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[2003] ZACC 13
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Ex Parte Omar (CCT32/03) [2003] ZACC 13; 2006 (2) SA 284 (CC); 2003 (10) BCLR 1087 (CC) (11 September 2003)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 32/03
AHMED RAFFIK OMAR Applicant
Decided on : 11 September
2003
JUDGMENT
THE COURT:
[1]
This is an ex parte
application for direct access to this Court in terms of rule 17 of the Rules of
Court. The applicant seeks an
order declaring
section 8
of the
Domestic
Violence Act, 116 of 1998
invalid. That section
provides:
“(1) Whenever a court issues a protection order, the court must make an
order –
(a) authorising the issue of a warrant for the arrest of the respondent, in the
prescribed form; and
(b) suspending the execution of such warrant subject to compliance with any
prohibition, condition, obligation or order imposed in
terms of
section
7.
(2) The warrant referred to in subsection (1)(a) remains in force unless the
protection order is set aside, or it is cancelled after
execution.
(3) The clerk of the court must issue the complainant with a second or further
warrant of arrest, if the complainant files an affidavit
in the prescribed form
in which it is stated that such warrant is required for her or his protection
and that the existing warrant
of arrest has been –
(a) executed and cancelled; or
(b) lost or destroyed.
(4) (a) A complainant may hand the warrant of arrest together with an affidavit
in the prescribed form, wherein it is stated that
the respondent has contravened
any prohibition, condition, obligation or order contained in a protection order,
to any member of
the South African Police Service.
(b) If it appears to the member concerned that, subject to subsection (5), there
are reasonable grounds to suspect that the complainant
may suffer imminent harm
as a result of the alleged breach of the protection order by the respondent, the
member must forthwith arrest
the respondent for allegedly committing the offence
referred to in
section 17(a).
(c) If the member concerned is of the opinion that there are insufficient
grounds for arresting the respondent in terms of paragraph
(b), he or she must
forthwith hand a written notice to the respondent which
–
(i) specifies the name, the residential address and the occupation or status of
the respondent;
(ii) calls upon the respondent to appear before a court, and on the date and at
the time, specified in the notice, on a charge of
committing the offence
referred to in
section 17(a)
; and
(iii) contains a certificate signed by the member concerned to the effect that
he or she handed the original notice to the respondent
and that he or she
explained the import thereof to the
respondent.
(d) The member must forthwith forward a duplicate original of a notice referred
to in paragraph (c) to the clerk of the court concerned,
and the mere production
in the court of such a duplicate original shall be
prima facie
proof that
the original thereof was handed to the respondent specified therein.
(5) In considering whether or not the complainant may suffer imminent harm, as
contemplated in subsection 4(b), the member of the
South African Police Service
must take into account –
(a) the risk to the safety, health or wellbeing of the
complainant;
(b) the seriousness of the conduct comprising an alleged breach of the
protection order; and
(c) the length of time since the alleged breach occurred.
(6) Whenever a warrant of arrest is handed to a member of the South African
Police Service in terms of subsection (4)(a), the member
must inform the
complainant of his or her right to simultaneously lay a criminal charge against
the respondent, if applicable, and
explain to the complainant how to lay such a
charge.”
[2]
The applicant originally
approached the High Court in Pietermaritzburg for an order of constitutional
invalidity, citing the government
of South Africa, the Minister of Justice and
Ms Halima Joosab (his wife according to Islamic law) as the respondents. He
alleged
that the third respondent has secured several protection orders against
him in terms of the
Domestic Violence Act. He
also alleged that a warrant for
his arrest had been irregularly issued. The applicant complained that the
provisions of
section 8
, and, in particular, the mandatory issue of a warrant of
arrest at the time of the grant of a protection order
(s 8(1)(a))
, were in
breach of several of his constitutional rights including his right to freedom
and security of the person. All three of
the respondents filed notices
indicating their intention to abide the decision of the High
Court.
[3]
In his affidavit filed in
this Court, the applicant states that when the matter came before the High Court
on the 29 July 2003, it
was struck off the roll by the judge on the ground that
the Government and the Minister of Justice were under an obligation to inform
the Court of its reasons for not opposing an application for the declaration of
constitutional invalidity. The applicant, aggrieved
by this and still seeking
constitutional relief, then approached this Court ex parte and
directly.
