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[2006] ZACC 11
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Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August 2006)

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NGCOBO J
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 12/05
DOCTORS
FOR LIFE INTERNATIONAL Applicant
versus
THE
SPEAKER OF THE NATIONAL ASSEMBLY First Respondent
THE
CHAIRPERSON OF THE NATIONAL COUNCIL
OF
PROVINCES Second Respondent
THE
MINISTER OF HEALTH Third Respondent
THE
SPEAKER OF EASTERN CAPE PROVINCIAL
LEGISLATURE Fourth
Respondent
THE
SPEAKER OF FREE STATE PROVINCIAL
LEGISLATURE Fifth
Respondent
THE
SPEAKER OF GAUTENG PROVINCIAL
LEGISLATURE Sixth
Respondent
THE
SPEAKER OF KWAZULU-NATAL PROVINCIAL
LEGISLATURE Seventh
Respondent
THE
SPEAKER OF LIMPOPO PROVINCIAL
LEGISLATURE Eighth
Respondent
THE
SPEAKER OF MPUMALANGA PROVINCIAL
LEGISLATURE Ninth
Respondent
THE
SPEAKER OF NORTHERN CAPE PROVINCIAL
LEGISLATURE Tenth
Respondent
THE
SPEAKER OF NORTH WEST PROVINCIAL
LEGISLATURE Eleventh
Respondent
THE
SPEAKER OF WESTERN CAPE PROVINCIAL
LEGISLATURE Twelfth
Respondent
Heard
on : 23 August 2005 and 21 February 2006
Decided
on : 17 August 2006
JUDGMENT
NGCOBO J:
I. 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.
Its
complaint is that the National Council of Provinces (“NCOP”),
in passing certain health bills, failed to invite written
submissions and conduct public hearings on these Bills as required
by its duty to facilitate public involvement in its legislative
processes and those of its committees.
Following
a brief review of the facts, I will identify the issues for
determination in this case.
II. Factual
background
Parliament
has enacted four health statutes, namely, the Choice on Termination
of Pregnancy Amendment Act 38 of 2004 (“the CTOP
Amendment Act”);
the
Sterilisation Amendment Act 3 of 2005
; the Traditional Health
Practitioners Act 35 of 2004 (“the THP Act”); and the
Dental
Technicians Amendment Act 24 of 2004
. The constitutional challenge
relates to these statutes, which I shall collectively call the
health legislation. The applicant’s
complaint is that during the
legislative process leading to the enactment of these statutes, the
NCOP and the provincial legislatures
did not comply with their
constitutional obligations to facilitate public involvement in
their legislative processes as required
by the provisions of
sections 72(1)(a)
and
118
(1)(a) of the Constitution, respectively.
In terms of section 72(1)(a), the NCOP “must . . . facilitate
public involvement
in [its] legislative and other processes . . .
and [those of] its committees.” Section 118(1)(a) contains a
similar provision
relating to a provincial legislature.
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.
1
The applicant alleges that the NCOP and the various provincial
legislatures were likewise required to invite written submissions
and hold public hearings on the health legislation. This is what
the duty to facilitate public involvement required of them,
the
applicant maintains.
The
constitutional challenge was initially directed at the Speaker of
the National Assembly and the Chairperson of the NCOP only.
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.
2
I shall refer to all respondents collectively as the respondents,
unless the context requires otherwise.
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 167(4)(e) of the Constitution. That section
provides
that “[o]nly the Constitutional Court may . . . decide that
Parliament . . . has failed to fulfil a constitutional
obligation”.
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 167(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 2005.
3
This fact was readily ascertainable all along. 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.
4
The parties were thus invited to submit written argument on the
question, and it was fully debated.
III. Issues presented
The
issues that will be considered in this judgment are therefore
these:
(a) Does this Court have exclusive jurisdiction over the present
dispute under section 167(4)(e) of the Constitution?
(b) Is it competent under our constitutional order for declaratory
relief to be granted by a court in respect of the proceedings
of
Parliament?
(c) What is the nature and the scope of the duty to facilitate
public involvement comprehended in sections 72(1)(a) and 118(1)(a)
of the Constitution?
(d) Did the NCOP and the provincial legislatures comply with their
constitutional obligations to facilitate public involvement
as
contemplated in section 72(1)(a) and section 118(1)(a)?
(e) If the process followed by the NCOP and the provincial
legislatures fell short of that required by the Constitution, what

is the appropriate relief?
I
now turn to consider these issues.
IV. 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 167(4)(e) of the Constitution. The contention
that this Court has exclusive jurisdiction
under section 167(4)(e)
to decide the present dispute rests on two principal propositions:
first, section 72(1)(a) imposes an
obligation on the NCOP to
facilitate public involvement in its legislative processes and
those of its committees; and second,
the obligation imposed by
section 72(1)(a) is of a kind contemplated in section 167(4)(e).
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. Section

72(1)(a) provides that the NCOP “must . . . facilitate public
involvement in [its] legislative and other processes and [those
of]
its committees”.
5
The use of the word “must” in this context denotes an
obligation. It is plain from the wording of section 72(1)(a) that
it imposes an obligation to facilitate public involvement.
Considering the provisions of section 59(1)(a), the National
Assembly
equivalent of section 72(1)(a), the Supreme Court of
Appeal in
King and Others v Attorneys Fidelity Fund Board of
Control and Another
,
6
held that the section imposes an obligation on Parliament to
facilitate public involvement in its legislative processes.
7
This holding is plainly correct. The conclusion that section
72(1)(a) imposes an obligation on the NCOP to facilitate public
involvement in its legislative processes leads to the second
proposition, namely, that the obligation to facilitate public

participation is the kind of obligation contemplated in section
167(4)(e).
The
merits of the second proposition must be considered at some length.
It raises the question of the proper meaning of the phrase
“a
constitutional obligation” in section 167(4)(e). This question
is difficult to resolve. Section 167(4)(e) confers exclusive
jurisdiction on this Court to decide disputes concerning a failure
by Parliament or the President to fulfil a constitutional
obligation. This provision must be construed in the light of the
powers of the Supreme Court of Appeal and the High Courts to
make
orders “concerning the constitutional validity of an Act of
Parliament, a provincial Act or any conduct of the President”.
8
These are very wide powers indeed.
The
provisions of section 172(2)(a) contemplate that disputes
concerning the constitutional validity of a statute or conduct of
the President will be considered, in the first instance, by the
High Courts or the Supreme Court of Appeal, which are given the
power to declare any law or conduct that is inconsistent with the
Constitution invalid, subject to confirmation by this Court.
9
The difficulty is that a statute may be invalid for at least two
reasons. It may be invalid because its provisions are in conflict
with a right in the Bill of Rights. Or it may be invalid because
it was adopted in a manner that is inconsistent with the provisions
of the Constitution. What compounds the difficulty is that in a
constitutional state like ours, where the Constitution is supreme,
the Constitution imposes certain obligations on the exercise of
legislative authority.
Consider,
for example, section 7(2) of the Constitution, which provides that
“[t]he state must respect, protect,
promote and fulfil the
rights in the Bill of Rights.” This provision no doubt imposes
an obligation on the state to respect,
protect, promote and fulfil
the rights in the Bill of Rights. But it can hardly be suggested
that this Court has exclusive jurisdiction
to decide the validity
of a statute that violates those rights because in enacting that
statute, Parliament has failed to fulfil
its constitutional
obligation to respect, protect, promote and fulfil rights in the
Bill of Rights. Were this to be so, it would
undermine the role of
other courts. In fact it would be contrary to section 172(2)(a),
which contemplates that the Supreme Court
of Appeal and the High
Courts have the jurisdiction to consider the validity of an Act of
Parliament. The Supreme Court of Appeal
or a High Court would have
jurisdiction under section 172(2)(a) to consider the constitutional
validity of the impugned statute.
In
the case of a law that infringes a right in the Bill of Rights, the
primary source of the dispute is the breach of a right.
This
dispute flows directly from the infringement of a right in the Bill
of Rights. Although, inevitably this means that Parliament
has
failed to comply with its constitutional obligation, this is not an
obligation contemplated in section 167(4)(e). It concerns
the
validity of the impugned law and not the failure to fulfil an
obligation. Sections 167(5) and 172(2)(a) of the Constitution
contemplate that such disputes will be considered in the first
instance by the High Courts, which are given the power to declare
laws invalid, subject to confirmation by this Court. In doing so
the High Court would not be deciding whether Parliament has
failed
to fulfil an obligation, but only whether the statute is consistent
with the Bill of Rights.
What
all of this points to is that the phrase “a constitutional
obligation” in section 167(4)(e) should be given a narrow
meaning. If the phrase is construed as applying to all questions
concerning the constitutional validity of Acts of Parliament,
it
would be in conflict with the powers of the Supreme Court of Appeal
and the High Courts to make orders concerning the validity
of Acts
of Parliament.
In
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
(“
SARFU 1
”),
10
this Court, in the context of the conduct of the President,
expressed the view that the words “fulfil a constitutional
obligation”
in section 167(4)(e) should be given a narrow meaning
because a broader meaning would result in a conflict with section
172(1)(a)
which empowers the Supreme Court of Appeal and the High
Courts to make orders concerning the constitutional validity of the
conduct
of the President.
11
While finding it unnecessary to define the phrase “fulfil a
constitutional obligation,” the Court expressed the view that
“[i]t may depend on the facts and the precise nature of the
challenges to the conduct of the President”.
12
In my view, there is no reason why this should not apply to the
phrase as it relates to Parliament.
In
King
,
13
the Supreme Court of Appeal had to consider whether it had
jurisdiction to decide a constitutional challenge to a statute
where
the challenge was based on the alleged failure by the
National Assembly to facilitate public involvement in its
legislative and
other processes as envisaged by section 59(1)(a) of
the Constitution.
14
The Supreme Court of Appeal concluded that neither it nor the High
Court has jurisdiction to consider a constitutional challenge
to
the validity of a statute where the challenge is based on the
alleged failure by Parliament to fulfil an obligation envisaged
in
section 59(1)(a) of the Constitution.
15
The basic reasoning of the Supreme Court of Appeal was that the
question whether Parliament has fulfilled its obligation to
facilitate public involvement is “pre-eminently a ‘crucial
political’ question, and section 167(4)(e) reserves it for only
the Constitutional Court to make.”
16
I agree with this reasoning and conclusion.
Section 167(4)(e) must be construed purposively and consistently
with the nature of the jurisdiction of this Court in our
constitutional
democracy. This Court occupies a special place in
our constitutional order. It is the highest court on
constitutional matters
and is the ultimate guardian of our
Constitution and its values.
17
As this Court pointed out in
SARFU 1
, it was envisaged that
this Court would be called upon “to adjudicate finally in respect
of issues which would inevitably have
important political
consequences.”
18
Consistent with this role, section 167(4) confers exclusive
jurisdiction on this Court in a number of crucial political areas;
it is given the power to decide disputes between organs of state in
the national or provincial sphere,
19
the constitutionality of any parliamentary or provincial bill,
20
constitutional challenges brought by members of the National
Assembly or the provincial legislatures,
21
the constitutionality of any amendment to the Constitution,
22
whether Parliament or the President has failed to fulfil a
constitutional obligation
23
and whether to certify a provincial constitution.
24
The
purpose of giving this Court exclusive jurisdiction to decide
issues that have important political consequences is “to preserve
the comity between the judicial branch of government” and the
other branches of government “by ensuring that only the highest
court in constitutional matters intrudes into the domain” of the
other branches of government.
25
And thus while vesting in the judiciary the power to declare
statutes and the conduct of the highest organs of state
inconsistent
with the Constitution and thus invalid, the
Constitution “entrusts to this Court the duty of supervising the
exercise of this
power and requires it to consider every case in
which an order of invalidity has been made, to decide whether or
not this has
been correctly done.”
26
The
principle underlying the exclusive jurisdiction of this Court under
section 167(4) is that disputes that involve important
questions
that relate to the sensitive areas of separation of powers must be
decided by this Court only. Therefore, the closer
the issues to be
decided are to the sensitive area of separation of powers, the more
likely it is that the issues will fall within
section 167(4). It
follows that where a dispute will require a court to decide a
crucial political question and thus intrude
into the domain of
Parliament, the dispute will more likely be one for the exclusive
jurisdiction of this Court.
It
seems to me therefore that a distinction should be drawn between
constitutional provisions that impose obligations that are
readily
ascertainable and are unlikely to give rise to disputes, on the one
hand, and those provisions which impose the primary
obligation on
Parliament to determine what is required of it, on the other. In
the case of the former, a determination whether
those obligations
have been fulfilled does not call upon a court to pronounce upon a
sensitive aspect of the separation of powers.
An example of such a
provision that comes to mind is a provision that requires statutes
to be passed by a specified majority.
The criteria set out are
clear, and a failure to comply with them would lead to invalidity.
When a court decides whether these
obligations have been complied
with, it does not infringe upon the principle of the separation of
powers. It simply decides
the formal question whether there was,
for example, the two-thirds majority required to pass the
legislation.
By
contrast, where the obligation requires Parliament to determine in
the first place what is necessary to fulfil its obligation,
a
review by a court whether that obligation has been fulfilled,
trenches on the autonomy of Parliament to regulate its own affairs
and thus the principle of separation of powers. This is precisely
what the obligation comprehended in section 72(1)(a) does.
While
it imposes a primary obligation on Parliament to facilitate public
involvement in its legislative and other processes,
including those
of its committees, it does not tell Parliament how to facilitate
public involvement but leaves it to Parliament
to determine what is
required of it in this regard. A review by a court of whether
Parliament has complied with its obligation
under section 72(1)(a)
calls upon a court to intrude into the domain of a principal
legislative organ of the state. Under our
Constitution, this
intrusion is reserved for this Court only.
A
construction of section 167(4)(e) which gives this Court exclusive
jurisdiction to decide whether Parliament has complied with
its
constitutional obligation to facilitate public involvement in its
legislative processes is therefore consistent with the
principles
underlying the exclusive jurisdiction of this Court. An order
declaring that Parliament has failed to fulfil its
constitutional
obligation to facilitate public involvement in its legislative
process and directing Parliament to comply with
that obligation
constitutes judicial intrusion into the domain of the principle
legislative organ of the state. Such an order
will inevitably have
important political consequences. Only this Court has this power.
The
question whether Parliament has fulfilled its obligation under
section 72(1)(a) therefore requires this Court to decide a
crucial
separation of powers question and is manifestly within the
exclusive jurisdiction of this Court under section 167(4)(e)
of the
Constitution.
Before
leaving this topic, there is one matter to which I must refer. The
complaint is directed at the NCOP and not at the National
Assembly.
In terms of section 42(1) of the Constitution, Parliament consists
of the National Assembly and the NCOP. The national
legislative
authority vests in Parliament.
27
These democratic institutions represent different interests in the
law-making process. The National Assembly represents “the
people
. . . to ensure government by the people”.
28
The NCOP “represents the provinces to ensure that provincial
interests are taken into account” in the legislative process.
29
Both must therefore participate in the law-making process and act
together in making law to ensure that the interests they represent
are taken into consideration in the law-making process. If either
of these democratic institutions fails to fulfil its constitutional
obligation in relation to a bill, the result is that Parliament has
failed to fulfil its obligation.
I
am therefore satisfied that the question whether the NCOP has
failed to facilitate public involvement in its legislative
processes
concerns a dispute over whether Parliament has fulfilled
a constitutional obligation as contemplated in section 167(4)(e).
Only
this Court has the jurisdiction to decide such a dispute.
What
falls to be considered next is whether it is competent under our
constitutional order for declaratory relief to be granted
by this
Court in respect of the proceedings of Parliament.
V. Is it competent for this Court to grant declaratory relief in
respect of proceedings of Parliament?
Introduction
The
obligation of Parliament to facilitate public involvement in its
legislative and other processes, including those of its committees,
raises the question of the competence of this Court to grant relief
in respect of the proceedings of Parliament. The enforcement
of
the obligation to facilitate public involvement in the legislative
processes of Parliament invariably requires this Court
to interfere
with the autonomy of the principal legislative organ of the state.
This interference infringes upon the principle
of the separation of
powers. Yet, as will appear later in this judgment, the
enforcement of the obligation to facilitate public
involvement in
the law-making process is crucial to our constitutional democracy.
In
the light of this, it is important to resolve the question when
this Court can and should intervene to enforce the obligation
to
facilitate public involvement in the law-making process. Apart
from this, as pointed out earlier, when these proceedings
were
launched on 25 February 2005, the
Sterilisation Amendment Act was
still in its bill form. Parliament had passed the Bill but it had
not yet been signed by the President. It is therefore necessary
to
consider whether this Court had jurisdiction to consider the
constitutional challenge relating to parliamentary proceedings
in
connection with the
Sterilisation Amendment Act at
the time when
the constitutional challenge was launched.
It
was against this background that the parties were called upon to
submit argument on whether it is competent for this Court
under our
constitutional order to grant declaratory relief in respect of the
proceedings of Parliament:
(a) before Parliament has concluded its deliberations on a bill;
after
Parliament has passed the bill, but before the bill has been signed
by the President; or
after
it has been signed by the President but before it has been brought
into force.
30
The
national legislative process is set out in sections 73 to 82 of the
Constitution. Broadly speaking it commences with the
introduction
of a bill in the National Assembly, consideration and passing of
the bill by the National Assembly, consideration
and passing of the
bill by the NCOP, and consideration and signing of the bill by the
President. The specific question presented
in this case is whether
this Court has jurisdiction to intervene in this legislative
process and to grant declaratory relief
to the effect that
Parliament has failed to facilitate public involvement in relation
to a bill.
Parliament
has a very special role to play in our constitutional democracy –
it is the principal legislative organ of the state.
With due
regard to that role, it must be free to carry out its functions
without interference. To this extent, it has the power
to
“determine and control its internal arrangements, proceedings and
procedures”.
31
The business of Parliament might well be stalled while the
question of what relief should be granted is argued out in the

courts. Indeed the parliamentary process would be paralysed if
Parliament were to spend its time defending its legislative process
in the courts. This would undermine one of the essential features
of our democracy: the separation of powers.
The constitutional principle of separation of powers requires that
other branches of government refrain from interfering in

parliamentary proceedings. This principle is not simply an
abstract notion; it is reflected in the very structure of our
government.
The structure of the provisions entrusting and
separating powers between the legislative, executive and judicial
branches reflects
the concept of separation of powers. The
principle “has important consequences for the way in which and
the institutions by
which power can be exercised.”
32
Courts must be conscious of the vital limits on judicial authority
and the Constitution’s design to leave certain matters
to other
branches of government. They too must observe the constitutional
limits of their authority. This means that the judiciary
should
not interfere in the processes of other branches of government
unless to do so is mandated by the Constitution.
But under our constitutional democracy, the Constitution is the
supreme law. It is binding on all branches of government and
no
less on Parliament. When it exercises its legislative authority,
Parliament “must act in accordance with, and within the
limits
of, the Constitution”,
33
and the supremacy of the Constitution requires that “the
obligations imposed by it must be fulfilled.”
34
Courts are required by the Constitution “to ensure that all
branches of government act within the law” and fulfil their
constitutional obligations.
35
This Court “has been given the responsibility of being the
ultimate guardian of the Constitution and its values.”
36
Section 167(4)(e), in particular, entrusts this Court with the
power to ensure that Parliament fulfils its constitutional

obligations. This section gives meaning to the supremacy clause,
which requires that “the obligations imposed by [the
Constitution]
must be fulfilled.”
37
It would therefore require clear language of the Constitution to
deprive this Court of its jurisdiction to enforce the Constitution.
The
question is whether the Constitution precludes this Court from
intervening during any or all of the stages of the law-making
process in order to enforce the obligation to facilitate public
involvement.
There
are three identifiable stages in the law-making process, and these
are foreshadowed in the questions on which the parties
were called
upon to submit argument: first, the deliberative stage, when
Parliament is deliberating on a bill before passing
it; second, the
Presidential stage, that is, after the bill has been passed by
Parliament but while it is under consideration
by the President;
and third, the period after the President has signed the bill into
law but before the enacted law comes into
force. The applicants
contended that section 167(4)(e) empowers this Court to intervene
during all three stages.
What
must be emphasised at the outset is that in this case we are
concerned with a constitutional challenge based on an alleged
failure to facilitate public involvement in the legislative
processes of Parliament as required by section 72(1)(a) of the

