beenduly performed, it will rarely grant direct access toorgans of state involved in litigation with one another.
[34] Anamendment to the KZN regulations in February 2000 made unequivocal provision fora provincial CEMS. By that time the NationalBoard had already embarked upon aconsultative process in order to determine whether a single national CEMS wouldbe the best option.^1[7] The KZNBoard was represented on the National Board. In addition, a MINMEC meeting hadbefore February 2000 already decided thata single CEMS might be the mosteffective. A member of the KZN executive was present at this meeting and raisedno objection. Inview of all this, the decision to amend the KZN regulationwithout informing or consulting either the National Board or the Ministerdoesnot accord with the principles of cooperativegovernment.^1[8] In the course ofthe year 2000 the National Board and the Minister came to know that KZN intendedto instal its own CEMS. Yet,not one of the organs of state involved made aneffort to discuss the difference of opinion. It was only after March 2001 thattheMinister raised the difference with the Premier. That meeting resulted inno more than a misunderstanding as to what had been decided. There are nominutes or other detail of the meeting in the papers. It is fair to say that,far from cooperating, the organs ofstate proceeded on their collisioncourse.
[35] When the respondents’ notice to invite publicproposals was published, no meaningful effort to avoid legal proceedingswasmade by either party. In the exchange of letters preceding the urgentapplication, the parties’ attorneys used phrasessuch as “it painsus to advise that our client has now instructed us to bring an urgentapplication . . .”. However,section 41(1)(h)(vi) requires more than lipservice.
[36] The parties have made no meaningful effort to comply withtheir constitutional obligation of cooperative government. The disputeprimarily raises questions of interpretation. Such disputes can be resolvedamicably however. Moreover, organs of state’sobligation to avoidlitigation entails much more than an effort to settle a pending court case. Itrequires of each organ of stateto re-evaluate its position fundamentally. Inthe present context, it requires of each of the organs of state to re-evaluatetheneed or otherwise for a single CEMS, to consider alternative possibilitiesand compromises and to do so with regard to the expertadvice the other organsof state have obtained.
[37] The parties’ failure to comply withthe obligations of Chapter 3 is sufficient ground for refusing directaccess.
[38] There are, apart from the parties’ failure to complywith Chapter 3 of the Constitution, further reasons why direct accessshould notbe granted in this case. Involving as it does the interpretation of legislation,this is a case in which this Court shouldhave the benefit of othercourts’ views before it deals with the matter. The case does not raisematters of national interestthat need urgent resolution. The interests ofjustice do not require that this Court deals with the matter as a court of firstandlast instance.
[39] The application for direct access will berefused.
Costs
The wasted costs of 29 August2001
[40] The National Board urgently sought an interim interdictpending the final decision of the main application. It was the allegedurgencythat necessitated the matter to be enrolled on 29 August. No interim interdictwas granted on that date, and the wastedcosts occasioned by the enrollment werereserved. The reasons for not granting the interim interdict will in the maindeterminethe question of the wasted costs.
[41] An applicant for aninterim interdict must show a prima facie right to the main reliefpending which the interim interdict issought.^1[9] As the parties must nowcomply with their obligation to try and resolve their dispute amicably, it isunnecessary and undesirableto express a view on the merit of the NationalBoard’s contention that the legislation allows only one national CEMS. Forpresent purposes I assume that the National Board has established a primafacie right to the main relief it sought.
[42] The secondrequirement for an interim interdict is that the applicant must show that it hasa reasonable apprehension of irreparableharm should the interim interdict notbe issued. The irreparable harm which the National Board purported to show inthis case onlyrelates to harm it would allegedly have suffered if therespondents were allowed to install a provincial CEMS. However, when theinterim interdict was sought, the installation of the provincial CEMS was notimminent. No more than a process calling for proposalswas under way, and thatprocess was at a very early stage. The mere fact that the respondents hadcalled for proposals could nothave resulted in irreparable harm to the NationalBoard. It had no reasonable apprehension of harm, let alone irreparable harm.On that basis alone the National Board’s application for an interiminterdict could in any event not have succeeded.
[43] The claim for aninterim interdict was wholly unnecessary. On the assumption that the NationalBoard is entitled to the mainrelief, it may well be that the respondents werewasting time and money, but it was not the National Board’s time or money.There may be remedies to stop an organ of state from wasting public money, butthat was not the National Board’s case.
[44] The National Board istherefore liable for the wasted costs of 29 August 2001.
The costs ofthe main application
[45] All the organs of state ought to haveattempted to avoid this litigation. Not one of them performed that obligation. The Premier,who knew of the National Board’s extensive consultationprocess, went on with steps to implement the KZN monitoring systemwithoutconsulting the organs of state in the national sphere. These are powerfulconsiderations for ordering each party to payits own costs. However, it isessentially the undue haste with which the National Board launched theseproceedings that occasionedthe costs.
[46] Dealing with the urgency ofthe application, the National Board alleged no more than that it was in theinterests of all concernedto have certainty. That may be so, but it is true ofalmost all litigation. The mere fact that certainty is desirable does notrender a matter urgent as envisaged in Rule 11(1) of the Rules of this Court. There may be cases in which certainty is urgentlynecessary, but this is notsuch a case. There was no need for the National Board to have brought theapplication urgently. It couldand should first have endeavoured to resolve thedispute amicably. At worst it should have brought the application in theordinarycourse. That would have afforded all concerned time for reflection. By launching this application as if it were extremely urgent,the National Boardremoved any opportunity for negotiation. The unfounded application for aninterim interdict compounded the problem. In the circumstances the costs shouldfollow the result.
[47] Both parties were represented by two counsel. In view of the complexity of the matter, their decision to employ two counselcannot be faulted. The costs of two counsel must be allowed.
The HighCourt’s jurisdiction to grant interim relief pending a matter exclusivelyin this Court’s jurisdiction in termsof section167(4)(a)
[48] This matter is not within this Court’s exclusivejurisdiction. The High Court therefore had jurisdiction to deal withtheapplication for an interim interdict. Mr Prinsloo however pointed out that theNational Board had been advised to bring theapplication for the interiminterdict in this Court because there was no precedent to guide it in the choiceof the correct court. It is important that this Court gives guidance in thatrespect.
[49] An interim interdict is by definition