[4]
It is clear from the
jurisprudence of this Court that an application for direct access, even where
all interested parties are cited,
will only be granted if exceptional
circumstances exist.
[1]
The Court
will not grant an application for direct access to consider a challenge to the
constitutionality of legislation where
the Minister responsible for the
legislation is not cited in the application. Even if that were cured in this
application, however,
no exceptional circumstances exist for the grant of an
application for direct access.
[5]
The constitutionality of
section 8
of the
Domestic Violence Act is
a matter of constitutional
significance but it is not one of such pressing urgency that this Court must
consider it without the benefit
of a considered judgment of the High Court. If
it is correct, as alleged by the applicant that the High Court, without more,
struck
the matter from the roll on the ground that the first and second
respondents had failed to put an affidavit before it on the constitutional
point, then the High Court erred in doing so. It is true that this Court has on
several occasions pointed to the importance in any
constitutional challenge to
legislation to have the attitude of the member of the executive responsible for
the implementation of
the legislation before the
Court.
[2]
Constitutional challenges
to legislation adopted by Parliament are not mere formalities. Parliament was
obliged to consider the
constitutionality of the
Domestic Violence Act before
it
was passed, and the state law advisors would presumably have certified the Act
as being consistent with the Constitution. If
the government takes the view
that it cannot support the legislation then it ought to have explained to the
Court the reasons for
its attitude, and what it considered to be an appropriate
order in the circumstances. An order by the High Court adjourning the
application and requesting the first and second respondents to file affidavits
indicating their attitude to the application for an
order of constitutional
invalidity would have been an appropriate one.
[6]
The failure of the
executive to put its views before a court, however, cannot deprive an applicant
of having an application for constitutional
relief adjudicated. If the
executive chooses to abide by the decision of a court where a constitutional
challenge is raised, a judge
cannot on that ground alone refuse to entertain the
application for relief. The applicant is entitled to and should re-enrol his
application in the High Court in Pietermaritzburg and seek relief there.
[7]
One last matter needs to be
considered. The applicant’s attorneys approached the Registrar of this
Court to enrol the application
for direct access. The registrar requested that
25 copies of the application be furnished, but this was refused. Properly
construed,
this is an application for direct access in terms of rule 17 of the
Rules. Rule 17(2) provides that such applications shall be “lodged”
with the Registrar. Rule 1(3) makes it clear that when any rule refers to a
document to be “lodged”, 25 copies of the
document must be furnished
to the Registrar. The applicant’s refusal to comply with the rules in
this respect without an accompanying
application for condonation would be a
further ground for rejecting his application.
[8]
The application for direct
access is therefore dismissed.
For the
applicant: Zehir Omar Attorneys
[1]
Bruce and another v
Fleecytex Johannesburg CC and others
[1998] ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR
415
(CC) para 9,
Christian Education South Africa v Minister of Education
1999 (2) SA 83
(CC);
1998 (12) BCLR 1449
(CC) para 4,
Dormehl v Minister of
Justice and others
2000 (2) SA 987
(CC);
2000 (5) BCLR 471
(CC) para 5,
National Gambling Board v Premier, KwaZulu-Natal, and others
[2001] ZACC 8
;
2002 (2) SA
715
(CC);
2002 (2) BCLR 156
(CC) para 29,
Van der Spuy v General Council of
the Bar of South Africa (Minister of Justice and Constitutional Development,
Advocates for Transformation
and Law Society of South Africa intervening)
[2002] ZACC 17
;
2002 (5) SA 392
(CC);
2002 (10) BCLR 1092
(CC) para 7,
Satchwell v President
of the Republic of South Africa and another
[2003] ZACC 2
;
2003 (4) SA 266
(CC) para 6.
[2]
Phillips and another v
Director of Public Prosecutions, Witwatersrand Local Division, and others
[2003] ZACC 1
;
2003 (3) SA 345
(CC);
2003 (4) BCLR 357
(CC) para 11,
Dawood and another v
Minister of Home Affairs and others; Shalabi and another v Minister of Home
Affairs and others; Thomas and another
v Minister of Home Affairs and others
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) para 15 – 17,
Beinash and
another v Ernst & Young and others
1999 (2) SA 116
(CC);
1999 (2) BCLR
125
(CC) para 27,
Parbhoo and others v Getz NO and another
1997 (4) SA
1095
(CC);
1997 (10) BCLR 1337
(CC) para 5.