Constitution. The questions posed by the Chief Justice must
therefore be answered with reference to this specific challenge to
the extent required by the facts of this case. It will be
convenient to consider, first, whether this Court can interfere

with the legislative process when the bill is before the President;
second, after the President has signed the bill into law but
before
it comes into force; and third, during the deliberative process.
Is
it competent for this Court to grant declaratory relief after a bill
has been passed by Parliament but before it is signed by
the
President?
The express provision of the Constitution that is relevant in this
context and which limits the jurisdiction of this Court is
section
167(4)(b). That section provides:
“
(4) Only the Constitutional
Court may ─
. . .
(b) decide on the
constitutionality of any parliamentary or provincial Bill, but may
do so only in the circumstances anticipated
in section 79 or 121”.
38
Section 167(4)(b) confers exclusive jurisdiction on this Court to
decide the constitutionality of any parliamentary or provincial
bill. However, this power is expressly limited in that this Court
“may do so only in the circumstances anticipated in section
79 or
121”. Thus while the section confers exclusive jurisdiction on
this Court to consider the constitutional validity of
a national or
provincial bill, this power is expressly limited to a challenge
brought by the President or a Premier and in circumstances
contemplated in section 79 or 121 of the Constitution.
39
The provisions of these sections are too clear to admit of any
other construction. In the
UDM
case,
this Court held
that the Constitution “contains clear and express provisions
which preclude any court from considering the constitutionality
of
a Bill save in the limited circumstances referred to in sections 79
and 121 of the Constitution, respectively.”
40
Counsel
for the applicant nevertheless submitted that it is competent for
this Court to grant relief after Parliament has passed
a bill but
before the President has signed the bill. To surmount the hurdle
presented by the limited power of this Court to
decide the
constitutionality of a parliamentary or provincial bill under
section 167(4)(b), counsel for the applicant advanced
two
propositions. First, there was a conflict between the provisions of
sub-sections 167(4)(b) and 167(4)(e). This conflict
arises because
section 167(4)(b) permits only the President or the Premier to
approach this Court in respect of a passed bill.
By contrast, it
was submitted, section 167(4)(e) is concerned with failure to
fulfil a constitutional obligation, and it imposes
no restriction
on the identity of the applicant or the stage of the challenge.
Second, this conflict, which is more apparent
than real, can be
removed by construing the word “constitutionality” in section
167(4)(b) as limited to the contents of the
bill and not to the
procedure required by the Constitution.
But
the narrow meaning that counsel sought to assign to the word
“constitutionality” in section 167(4)(b) is neither supported
by the plain meaning of that word nor by the constitutional scheme
of which it is part. The submission by counsel ignores the
provisions of section 79 of the Constitution to which section
167(4)(b) refers. The provisions of section 167(4)(b) must be
read
with section 79 in order to determine the scope of the jurisdiction
of this Court to decide the constitutionality of a bill.
It is
plain from the provisions of section 79(3) that the President has
the authority to raise the constitutionality of a bill
on both
procedural and substantive grounds. It provides that the NCOP must
participate in the reconsideration of the bill “if
the
President’s reservations about the constitutionality of the Bill
relate to a procedural matter that involves the [NCOP]”.
41
Nothing could be clearer. The President may raise as the source
of his or her reservation a procedural matter.
It
is necessary to stress here that a complaint relating to failure by
Parliament to facilitate public involvement in its legislative
processes after Parliament has passed the bill will invariably
require a court to consider the validity of the resulting bill.
If
the Court should find that Parliament has not fulfilled its
obligation to facilitate public involvement in its legislative
processes, the Court will be obliged under section 172(1)(a) to
declare that the conduct of Parliament is inconsistent with the
Constitution and therefore invalid. This would have an impact on
the constitutionality of the bill that is a product of that
process. The purpose and effect of litigation that is brought in
relation to a bill after it has been passed by Parliament is
therefore to render the bill passed by Parliament invalid. This is
precluded by the express provisions of section 167(4)(b).
The
question that falls to be determined is whether the provisions of
section 167(4)(e) can be invoked while the bill is under
consideration by the President. It is here that the interrelation
between the provisions of section 167(4)(e) and section 167(4)(b)
becomes relevant. There are two principles of interpretation that
are relevant in this regard.
The first is that where there are provisions in the Constitution
that appear to be in conflict with each other, the proper approach
is to examine them to ascertain whether they can reasonably be
reconciled.
42
And they must be construed in a manner that gives full effect to
each. Provisions in the Constitution should not be construed
in a
manner that results in them being in conflict with each other.
Rather, they should be construed in a manner that harmonises
them.
In
S v Rens
,
43
this Court held that “[i]t was not to be assumed that provisions
in the same constitution are contradictory” and that “[t]he
two
provisions ought, if possible, to be construed in such a way as to
harmonise with one another.”
44
The
other principle of construction to keep in mind in this regard is
that where there are two provisions in the Constitution
dealing
with the same subject, with one provision being general and the
other being specific, the general provision must ordinarily
yield
to the specific provision. In
Ex parte Speaker of the
KwaZulu-Natal Provincial Legislature: In re Certification of the
Constitution of the Province of KwaZulu-Natal,
1996
,
45
this Court held that a “general provision . . . would not
normally prevail over the specific and unambiguous provisions”.
46
The specific provision must be construed as limiting the scope of
the application of the more general provision. Therefore,
if a
general provision is capable of more than one interpretation and
one of the interpretations results in that provision applying
to a
special field which is dealt with by a special provision, in the
absence of clear language to the contrary, the special
provision
must prevail should there be a conflict.
The
question then is whether the provisions of sections 167(4)(b) and
167(4)(e) are capable of being reconciled.
Although
both these provisions deal with the exclusive jurisdiction of this
Court, each deals with a specific subject matter.
The subject
matter of section 167(4)(e) is “a constitutional obligation”.
It confers jurisdiction on this Court to decide
whether Parliament
or the President has failed to fulfil a constitutional obligation.
It regulates constitutional challenges
that seek to enforce the
fulfilment of constitutional obligations and contains no
restrictions as to the person or the stage
at which a challenge may
be launched. By contrast, section 167(4)(b) confers exclusive
jurisdiction on this Court to decide
the constitutional validity of
any parliamentary or provincial bill but expressly limits such
jurisdiction to the specific instances
set out in sections 79 and
121 of the Constitution. The provisions of section 167(4)(b)
therefore specifically deal with challenges
to a bill that has been
passed by Parliament or a provincial legislature.
Now
I think it can fairly be accepted that section 167(4)(e) covers a
wider field in that a constitutional obligation may relate
to the
process that Parliament is required to follow before passing a
bill, such as the obligation to facilitate public involvement
in
its processes as contended by the applicants. By contrast, the
provisions of section 167(4)(b) are specifically limited to
constitutional challenges to parliamentary or provincial bills. It
seems to me therefore that a constitutional challenge under
section
167(4)(e) whose purpose and effect is to render invalid a bill will
be barred by section 167(4)(b). In this sense, the
scope of the
provisions of section 167(4)(e) is circumscribed by the specific
provisions of section 167(4)(b), which limit a
constitutional
challenge to a bill to the more specific circumstances contemplated
in section 79 or 121. It follows therefore
that the provisions of
section 167(4)(b) and section 167(4)(e) can be harmonised by
understanding the provisions of section 167(4)(b)
as limiting the
scope of section 167(4)(e) when the purpose and effect of a
constitutional challenge under section 167(4)(e)
is to render a
bill invalid.
This
construction of section 167(4)(e) is consistent with the scheme of
the Constitution. This scheme entrusts the President
with the
power to raise with this Court the constitutionality of a
parliamentary bill. The decision to provide the President
with the
power to decline to assent to a bill and to challenge its
constitutionality was based on the conviction that the power
to
make laws must be carefully circumscribed. It is a power to be
shared by the National Assembly, the NCOP, the President and
the
provinces. The President’s role in the law-making process
reflects a careful effort to ensure that the law-making process
is
kept under check consistent with the principle of checks and
balances. The scheme is founded on the trust that our system
has
for the role of the President, namely, the responsibility it vests
in the President to “uphold, defend and respect the
Constitution
as the supreme law”,
47
and thus to ensure that laws that he or she assents to and signs,
conform to the Constitution.
In
addition, the constitutional scheme contemplates that challenges to
the constitutional validity of a bill passed by Parliament
must
await the completion of the legislative process. During this
process, the rights of the public are safeguarded by the President
who has the authority to challenge the constitutionality of a bill
consistent with his or her duty to uphold, defend and respect
the
Constitution. Once the process is complete, the public and
interested groups may challenge the resulting statute. This
scheme
seeks to ensure that judicial intervention in the law-making
process is kept to the minimum; hence it is limited to challenges
by the President.
Counsel
for the applicant contended that by its nature the duty to
facilitate public involvement in the law-making process requires
that it be enforced there and then. Its delay is its denial. The
argument does not take sufficient account of the role of Parliament
and the President in the law-making process. As pointed out
earlier, the President has a constitutional duty to uphold, defend
and respect the Constitution. The role of the President in the
law-making process is to guard against unconstitutional
legislation.
To this end, the President is given the power to
challenge the constitutionality of the bill. The President
represents the
people in this process. The members of the National
Assembly perform a similar task and have a similar obligation.
Thus during
the entire process, the rights of the public are
protected. The public can always exercise their rights once the
legislative
process is completed. If Parliament and the President
allow an unconstitutional law to pass through, they run the risk of
having
the law set aside and the law-making process commence afresh
at great cost. The rights of the public are therefore delayed
while
the political process is underway. They are not taken away.
I
conclude therefore that after Parliament has passed a bill and
before the President has assented to and signed the bill, it
is not
competent for this Court to grant any relief in relation to the
bill, save at the instance of the President and in the
limited
circumstances contemplated in section 79.
In
its notice of motion the applicant sought an order declaring that
the conduct of the NCOP and the provincial legislatures was
invalid
and any other consequential relief. The effect of a successful
constitutional challenge to the Sterilisation Amendment
Bill would
be to render that Bill invalid. This Court would have been
precluded by the provisions of section 167(4)(b) read
with section
79 from making an order declaring the Sterilisation Amendment Bill
invalid. The fact that the Bill has since been
enacted into law
and this Court has jurisdiction to pronounce on the constitutional
validity of the
Sterilisation Amendment Act matters
not. The
question whether this Court has jurisdiction must be determined as
at the time when the present proceedings were instituted
and not at
the time when the Court considers the matter. The crucial time for
determining whether a court has jurisdiction is
when the
proceedings commenced.
48
It
follows therefore that the challenge to the Sterilisation Amendment
Bill as enacted into law must be dismissed. Nothing further
need
be said about it.
That
brings us to the question whether it is competent for this Court to
grant relief once the President has signed a bill into
law but
before it has been brought into operation. This was the position
with regard to the remaining legislation when the present
challenge
was launched.
Is it competent for this Court to grant relief in respect of an
Act of Parliament that has not yet been brought into force?
The express provision of the Constitution which caters for this
eventuality is contained in section 80, which provides:
“
(1) Members of the National
Assembly may apply to the Constitutional Court for an
order declaring that all or
part of an Act of Parliament is unconstitutional.
(2) An application –
(a) must be supported by at
least one third of the members of the National
Assembly; and
(b) must be made within 30 days
of the date on which the President assented
to and signed the Act.
(3) The Constitutional Court
may order that all or part of an Act that is the subject 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 of success.
(4) If an application is
unsuccessful, and did not have a reasonable prospect of
success, the Constitutional
Court may order the applicants to pay costs.”
This
provision must be construed in the light of the powers of this
Court under section 172(2)(a), which empowers this Court to
make an
order concerning the constitutional validity of an Act of
Parliament. These are very wide powers indeed.
In
Khosa and Others v Minister of Social Development and Others;
Mahlaule and Others v Minister of Social Development and Others
,
49
this Court was concerned with, among other issues, whether it could
consider a provision which had not yet been brought into
operation.
The Court held that it has jurisdiction to consider provisions in
a statute that have not yet been brought into operation.
For its
holding, the Court relied upon the provisions of section
172(2)(a).
50
The basic reasoning of the Court was that section 172(2)(a), which
empowers the Court to declare Acts of Parliament invalid,
does not
distinguish between Acts of Parliament that have been brought into
force and those which have not. It added that in
the case of a
provision that has not yet been brought into force, the legislative
process is complete and there is a duly enacted
Act of Parliament.
51
In my view, this reasoning applies equally to a statute which has
not yet been brought into force.
It
is true, in
Khosa
, this Court did not consider the
provisions of section 80. The purpose of section 80 is to make
provision for abstract review
at the instance of members of the
National Assembly. It merely regulates the conditions under which
members of the National
Assembly may challenge an Act of
Parliament. It does not preclude a member of the public from
challenging a provision of an
Act of Parliament that has been
promulgated during the period of thirty days within which members
of the National Assembly are
required to approach this Court to
challenge all or part of the Act of Parliament.
In
terms of section 81, “[a] Bill assented to and signed by the
President becomes an Act of Parliament”. The fact that the
statute may not have been brought into operation cannot deprive
this Court of its jurisdiction. There is nothing in the wording
of
section 80 that precludes this Court or any other court from
considering the validity of an Act of Parliament at the instance
of
the public. Nor is there anything in the scheme for the exercise
of jurisdiction by this Court that precludes it from considering
the constitutional validity of a statute that has not yet been
brought into operation. The legislative process is complete,
and
there can be no question of interference in such a process. Once a
bill is enacted into law, this Court should consider
its
constitutionality.
I
conclude therefore that it is competent for this Court to grant
relief in respect of the proceedings of Parliament after the
bill
has been enacted into law but before it has been brought into
force. It follows therefore that this Court has the jurisdiction
to consider the constitutional challenge to the
Dental Technicians
Amendment Act, the
CTOP Amendment Act and the THP Act.
It
now remains to consider the last question posed in the directions,
namely, whether it is competent for this Court to grant
relief in
relation to the proceedings of Parliament before Parliament has
passed the bill.
Is
it competent for this Court to issue a declaratory relief in respect
of parliamentary proceedings before Parliament has concluded
its
deliberations on a bill?
The question whether it is competent for this Court to grant a
declaratory relief to the effect that Parliament has failed to
comply with its constitutional obligation to facilitate public
involvement in the legislative process before the parliamentary
legislative process is completed is more complex. There is no
express constitutional provision that precludes this Court from
doing so. On the one hand, it raises the question of the
competence of this Court to interfere with the autonomy of
Parliament
to regulate its internal proceedings, and on the other,
it raises the question of the duty of this Court to enforce the
Constitution,
in particular, to ensure that the law-making process
conforms to the Constitution.
Courts in other jurisdictions, notably in the Commonwealth
jurisdictions, have confronted this question.
52
Courts have traditionally resisted intrusions into the internal
procedures of other branches of government. They have done
this
out of comity and, in particular, out of respect for the principle
of separation of powers. But at the same time they have
claimed
the right as well as the duty to intervene in order to prevent the
violation of the Constitution. To reconcile their
judicial role to
uphold the Constitution, on the one hand, and the need to respect
the other branches of government, on the other
hand, courts have
developed a “settled practice” or general rule of jurisdiction
that governs judicial intervention in the
legislative process.
The
basic position appears to be that, as a general matter, where the
flaw in the law-making process will result in the resulting
law
being invalid, courts take the view that the appropriate time to
intervene is after the completion of the legislative process.
The
appropriate remedy is to have the resulting law declared invalid.
However, there are exceptions to this judicially developed
rule or
“settled practice”. Where immediate intervention is called for
in order to prevent the violation of the Constitution
and the rule
of law, courts will intervene and grant immediate relief. But
intervention will occur in exceptional cases, such
as where an
aggrieved person cannot be afforded substantial relief once the
process is completed because the underlying conduct
would have
achieved its object.
53
The
primary duty of the courts in this country is to uphold the
Constitution and the law “which they must apply impartially
and
without fear, favour or prejudice.”
54
And if in the process of performing their constitutional duty,
courts intrude into the domain of other branches of government,
that is an intrusion mandated by the Constitution. What courts
should strive to achieve is the appropriate balance between their
role as the ultimate guardians of the Constitution and the rule of
law including any obligation that Parliament is required to
fulfil
in respect of the passage of laws, on the one hand, and the respect
which they are required to accord to other branches
of government
as required by the principle of separation of powers, on the other
hand.
That
said, however, it is not necessary to reach any firm conclusion on
whether it is competent for this Court to interfere in
the
deliberative process of Parliament to enforce the duty to
facilitate public involvement. Although the parties were called
upon to address this question, none of the statutes involved in
this case were at a deliberative stage of Parliament when this
litigation commenced. Notwithstanding the importance of this
question, I consider that it is not desirable to answer it in these
proceedings. It is a question that must be answered with regard to
a specific challenge raising it pertinently. This is not
such a
case. It is better to leave it open for consideration when an
occasion to consider it arises.
It
now remains to consider the main item on our agenda, namely,
whether the NCOP and the provincial legislatures have fulfilled
their obligation to facilitate public involvement in their
respective legislative processes as required by the Constitution.

I have already concluded that this complaint, so far as it relates
to the
Sterilisation Amendment Act, must
be dismissed. This leaves
the
Dental Technicians Amendment Act, the
CTOP Amendment Act and
the THP Act.
VI. Did the NCOP and the provincial legislatures facilitate
public involvement in their respective legislative processes as
required
by the Constitution?
What do the public involvement provisions require?
The requirement to facilitate public involvement in the legislative
processes of the NCOP is governed by section 72, which provides:
“
(1) The National Council of
Provinces must –
(a) facilitate public
involvement in the legislative and other processes of the Council
and its committees; and
(b) conduct its business in an
open manner, and hold its sittings, and those of its committees, in
public, but reasonable measures
may be taken –
(i) to regulate public access,
including access of the media, to the Council and its committees;
and
(ii) to provide for the
searching of any person and, where appropriate, the refusal of entry
to, or the removal of, any person.
(2) The National Council of
Provinces may not exclude the public, including the media, from a
sitting of a committee unless it
is reasonable and justifiable to do
so in an open and democratic society.”
Identical
duties are imposed on the National Assembly by section 59 and on
the provincial legislatures by section 118.
The
provisions of sections 72(1)(a) and 118(1)(a) (“the public
involvement provisions”) clearly impose a duty on the NCOP
and
the provincial legislatures to facilitate public involvement in
their respective legislative processes. The question is
what is
the nature and scope of the duty comprehended by these provisions
and to what extent is it justiciable.
The
contentions of the parties
The
applicant contended that the public involvement provisions require
that public hearings must be held in respect of all legislation
under consideration by a legislature whether at the national or
provincial level. In the alternative, it was contended that
a
legislature should hold public hearings whenever there is evidence
that a bill under consideration is controversial. The applicant
submitted that in this case, public hearings should have been held
in respect of each Bill, in each province and by the NCOP
sitting
in plenary session. For their part, Parliament and the provincial
legislatures, as well as the Minister of Health, conceded
that the
public involvement provisions require public participation in the
legislative process but contended that what is required
is some
opportunity to make either written or oral submissions on the
legislation under consideration.
It
is therefore common cause between all the parties to these
proceedings that sections 72(1)(a) and 118(1)(a) require public
participation in the legislative processes of the NCOP and the
provincial legislatures. However, the parties differ on the nature
and scope of the duty to facilitate public involvement.
The
contentions of the parties require this Court to consider the
meaning and scope of the duty to facilitate public involvement.