“a court order preserving or restoring the status quo pending thefinal determination of the rights of the parties. It does not involve a finaldetermination of these rights and doesnot affect their finaldetermination.”^2[0]

Thedispute in an application for an interim interdict is therefore not the same asthat in the main application to which the interiminterdict relates. In anapplication for an interim interdict the dispute is whether, applying therelevant legal requirements,the status quo should be preserved orrestored pending the decision of the main dispute. At common law, acourt’s jurisdiction to entertainan application for an interim interdictdepends on whether it has jurisdiction to preserve or restore the statusquo. It does not depend on whether it has the jurisdiction to decide themaindispute.^2[1]
[50] Whether ahigh court will have jurisdiction to grant interim relief pending a matterexclusively within this Court’s jurisdictiondoes not depend on the formor effect of the interim relief. It depends on the proper interpretation of therelevant provision andon the substance of the order: Does it involve a finaldetermination of the rights of the parties or does it affect such finaldetermination?^2[2] If it does not,the High Court will, depending on the provision that grants exclusivejurisdiction, have jurisdiction to grant interimrelief.
[51] It does notfollow that a high court will always have jurisdiction to grant or refuseinterim relief pending the decision ofa matter exclusively within thisCourt’s jurisdiction. To decide whether a high court has suchjurisdiction the provisionin terms of which this Court has exclusivejurisdiction must be interpreted. Section 167(4)(c) of the Constitution is anexampleof a provision giving to this Court exclusive jurisdiction to grantinterim relief. It provides that this Court has exclusive jurisdictionto“decide applications envisaged in section 80 or 122'. Sections 80 and 122respectively provide that members of the NationalAssembly and provinciallegislatures may apply to the Constitutional Court for an order declaring thatall or part of respectivelya national or a provincial Act is unconstitutional. Sections 80(3) and 122(3) are identical. They provide:

“The Constitutional Court may order that all or part of an Act that is thesubject of an application in terms of subsection(1) has no force until the Court has decided the application if-

(a) the interests of justice require this; and
(b) the application has a reasonable prospect ofsuccess.”

Read together,sections 167(4)(c) and sections 80(3) and 122(3) assign exclusive jurisdictionto this Court to grant interim relief.
[52] Ordinarily, an interiminterdict is appropriate when the facts which establish a right to a final orderare in dispute. Ithas been held in some cases that an interim interdict is notappropriate when the facts relating to a final order are not in dispute. Insuch a case the court will proceed to decide the legal issue pertaining to themain dispute. It will then issue or refuse afinalorder.^2[3] In other cases it hasbeen held that there may be circumstances in which the court will issue aninterim interdict even if the factspertaining to the main dispute are not indispute.^2[4] Mr Prinsloo contendedthat the former proposition is correct. Proceeding from there, he argued thatif a particular court doesnot have jurisdiction in the main dispute, it followsthat it cannot have jurisdiction in an application for an interim interdictpending the resolution of the main dispute. It is unnecessary to decide whichline of cases is correct. A court hearing an applicationfor an interiminterdict can obviously only decide the main dispute if it has jurisdiction todo so. A court that does not havejurisdiction in the main dispute will simplydetermine whether the applicant has a prima facie right to the reliefwhich is to be sought in the court having jurisdiction to deal withit.^2[5]
[53] Section167(4)(a) provides that only this Court “may decide disputes betweenorgans of state” in the relevant spheresand concerning thoseorgans’ constitutional status, powers or functions. The exclusivejurisdiction of this Court is to decide the disputes in question. Thereis no reason why the ordinary common law should not apply. Provided that a highcourt is not calledupon to decide a dispute within this Court’sexclusive jurisdiction, it has jurisdiction to grant interim relief pending thefinal determinationof such a dispute.
[54] It should be emphasised thatwe express no view in this case on whether a high court has jurisdiction togrant interim reliefin relation to those other matters in section 167(4) inrespect of which exclusive jurisdiction is conferred upon this Court. Inparticular, we do not decide whether a high court would have the power to grantinterim relief to prevent an amendment to the Constitutionfrom coming intooperation (section 167(4)(d)) or in circumstances where Parliament or thePresident has failed to fulfil a constitutionalobligation (section 167(4)(e)). These provisions confer very special powers upon this Court which may give riseto different constitutionalconsiderations. There is no need to consider thosequestions now.
[55] The following order is made

The application is dismissed with costs including the wasted costs occasioned bythe hearing on 29 August 2001. The costs shallinclude the costs of twocounsel.

