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Introduction This case concerns an important question relating to the role of the public in the law-making process. This issue lies at the heart of our constitutional democracy.
The Court is required to answer three related questions. The first question concerns the nature and the scope of the constitutional obligation of a legislative organ of the state to facilitate public involvement in its legislative processes and those of its committees and the consequences of the failure to comply with that obligation.
The second question concerns the extent to which this Court may interfere in the processes of a legislative body in order to enforce the obligation to facilitate public involvement in law-making processes. In particular, whether it is competent for this Court to interfere during the legislative process before a parliamentary or provincial bill is signed into law.
The third question concerns the issue whether this Court is the only court that may consider the questions raised in this case. These issues arise out of a constitutional complaint brought directly to this Court by Doctors for Life International, the applicant.
Following a brief review of the facts, I will identify the issues for determination in this case. The constitutional challenge relates to these statutes, which I shall collectively call the health legislation.
The applicant accepts that the National Assembly has fulfilled its constitutional obligation to facilitate public involvement in connection with the health legislation.
This, the applicant says, was done by the National Assembly by inviting members of the public to make written submissions to the National Portfolio Committee on Health and also by holding public hearings on the legislation.
That process, the applicant maintains, complied with section 59 1 a of the Constitution.
This is what the duty to facilitate public involvement required of them, the applicant maintains. The Speakers of the nine provincial legislatures and the Minister of Health were subsequently joined as further respondents because of their interest in the issues raised in these proceedings.
The respondents deny the charge by the applicant. They maintain that both the NCOP and the various provincial legislatures complied with the duty to facilitate public involvement in their legislative processes.
They also take issue with the scope of the duty to facilitate public involvement as asserted by the applicant. While conceding that the duty to facilitate public involvement requires public participation in the law-making process, they contend that what is required is the opportunity to make either written or oral submissions at some point in the national legislative process.
The applicant has approached this Court directly. It alleges that this Court is the only court that has jurisdiction over the present dispute because it is one which concerns the question whether Parliament has fulfilled its constitutional obligations.
The jurisdiction of this Court to consider such disputes is conferred by section 4 e of the Constitution. The respondents did not contest any of this. There is therefore no dispute between the parties as to whether this Court has exclusive jurisdiction in this matter under section 4 e.
But the question whether this Court has exclusive jurisdiction in this matter is too important to be resolved by concession. When the applicant launched the present proceedings it was under the mistaken belief that all the health legislation was still in bill form.
But, as it turned out, all of the legislation except the Sterilisation Amendment Act had been promulgated when these proceedings were launched on 25 February The challenge relating to the Sterilisation Amendment Act would have required this Court to intervene during the legislative process.
This raised the question of the competence of this Court to intervene in the legislative process. Given the importance of this question, the Chief Justice placed it squarely on our agenda by issuing directions.
Issues presented The issues that will be considered in this judgment are therefore these: I now turn to consider these issues. Does this Court have exclusive jurisdiction over the present dispute?
Whether the applicant is entitled to come directly to this Court in regard to its complaint against the NCOP depends on whether that complaint falls under section 4 e of the Constitution. The contention that this Court has exclusive jurisdiction under section 4 e to decide the present dispute rests on two principal propositions: If both of these propositions are sound in law, the applicant is entitled to come directly to this Court.
The first of these propositions, namely, that the provisions of section 72 1 a impose an obligation, is correct. It is plain from the wording of section 72 1 a that it imposes an obligation to facilitate public involvement.
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