This duty must be construed and understood in the light of: (a) the
constitutional role of the NCOP in the national legislative
process
and, in particular, its relationship to the provincial
legislatures; (b) the right to political participation under

international and foreign law; and (c) the nature of our
constitutional democracy. All of these provide the context within

which to determine the meaning and scope of the duty to facilitate
public involvement in legislative processes.
The
role of the NCOP in the national legislative process
The
legislative authority is vested in Parliament, which consists of
two Houses: the National Assembly and the NCOP. Section
42(4) of
the Constitution defines the role of the NCOP as follows:
“
The National Council of
Provinces represents the provinces to ensure that provincial
interests are taken into account in the national
sphere of
government. It does this mainly by participation in the national
legislative process and by providing a national forum
for public
consideration of issues affecting the provinces.”
The NCOP performs functions similar to the National Assembly but
from the distinct vantage point of the provinces.
55
Its role is both unique and fundamental to the basic structure of
our government. It reflects one of the fundamental premises
of our
government, which sees national, provincial and local governments as
“spheres within a single whole,”
56
which are distinctive yet interdependent and interrelated.
57
The NCOP ensures that national government is responsive to
provincial interests while simultaneously engaging the provinces and
provincial legislatures in the consideration of national policy.
From this perspective, the NCOP plays a pivotal role “as a
linking
mechanism that acts simultaneously to involve the provinces in
national purposes and to ensure the responsiveness of national
government to provincial interests.”
58
The NCOP shares many of its structural characteristics with the
German provincial body known as the
Bundesrat
, or council of
state governments, upon which the NCOP was modelled.
59
Like the NCOP, the
Bundesrat
represents the interests of
the
Länder
, which in this context are equivalent to the
provinces in our country, in the national government. Meanwhile, a
second parliamentary
body known as the
Bundestag
, like the
National Assembly, is elected to represent the people as a whole.
The members of the
Bundesrat
are members of the state
governments and are appointed and subject to recall by the states.
They serve in the council as representatives
of the
Länder
.
The German Constitution provides that the
Länder
shall
participate, through the
Bundesrat
, in the national
legislative process.
60
As constitutional partners, both the
Bund
, or national
government, and the
Länder
have an obligation to
consult, cooperate and communicate with each other, consistent with
the principle of
Bundestreue
.
61
The procedure for enacting legislation under our Constitution
similarly requires institutional co-operation and communication
between national and provincial legislatures. Without such
co-operation, the national legislative program may be severely

compromised. Indeed, the Constitution contemplates that provincial
interests will be taken into account in the national law-making
process. The NCOP institutionalises the principle of co-operation
and communication by involving the nine provinces directly
in the
national legislative process and other national matters. The local
government is also involved indirectly in that local
government may
designate up to ten part-time, non-voting representatives to
participate in the NCOP proceedings.
62
Thus the NCOP represents the concerns and interests of the
provinces and as well as those of local government in the
formulation
of national legislation.
63
Indeed,
the principle of institutional co-operation and communication finds
expression in the principle of co-operative government
to which
chapter 3 of the Constitution is devoted. The role of the NCOP
should be understood in the light of the constitutional
principle
of co-operative government, which shares similarities with the
principle of
Bundestreue
.
64
The basic structure of our government consists of a partnership
between the “national, provincial and local spheres of government
which are distinctive, interdependent and interrelated.”
65
The principle of co-operative government requires each of the
three spheres to perform their functions in a spirit of
consultation
and co-ordination with the other spheres.
66
Both
the manner in which the NCOP delegates are selected and the manner
in which they vote on legislation affecting the provinces
provide
the provinces with a significant voice in national legislation.
The NCOP consists of ten delegates from each of the
nine provinces,
including six permanent delegates and four special delegates. The
Premier of the province, or his or her designee,
serves as one of
the special delegates.
67
The Premier, or his or her designee, heads the delegation.
68
The remaining delegates are appointed by their respective
provincial legislatures on a proportional basis.
69
In the case of a bill that affects the provinces, the section 76
bill, each provincial delegation to the NCOP “has one vote,
which
is cast on behalf of the province by the head of its delegation”.
70
It is common cause that in these proceedings we are concerned with
section 76 legislation.
Each
delegation votes on the basis of a mandate given by its provincial
legislature. This is clear from the Constitution, which
provides
that the provincial legislatures have the responsibility to confer
authority on their delegations to cast votes on their
behalf in the
NCOP.
71
As this Court has explained, the NCOP “is a council of provinces
and not a chamber composed of elected representatives. Voting
by
delegation reflects accurately the support of the different
provincial legislatures for a measure under consideration.”
72
In this manner the provincial legislatures are given a direct say
in the national law-making process through the NCOP.
The
procedure stipulated in section 76 for bills that affect the
provinces “gives more weight to the position of the National
Council of Provinces” than does the constitutional procedure for
bills that do not affect the provinces.
73
After a bill has been passed by the National Assembly it is
referred to the NCOP, which can pass the bill, pass the bill
subject
to amendment or reject the bill.
74
If the NCOP and National Assembly cannot agree on a bill, it is
sent to a mediation committee established to facilitate the
resolution of disputes between the two houses.
75
If the two chambers cannot reach an agreement following mediation,
the original bill lapses but may still become law if it is
passed
again but now by two-thirds of the members of the National
Assembly.
76
In this way, although the NCOP does not wield a final veto over
section 76 bills, it can delay their passage and force a two-thirds
majority in the National Assembly.
The
relationship between the NCOP and the provincial legislatures
As
pointed out earlier, in relation to section 76 bills, the NCOP
delegations vote on the basis of mandates given to them by their
respective provincial legislatures. Naturally, this will require
provincial legislatures to study and deliberate on the bill
in
question so as to give informed mandates. And in doing so,
provincial legislatures no doubt take part in the national
legislative
process. This is so because in the national
legislative process, the NCOP “represents the provinces to ensure
that provincial
interests are taken into account in the national
sphere of government.”
77
And “[i]t does this mainly by participating in the national
legislative process”.
78
In this way, the provincial legislatures become involved in the
national legislative process by considering how they should
vote on
the bill under consideration at the national level.
As
the provincial legislatures are involved in the legislative
process, albeit at the national level, they are engaged in the
“legislative [or] other processes” of the legislatures.
79
It is in this sense that the provisions of section 118(1)(a) of
the Constitution become relevant in the context of national
legislation. Neither Parliament nor the nine provinces contended
otherwise.
The
allegation by the applicant that the provinces did not comply with
the provisions of section 118(1)(a) in connection with
the health
legislation must be understood in the light of this relationship
between the NCOP and the provincial legislatures.
The
duty to facilitate public involvement in the legislative process is
an aspect of the right to political participation. International
and regional human rights instruments provide a useful guide in
understanding the duty to facilitate public involvement in the
context of our country. I consider it necessary therefore to refer
to the right to political participation as understood in
international law.
The
right to political participation under international and foreign law
The right to political participation is a fundamental human right,
which is set out in a number of international and regional
human
rights instruments. In most of these instruments, the right
consists of at least two elements: a general right to take
part in
the conduct of public affairs; and a more specific right to vote
and/or to be elected.
80
Thus article 25 of the International Covenant on Civil and
Political Rights (“ICCPR”) provides:
“
Every citizen shall have the
right and the opportunity, without any of the distinctions mentioned
in article 2 and without unreasonable
restrictions:
(a) To take part in the
conduct of public affairs, directly or through freely chosen
representatives;
(b) To vote and to be elected
at genuine periodic elections which shall be by universal and equal
suffrage and shall be held by
secret ballot, guaranteeing the free
expression of the will of the electors”.
81
Significantly,
the ICCPR guarantees not only the “right” but also the
“opportunity” to take part in the conduct of public
affairs.
82
This imposes an obligation on states to take positive steps to
ensure that their citizens have an opportunity to exercise their
right to political participation.
83
The right enshrined in article 25 must be understood in the light
of article 19 of the ICCPR, which provides:
“
2. Everyone shall have the
right to freedom of expression; this right shall include freedom to
seek, receive and impart information
and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in
the form of art, or through any other
media of his choice.”
Both
articles 19 and 25 guarantee not only the positive right to
political participation, but simultaneously impose a duty on
states
to facilitate public participation in the conduct of public affairs
by ensuring that this right can be realised. Taken
together, they
seek to ensure that citizens have the necessary information and the
effective opportunity to exercise the right
to political
participation.
Since
the adoption of the ICCPR, various regional human rights
instruments and declarations have reaffirmed the right to political
participation. The relevant regional human rights instrument in
the context of our country is the African [Banjul] Charter on
Human
and Peoples’ Rights (“African Charter”), adopted on 27 June
1981, which was acceded to by our country on 9 July 1996.
The
African Charter is more specific than the ICCPR in spelling out the
obligation of states parties to ensure that people are
well
informed of the rights in the African Charter. The relevant
articles are articles 9, 13 and 25 which provide:
“
Article 9
1. Every individual shall have
the right to receive information.
2. Every individual shall have
the right to express and disseminate his opinions within the law.
. . . .
Article 13
1. Every citizen shall have the
right to participate freely in the government of his country, either
directly or through freely
chosen representatives in accordance with
the provisions of the law.
. . . .
Article 25
States parties to the present
Charter shall have the duty to promote and ensure through teaching,
education and publication, the
respect of the rights and freedoms
contained in the present Charter and to see to it that these
freedoms and rights as well as
corresponding obligations and duties
are understood.”
Similarly,
the American Convention on Human Rights provides in article 23 that
all citizens shall enjoy the right and opportunity
“to take part
in the conduct of public affairs, directly or through freely chosen
representatives”.
84
The Harare Commonwealth Declaration proclaims the “individual’s
inalienable right to participate by means of free and democratic
processes in framing the society in which he or she lives”.
85
The Inter-American Democratic Charter re-affirms that “the
participatory nature of democracy in [the American] countries in
different aspects of public life contributes to the consolidation
of democratic values and to freedom and solidarity in the

Hemisphere”.
86
It further asserts that “[i]t is the right and responsibility of
all citizens to participate in decisions relating to their
own
development. This is also a necessary condition for the full and
effective exercise of democracy. Promoting and fostering
diverse
forms of participation strengthens democracy.”
87
Nature
and scope of the right
The precise nature and scope of the international law right to
participate in the conduct of public affairs is a matter for

individual states to determine through their laws and policies.
Under article 25 of the ICCPR, states are to establish “powers
and the means by which individual citizens exercise the right to
participate in the conduct of public affairs protected by article
25” in national constitutions and other laws.
88
As the Human Rights Committee has explained, “[i]t is for the
legal and constitutional system of the State party to provide
for
the modalities of such participation.”
89
The
right to political participation has been described as an
open-textured “programmatic” right, which is open to
experimental
reformulation and which will necessarily change in the
light of ongoing national experiences:
“
Fresh understandings and
different institutionalizations of the right in different cultural
and political contexts may reveal what
an increasing number of
states believe to be a necessary minimum of political participation
for all states. That minimum should
never require less of a
government than provision for meaningful exercise of choice by
citizens in some form of electoral process
permitting active debate
on a broad if not unlimited range of issues. But it could require
much more.”
90
The idea of an evolving human right to political participation
comports with this Court’s view of human rights as open to

elaboration, reinterpretation and expansion. As the Court has
explained, “rights by their nature will atrophy if they are

frozen. As the conditions of humanity alter and as ideas of
justice and equity evolve, so do concepts of rights take on a new
texture and meaning.”
91
This must be particularly so for programmatic rights like the
right to take part in the conduct of public affairs, which must
be
realised through the programs and policies of states. But more
importantly, the right to political participation must be
left to
gather its meaning and content from historical and cultural
experience. What is required is for “States to adopt such
legislative and other measures as may be necessary to ensure that
citizens have an effective opportunity to enjoy the rights
it
protects.”
92
The
right to political participation includes but is not limited to the
right to vote in an election. That right, which is specified
in
article 25(b) of the ICCPR, represents one institutionalisation of
the right to take part in the conduct of public affairs.
The
broader right, which is provided for in article 25(a), envisages
forms of political participation which are not limited
to
participation in the electoral process. It is now generally
accepted that modes of participation may include not only indirect
participation through elected representatives but also forms of
direct participation.
93
According to the Inter-Parliamentary Union, an international
organisation of Parliaments of sovereign States, which serves as
a
focal point for worldwide parliamentary dialogue, “[d]irect
participation means that not only elected representatives, but
citizens too are able to participate directly in public affairs,
either through public debate and dialogue with elected
representatives,
referendums and popular initiatives or through
self-organisation, guaranteed under the freedoms of expression,
assembly and association.”
94
In this regard the Human Rights Committee has explained that:
“
Citizens participate
directly in the conduct of public affairs when they exercise power
as members of legislative bodies or by holding
executive office.
This right of direct participation is supported by paragraph (b).
Citizens also participate directly in the
conduct of public affairs
when they choose or change their constitution or decide public
issues through a referendum or other electoral
process conducted in
accordance with paragraph (b). Citizens may participate directly by
taking part in popular assemblies, which
have the power to make
decisions about local issues or about the affairs of a particular
community and in bodies established to
represent citizens in
consultation with government.
. . . .
Citizens also take part in the
conduct of public affairs by exerting influence through public
debate and dialogue with their representatives
or through their
capacity to organize themselves. This participation is supported by
ensuring freedom of expression, assembly
and association.”
95
The
right to political participation can therefore be realised in many
ways. As one commentator has observed of article 25 of
the ICCPR:
“
[T]he right to political
participation can be realized in multiple ways, and it is not
possible to derive from this provision one
single means of realizing
it. In this context, the heterogeneity of the parties’ political
systems and the different degrees
of political participation
provided for, even in democratic states, should not be overlooked.
Democratic systems and theories
may be more or less focused upon
representation and may balance the division of powers between
central and local authorities differently.
For some theories on
democracy, the right to vote for representatives is satisfactory.
Other theories are more expansive and
place a higher value on
participatory elements in society. The latter approach suggests
citizens’ participation before local
authorities with
decentralized power and public involvement in local government.”
96
The
idea of allowing the public to participate in the conduct of public
affairs is not a new concept. In this country, the traditional
means of public participation is imbizo/lekgotla/bosberaad. This
is a participatory consultation process that was, and still
is,
followed within the African communities. It is used as a forum to
discuss issues affecting the community. This traditional
method of
public participation, a tradition which is widely used by the
government, is both a practical and symbolic part of
our democratic
processes. It is a form of participatory democracy.
Neither is the idea of allowing the public to participate in the
parliamentary decision-making process a new concept. The right
to
political participation has deep historical roots, dating back to
the Middle Ages.
97
The Magna Carta guaranteed the right to petition the government
for the redress of grievances,
98
and over time this right became a central part of English
constitutionalism, whereby “the disenfranchised joined the
enfranchised
in participating in English political life.”
99
The English colonists to the United States brought with them an
understanding of petitioning as the foundation of public
participation
in politics,
100
and the right to petition the government is now protected by the
First Amendment to the U.S. Constitution.
101
Likewise, Article 17 of the Basic Law for the Federal Republic of
Germany guarantees the right of every citizen to present written
requests or complaints to Parliament or other appropriate
authorities.
102
Members of the public exercise this right individually and
collectively in substantial numbers, and a petitioner is generally
entitled to have his or her petition examined on its merits and to
be informed of the decision taken and the reasons for that
decision.
103
More recently, a growing number of national Constitutions, in
particular those adopted since the entry into force of the ICCPR,
expressly embrace the principle of participatory democracy.
Several, like our Constitution, include provisions that promote
participation in law-making, whether through written petitions,
oral hearings or other mechanisms of public involvement. For
example, the Constitution of Tanzania provides that “[e]very
citizen has the right and the freedom to participate fully in
the
process leading to the decision on matters affecting him, his
well-being or the nation.”
104
Citizens of Portugal have the right to submit petitions,
representations or complaints to governmental institutions, and the
law must determine conditions under which the National Assembly,
sitting in plenary session, will consider these submissions.
105
The
Constitution of Colombia includes as one of the essential goals of
the state, the goal “to facilitate the participation
of everyone
in the decisions that affect them and in the economic, political,
administrative, and cultural life of the nation.”
106
More specifically, it provides that “[a]ny citizen has the right
to participate in the establishment, exercise, and control
of
political power. To make this decree effective the citizen may . .
. [p]articipate in elections, plebiscites, referendums,
popular
consultations, and other forms of democratic participation.”
107
Other jurisdictions also provide for the direct involvement of
their citizens in the law-making process.
108
Conclusions
from international law and foreign law
The
international law right to political participation encompasses a
general right to participate in the conduct of public affairs
and a
more specific right to vote and/or be elected into public office.
The general right to participate in the conduct of public
affairs
includes engaging in public debate and dialogue with elected
representatives at public hearings. But that is not all;
it
includes the duty to facilitate public participation in the conduct
of public affairs by ensuring that citizens have the necessary
information and effective opportunity to exercise the right to
political participation.
While
the right to political participation in international law can be
achieved in multiple ways, it is clear that this right
does not
require less of a government than provision for meaningful exercise
of choice in some form of electoral process and
public
participation in the law-making process by permitting public debate
and dialogue with elected representatives. In addition,
this right
is supported by the right to freedom of expression which includes
the freedom to seek, receive and impart information.
In our
country, the right to political participation is given effect not
only through the political rights guaranteed in section
19 of the
Bill of Rights, as supported by the right to freedom of expression
109
but also by imposing a constitutional obligation on legislatures to
facilitate public participation in the law-making process.
The
duty to facilitate public involvement in the legislative process
under our Constitution must therefore be understood as a
manifestation of the international law right to political
participation. Public involvement in the legislative and other
processes
of legislatures of our country is a more specific form of
political participation than the participation in the conduct of
public
affairs that is contemplated by article 25 of the ICCPR.
Thus the Constitutional Assembly, in framing our Constitution, was
not content only with the right to vote as an expression of
the
right to political participation.
110
It opted for a more expansive role of the public in the conduct of
public affairs by placing a higher value on public participation
in
the law-making process. As Ms N Mokonyane, a Gauteng member of the
NCOP, has recently noted:
“
Our
struggle against apartheid was necessitated not just by our hatred
of the apartheid system, and the suffering and the injustice
it
inflicted on the people of our country; it was also inspired by our
vision of a democratic alternative as opposed to a system
based on
an institutionalised racialism and exploitation.
Our
struggle was inspired in particular by our vision of a nonracial and
democratic South Africa in which the people shall govern.
. . . .
A key
aspect of our vision of democracy was obviously the right to vote.
The idea that every citizen, regardless of their race,
colour or
creed, was entitled to stand for elections and to vote in them. But
our vision of democracy also went beyond simply
voting every five
years.
We were
also inspired by the idea of a participatory democracy as well as a
system in which the people of our country would on an
on-going basis
participate in and have a say in every aspect of the lives in
workplaces, communities, streets and schools.”
111
This
is reflected in the very nature of our constitutional democracy.
The
nature of our constitutional democracy
The international law right to political participation reflects a
shared notion that a nation’s sovereign authority is one
that
belongs to its citizens, who “themselves should participate in
government – though their participation may vary in degree.”
112
This notion is expressed in the preamble of the Constitution,
which states that the Constitution lays “the foundations for
a
democratic and open society in which government is based on the
will of the people.” It is also expressed in constitutional
provisions that require national and provincial legislatures to
facilitate public involvement in their processes. Through these
provisions, the people of South Africa reserved for themselves part
of the sovereign legislative authority that they otherwise
delegated to the representative bodies they created.
113
Our
Constitution was inspired by a particular vision of a non-racial
and democratic society in which government is based on the
will of
the people. Indeed, one of the goals that we have fashioned for
ourselves in the Preamble of the Constitution is the
establishment
of “a society based on democratic values, social justice and
fundamental human rights.” The very first provision
of our
Constitution, which establishes the founding values of our
constitutional democracy, includes as part of those values
“a
multi-party system of democratic government, to ensure
accountability, responsiveness and openness.”
114
Commitment to principles of accountability, responsiveness and
openness shows that our constitutional democracy is not only
representative but also contains participatory elements. This is a
defining feature of the democracy that is contemplated.
It is apparent from the preamble of the Constitution that one of
the basic objectives of our constitutional enterprise is the
establishment of a democratic and open government in which the
people shall participate to some degree in the law-making process.
The
nature of our democracy must be understood in the context of our
history.  As has been observed, during the struggle
against
apartheid, a system that denied the majority of the people a say in
the making of the laws which governed them, the people
developed
the concept of the people’s power as an alternative to the
undemocratic system of apartheid. This concept ensured
that the
people took part in community structures that were set up to fight
the system of apartheid. But as has been observed,
the
significance of these “organs of the people’s power” went
beyond their intended purpose:
“
They
were also seen as crucial in laying the foundation for the future
participatory democracy that [the people] were fighting for
and that
we are operating under. This emphasis on democratic participation
that was born in the struggle against injustices is
strongly
reflected in our new democratic Constitution and the entrenchment of
public participation in Parliament and the legislatures.”
115
Consistent with the participative nature of our democracy,
Parliament has developed the notion of a People’s Assembly, which
is a joint venture between Parliament and the provincial
legislatures. The purpose of the Peoples’ Assembly was “to
enable
the public to impact on decision-making with regard to laws
affecting them and give meaning to the notion of a Peoples’
Parliament
that strives to improve the quality of life of all South
Africans and to strengthen democracy.”
116
The objectives of the Peoples’ Assembly included, among others,
the creation of an opportunity for the public, particularly
the
most marginalised communities, to engage with Parliament and the
provincial legislatures, to build on the legacy of active
participation by the public which is reflected in the Kliptown
gathering of 1955 and the writing of the democratic Constitution,
and to provide a vehicle for people’s voices to be heard on
issues affecting them.
117
As
part of its proceedings, the Peoples’ Assembly 2005 set up
workshops that focused on four commissions, which included a