Chaskalson CJ, Langa DCJ, Ackermann J,Kriegler J, Madala J, Mokgoro J, O’Regan J, Sachs J, Yacoob J and SkweyiyaAJ concurin the judgment of Du Plessis AJ.

For the applicant: W R C Prinsloo (SC) and J A Motepe instructed byManamela Damons Mbanjwa Inc, Pretoria.

For the first respondent: J J Gauntlett (SC) and A M Stewart instructed byLarsoin Brourton & Falconer Inc, Durban.

^[1] Act 33 of 1996.

^[2] Act 10 of1996.
^[3] Conflicts betweennational and provincial legislation are dealt with in sections 146 to 150. Ishall return

to these later.

^[4] Section13(1)(l).
^[5] It provides:

“ Only the Constitutional Courtmay—

(a) decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers orfunctions of any of thoseorgans ofstate”.

Provincial Gambling Board Games

^[6] Ishall refer to the application for permanent relief as “the mainapplication”.

^[7] Sections 85(2) read with 92(1)and 132(1) read with 133(1) of the Constitution.

^[8] Section 40(1) of theConstitution.

^[9][2001] ZACC 23; 2001 (3) SA 925 (CC); 2001 (9)BCLR 883 at para 25.

^1[0]S v Boesak[2000] ZACC 25; 2001 (1) SA912 (CC); 2001 (1) BCLR 36 (CC) para 14; President of the Republic of South Africa and Others v South African Rugby Football Union and Others[1999] ZACC 9; 1999 (4)SA 147 (CC); 1997 (7) BCLR 725 (CC) para 30.
^[1]1Fedsure Life Assurance Ltdand Others v Greater Johannesburg Transitional Metropolitan Council and Others[1998] ZACC 17; 1999 (1) SA 374; 1998 (12) BCLR 1458 (CC) para 56-59; PharmaceuticalsManufacturers Association of SA and Others: In Re Ex Parte Application ofPresident of the RSAand Others[2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241(CC) paras17-20.

^1[2] Section148 reads: “If a dispute concerning a conflict cannot be resolved by acourt, the national

legislation prevails over the provincial legislation or provincialconstitution.”
Section 149 reads: “A decision by a court that legislation prevails overother legislation does not invalidate that other legislation,but that otherlegislation becomes inoperative for as long as the conflict remains.”
Section 150 reads: “When considering an apparent conflict between nationaland provincial legislation, or between nationallegislation and a provincialconstitution, every court must prefer any reasonable interpretation of thelegislation or constitutionthat avoids a conflict, over any alternativeinterpretation that results in aconflict.”

^1[3] Section167(6)(a) of the Constitution and Rule 17 of the Rules of this Court.

^1[4]Bruce and Another vFleecytex Johannesburg CC and Others[1998] ZACC 3; 1998 (2) SA 1143 (CC); 1998 (4) BCLR 415 (CC) paras 7 to 9.
^1[5]Christian Education SouthAfrica v Minister of Education [1998] ZACC 16; 1999 (2) SA 83 (CC); 1998 (12) BCLR 1449 (CC)para 4; Dormehl v Minister of Justice2000 (2) SA 987 (CC); 2000 (5)BCLR 471 (CC) para 5.
^1[6]Ex Parte Chairperson of theConstitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, [1996] ZACC 26; 1996 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253(CC) paras 287, 290, 469 and470.

^1[7] Paras 5 and6 above.

Gauteng Provincial Gambling Board

^1[8] Section 41(h)(iii) providesthat organs of state must co-operate with one another in mutual trust and good faith by “informingone another of, and consulting one another on,matters of common interest”.
^1[9] LTC Harms in Joubert: TheLaw of South Africa (first reissue), volume 11 para. 317 with the authority in footnote1.

Provincial Gambling Board Of Cosmetology

^2[0] Above n 19para 314.

^2[1] See the majority judgment ofKotzé JA and Grosskopf JA in Airoadexpress v LRTB, Durban[1986] ZASCA 6; 1986 (2) SA 663(AD).

^[2]2Apleniv Minister of Law and Order and Others1989 (1) SA 195 (AD) at 200I to201D.

^2[3]Fourie v Olivier en‘n Ander1971 (3) SA 274 (T) at 284G to 285H.

^2[4]Tony Rahme MarketingAgencies SA (Pty) Ltd and Another v Greater Johannesburg Transitional Metropolitan Council 1997 (4) SA 213 at 216C; Ward v Cape Peninisula IceSkating Club1998 (2) SA 487 (C) 497D to498H.

^2[5] Above n 21at 673H to 673J.

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