Paragraph 10 of the Sixth Schedule of the Constitution provides that existing laws must be construed in conformity with the Constitution....,.Paragraph 18(9) of the Sixth Schedule to the Constitution provides as follows:“(9) All cases, other than pending constitutional cases, that were pending before any court before the effective date, may ...
Paragraph 10 of the Sixth Schedule of the Constitution provides that existing laws must be construed in conformity with the Constitution....,.
Paragraph 18(9) of the Sixth Schedule to the Constitution provides as follows:
“(9) All cases, other than pending constitutional cases, that were pending before any court before the effective date, may be continued before that court or the equivalent court established by this Constitution, as the case may be, as if this Constitution had been in force when the cases were commenced, but:
(a) The procedure to be followed in those cases must be the procedure that was applicable to them immediately before the effective date; and
(b) The procedure referred to in subparagraph (a) applies to those cases even if it is contrary to any provision of this Constitution.”
Paragraph 18(9) of the Sixth Schedule to the Constitution is clearly a transitional provision dealing with procedure that affects cases which would have commenced before the effective date.
It is a common law principle, that, a statute dealing with procedure applies retrospectively to govern all pending and future proceedings, unless it is provided otherwise: CRAIES on Statute Law, seventh edition. Paragraph 18(9)(a) of the Sixth Schedule of the Constitution is such provision which provides contrary to the common law.
It thus alters the common law position.
Paragraph 18(9)(a) of the Sixth Schedule allows a matter which has commenced before the effective date of the Constitution to continue in terms of the old procedure. Paragraph 18(9)(b) of the Sixth Schedule leaves the matter in no doubt and expressly provides, that, even if the procedure is contrary to the new Constitution the old procedure should be followed....,.
Paragraph 18(10)(b) of the Sixth Schedule to the Constitution states, that, for the purposes of paragraph 9, a civil case is deemed to have commenced when summons were issued or the application was filed before a court as the case may be.