commission on public participation. The Commission on Public
Participation reiterated, through the voices of the people of South
Africa, the meaning and importance of public participation in the
context of our constitutional democracy. The Commission noted
that
“
one of the distinctive
features of public participation processes in South Africa has
always been that it is firmly grounded in
the constitutional
imperative of democratic participation and keeping society involved
in legislative, policy and other decision-making
processes. The
Constitution makes Parliament and the provincial legislatures, as
well as municipal councils, the primary democratic
institutions in
South Africa. The people have a voice in these institutions, not
only through elected representatives, but also
through access to
committee meetings and deliberations. The people also have the
right to speak and make representations to committees
and meetings,
which is in line with the Constitution, which states that all people
shall be entitled to take part in the administration
of the
country.”
118
In
the overall scheme of our Constitution, the representative and
participatory elements of our democracy should not be seen as
being
in tension with each other. They must be seen as mutually
supportive. General elections, the foundation of representative
democracy, would be meaningless without massive participation by
the voters. The participation by the public on a continuous
basis
provides vitality to the functioning of representative democracy.
It encourages citizens of the country to be actively
involved in
public affairs, identify themselves with the institutions of
government and become familiar with the laws as they
are made. It
enhances the civic dignity of those who participate by enabling
their voices to be heard and taken account of.
It promotes a
spirit of democratic and pluralistic accommodation calculated to
produce laws that are likely to be widely accepted
and effective in
practice. It strengthens the legitimacy of legislation in the eyes
of the people. Finally, because of its
open and public character
it acts as a counterweight to secret lobbying and influence
peddling. Participatory democracy is of
special importance to
those who are relatively disempowered in a country like ours where
great disparities of wealth and influence
exist.
Therefore
our democracy includes as one of its basic and fundamental
principles, the principle of participatory democracy. The
democratic government that is contemplated is partly representative
and partly participatory, is accountable, responsive and
transparent and makes provision for public participation in the
law-making processes. Parliament must therefore function in
accordance with the principles of our participatory democracy.
It
is against this background that the nature and scope of the duty to
facilitate public involvement must be construed and understood.

And it is to that question that I now turn.
The
meaning and scope of the duty to facilitate public involvement
Public
involvement is not a uniquely South African concept. In other
countries, notably, in the United States, it is a concept
that is
used in the context of rule-making by administrative agencies. It
is one of the requirements of the rule-making process
by these
agencies. In the international terrain, there is a growing number
of instruments that make provision for the principle
of public
participation, in particular, in the context of environmental
issues.
119
It is commonly used to refer to the active participation of the
public in the decision-making processes. The words “public
involvement” and “public participation” are often used
interchangeably.
The phrase “facilitate public involvement” is a broad concept,
which relates to the duty to ensure public participation in
the
law-making process. The key words in this phrase are “facilitate”
and “involvement”. To “facilitate” means to
“make easy
or easier”, “promote” or “help forward”.
120
The phrase “public involvement” is commonly
used to describe the process of allowing the public to participate
in the decision-making
process.
121
The dictionary definition of “involve” includes to “bring a
person into a matter”
122
while participation is defined as “[a] taking part with others
(in an action or matter); . . . the active involvement of members
of a community or organization in decisions which affect them”.
123
According
to their plain and ordinary meaning, the words public involvement
or public participation refer to the process by which
the public
participates in something. Facilitation of public involvement in
the legislative process, therefore, means taking
steps to ensure
that the public participate in the legislative process. That is
the plain meaning of section 72(1)(a).
This construction of section 72(1)(a) is consistent with the
participative nature of our democracy. As this Court held in
New
Clicks
, “[t]he Constitution calls for open and transparent
government, and requires public participation in the making of laws
by
Parliament and deliberative legislative assemblies.”
124
The democratic government that is contemplated in the Constitution
is thus a representative and participatory democracy which
is
accountable, responsive and transparent and which makes provision
for the public to participate in the law-making process.
Our
constitutional framework requires the achievement of a balanced
relationship between representative and participatory elements
in
our democracy. Section 72(1)(a), like section 59(1)(a) and section
118(1)(a), addresses the vital relationship between representative
and participatory elements, which lies at the heart of the
legislative function. It imposes a special duty on the legislature
and pre-supposes that the legislature will have considerable
discretion in determining how best to achieve this balanced
relationship.
The ultimate question is whether there has been the
degree of public involvement that is required by the Constitution.
It
is apparent that the Constitution contemplates that Parliament and
the provincial legislatures would have considerable discretion
to
determine how best to fulfil their duty to facilitate public
involvement. Save in relation to the specific duty to allow
the
public and the media to attend the sittings of the committees, the
Constitution has deliberately refrained from prescribing
to
Parliament and the provincial legislatures what method of public
participation should be followed in a given case. In addition,
it
empowers Parliament and the provincial legislatures to “determine
and control [their] internal arrangements, proceedings
and
procedures” and to make their own rules and orders concerning
their businesses.
125
It
follows that Parliament and the provincial legislatures must be
given a significant measure of discretion in determining how
best
to fulfil their duty to facilitate public involvement. This
discretion will apply both in relation to the standard rules
promulgated for public participation and the particular modalities
appropriate for specific legislative programmes. Yet however
great
the leeway given to the legislature, the courts can, and in
appropriate cases will, determine whether there has been the
degree
of public involvement that is required by the Constitution.
What
is required by section 72(1)(a) will no doubt vary from case to
case. In all events, however, the NCOP must act reasonably
in
carrying out its duty to facilitate public involvement in its
processes. Indeed, as Sachs J observed in his minority judgment
in
New Clicks
:
“
The forms of facilitating an
appropriate degree of participation in the law-making process are
indeed capable of infinite variation.
What matters is that at the
end of the day a reasonable opportunity is offered to members of the
public and all interested parties
to know about the issues and to
have an adequate say. What amounts to a reasonable opportunity will
depend on the circumstances
of each case.”
126
The
standard of reasonableness is used as a measure throughout the
Constitution, for example in regard to the government’s

fulfilment of positive obligations to realise social and economic
rights.
127
It is also specifically used in the context of public access to
and involvement in the proceedings of the NCOP and its committees.

Section 72(1)(b) provides that “reasonable measures may be taken”
to regulate access to the proceedings of the NCOP or its
committees
or to regulate the searching of persons who wish to attend the
proceedings of the NCOP or its committees, including
the refusal of
entry to or removal from the proceedings of the NCOP or its
committees. In addition, section 72(2) permits the
exclusion of
the public or the media from a sitting of a committee if “it is
reasonable and justifiable to do so in an open
and democratic
society.”
Reasonableness
is an objective standard which is sensitive to the facts and
circumstances of a particular case. “In dealing
with the issue
of reasonableness,” this Court has explained, “context is all
important.”
128
Whether
a legislature has acted reasonably in discharging its duty to
facilitate public involvement will depend on a number of
factors.
The nature and importance of the legislation and the intensity of
its impact on the public are especially relevant.
Reasonableness
also requires that appropriate account be paid to practicalities
such as time and expense, which relate to the
efficiency of the
law-making process. Yet the saving of money and time in itself does
not justify inadequate opportunities for
public involvement. In
addition, in evaluating the reasonableness of Parliament’s
conduct, this Court will have regard to
what Parliament itself
considered to be appropriate public involvement in the light of the
legislation’s content, importance
and urgency. Indeed, this
Court will pay particular attention to what Parliament considers to
be appropriate public involvement.
What
is ultimately important is that the legislature has taken steps to
afford the public a reasonable opportunity to participate
effectively in the law-making process. Thus construed, there are
at least two aspects of the duty to facilitate public involvement.

The first is the duty to provide meaningful opportunities for
public participation in the law-making process. The second is
the
duty to take measures to ensure that people have the ability to
take advantage of the opportunities provided. In this sense,
public involvement may be seen as “a continuum that ranges from
providing information and building awareness, to partnering
in
decision-making.”
129
This construction of the duty to facilitate public involvement is
not only consistent with our participatory democracy, but
it is
consistent with the international law right to political
participation. As pointed out, that right not only guarantees
the
positive right to participate in the public affairs, but it
simultaneously imposes a duty on the State to facilitate public
participation in the conduct of public affairs by ensuring that
this right can be realised. It will be convenient here to consider
each of these aspects, beginning with the broader duty to take
steps to ensure that people have the capacity to participate.
The duty to take steps to facilitate public involvement
The
Constitutional Assembly was acutely aware that our legacy of racial
discrimination, which was still fresh in their minds,
could
undermine the national effort to construct “a democratic and open
society in which government is based on the will of
the people.”
A majority of the people had, for many years, been denied the right
to influence those who ruled over them.
They had been
discriminated against in almost every sphere of life. The result
was gross inequality in education, financial
resources, access to
knowledge and other areas that are crucial for effective
participation in the law-making process. Merely
to allow public
participation in the law-making process is, in the prevailing
circumstances, not enough. More is required.
Measures need to be
taken to facilitate public participation in the law-making process.
Thus,
Parliament and the provincial legislatures must provide notice of
and information about the legislation under consideration
and the
opportunities for participation that are available. To achieve
this, it may be desirable to provide public education
that builds
capacity for such participation. Public involvement in the
legislative process requires access to information
130
and the facilitation of learning and understanding in order to
achieve meaningful involvement by ordinary citizens.
131
In this regard, article 25 of the African Charter imposes an
obligation on states parties to “promote and ensure through

teaching, education and publication” the right to political
participation. As the U.N. Human Rights Committee has asserted
in
interpreting the international law right to political
participation, “[w]hatever form of constitution or government is

in force, the [ICCPR] requires States to adopt such legislative and
other measures as may be necessary to ensure that citizens
have an
effective
opportunity to enjoy the rights it protects.”
132
(The emphasis is mine.)
The
NCOP and provincial legislatures should create conditions that are
conducive to the effective exercise of the right to participate
in
the law-making process. This can be realised in various ways,
including through road shows, regional workshops, radio programs
and publications aimed at educating and informing the public about
ways to influence Parliament, to mention a few. Indeed, Parliament
has done much to facilitate public involvement as recognised in the
report by the Inter-Parliamentary Union on Parliamentary
Involvement in International Affairs. This report places our
country at the top of the list of countries that involve the public
in their legislative processes.
The
report says the following of this country:
“
The South African
Constitution states that parliament must facilitate public
involvement in the legislative and other processes
of parliament and
its committees. A whole set of activities has been developed.
First, a public education office has been established
which has
developed ‘democracy road shows’, aimed at taking parliament to
the people and informing them how they can influence
and partake in
legislative work. So far, 16,000 persons have participated in these
events. Similarly, it has set up sessions
where members of
parliament can dialogue directly with communities, to elicit input
from the public on matters that are before
Parliament.
Perhaps the most ambitious
project involves the use of broadcasting. It is aimed at educating
and informing the public on what
happens in parliament, how laws are
passed and how people can influence the outcome of parliament’s
work through broadcasts on
the twelve South African Broadcasting
Corporation radio service stations in all the official languages,
reaching a national audience
of 35 million. An accompanying
television programme consisting of ten episodes provided information
to 6 million citizens on democracy
and the Constitution, the three
branches of Government and the functioning of Parliament.
More targeted information
campaigns are also carried out on key bills before the parliament.
Parliament also targets certain population
groups. For example, it
has organised civic education workshops for rural women in several
provinces. It has organised a conference
on enhancing the
participation of women in law-making, and another addressing the
need to enhance public participation. The parliament
is currently
developing a civic education programme that targets youth and which
hopefully will soon be incorporated in the national
school
curriculum.
The Parliament of South Africa
has also used its web site to reach out to the public, allowing for
interactive communications.
For example, public submissions can be
made on legislation electronically, and voluntary registration
services can also be provided
electronically. Parliament has issued
several publications as well, including a book on women in
law-making, a newsletter entitled
In
Session
, a bulletin
called
NCOP News
and an award-winning comic book written for young readers called
A
day in parliament
,
which has been distributed in every school in the country.”
133
Such
measures provide the information, education and opportunities
necessary to enable citizens to participate effectively.
Public
participation in the law-making process
It
is implicit, if not explicit, from the duty to facilitate public
participation in the law-making process that the Constitution
values public participation in the law-making process. The duty to
facilitate public participation in the law-making process
would be
meaningless unless it sought to ensure that the public participates
in that process. The very purpose in facilitating
public
participation in legislative and other processes is to ensure that
the public participates in the law-making process consistent
with
our democracy. Indeed, it is apparent from the powers and duties
of the legislative organs of state that the Constitution
contemplates that the public will participate in the law-making
process.
Insofar
as these powers relate to the NCOP, they include the power to
summon any person to appear before it to give evidence or
produce
documents;
134
require any institution or person to report to it;
135
and receive petitions, representations or submissions from any
interested person or institution.
136
In addition, when it makes rules and orders, it must do so with
due regard to the representative and participatory elements
in our
democracy, accountability, transparency and public involvement;
137
it must conduct its business in an open manner and hold its
sittings and those of its committees in public;
138
it must provide public access to its proceedings and those of its
committees;
139
and may not exclude the public from the sittings of its committees
“unless it is reasonable and justifiable to do so in an
open and
democratic society.”
140
Similar provisions apply to the National Assembly
141
and the provincial legislatures.
142
These provisions facilitate public participation.
Public
access to Parliament is a fundamental part of public involvement in
the law-making process. It allows the public to be
present when
laws are debated and made. It enables members of the public to
familiarise themselves with the law-making process
and thus be able
to participate in the future. The opportunity to submit
representations and submissions ensures that the public
has a say
in the law-making process. In addition, these provisions make it
possible for the public to present oral submissions
at the hearing
of the institutions of governance. All this is part of
facilitating public participation in the law-making process.
In
New Clicks
, Chaskalson CJ, in another context, commented and
said the following of and concerning section 59(1), the equivalent
of section
72(1):
“
The preamble of the
Constitution sets as a goal the establishment of ‘a society based
on democratic values, social justice and
fundamental human rights’
and declares that the Constitution lays ‘the foundation for a
democratic and open society’. Section
1 of the Constitution which
establishes the founding values of the State, includes as part of
those values ‘a multi-party system
of democratic government, to
ensure accountability, responsiveness and openness’. It is
apparent from section 57(1)(b) that
the democratic government that
is contemplated is a participatory democracy, which is accountable,
transparent and makes provision
for public involvement. Consistently
with this, section 59(1) of the Constitution provides:
‘
The National Assembly must –
(a) facilitate public
involvement in the legislative and other
processes of the Assembly and
its committees; and
(b) conduct its business in an
open manner, and hold its sittings, and those of its committees, in
public.’
Similar provisions are also
made in respect of the National Council of Provinces, provincial
legislatures and local government.
. . . .
The Constitution calls for open
and transparent government, and requires public participation in the
making of laws by Parliament
and deliberative legislative
assemblies.”
143
Similarly,
in the
King
case, the Supreme Court of Appeal, in dealing
with the concept of public involvement made the following
observation:
“
Public involvement might
include public participation through the submission of commentary
and representations: but that is neither
definitive nor exhaustive
of its content. The public may become ‘involved’ in the
business of the National Assembly as much
by understanding and being
informed of what it is doing as by participating directly in those
processes. It is plain that by imposing
on Parliament the
obligation to facilitate public involvement in its processes, the
Constitution sets a base standard, but then
leaves Parliament
significant leeway in fulfilling it.”
144
I
agree with this observation.
In
my judgment, public participation in the law-making processes of
the NCOP is the goal of the duty to facilitate public involvement
comprehended in section 72(1)(a). Participation is the end to be
achieved. To hold otherwise would be contrary to the participative
nature of our democracy and the Constitution’s commitment to the
principles of accountability, responsiveness and openness.

Parliament and all nine provinces therefore, in my view, properly
conceded that the duty to facilitate public involvement

contemplates public participation in the law-making process.
The
conventional method of public participation in the law-making
process is through the submission of written or oral
representations
on the bill under consideration by Parliament or
through a combination of both written and oral submissions. This
method of
facilitating public participation in the legislative
process is consistently followed by both Parliament and the
provincial legislatures,
as evidenced by their respective rules.
145
As the Parliamentary Workshop on Public Participation observed,
“[i]nstruments of public participation include public hearings”
146
and the “constitutional obligation to ensure that the views of
the broader public are heard by conducting public hearings about
draft legislation and amendments to legislation is vigorously
implemented at both national and provincial levels.”
147
It is also consistent with the powers of the NCOP to summon or
require people to appear before it to give evidence and to “receive
petitions, representations or submissions from any interested
persons or institutions.”
148
Indeed,
as the Human Rights Committee has observed, “prior consultations,
such as public hearings or consultations with the
most interested
groups . . . have evolved as public policy in the conduct of public
affairs” under article 25(a) of the ICCPR.
149
In addition, it has explained that “[c]itizens also take part in
the conduct of public affairs by exerting influence through
public
debate and dialogue with their representatives or through their
capacity to organize themselves.”
150
The Inter-Parliamentary Union has cited “public debate and
dialogue with elected representatives” as a key form of direct
political participation,
151
and in a number of jurisdictions, legislatures have increasingly
held public hearings and consultations with civil society

organisations and citizens in order to facilitate participation in
their law-making processes.
152
The parties in this matter, correctly in my view, approached the
matter on the footing that public participation can be achieved
through the submission of either written or oral representations on
a bill under consideration. Indeed, Parliament and the provincial
legislatures could hardly contend otherwise. Rule 6 of the Joint
Rules of Parliament deals specifically with public participation
and provides that members of the public may participate in the
joint business of the Houses by attending the sittings of the
Houses and their committees; by commenting in writing on bills or
other matters before joint committees or giving evidence or
making
representations or recommendations on a bill before the House.
153
The NCOP has rules that are substantially the same as the Joint
Committee rules.
154
To
sum up, the duty to facilitate public involvement must be construed
in the context of our constitutional democracy, which embraces
the
principle of participation and consultation. Parliament and the
provincial legislatures have broad discretion to determine
how best
to fulfil their constitutional obligation to facilitate public
involvement in a given case, so long as they act reasonably.

Undoubtedly, this obligation may be fulfilled in different ways and
is open to innovation on the part of the legislatures.
In the end,
however, the duty to facilitate public involvement will often
require Parliament and the provincial legislatures
to provide
citizens with a meaningful opportunity to be heard in the making of
the laws that will govern them. Our Constitution
demands no less.
In
determining whether Parliament has complied with its duty to
facilitate public participation in any particular case, the Court
will consider what Parliament has done in that case. The question
will be whether what Parliament has done is reasonable in
all the
circumstances. And factors relevant to determining reasonableness
would include rules, if any, adopted by Parliament
to facilitate
public participation, the nature of the legislation under
consideration, and whether the legislation needed to
be enacted
urgently. Ultimately, what Parliament must determine in each case
is what methods of facilitating public participation
would be
appropriate. In determining whether what Parliament has done is
reasonable, this Court will pay respect to what Parliament
has
assessed as being the appropriate method. In determining the
appropriate level of scrutiny of Parliament’s duty to facilitate
public involvement, the Court must balance, on the one hand, the
need to respect parliamentary institutional autonomy, and on
the
other, the right of the public to participate in public affairs.
In my view, this balance is best struck by this Court considering
whether what Parliament does in each case is reasonable.
The
question in this case is therefore whether the NCOP and the
provincial legislatures complied with their constitutional
obligation
to facilitate public participation in their legislative
processes. It is to that question that I now turn.
Did the NCOP and the provinces comply with the public involvement
provisions?
The
record reflects that the procedure that was followed by the NCOP to
secure voting mandates in respect of the health legislation
was the
following. The Bills were sent to the chairperson of the NCOP.
The Select Committee of the NCOP met to receive briefings
from the
Department of Health, this being the Department responsible for the
health Bills, and thereafter the Committee decided
on the course to
be followed in referring the Bills to the provinces for the
purposes of securing the required mandates. Once
that course was
determined, the Bills were then sent to the Speakers of the nine
provinces.
Upon
receipt of the health Bills, the Speakers of the various provinces
forwarded the Bills to their respective provincial committees
of
the NCOP, generally known as NCOP Standing Matters Committee or
NCOP Business Matters Committee. These committees worked
with the
relevant provincial committees, generally the provincial health
committee or some other committee responsible for dealing
with
health matters. This was to determine the mandates to be given by
the provinces on each Bill. The first mandates that
were given
were negotiating mandates to enable the NCOP delegations to
deliberate at the NCOP Select Committee meetings. These
mandates
were followed by final mandates instructing the delegations how to
vote on the Bills.
Two
matters must be mentioned in regard to this process. The first is
that the Constitution contemplates national legislation
that must
“provide for a uniform procedure in terms of which provincial
legislatures confer authority on their delegations
to cast votes on
their behalf.”
155
No such legislation has been enacted as yet. As a result, the
provinces follow different but substantially similar procedures.

Whatever procedures the provinces follow, to the extent they are
engaged in a legislative process in considering and conferring
mandates on their delegations, they are required to comply with
section 118(1)(a), which requires provincial legislatures to
facilitate public involvement in their legislative processes and
those of their committees. The complaint by the applicant that
the
provinces did not comply with the provisions of section 118(1)(a)
must be understood in this context.
The
second is that it appears that when the Bills were referred to the
NCOP, representations that had been received by the National
Assembly were also forwarded to the NCOP. This was done presumably
for the information of the NCOP and to enable it to determine
how
best to represent the provincial interests in the national
law-making process. The NCOP, however, cannot as a matter of
course have regard to these representations only in complying with
its duty to facilitate public involvement in its legislative
processes and those of its committees. The same is true of the
provincial legislatures. Both the NCOP and the provincial

legislatures have a crucial constitutional role in our democracy;
they must ensure that the provincial interests are represented
in
the national law-making process. To this extent they must give the
people in the provinces the opportunity to participate
in their
respective legislative processes.
It
is against this background that the steps taken by the NCOP and the
various provinces to facilitate public involvement in the
processes
by which they considered and voted upon the health legislation
should be reviewed.
The
NCOP Select Committee
At
the outset, it is necessary to comment on the evidence presented by
the respondents. The respondents’ evidence includes
several
broad and sweeping claims, amongst other things, that the NCOP
Select Committee and the respective provincial portfolio
committees
“have conformed with the requirements of sections 59, 72 and 118
of the Constitution by holding public hearings
. . . [,] by
inviting members of the public to participate either by making oral
or written submissions, and by extensively advertising
and
publicising the fact that the relevant committees would be meeting
in relation to one or more of the contested Bills.”
These
allegations are largely unsupported by any documentary evidence.
In addition, some of the allegations are inconsistent
with the
documents furnished by the respondents and with what this Court was
told in the course of oral argument was common cause
between the
parties. There is no suggestion on the record that the NCOP held
public hearings or invited written representations
on any of the
Bills. Insofar as the provincial legislatures are concerned, some
but not all of the provinces held hearings in
respect of some but
not all of the Bills. Some provincial legislatures considered
written representations that had been submitted
to the National
Assembly but it is not clear on the record whether any of them
invited new or supplementary representations from
the public.
In
the result, this Court has had to work with evidence that leaves a
great deal to be desired and to speculate on what may have
happened. It is not desirable that this should have happened in a
case such as this, where the facts are crucial to determining
whether the NCOP complied with its constitutional obligations.
That
said, on the record, it is clear that the NCOP took a view that
public hearings should be held on at least some aspects of
the
Bills and that these hearings should be held in the provinces. In
the course of briefings by the Department of Health on
the CTOP
Amendment Bill, the Chairperson of the NCOP Select Committee
informed the Committee that she had received requests for
public
hearings from interested parties and that she would be responding
and urging them to make submissions in the provinces
where public
hearings would be held. During the briefings on the THP Bill,
Committee members raised several concerns including
reservations
about certain exclusions from the Bill, and it was “agreed that
the matter would be dealt with in more depth at
the provincial
hearings and briefings”.
In
addition, the unofficial minutes put up by the applicant indicate
that “[t]he Chairperson declared that public hearings [on
the
CTOP Amendment Bill] would occur in the near future and submissions
would be incorporated into the final deliberations.”
The
respondents sought to dispute the accuracy of the unofficial
minutes. However, in their answering affidavit they alleged
that
the Chairperson of the Committee urged the provincial legislatures
to hold public hearings in relation to some of the Bills.
On
any view of the record, it can fairly be accepted that the NCOP
Select Committee took the view that it would be desirable to
hold
public hearings in respect of the CTOP Amendment Bill and the THP
Bill. It decided that the hearings should be held in
the provinces
and advised the interested groups of this decision.
This
raises a question as to whether the duty of the NCOP to facilitate
public involvement in its legislative process may be met
through
public hearings that are conducted by the provincial legislatures.
There are both functional and practical considerations
that weigh
in favour of holding public hearings in the provinces rather than
at the seat of the NCOP in Cape Town.
In
the first place, there is an identity of interests between the NCOP
and the provinces in legislation that affects the provinces.
Both
have a constitutional role to ensure that provincial interests are
taken into account in the national legislative process.
At least
three members of each provincial delegation are members of the
provincial legislatures and are therefore eligible to
sit and take
part in the proceedings of the various provincial committees of
their respective legislatures. These committees
are the engine
rooms of the provincial legislatures; they are the committees that
consider legislation, including voting mandates
to be conferred on
the NCOP delegations, and thus are where hearings are held and
submissions considered.
There
are also practical considerations that are relevant in this regard.
If the NCOP is to conduct provincial hearings, it must
allocate
substantial time and money to send its committee members to each
province. On the other hand, ordinary people may be
unable to
attend hearings of the NCOP that are conducted in Cape Town due to
financial and other constraints. Holding hearings
in the provinces
has great value for the provincial community; it provides its
members with the opportunity to be present when
laws are made and
to take part in the law-making process. But it would be wasteful
of the government’s limited resources if
both the NCOP and the
provinces were to hold separate public hearings in the provinces.
It
may well be appropriate and indeed desirable for the provincial
legislatures to conduct public hearings on legislation that
is
before the NCOP, in order to avoid duplication of efforts and
unnecessary expenditure. Citizens who have difficulty
participating
in the national legislative process in Cape Town can
much more easily convey their views about national legislation
through their
provincial legislatures. Members of the NCOP may
attend those hearings or, at a minimum, read the reports of the
hearings prepared
by the provincial portfolio committees. In this
manner, both the NCOP and the provincial legislatures hear the
views of the
people of the respective provinces and facilitate
public involvement in their processes.
Whether
public hearings conducted by provincial legislatures are sufficient
to satisfy the obligation of the NCOP under section
72(1)(a)
ultimately depends on the facts and the nature of the process of
facilitating public involvement that has occurred in
the provinces,
including the extent to which NCOP delegations were involved in and
have access to the information gathered during
that process. Where
the process involves consideration of a bill affecting the
provinces, the ultimate question is whether the
provincial
interests on the legislation under consideration were taken into
account in the national legislative process.
In
the result, I am satisfied that it was reasonable for the NCOP to
take a decision that public hearings should be held in the
provinces on the health legislation, provided that the provinces in
fact held those hearings and that those proceedings were
attended
by members of the NCOP or that members of the NCOP had access to
the reports of those proceedings.
However,
once the NCOP has decided on a particular mode of involving the
public in its legislative process and has communicated
its decision
to do so to interested parties, it must be held to its decision
unless there is sufficient explanation for failure
to give effect
to that decision. The question is whether, viewed in their
totality, the processes that were followed by the
NCOP and the
provincial legislatures in relation to the three health Bills
satisfied the NCOP’s duty to facilitate public involvement
in its
legislative processes and those of its committees.
In
what follows, I will consider whether and to what extent the
provincial legislatures and the NCOP facilitated public involvement
in relation to each Bill.
THP
Act
The
THP Bill was intended to bring about new dispensation of regulating
traditional health healers. It makes provision for the
recognition
and regulation of traditional health healers.
156
As its preamble declares, its purpose is “[t]o establish the
Interim Traditional Health Practitioners Council of South Africa;
to provide for a regulatory framework to ensure the efficacy,
safety and quality of traditional health care services; to provide
for the management and control over the registration, training and
conduct of practitioners, students and specified categories
in the
traditional health practitioners profession; and to provide for
matters connected therewith.”
157
The Minister of Health, the third respondent in these proceedings,
speaking at the official opening of the Conference on Traditional
Medicine, explained that
“
South Africa has embarked on
the process of formally recognising traditional medicine and
traditional health practitioners through
the drafting of the
Traditional Health Practitioners Bill. The Bill provides for the
establishment of a Traditional Health Practitioners
Council, which
should guide us in ensuring quality of traditional health care
services and provide for the control over the registration,
training
and practice of traditional health practitioners.”
158
The
importance of the THP Bill in the context of our country cannot be
gainsaid, in particular, in the health care delivery system.
As
the Minister of Health explained:
“
The important role of
traditional medicines in the health care delivery systems of many
developing countries cannot be overemphasised.
Traditional systems
of medicine have become a topic of global importance. Traditional
medicine is ceasing to be an obscure practice
of so-called quacks
and witches. This rare discipline is fast becoming a name to be
reckoned with in our struggles to fight diseases
and ensure the
health of our people. This revolution is not only taking place in
developing countries but also in the developed
world. Traditional
medicine has become a global phenomenon.
The World Health Organization
estimates that up to 80% of the people in Africa use traditional
medicine. In Sub-Saharan Africa,
the ratio of traditional health
practitioners to the population is approximately 1:500, while the
medical doctors have a 1:40 000
to the rest of the population. It
is clear that traditional health practitioners have an important
role to play in the lives of
African people and have the potential
to serve as a critical component of a comprehensive health care
strategy.
In South Africa alone, it is
estimated that we have approximately 200 000 traditional health
practitioners. These health practitioners
are the first health care
providers to be consulted in up to 80% of cases, especially in rural
areas, and are deeply interwoven
into the fabric of cultural and
spiritual life. It is for this reason that there has been
recognition of traditional medicine
practice in South Africa.”
159
At
least six provinces considered that public hearings were necessary
in relation to the THP Bill. Of these, only Mpumalanga,
North West
and Limpopo held hearings. Indeed, in the course of oral argument,
the parties informed us that it was common cause
that only three
provinces held public hearings in respect of the THP Bill.
Gauteng
did not submit a negotiating mandate on the THP Bill because it
felt that the time afforded to it by the NCOP was too
short to
enable it to study the Bill and consult with relevant stakeholders.
Faced with an impending NCOP deadline for submitting
a final
mandate on the Bill, Gauteng invited representatives from
traditional healers’ organisations to attend a last-minute
committee meeting on the Bill. However, the representatives were
given a day’s notice, at most, that the meeting was to be
held.
They did not have time to study the Bill or to consult with their
members in advance of the meeting. This evoked strong
protest from
some leaders of the traditional healers who protested that the oral
hearings were a “very critical submission”
to their cause and
they should have been given sufficient time “to study,
understand, get the comments and ensure that [they]
have all [the]
facts together” before attending the hearing. What happened in
the Gauteng legislature cannot be said to amount
to an adequate
opportunity to participate in the legislative process.
The
Northern Cape conducted a hearing only after it had conferred a
final mandate on its delegation, when the legislature’s
decision-making could no longer be informed by the input of the
public. This too cannot amount to facilitating public involvement
in the law-making process. Legislatures must facilitate
participation at a point in the legislative process where
involvement
by interested members of the public would be
meaningful. It is not reasonable to offer participation at a time
or place that
is tangential to the moments when significant
legislative decisions are in fact about to be made. Interested
parties are entitled
to a reasonable opportunity to participate in
a manner which may influence legislative decisions. The
requirement that participation
must be facilitated where it is most
meaningful has both symbolic and practical objectives: the persons
concerned must be manifestly
shown the respect due to them as
concerned citizens, and the legislators must have the benefit of
all inputs that will enable
them to produce the best possible laws.
The
Eastern Cape and KwaZulu-Natal wished to hold public hearings but
could not do so because of insufficient time. This was
conveyed to
the NCOP through their permanent delegates. In addition, the
Eastern Cape requested an extension of time to enable
it to conduct
proper hearings. No extension was granted. Despite this and the
NCOP’s decision that public hearings should
be held on the Bill,
the NCOP did not create the conditions that would have enabled the
provinces to hold public hearings.
The
Free State and the Western Cape did not hold hearings. The
provincial legislature of the Free State resolved to invite

stakeholders to submit written submissions on all the Bills but
there is no indication that such invitations were in fact extended.
The Standing Committee on Social Development of the Western Cape
legislature requested its provincial Department of Health to
ask
for information on the Bills from relevant stakeholders for
presentation to the Committee. Again, it is not clear on the
record whether this was done.
The
question whether the NCOP complied with its duty to facilitate
public involvement in relation to the THP Bill must be viewed
against this background. This was a Bill that was intended to
regulate traditional medicine and traditional healing, areas that
had been the subject of discrimination in the past. People who
practice this branch of medicine were previously marginalised
and
received no recognition; they were referred to as “witchdoctors”.
160
Having regard to the history of discrimination against traditional
healers, legislation of this nature requires adequate consultation
with the traditional healers themselves, lest they feel they are
being marginalised again.
From
the beginning, the THP Bill was the subject of intense public
interest, particularly among traditional health practitioners.

When the government published the Bill for comment, numerous
organisations submitted written representations, including the
Traditional Health Practitioners Forums of Gauteng, the Eastern
Cape, the Free State, KwaZulu-Natal and the Northern Cape. Yet
these groups were denied a meaningful opportunity to participate in
the processes by which their own provinces deliberated and
voted
upon the Bill. The applicant has made it clear in its founding
papers that it was interested in this Bill as well.
It
is thus understandable that the leaders of the traditional healers
in Gauteng should call for respect for their professions
and
express their frustration at being summoned to make submissions on
such a critical Bill on an extremely short notice. In
this regard,
Ms P Maseko of the Traditional Healers Organisation is recorded as
having told the Health Portfolio Committee in
Gauteng:
“
[W]e need to make sure, we
need to definitely ensure that traditional healing, as much as the
Bill is here, but we are not continuously
taken for granted. I was
very angry this morning when we were called past nine, something to
ten, that we have to come for this
submission. This is a very
critical submission to our own cause, we are supposed to be told
well in time and as traditional health
practitioners we are known to
─ you know we are not educated and even that is not excuse enough
though but then we need to get
time like any other professions, to
study, understand, get the comments and ensure that we have all our
facts together, not to
be said to fail.
So now today, we are just
informed today, this morning, to come here to make this critical
submission. It is very unfair to our
profession, we need to
definitely respect this profession, MEC”.
Also
speaking before the Gauteng Health Portfolio Committee, the MEC for
Health in Gauteng emphasised the need for consultations
and
sensitivity in the province’s deliberations on the THP Bill. She
expressed her concerns about the lack of opportunity
for public
participation at the provincial level, explaining that
“
the NCOP is a representative
of province[s], it’s a forum that is made up of provinces and I
think before they process any legislation
they must consult each
province to find out whether each province has consulted the public.
I think that must be a fundamental
principle, that especially in
legislation like this I think the NCOP has to look at such
principles and I would agree quite fully
that it has to be sensitive
to that, that we would like to bring, through the NCOP, the voices
of [the] people, of [the] residents,
to the national level and I
hope that we will not be subjected again to having to call people at
the last minute.”
The
impact of the THP Bill therefore goes beyond traditional healers;
it affects the vast majority of people who rely on the services
of
traditional healers for their medical care. According to the
Minister of Health, it is estimated that in this country, there
are
about 200 000 traditional health practitioners. Of these,
approximately 50 000 practice in Gauteng. And “these health
practitioners are the first health care providers to be consulted
in up to 80 % of cases, especially in rural areas, and are
deeply
interwoven into the fabric of cultural and spiritual life.”
161
According to the Minister, studies show that in many developing
countries, a large proportion of the population relies on

traditional practitioners and medicinal plants to meet their
primary health care needs. This is the case, notwithstanding the
availability of modern medicine. Traditional medicines have
maintained popularity for historical and cultural reasons. It is
said that traditional medicines play a significant role in the
treatment and management of life-threatening diseases, particularly
in the developing world. This too is true of our country. And for
this reason “there has been [a] recognition of traditional
medicine practice in South Africa.”
162
I
agree with the Gauteng MEC that the NCOP and the provincial
legislatures have a duty to bring the voices of the people, as

residents of the province, to the national level. This duty was of
particular importance in relation to the THP Bill, a new piece
of
legislation that would have a substantial impact on the provinces
and the people who live within them.
The
nature and importance of the Bill must be viewed against the
decision of the NCOP that public hearings would be held in the
provinces and the view of most provincial legislatures that public
hearings were required on the Bill. In addition, the interested
groups were given an undertaking that public hearings would be held
in the provinces where they would be given the opportunity
to make
representations. As pointed out earlier, in determining what is
reasonable in facilitating public involvement in a given
case, this
Court will pay considerable respect to what the legislature
considers to be the appropriate method of facilitating
public
involvement. In this case, it is clear that the NCOP and the
majority of the provinces considered that public hearings
were the
appropriate method of facilitating public involvement in relation
to the THP Bill. I am therefore satisfied that it
was necessary to
hold public hearings in relation to the THP Bill.
On
the record, six of nine provinces did not hold public hearings on
this Bill nor did they invite written representations on
it. In
these circumstances, failure by the NCOP to hold public hearings on
the THP Bill was unreasonable. In the result, I
conclude that the
NCOP did not comply with its obligation to facilitate public
involvement in relation to the THP Bill as required
by section
72(1)(a).
CTOP
Amendment Act
The
CTOP Amendment Bill concerned the termination of pregnancy. This
is not an uncontroversial matter. The Bill makes provision
for
registered nurses, other than midwives, to perform termination of
pregnancies at certain public and private facilities.
As its
preamble declares, its purpose is to “empower a Member of the
Executive Council to approve facilities where a termination
of
pregnancy may take place; to exempt a facility offering a 24-hour
maternity service from having to obtain approval for termination
of
pregnancy services under certain circumstances”.
163
There was great interest in this Bill as demonstrated by the
requests for public hearings by interested groups. The NCOP

responded to these requests by informing the interested groups that
hearings would be held in the provinces. The NCOP itself

considered that public hearings were desirable on the Bill. So too
did the majority of provinces.
As
reflected in the requests for public hearings received by the NCOP
Chairperson, the CTOP Amendment Bill was of particular concern
to
the applicant and other interested parties. These requests led to
the NCOP’s decision that hearings on the Bill should
be held at
the provincial level. However, while it appears that four
provinces – Gauteng, KwaZulu-Natal, Limpopo and Northern
Cape –
wished to hold public hearings on the Bill, only Limpopo conducted
a hearing.
As
it did with the other health Bills, the Gauteng provincial
legislature wrote to the NCOP requesting more time and declined
to
submit a negotiating mandate on the CTOP Amendment Bill because it
felt that it was not given enough time to consult with
interested
groups. In the end, it conferred a final mandate in favour of the
Bill, but noted that the legislature had been unable
to consult
with stakeholders due to time constraints. The Health Portfolio
Committee of KwaZulu-Natal also communicated to the
NCOP its
concern about the time period within which it was to consider the
CTOP Amendment Bill and the other health Bills, which
did not give
it time to hold public hearings. Apart from the time constraints,
the Northern Cape abandoned its plan to conduct
a public hearing on
the CTOP Amendment Bill due to budgetary constraints.
The
Eastern Cape decided that there was no need for public hearings on
the CTOP Amendment Bill because it was an amendment and
extensive
consultations had taken place when the principal Act was
considered. The Western Cape considered written representations
on
the Bill, which appear to have been submitted directly to the
legislature. In addition, the applicant, on its own initiative,
submitted a last minute representation on the CTOP Amendment Bill
to the Chairperson of the KwaZulu-Natal Health Portfolio Committee.
On
the record, I am satisfied that of the provincial legislatures,
only Limpopo and the Western Cape held public hearings or invited
written submissions in respect of the CTOP Amendment Bill. It is
true that the applicant was permitted to make a submission
to the
KwaZulu-Natal legislature. However, the applicant contacted the
Chairperson of the Health Committee on its own initiative,
and no
other members of the public were invited or given an opportunity to
make submissions. Moreover, it is clear that both
the NCOP and a
majority of the provinces considered that it was necessary to
conduct public hearings, or at least invite written
submissions, in
relation to the CTOP Amendment Bill. In these circumstances,
KwaZulu-Natal cannot be said to have acted reasonably
in
facilitating public participation in relation to the CTOP Amendment
Bill. In the event, it did not comply with its duty to
facilitate
public involvement in relation to this Bill.
As
with the THP Bill, the question whether the NCOP complied with its
duty to facilitate public involvement in relation to the
CTOP Bill
must be considered in the light of its own conduct viewed in the
light of that of the provinces in relation to this
Bill. The
consideration that led to the conclusion that it was necessary to
hold public hearings in relation to the THP Bill
equally apply to
the CTOP Bill. In the light of the nature of the Bill and the
importance that was accorded to it by both legislators
and members
of the public, the need for public hearings was manifest. This
must be viewed in the light of the decision of the
NCOP that public
hearings were necessary and that they would be held in the
provinces. There was an express promise to interested
groups that
public hearings would be held in the provinces where they could
make representations on this Bill. As with the THP
Bill, the NCOP
considered public hearings to be the appropriate method of
facilitating public involvement in relation to the
CTOP Amendment
Bill.
Once
it was conveyed to the NCOP that, contrary to its decision, a
majority of the provinces did not hold public hearings, it
was
incumbent upon it to hold such hearings. The NCOP is not a rubber
stamp of the provinces when it comes to the duty to facilitate
public involvement. It is required by the Constitution to provide
“a national forum for public consideration of issues affecting
the provinces.”
164
These considerations, in my judgment, lead to the conclusion that
the NCOP and the provinces failed in their duty to facilitate
public involvement in their legislative and other processes in
relation to the CTOP Amendment Bill.
In
all the circumstances, I am satisfied that the NCOP acted
unreasonably in failing to hold public hearings on the CTOP
Amendment
Bill. In the event, the NCOP failed to comply with its
obligation to facilitate public involvement in relation to this
Bill
as required by section 72(1)(a).
Dental
Technicians Amendment Act
The
Dental Technicians Amendment Act makes
provision for persons who
have been employed as dental laboratory assistants for a period of
not less than five years under the
supervision of a dentist or
dental technician and who have been trained by these professionals
to perform the work of a dental
technician. To this extent, it
defines an “informally trained person” and regulates the
registration of such persons and
the conditions under which they
may practice. In addition it makes direct billing by a dental
technician contractor discretionary
and restricts the performance
of certain acts by members of certain juristic persons.
The Dental
Technicians Amendment Bill did not elicit public interest as did
the THP and CTOP Amendment Bills. When the Bill was
first
published for public comment, no submissions were received. In
addition, only Limpopo province conducted public hearings
in
respect of this Bill. It did this probably because it conducted
hearings in respect of all four Bills. Gauteng Province
wished to
consult with members of the public on the Bill but did not do so
because of time constraints. The Eastern Cape Province
did not
hold public hearings on the Dental Technicians Amendment Bill
because of its nature.
Having regard
to the nature of the Bill and the views of the majority of the
provinces and the NCOP on it, I am unable to conclude
that the NCOP
and the provinces acted unreasonably in not inviting written
representations or holding public hearings on this
Bill. There is
a further consideration that fortifies this view. When the Bill
was first published for comment, it did not
generate any interest.
In all these circumstances, I am satisfied that the NCOP and the
provinces did not breach their duty
to facilitate public
involvement in relation to the Dental Technicians Amendment Bill.
The challenge relating to this Act must
therefore fail.
Conclusion
To
sum up, in facilitating public involvement, the NCOP must do so
with a view to ensuring that issues affecting the provinces
in
relation to legislation under consideration are heard and
considered. On the papers, it is clear that the CTOP Amendment
Bill and the THP Bill generated a huge interest at the NCOP. This
is evidenced by the requests for public hearings by the interest
groups. In the light of these requests, the NCOP decided that
public hearings should be held in relation to these Bills but
that
these hearings should be held in the provinces. This was conveyed
to the interest groups who made these requests. In these
circumstances, public hearings were the appropriate method of
facilitating public involvement in relation to the CTOP Amendment
Bill and the THP Bill. But as it turned out, neither the NCOP nor
a majority of the provinces held the promised public hearings.
It
is true, as discussed previously, that time may be a relevant
consideration in determining the reasonableness of a legislature’s
failure to provide meaningful opportunities for public involvement
in a given case. There may well be circumstances of emergency
that
require urgent legislative responses and short timetables.
However, the respondents have not demonstrated that such
circumstances
were present in this case. When it comes to
establishing legislative timetables, the temptation to cut down on
public involvement
must be resisted. Problems encountered in
speeding up a sluggish timetable do not ordinarily constitute a
basis for inferring
that inroads into the appropriate degree of
public involvement are reasonable. The timetable must be
subordinated to the rights
guaranteed in the Constitution, and not
the rights to the timetable.
Having
regard to the nature of the CTOP Amendment Bill and the THP Bill,
the request for public hearings by interested groups,
the
determination by the NCOP that the appropriate method of
facilitating public involvement in relation to these Bills was to
hold public hearings, the express promise to hold public hearings
and the subsequent failure to hold public hearings, the failure
by
the NCOP to hold public hearings was, in the circumstances of this
case, unreasonable. The NCOP therefore failed to comply
with its
obligation to facilitate public involvement in relation to these
Bills as contemplated in section 72(1)(a) of the Constitution.
In
the event, the challenge relating to the CTOP Amendment Act and the
THP Act must accordingly be upheld.
However,
in relation to the Dental Technicians Amendment Bill, I am
satisfied that in all the circumstances of this case, the
failure
by the NCOP to hold public hearings was not unreasonable. In the
result, the challenge relating to this Act must fail.
It
now remains to consider the question of the remedy.
VII. Remedy
I
have found that the NCOP failed to fulfil its constitutional
obligation comprehended in section 72(1)(a) in relation to the
CTOP
Amendment Bill and the THP Bill. Pursuant to section 172(1)(a) of
the Constitution, this Court is obliged to declare that
the conduct
of the NCOP in this regard is inconsistent with the Constitution
and is therefore invalid. The respondents did not
contend
otherwise. A declaration to that effect must accordingly be made.
The question which was debated in the Court is whether
the CTOP
Amendment Act and the THP Act must as a consequence be declared
invalid. Counsel for the respondents contended that
this Court has
no power to declare the resulting statute invalid. To do so, it
was submitted, would infringe upon the doctrine
of separation of
powers.
This
Court has emphasised on more than one occasion that although there
are no bright lines that separate its role from those
of the other
branches of government, “there are certain matters that are
pre-eminently within the domain of one or other of
the arms of
government and not the others. All arms of government should be
sensitive to and respect this separation.”
165
But at the same time, it has made it clear that this does not mean
that courts cannot or should not make orders that have an
impact on
the domain of the other branches of government.
166
When legislation is challenged on the grounds that Parliament did
not adopt it in accordance with the provisions of the Constitution,
courts have to consider whether in enacting the law in question
Parliament has given effect to its constitutional obligations.
If
it should hold in any given case that Parliament has failed to do
so, it is obliged by the Constitution to say so. And insofar
as
this constitutes an intrusion into the domain of the legislative
branch of government, that is an intrusion mandated by the
Constitution itself.
167
What should be made clear is that when it is appropriate to do so,
courts may – and if need be must – use their powers to
make
orders that affect the legislative process.
168
Therefore,
while the doctrine of separation of powers is an important one in
our constitutional democracy, it cannot be used to
avoid the
obligation of a court to prevent the violation of the Constitution.
The right and the duty of this Court to protect
the Constitution
are derived from the Constitution, and this Court cannot shirk from
that duty. As O’Regan J explained in
a recent minority judgment,
“the legitimacy of an order made by the court does not flow from
the status of the institution
itself, but from the fact that it
gives effect to the provisions of our Constitution.”
169
In order for the founding values that lie at the heart of our
Constitution to be made concrete, it is particularly important
for
this Court to afford a remedy, which is not only effective, but
which should also be seen to be effective.
170
The
provisions of section 172(1)(a) are clear, and they admit of no
ambiguity; “[w]hen deciding a constitutional matter within
its
power, a court . . . must declare that any law or conduct that is
inconsistent with the Constitution is invalid”. This
section
gives expression to the supremacy of the Constitution and the rule
of law, which is one of the founding values of our
democratic
state. It echoes the supremacy clause of the Constitution, which
declares that the “Constitution is supreme . .
. ; law or conduct
inconsistent with it is invalid”.
171
It follows therefore that if a court finds that the law is
inconsistent with the Constitution, it is obliged to declare it

invalid.
As
I see the question therefore, it is not whether we have the
constitutional authority to declare invalid these two statutes.

The power to do so is there. The specific question presented in
this case is whether the failure by the NCOP to comply with
the
provisions of section 72(1)(a) in relation to the CTOP Amendment
Act and the THP Act renders these statutes invalid. This
case
presents a unique question. It is not concerned with the substance
of the legislation. It is concerned with the process
by which the
legislation was adopted. The answer to this question depends,
among other things, upon the importance that the
Constitution
attaches to the requirement of public participation in the
law-making process.
In
the clearest and most unmistakeable language possible, the Preamble
to our Constitution declares the intention to establish
“a
democratic and open society in which government is based on the
will of the people.” Consistent with this goal, the

Constitution: (a) establishes as part of the founding values “a
multi-party system of democratic government, to ensure
accountability,
responsiveness and openness;”
172
(b) embraces a democracy that has both representative and
participatory elements; and (c) makes provision for public
involvement
in the processes of the legislative organs of state.
Thus in peremptory terms, section 72(1)(a) imposes an obligation on
the NCOP to facilitate public participation in its legislative
and
other processes including those of its committees. And the
supremacy clause of the Constitution requires that this “obligation
[which is] imposed by [the Constitution] must be fulfilled.”
173
Public involvement provisions therefore give effect to an
important feature of democracy: its participative nature. The
“participation
of citizens in government . . . forms the basis
and support of democracy, which cannot exist without it; for title
to government
rests with the people, the only body empowered to
decide its own immediate and future destiny and to designate its
legitimate
representatives.”
174
Public participation in the law-making process is one of the means
of ensuring that legislation is both informed and responsive.
If
legislation is infused with a degree of openness and participation,
this will minimise dangers of arbitrariness and irrationality
in
the formulation of legislation. The objective in involving the
public in the law-making process is to ensure that the legislators
are aware of the concerns of the public. And if legislators are
aware of those concerns, this will promote the legitimacy, and
thus
the acceptance, of the legislation.
175
This not only improves the quality of the law-making process, but
it also serves as an important principle that government should
be
open, accessible, accountable and responsive. And this enhances
our democracy.
What
is significant in the context of the present case is the
legislative scheme contemplated by our Constitution. That scheme
envisages that the provinces will participate in the proceedings of
the NCOP and thus in the national legislative process “in
a
manner consistent with democracy”.
176
The purpose of this participation is “to ensure that provincial
interests are taken into account in the national sphere of
government.”
177
The provincial interests must of course be determined in a manner
that is consistent with our democracy, in particular, in a
manner
that complies with the duty to facilitate public participation in
the law-making process. Permitting the public to participate
in
the law-making process ensures that the provincial interests are
taken into consideration in a manner that is consistent with
the
Constitution.
Under
our Constitution, therefore, the obligation to facilitate public
involvement is a requirement of the law-making process.
It
is trite that legislation must conform to the Constitution in terms
of both its content and the manner in which it was adopted.

Failure to comply with manner and form requirements in enacting
legislation renders the legislation invalid.
178
And courts have the power to declare such legislation invalid. In
Harris and Others v Minister of the Interior and Another
,
179
the Appellate Division, in declaring the Separate Representation of
Voters Act 46 of 1951 invalid, held:
“
If Act 46 of 1951 had been
passed before the Statute of Westminster, it is clear from the
reasons given in the decision of this
Court in
Rex
v Ndobe
, supra, that
the Act would not have been a valid Act, as it was not passed in
accordance with the procedure prescribed by sections
35(1) and 152
of the South Africa Act. That decision was not questioned on behalf
of the respondents and there is no reason to
doubt its soundness.
The Court in declaring that such a Statute is invalid is exercising
a duty which it owes to persons whose
rights are entrenched by
Statute; its duty is simply to declare and apply the law and it
would be inaccurate to say that the Court
in discharging the duty is
controlling the Legislature.”
180
The
obligation to facilitate public involvement is a material part of
the law-making process. It is a requirement of manner and
form.
Failure to comply with this obligation renders the resulting
legislation invalid.
There
is support for this view in other jurisdictions.
181
In
my judgment, this Court not only has a right but also has a duty to
ensure that the law-making process prescribed by the Constitution
is observed. And if the conditions for law-making processes have
not been complied with, it has the duty to say so and declare
the
resulting statute invalid. Our Constitution manifestly
contemplated public participation in the legislative and other

processes of the NCOP, including those of its committees. A
statute adopted in violation of section 72(1)(a) precludes the
public
from participating in the legislative processes of the NCOP
and is therefore invalid. The argument that the only power that

this Court has in the present case is to issue a declaratory order
must therefore be rejected.
In
the result, the
Traditional Health Practitioners Act and
the Choice
on Termination of Pregnancy Amendment Act must be declared invalid.
It
is true, the defect lies in the conduct of the NCOP. However, the
national legislative authority is vested in Parliament in
terms of
section 44(1). And if an Act of Parliament is declared
unconstitutional, Parliament must deal with the matter. As
pointed
out earlier, where either the NCOP or the National Assembly fails
to fulfil its constitutional obligation in relation
to the
law-making process, the result is that Parliament has failed to
fulfil its obligation in respect of the resulting statute.
The
consequence is that the matter must be remitted to Parliament for
it to re-enact the law in a manner that is consistent
with this
judgment.
However,
these two statutes have come into operation.
182
Members of the public may have already taken steps to regulate
their conduct in accordance with these statutes. An order of
invalidity that takes immediate effect will be disruptive and leave
a vacuum. In terms of section 172(1)(b)(ii), this Court
has
discretion to make an order that is just and equitable, including
an order suspending the declaration of invalidity. Parliament
must
be given the opportunity to remedy the defect. In these
circumstances, I consider it just and equitable that the order
of
invalidity be suspended for 18 months to enable Parliament to enact
these statutes afresh in accordance with the provisions
of the
Constitution.
Before
addressing the issue of costs, it is necessary to address the issue
of standing in matters involving challenges based on
an alleged
failure to facilitate public involvement.
Standing
In
this case, the applicant actively sought to obtain an opportunity
to be heard on the Bills both at the NCOP and in the provincial
legislatures, as I have described above. The attempts though
repeated and persistent were in vain. As soon as possible after
the Bills had been promulgated,
183
the applicant approached this Court for relief. In my view, this
Court will only consider an application to declare legislation
invalid on the grounds set out in this judgment in circumstances
where the applicant has sought and been denied an opportunity
to be
heard on the Bills and where the applicant has launched his or her
application for relief in this Court as soon as practicable
after
the Bills have been promulgated.
It
is true that such a standing requirement is different to that
contemplated by section 38 of the Constitution
184
in respect of the alleged infringement or threatened infringement
of rights in the Bill of Rights. We are not, of course, in
this
case directly concerned with the provisions of the Bill of Rights
but with section 72 of the Constitution. There are powerful
reasons why a restricted approach to standing of litigants is
appropriate in cases such as this.
The
Court has to find a balance between on the one hand, avoiding
improper intrusions into the domain of Parliament, and, on the
other, ensuring that a constitutional provision which requires
Parliament to facilitate public involvement in the law-making
process is sufficiently justiciable to ensure that the commitment
to facilitating public involvement that it represents is not
rendered nugatory. In my view, only those applicants who have made
diligent and proper attempts to be heard by the NCOP should
be
entitled to rely on any failure to observe section 72 of the
Constitution. Similarly applicants who have not pursued their
cause timeously in this Court may well be denied relief.
Rules
of standing of this sort will prevent legislation being challenged
on the ground of non-compliance with section 72 many
years after
the event by those who had no interest in making representations to
Parliament at the time the legislation was enacted.
It will thus
discourage opportunist reliance by those who cannot show any
interest in the duty to facilitate public involvement
on that duty.
In my view, this restricted form of standing further reflects this
Court’s concern to protect the institutional
integrity of
Parliament, while at the same time seeking to ensure that the duty
to facilitate public involvement is given adequate
protection.
An
additional point should be added on this score. Where Parliament
has held public hearings but not admitted a person to make
oral
submissions on the ground that it does not consider it necessary to
hear oral submissions from that person, this Court will
be slow to
interfere with Parliament’s judgment as to whom it wishes to hear
and whom not. Once again, that person would have
to show that it
was clearly unreasonable for Parliament not to have given them an
opportunity to be heard. Parliament’s judgment
on this issue
will be given considerable respect. Moreover, it will often be the
case that where the public has been given the
opportunity to lodge
written submissions, Parliament will have acted reasonably in
respect of its duty to facilitate public involvement,
whatever may
happen subsequently at public hearings.
However,
for citizens to carry out their responsibilities, it is necessary
that the legislative organs of state perform their
constitutional
obligations to facilitate public involvement. The basic elements
of public involvement include the dissemination
of information
concerning legislation under consideration, invitation to
participate in the process and consultation on the legislation.

These three elements are crucial to the exercise of the right to
participate in the law-making process. Without the knowledge
of
the fact that there is a bill under consideration, what its
objective is and when submissions may be made, interested persons
who wish to contribute to the law-making process may not be able to
participate and make such contributions.
Costs
The
applicant has asked for costs. The respondents have taken the view
that an order for costs is not warranted in these proceedings.
In
my view, that order is warranted in this case. The applicant has
urged in this Court constitutional issues of great moment.
These
issues go to the very heart of our constitutional democracy. And
the applicant has been successful in that regard. The
general rule
that the costs should follow the result must be applied in this
case.
When
the applicant approached the Court, it did not join the Speakers of
the various provinces, although the order that it sought
would have
had an impact on the provincial legislatures. This resulted in an
abortive hearing on 23 August 2005 and the costs
of joining the
Speakers of the various provinces. Justice demands that these
costs should not be borne by the respondents.
Another factor to be
taken into account is that the applicant has only been successful
in respect of two statutes. This too
must be reflected in the
order for costs.
In
all the circumstances, I consider that justice in this case demands
that the respondents should pay sixty percent of the costs
of the
applicant, which costs must exclude costs of the hearing on 23
August 2005 and those costs connected with the joinder
of the
various Speakers of the provinces.
Order
In
the event, I make the following order:
It
is declared that Parliament has failed to comply with its
constitutional obligation to facilitate public involvement before
passing the Choice on Termination of Pregnancy Amendment Act 38 of
2004 and the
Traditional Health Practitioners Act 35 of 2004
as
required by
section 72(
1)(a) of the Constitution.
The
Choice on Termination of Pregnancy Amendment Act, 2004 and the
Traditional Health Practitioners Act, 2004
were, as a consequence,
adopted in a manner that is inconsistent with the Constitution and
are therefore declared invalid.
The
order declaring invalid the Choice on Termination of Pregnancy
Amendment Act, 2004 and the
Traditional Health Practitioners Act,
2004
is suspended for a period of 18 months to enable Parliament
to re-enact these statutes in a manner that is consistent with the
Constitution.
The
constitutional challenges relating to the
Dental Technicians
Amendment Act 24 of 2004
and the
Sterilisation Amendment Act 3 of
2005
are dismissed.
The
respondents are ordered to pay sixty percent of the applicant’s
costs, which costs shall exclude the costs occasioned
by the
joinder of the Speakers of the nine provincial legislatures and
the costs incurred during the hearing on 23 August 2005.
Langa
CJ, Moseneke DCJ, Madala J, Mokgoro J, Nkabinde J, O’Regan J and
Sachs J concur in the judgment of Ngcobo J.
SACHS J:
I
support the judgment by Ngcobo J, and add observations on two
matters. The first concerns the special meaning that participatory
democracy has come to assume in South Africa. The second relates
to what I consider to be the need for caution when developing
remedies in this area.
I
believe that it would be gravely unjust to suggest that the
attention the Constitutional Assembly dedicated to promoting public
involvement in law-making represented little more than a rhetorical
constitutional flourish on its part. The Assembly itself
came into
being as a result of prolonged and intense national dialogue.
1
Then, the Constitution it finally produced owed much to an
extensive countrywide process of public participation.
2
Millions of South Africans from all walks of life took part.
Public involvement in our country has ancient origins and continues
to be a strongly creative characteristic of our democracy. We have
developed a rich culture of imbizo, lekgotla, bosberaad,
and
indaba. Hardly a day goes by without the holding of consultations
and public participation involving all ‘stakeholders’,
‘role-players’ and ‘interested parties’, whether in the
public sector or the private sphere. The principle of consultation
and involvement has become a distinctive part of our national
ethos.
3
It is this ethos that informs a well-defined normative
constitutional structure in terms of which the present matter falls

to be decided.
This
constitutional matrix makes it clear that although regular
elections and a multi-party system of democratic government are
fundamental to our constitutional democracy, they are not
exhaustive of it. Their constitutional objective is explicitly
declared
at a foundational level to be to ensure accountability,
responsiveness and openness.
4
The express articulation of this triad of principles would be
redundant if it was simply to be subsumed into notions of electoral
democracy. Clearly it is intended to add something fundamental to
such notions.
It
should be emphasised that respect for these three inter-related
notions in no way undermines the centrality to our democratic
order
of universal suffrage and majority rule, both of which were
achieved in this country with immense sacrifice over generations.
5
Representative democracy undoubtedly lies at the heart of our
system of government, and needs resolutely to be defended.

Accountability of Parliament to the public is directly achieved
through regular general elections. Furthermore, we live in an
open
and democratic society in which everyone is free to criticise acts
and failures of government at all stages of the legislative
process. Yet the Constitution envisages something more.
True
to the manner in which it itself was sired, the Constitution
predicates and incorporates within its vision the existence
of a
permanently engaged citizenry alerted to and involved with all
legislative programmes. The people have more than the right
to
vote in periodical elections, fundamental though that is. And more
is guaranteed to them than the opportunity to object to
legislation
before and after it is passed, and to criticise it from the
sidelines while it is being adopted. They are accorded
the right
on an ongoing basis and in a very direct manner, to be (and to feel
themselves to be) involved in the actual processes
of law-making.
Elections are of necessity periodical. Accountability,
responsiveness and openness, on the other hand, are by
their very
nature ubiquitous and timeless. They are constants of our
democracy, to be ceaselessly asserted in relation to ongoing
legislative and other activities of government.
6
Thus it would be a travesty of our Constitution to treat democracy
as going into a deep sleep after elections, only to be kissed
back
to short spells of life every five years.
Although
in other countries nods in the direction of participatory democracy
may serve as hallmarks of good government in a political
sense, in
our country active and ongoing public involvement is a requirement
of constitutional government in a legal sense.
7
It is not just a matter of legislative etiquette or good
governmental manners. It is one of constitutional obligation.
Furthermore,
although the way in which the public is involved in legislative
processes will inevitably have a programmatic dimension
and grow
over time, the use of peremptory language in the Constitution,
8
read in the light of the foundational principles and the national
ethos of consultation referred to above, indicates that the
section
is intended to have immediate operational effect. The constantly
evolving means used to facilitate public involvement
are therefore
to be seen as the product of a constitutional duty placed on the
National Council of Provinces (NCOP), not as its
creators.
9
The
need to prioritise mainstream concerns in a country that still
cries out for major transformation, in no way implies that
only the
most numerous and politically influential voices of our diverse
society are entitled to a hearing. There will be many
individuals
and groups who in general might support the transformative
programmes of the ruling majority of the time, but who
might
disagree on this or that aspect of a proposed law. Others might
have more fundamental objections to the policies of the
ruling
parties. All will for differing reasons wish to have a say in
connection with proposed legislation.
A
vibrant democracy has a qualitative and not just a quantitative
dimension.
10
Dialogue and deliberation go hand in hand. This is part of the
tolerance and civility that characterise the respect for diversity
the Constitution demands.
11
Indeed, public involvement may be of special importance for those
whose strongly-held views have to cede to majority opinion
in the
legislature. Minority groups should feel that even if their
concerns are not strongly represented, they continue to be
part of
the body politic with the full civic dignity that goes with
citizenship in a constitutional democracy. Public involvement
will
also be of particular significance for members of groups that have
been the victims of processes of historical silencing.
It is
constitutive of their dignity as citizens today that they not only
have a chance to speak, but also enjoy the assurance
they will be
listened to. This would be of special relevance for those who may
feel politically disadvantaged at present because
they lack higher
education, access to resources and strong political connections.
Public involvement accordingly strengthens
rather than undermines
formal democracy, by responding to and negating some of its
functional deficits.
A
long-standing, deeply entrenched and constantly evolving principle
of our society has accordingly been subsumed into our
constitutional
order. It envisages an active, participatory
democracy. All parties interested in legislation should feel that
they have been
given a real opportunity to have their say, that
they are taken seriously as citizens and that their views matter
and will receive
due consideration at the moments when they could
possibly influence decisions in a meaningful fashion. The
objective is both
symbolical and practical: the persons concerned
must be manifestly shown the respect due to them as concerned
citizens, and the
legislators must have the benefit of all inputs
that will enable them to produce the best possible laws. An
appropriate degree
of principled yet flexible give-and-take will
therefore enrich the quality of our democracy, help sustain its
robust deliberative
character and, by promoting a sense of
inclusion in the national polity, promote the achievement of the
goals of transformation.
I
turn now to the question of remedy. I agree with Ngcobo J that the
facts in the present matter call for invalidation of the
two
statutes in question. The NCOP established the framework for
public involvement and then, simply because of time-tabling
difficulties, reneged on its commitments. Though there was no
question of intentional exclusion or other form of bad faith,
the
objective result was that sections of the public relying on those
commitments were unreasonably deprived of a promised opportunity.

The applicant had assiduously expressed an interest in making
representations in relation to both Acts. The Choice on
Termination
of Pregnancy Amendment Act
12
raised questions of intense concern to it. The applicant had a
right to be heard in the manner originally established by the
NCOP.
As far as the
Traditional Health Practitioners Act
13
is
concerned, applicant’s interest might have been relatively
tangential, but the record makes it clear that many traditional

healers themselves objected strongly to granting to and then the
withholding from them of a reasonable opportunity to have their
say.
For
decades, even centuries, traditional healers have been ignored and
even persecuted by various legislatures. If the stated
purpose of
the measure was to rescue them from marginalisation, their right to
an audience with the law-makers would have been
particularly
pronounced. More than just their dignity was involved. The
subject matter of the Act was new and they were peculiarly
well-situated to make inputs that could have had a direct effect on
policy, structures and implementation. Their involvement
in
law-making would have been a precursor to their later working
together as recognised health agents with hospitals and state
scientific bodies. Moreover, the nature of their work was closely
tied to the topography, flora and fauna of the areas in which
they
lived. They were in a position to contribute strong local
dimensions to the ideas and information being considered.

Consultation was especially called for at the provincial level,
where they would have the time and comfort to express themselves
fully and in a manner that appropriately conveyed regional
particularities to the legislators. This was legislative terrain
that clamoured for participatory democracy.
On
the facts of this case I accordingly agree with the orders of
invalidation made by Ngcobo J, subject to the terms of suspension
he provides for. In doing so I do not find it necessary to come to
a final conclusion on the question of whether any failure
to comply
with the constitutional duty to involve the public in the
legislative process, must automatically and invariably invalidate
all legislation that emerges from that process. It might well be
that once it has been established that the legislative conduct
was
unreasonable in relation to public involvement, all the fruit of
that process must be discarded as fatally tainted. Categorical
reasoning might be unavoidable. Yet the present matter does not,
in my view, require us to make a final determination on that
score.
New
jurisprudential ground is being tilled. Both the principle of
separation (and intertwining) of powers in our Constitution,
and
the notions underlying participatory democracy, alert one to the
need for a measured and appropriate judicial response.
I would
prefer to leave the way open for incremental evolution on a case by
case in future.
14
The touchstone, I believe, must be the extent to which
constitutional values and objectives are implicated. I fear that
the
virtues of participatory democracy
risk
being undermined if the result of automatic invalidation is that
relatively minor breaches of the duty to facilitate public
involvement produce a manifestly disproportionate impact on the
legislative process.
15
Hence my caution at this stage. In law as in mechanics, it is
never appropriate to use a steam-roller to crack a nut.
Having
made the above observations, I concur in the monumental judgment of
Ngcobo J, with which I am proud to be associated.
VAN DER WESTHUIZEN J:
Having
read the judgments produced by my colleagues Ngcobo J, Sachs J and
Yacoob J, I concur in the judgment of Yacoob J. I wish
to very
briefly state my reasons for doing so.
The
judgment of Ngcobo J is comprehensive, detailed and impressive in
many ways. I am deeply grateful for and appreciative of
the massive
amount of work he has done, with contributions from other
colleagues. I hesitate to characterise or summarise the
work of a
colleague – especially a judgment of this length – yet I
appreciate the broad and wide ranging approach followed
in the
judgment. Against the background of the role and function of
Parliament, and of the National Council of Provinces (NCOP)
in
particular, the right to political participation under foreign and
international law and the nature of our constitutional
democracy,
it investigates the meaning and scope of the duty to “facilitate
public involvement”, as captured in the words
of section 72(1)(a)
of the Constitution. It states that Parliament must be given a
significant measure of discretion in determining
how best to fulfil
the duty to facilitate public involvement and proposes the standard
of reasonableness as the yardstick to
test the conduct of
Parliament. It stresses that reasonableness is an objective
standard which is sensitive to the facts and
circumstances of each
case. After thoroughly sifting through facts, it concludes that
Parliament has failed to comply with its
constitutional obligation
to facilitate public involvement before passing the Choice on
Termination of Pregnancy Act 38 of 2004
and the
Traditional Health
Practitioners Act 35 of 2004
and that these two Acts are thus
invalid.
The
sentiments expressed by Sachs J in support of the judgment by
Ngcobo J are indeed seductive because the judgment is so
characteristically
well-written. Sachs J emphasises the special
meaning that participatory democracy has come to assume in South
Africa and relies
on the constitutional matrix as justification for
his views. He issues a welcome word of caution against automatic
invalidation
of legislation though, because it is never appropriate
to use a steam-roller to crack a nut.
As
opposed to the majority approach, the judgment of Yacoob J focuses
more narrowly on the wording and structure of the Constitution,
but
also on historical, international and other contextual factors. My
reasons for agreeing with the approach of Yacoob J may
amount to
repetition and perhaps over-simplification of some of the contents
of his judgment, but include the following:
I whole-heartedly and enthusiastically agree with the majority
position on the enormous desirability and importance of public
involvement for our democracy. I am moved by Sachs J’s
references to its ancient origins in our country and to its
creative
potential. Regular elections and a multi-party system of
government are indeed fundamental for but not exhaustive of our
constitutional
democracy. In short, I strongly believe that
section 72(1)(a) (as also sections 59(1)(a) regarding the National
Assembly and
118(1)(a) regarding provincial legislatures) has to
mean something concrete. I am convinced that section 72(1)(a)
creates a
constitutional obligation, which must be fulfilled.
However, all of this does not mean that the provision is
constitutionally
intended to result in specific legislation being
declared invalid by this Court.  The wording of subsection
(1)(a), the
structure of section 72 as a whole, and its location
within the broader constitutional scheme strongly suggest
otherwise. I
have to interpret the Constitution, contextually and
purposively of course, but on the basis of what it says, as far as
I am
able to ascertain this, untainted by my own creative vision of
our democracy, or any scepticism I might have concerning
politicians
in South Africa and elsewhere in the world, or any
other perhaps justifiable or understandable ideal or ideology.
First, I have regard to the structure of the Constitution. Section
72 is not located under the very clear heading “National
Legislative Process” in Chapter 4 of the Constitution, in which
all Bills, constitutional amendments, Bills affecting and not
affecting provinces and money Bills are dealt with, together with
assent to Bills and the publication and safekeeping of Acts
(in
sections 73 to 82). It appears under the general provisions
regarding for example the composition of the NCOP, its sittings
and
its internal arrangements (as does section 59 with regard to the
National Assembly). As is stated in the judgment of Yacoob
J, it
is indeed inexplicable why, if the constitutional purpose was to
include a specific requirement of public involvement as
part of the
legislative process, this measure was not built into the
legislative process. Why would all other steps in the legislative
process be clearly set out in detailed provisions under the
appropriate heading, but not this one? The obligation stated in
section 72 is thus not a step in the legislation process, or a
specific requirement for the passing of every Bill.
Next, there is the wording of section 72(1)(a). The presumably
conscious choice of the words “facilitate” (which means to
enable or make easier), instead of for example “is required to
take into account” or “ensure” or even “promote”,
and of
“public involvement” instead of specifically referring to
“proposals” or “submissions from the public” or
“public
hearings”, clearly implies a considerable degree of generality
and softness, rather than a specific requirement.
Section 69 in
any event deals with evidence or information before the NCOP and
states amongst other things that the NCOP or
any of its committees
may receive petitions, representations or submissions from any
interested persons or institutions.
As pointed out in the judgment by Yacoob J, it may not be very
helpful to theorise about the exact meaning of labels like
“participatory”
as opposed to “representative” democracy.
(It reminds one of the debate about whether our Constitution is
“egalitarian”
or “libertarian” in nature, in view of
the fact that both equality and freedom are recognised in the Bill
of Rights
and in section 36 in particular.) Characterising and
labelling a dispensation is to a large extent the function of
academics
and other analysts. Most modern democracies have both
representative and participatory elements, often inter-twined and
overlapping,
and so does ours.
The right of every citizen to vote for representatives in
Parliament and in provincial legislatures in regular elections in a
multi-party system of democratic government is of paramount
importance in present-day democratic states, including ours.
Therefore
it is recognised not only in section 19 as a fundamental
right, but also in section 1 as a founding value. For all its
known
flaws, parliamentary representation based on regular
elections is the basis of government’s authority to legislate.
Both the
majority and minority positions refer to our shameful
apartheid past to justify the historical importance of
participatory and
representative elements in our democracy.
Socially, economically and otherwise apartheid was of course the
exclusion of the
majority of South Africans from meaningful
participation in virtually every sphere of life; indeed from
recognition as human
beings with inherent dignity. Therefore they
were excluded from decision-making processes. But legally,
constitutionally and
politically apartheid was above all the denial
of the right to vote for representatives of one’s choice in
general elections.
The apartheid rulers could still afford to have
imbizos, lekgotlas, bosberade and indabas with traditional leaders
and interest
groups and, in fact, had some. They could, after all,
ignore the inputs made. They could never afford to have fair and
free
general elections.
The proposed standard of reasonableness as a measure for a court to
judge parliamentary processes is a matter of some concern.
First –
as pointed out in the judgment by Ngcobo J – the concept of
reasonableness expressly appears in a number of provisions
of the
Constitution. It features in section 36 as a part of the test for
the limitation of rights. With regard to the socio-economic
rights
recognised in sections 26 and 27 “reasonable legislative and
other measures” have to be taken by the state. This
phrase is of
course linked to others in the same provisions, namely “within
[the state’s] available resources” and “progressive
realisation” and accords with international human rights law.
Administrative action also has to be reasonable (section 33).

Reasonableness even appears in sections 72(1)(b) and 72(2) to
describe the measures that may be taken to regulate access to
and
provide for security at NCOP sittings. For this very reason its
absence in section 72(1)(a) cannot be ignored. Secondly,
it is one
thing to utilise and develop reasonableness as a test in, for
example, the law of delict and other private law areas,
where
concepts such as the reasonable person and objective reasonableness
are well known, with a jurisprudence of many years
behind them. It
is another to create it as a test which a court applies to judge
the conduct of Parliament, based on a constitutional
provision
which does not mention it. As a yard-stick for the concrete and
formal process of passing legislation it is too open
to different
interpretations, and not specific enough. It may just leave too
much to judicial discretion. In this matter Ngcobo
J holds that
the failure by the NCOP to hold public hearings was unreasonable,
in view of the fact that hearings were determined
to be appropriate
and expressly promised. This regrettable conduct on the part of
the NCOP rendered it not difficult to arrive
at a negative
conclusion, but the principle remains bothersome.
It follows from the above that I am concerned about the separation
of powers, which is crucial in any democracy and probably
more so
in a young one. Judicial restraint is important for the
preservation of democracy and constitutionalism, as judicial
activism also is under circumstances when it is called for. The
judgment of Ngcobo J recognises the importance of the separation
of
powers and I am in agreement with much of what is said in this
regard. It is stated that when it is appropriate to do so,
courts
may – and indeed must – use their powers to make orders that
affect the legislative process. I agree. But I am not
persuaded
that it is either necessary or appropriate to do so in this case.
If the approach in the minority judgment is logically
and
constitutionally at least as defensible as the majority approach,
the former must perhaps be preferred, out of respect for
the
separation of powers.
The interpretation proposed by the minority does not amount to a
weak and deferential view of public involvement. It does not
suggest that the attention dedicated by the Constitutional Assembly
to promoting public involvement in law-making represented
little
more than a rhetorical flourish on its part. It rather represents
a realistic view of meaningful public involvement,
based on the
wording and structure of the Constitution, interpreted not only
literally, but also contextually and purposively.
It does not render section 72(1)(a) and its sister provisions
meaningless, or not enforceable. They are clearly justiciable.

The justiciability is dealt with in the judgment by Yacoob J. In
short, the rules of the NCOP (as also the National Assembly
and
provincial legislatures) must firstly “facilitate public
involvement”. If not, there would indeed be a failure to fulfil
a constitutional obligation on the part of the relevant
institution. The rules would be unconstitutional and this Court
will
declare as much. (I am not sure that it would be necessary to
search for a standard or test, now or on another day, and in any
event end up with a term like reasonableness, which we will again
have to interpret. The Court has to interpret the phrase

“facilitate public involvement”, as courts have to interpret
language all the time to the best of its ability.) Secondly,
if an
individual seeks to be heard or to be otherwise involved in the
legislative process, within the scope of the rules, and
is barred
in breach of the rules, she or he would certainly be able to
approach a court for appropriate (even urgent when necessary)
relief.
The minority position is not only justified by the interpretation
of the Constitution, but also preferable for the ideal of

democracy, and specifically for a meaningful and practically
achievable understanding and harmonisation of the participatory and
representative components of our democracy. While I recognise the
considerable scope perhaps left by the majority for discretion
on
the part of legislatures, I would prefer not to have to judge
whether the refusal of members of Parliament – in their

deliberation of any particular piece of legislation – to afford a
specific individual or organisation an opportunity to be heard
was
reasonable, and to do so in view of a range of factors, including
the importance of legislation (presumably measured against
other
legislation, raising the question whether any legislation is
unimportant) and the intensity of its impact on the public,
or the
monetary affordability of certain measures. I do not necessarily
know how I might respond if members of the legislature
decide to
pursue the policies of their political party and in the process
reject or ignore submissions made to them by a member
of the
public, which I may regard as eminently more reasonable. If the
will of the Parliamentary majority will in the end mostly
prevail
in any event, and all that is required is to “involve” the
public by for example mechanically holding public
hearings for every piece of legislation – or to make sure that
hearings are not promised as in this case – participatory
democracy
would appear to be quite cosmetic and empty, in spite of
any idealistic and romantic motivation for promoting it.
Therefore
I am regrettably unable to support the judgment of Ngcobo J in
which the majority of my colleagues concur.
YACOOB J:
Introduction
I
had the benefit and pleasure of reading the comprehensive and
ground-breaking judgment of Ngcobo J. I regret however that I
find
myself unable to agree. It is unfortunately not possible to
summarise our differences in any meaningful way. Our respective
approaches are so different that it is advisable that I set out my
reasons for the conclusion that section 72(1)(a) of the

Constitution does not require that there be public involvement as a
prerequisite to the validity of legislation passed pursuant
to
section 76 of the Constitution. The reasoning and conclusion will
be set out without referring to any specific parts of the
judgment
of Ngcobo J with which I disagree.
This
case raises fundamental and difficult issues. They concern the
nature of the democracy created by our Constitution, the
respective
constitutionally appropriate
roles
and powers of duly elected legislators and the public in general in
the process of enacting a law, as well as the nature of
the public
involvement component and this Court’s role in relation to it. It
is necessary, in particular, to decide whether
the National Council
of Provinces (NCOP) and some provincial legislatures are in default
of their duty to “facilitate public
involvement” in their
legislative processes
1
because they failed to give to the public an opportunity to comment
on certain Bills before they were passed. There is also, however,
a
preliminary matter of jurisdiction concerned with whether the case
raises an issue which only this Court can decide. The issue
arises
because it is alleged that Parliament failed to fulfil
constitutional obligations imposed upon it by section 167(4)(e) of
the Constitution. It is also necessary to pay some attention to the
circumstances in which this Court will make an order that
Parliament
has failed to comply with its constitutional obligations.
Doctors
for Life International (DFL) applies to this Court:
“
for a declaration (pursuant
to sections 167(4)(e), 167(6)(a) and 172(1)(a) of the Constitution
that:
Parliament has failed to fulfil
its constitutional obligations pursuant to sections 72(1)(a) and
118(1)(a) in that the National
Council of Provinces and the nine
Provincial Legislatures have failed properly or at all to facilitate
public involvement in their
legislative and other processes in
respect of the following four Bills which the Council purported to
pass in plenary session on
the 2
nd
and 4
th
days of November 2004”.
The
four Bills in respect of which the failure to facilitate public
involvement is the cause of complaint are concerned with certain
health matters and are referred to collectively as the Health
Bills.
2
DFL also requests this Court to make
“
such other order or orders
as shall be just and equitable including an order for costs.”
DFL
is described in the founding affidavit as a non-profit organisation
with a large membership of medical professionals. It
is active in
various humanitarian projects concerned with HIV AIDS sufferers,
harmful substance abuse and victims of abuse and
prostitution. In
additions the affidavit points out that the “association is also
committed to upholding the Constitution
and the law in all matters
relating to health.”
The
Minister of Health (Minister) was joined in the proceedings shortly
after they were instituted. None of the speakers of the
provincial
legislatures had however been joined in the proceedings although
non-compliance by the provincial legislatures with
section
118(1)(a) of the Constitution had been raised. In the result, the
case was adjourned at the first hearing on the basis
that the
speakers of the relevant legislatures should be joined and given
the opportunity to take part in the proceedings. Ultimately,
the
Minister, the speaker of the National Assembly as well as all the
speakers of the provinces opposed the application. They
are
collectively referred to as respondents. Several sets of
directions were issued and the parties were in the end required
in
addition to making submissions on the merits of the matter to
furnish argument concerning the following questions:
3
whether
the obligation to “facilitate public involvement” was an
obligation within the meaning of section 167(4)(e) of the
Constitution;
whether
any relief other than a declaration of invalidity would be
competent if the process followed was inconsistent with the
Constitution;
when
it would be appropriate for a court to intervene in a case where
the process followed by Parliament is inconsistent with
the
Constitution.
Issue
(a) in the previous paragraph was relevant in relation to
jurisdiction because section 167(4)(e) of the Constitution provides
that only this Court may decide whether Parliament has failed to
fulfil a constitutional obligation. As will more fully appear
from
this judgment, because of the view I take in this matter it is
unnecessary for this judgment to make any finding in relation
to
issue (c).
As
I have already mentioned, the merits of the case are concerned with
whether the NCOP complied with the duty to facilitate public
involvement in its legislative and other processes. The factual
basis for DFL’s claim is the failure of the NCOP and the

provincial legislatures to have public hearings as part of the
process by which each of the Bills was passed. It became common
cause that neither the NCOP nor the majority of the provincial
legislatures have held public hearings in relation to any of the
Bills. Accordingly there is no factual dispute. The following
issues are therefore considered in this judgment:
whether
this is the only court with jurisdiction;
whether
the provisions of section 72(1)(a) were contravened; and, if so
whether
the health legislation should be declared invalid.
Is
this the only Court with jurisdiction?
Section
167(4) of the Constitution reserves certain matters for the
exclusive jurisdiction of this Court. Subsection (e) provides
that
only this Court may “decide that Parliament or the President has
failed to fulfil a constitutional obligation”. This
would be the
only court with jurisdiction therefore if this case is about the
fulfilment of a constitutional obligation. The
Constitution
imposes a duty on Parliament and the President to act lawfully. A
broad construction of this phrase would result
in this Court being
the only court with jurisdiction in all cases in which Parliament
or the President act in a manner that is
inconsistent with any law
including the Constitution. Furthermore, a broad approach to the
interpretation of section 167(4)(e)
has implications for the way in
which the tension between this subsection and those provisions that
empower the Supreme Court
of Appeal and the High Court to decide on
the constitutional validity of an Act of Parliament is resolved. A
broad meaning might
include all constitutional obligations
including those that must be complied with for validity and would
negate or improperly
attenuate the jurisdiction of the Supreme
Court of Appeal and the High Court to decide on the constitutional
validity on Acts
of Parliament. It is for these reasons that this
approach was roundly rejected in
Sarfu 1
4
in which it was held that the term “constitutional obligation”
should be given a narrow meaning so as to avoid a conflict
between
section 167(4)(e) and the provisions which confer jurisdiction on
the Supreme Court of Appeal and the High Court to adjudicate
upon
questions concerning the validity of an Act of Parliament. The
exact limits of the meaning of the phrase was left undetermined
in
Sarfu 1
.
5
To ascertain the meaning to be ascribed to this term it is
necessary to go back to section 2 of our Constitution which
provides:
“
This Constitution is the
supreme law of the Republic; law or conduct inconsistent with it is
invalid, and the obligations imposed
by it must be fulfilled.”
It
is apparent that the Constitution makes reference to three ways in
which its provisions may be infringed. The first is law
which is
inconsistent with the Constitution. All law which is inconsistent
with the Constitution is invalid. The second refers
to conduct.
All conduct inconsistent with the Constitution is also invalid.
The third is a failure to fulfil the obligations
imposed by it. No
invalidity is expressly provided for consequent upon the failure to
fulfil a constitutional obligation, and
the provision implies that
where obligations are not complied with the appropriate relief
would ordinarily entail fulfilment
of these obligations. In broad
terms, this provision of the Constitution makes a clear distinction
between law and conduct on
the one hand and obligations on the
other. This is an indication that the use of the phrase
“constitutional obligation”
in section 167(4)(e) is a reference
to obligations that must be fulfilled and not to law or conduct
that is invalid.
This
distinction is followed through elsewhere in the Constitution. As
I have already pointed out, the Constitution empowers
the Supreme
Court of Appeal, a High Court or a court of similar status to make
an order concerning the constitutional validity
of an Act of
Parliament, a Provincial Act, or any conduct of the President
subject to confirmation of orders of invalidity by
this Court
6
but requires only this Court to determine whether Parliament or the
President has fulfilled a constitutional obligation. Any
court
with jurisdiction “must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the
extent of the
inconsistency”.
7
At the textual level, therefore the distinction between law or
conduct on the one hand and the fulfilment of obligations on
the
other implies a distinction between obligations that are a
pre-requisite to the validity of law or conduct and those
obligations
that are not necessarily so.
The
fulfilment of an obligation is a pre-requisite to validity only if
the failure to fulfil that obligation will necessarily
result in
the invalidity of the law or conduct concerned. If, for example, a
court holds that an obligation that has not been
fulfilled is
essential to the validity of some conduct or a particular law, it
cannot simply direct that the obligation must
be fulfilled. A
court has no power to do anything but to declare the law or conduct
in issue invalid.
8
On the other hand, if the obligation concerned is not essential to
the validity of law or conduct, the fact that the obligation
is not
fulfilled does not lead inexorably to the invalidity of the
provision concerned. A court may decide that the obligation
has
not been fulfilled and may direct that the obligation be fulfilled
in compliance with section 2 of the Constitution. A court
has no
discretion to declare law or conduct inconsistent with the
Constitution if the failure of the obligation does not result
in
invalidity. Law or conduct is either constitutionally valid or
constitutionally invalid. Courts can neither refrain from
declaring a law or conduct invalid when it is nor declare law or
conduct invalid when it is in fact not.
There
is an inter-relationship between the invalidity of conduct and the
invalidity of law. Conduct that is inconsistent with
the
Constitution and invalid can result in an invalid law. That would
happen where for example the Constitution requires certain
conduct
in order to pass a law validly. If the conduct of Parliament falls
short of what is required by the Constitution, the
conduct and the
resultant law would be invalid. Here too the court has no choice
but to declare the conduct invalid for lack
of consistency with the
Constitution. The law itself though will not be inconsistent with
the Constitution as envisaged by section
172(1) of the
Constitution. The law will be invalid because the conduct that
produced it is invalid. An important issue connected
with the
relationship between the invalidity of conduct and the invalidity
of law is whether conduct that is inconsistent with
the
Constitution may be so grave and may be connected to the fulfilment
of an obligation of such importance that a court has
the power to
declare invalid the consequent law even though the conduct by which
the law was adopted cannot be said to be invalid.
This issue will
arise later in this judgment.
The
judgment of the Supreme Court of Appeal in
King
9
must be considered against this background. The appellants in that
case challenged the validity of an Act of Parliament on the
basis
that the National Assembly failed to comply with the constitutional
public involvement provision imposed upon it
10
because it had not consulted with the public sufficiently. The
judgment makes it clear that the appeal in that court focused
“only
on statutory invalidity alleged to arise from breach of a
constitutional obligation. We are thus not asked to consider
any
questions concerning the breach of a constitutional obligation
falling short of this consequence.” I might explain that
the
appellant in
King
did not require fulfilment of a
constitutional obligation. The Supreme Court of Appeal recognised
the tension between section
167(4)(e) and those provisions which
empower the High Court and the Supreme Court of Appeal to consider
the validity of an Act
of Parliament
11
and acknowledged the statement in
Sarfu 1
that the exclusive
jurisdiction provision is aimed at preserving comity between the
courts on the one hand and the legislature
and executive on the
other.
12
It concluded however that an approach that renders all claims of
invalidity, regardless of their basis subject to the jurisdiction
of the High Court and the Supreme Court of Appeal “impermissibly
attenuate[s] the jurisdictional exclusion in s 167(4)” and
found
it necessary to distinguish between different ways in which
invalidity might result in order to resolve the invalidity
obligation tension in the Constitution.
13
Three
possible ways in which invalidity might result were then traversed
in the judgment.
14
The
first was where the content of the constitutional provision was
inconsistent with the Constitution as for example where
a
provision of the Bill of Rights was infringed. The court held
that in that kind of case, even if the invalidity was the
result
of the failure of Parliament to comply with a constitutional
obligation, the High Court and Supreme Court of Appeal
were
empowered to make an order of constitutional invalidity.
15
The
second category concerned invalidity as a result of the fact that
the manner and form provisions of the Constitution have
not been
complied with.
16
The Supreme Court of Appeal reasoned that although manner and
form provisions will in the most instances be those that define
conditions for the exercise of power (capacity-defining), they
could also impose obligations that must be complied with as
pre-requisites to validity (obligation driven).
17
It concluded in this regard however that the Supreme Court of
Appeal and the High Courts have the power to make declarations
of
invalidity consequent upon manner and form deficiencies regardless
of whether these deficiencies were capacity-defining
or obligation
driven.
The
Court went on to “accept that a third route might also lead to
invalidity where Parliament so completely fails to fulfil
the
positive obligation the Constitution imposes on it that its
purported legislative acts are invalid”.
18
The Supreme Court of Appeal conceived that this category might
exist but distinguished this kind of invalidity from manner
and
form invalidity. The hypothetical posed by that court was defined
in this way:
“
if . . . members of the
National Assembly were to convene in secret or at an undisclosed
venue, it is not hard to imagine that it
might be held that this was
not Parliament functioning as contemplated in the Constitution at
all, and that consequently ‘legislation’
the persons so
assembled purported to adopt lacked constitutional validity.”
19
I
agree with the Supreme Court of Appeal that that court and all High
Courts have jurisdiction in all cases of invalidity of statutory
provisions based on the contention that their content is
inconsistent with the Constitution. Subject to a qualification, I

also agree that this Court does not have exclusive jurisdiction in
terms of section 167(4)(e) in cases that require consideration
of
validity on the basis that the manner and form provisions of the
Constitution have not been complied with and that it does
not
matter whether manner and form provisions are capacity-defining or
obligation driven. My reservation is that invalidity
of
legislation in fact results from the invalidity of conduct of
Parliament or the President when manner and form provisions
are
involved.
Implicit
in the judgment of the Supreme Court of Appeal is the proposition
that, subject to the hypothetical situation referred
to in the
third category described above, the obligation imposed by section
59(1)(a) while an obligation within the meaning of
section
167(4)(e) is not an obligation that can properly be classified as a
pre-requisite for the validity of legislation. In
other words it
is not a manner and form provision. I agree with this proposition
but have considerable difficulty with the contemplated
hypothetical
that might constitute the third category. It will be necessary to
elaborate on this later but it is enough to say
at this stage that
the hypothetical is a clear contravention of the provisions that
require both the National Assembly and the
National Council of
Provinces to “conduct its business in an open manner, and hold
its sittings and those of its committees
in public” subject to
reasonable measures regulating access.
20
In my view, this is a manner and form provision and all laws
adopted without complying with these provisions would be
necessarily
invalid consequent upon the invalidity of the conduct
of the National Assembly or the National Council of Provinces that
passed
these laws. It is however not necessary to decide in this
part of the judgment whether there are constitutional provisions
that
impose obligations on Parliament which might result in certain
circumstances in the invalidity of legislation even though they
are
not manner and form provisions in the sense of being pre-requisites
to the validity of conduct of a legislative body in passing
a law.
In
my view, the question whether a particular case is governed by
section 167(4)(e) or section 172(2) is in essence determined
by the
nature of the case the applicant makes out or the primary focus of
that case. If the primary focus is the invalidity
of the
legislation and the non-fulfilment of an obligation is no more than
the route to get there - in other words if the case
made out is
that a law is invalid because an obligation-driven pre-requisite
for the valid passing of legislation has not been
complied with or
the failure to fulfil an obligation results in the law being
inconsistent with the Constitution - then the focus
of the case is
the constitutional validity of the conduct of Parliament. This
Court will in that event not be charged with exclusive
jurisdiction. If on the other hand the essence of the applicant’s
case is that a constitutional obligation has not been complied
with, this will be the only Court that will have jurisdiction.
This does not mean that this Court is the only Court with
jurisdiction
to decide whether a case falls within the bounds of
section 167(4)(e) or not. If, for example, an applicant asks the
High Court
to declare conduct invalid on the basis that some
obligation has not been complied with and the defendant raises the
point that
the applicant’s case is in fact caught by section
167(4)(e), the High Court may determine the issue. The position is
however
different where the applicant starts a case on the basis
that section 167(4)(e) has not been complied with. This is the
only
Court that has jurisdiction to determine that issue.
And
this is so regardless of the nature of the obligation. It can make
no difference logically or otherwise whether the obligation
imposed
upon Parliament is readily ascertainable or whether Parliament must
in the first instance determine its reach. The Constitution
imposes an obligation on Parliament to pass legislation in relation
to certain matters. Although the content of the legislation
is
within Parliament’s discretion the obligation to pass that law is
readily ascertainable. In these circumstances it is my
view that,
this Court will be the only Court with jurisdiction to order that
Parliament must fulfil that obligation or to declare
that
Parliament has not fulfilled the obligation to pass the
legislation. If, however, legislation is passed by Parliament to
comply with the relevant provision, even though Parliament must
make the first determination in relation to what the content
of
that legislation should be, this will not be the only court with
jurisdiction in a claim for invalidity of the law concerned
based
on content inconsistency. The only material distinction is whether
the case is about the invalidity of law or conduct
or whether it is
about the fulfilment of an obligation that is not necessarily
concerned with the invalidity of law or conduct.
Only this Court
can make an order either declaring that Parliament has not
fulfilled a constitutional obligation or ordering
Parliament to
fulfil that obligation. The sensitive political area is the
finding that Parliament has not fulfilled an obligation
imposed
upon it by the Constitution. Invalidity of law or conduct is not
as sensitive.
It
is necessary therefore to look at the nature of the case made out
by DFL. The starting point of that case is the order sought,
which
is repeated for convenience:
“
for a declaration (pursuant
to sections 167(4)(e), 167(6)(a) and 172(1)(a) of the Constitution
that:
Parliament has failed to fulfil
its constitutional obligations pursuant to sections 72(1)(a) and
118(1)(a) in that the National
Council of Provinces and the nine
Provincial Legislatures have failed properly or at all to facilitate
public involvement in their
legislative and other processes in
respect of the following four Bills which the Council purported to
pass in plenary session on
the 2
nd
and 4
th
days of November 2004”.
As
appears from the order sought by DFL, its claim is limited to a
declaration that Parliament has failed to comply with its section
167(4)(e) obligation. There is no claim for any declaration of
invalidity of the conduct of Parliament, nor any claim that the
resultant law is on that basis invalid. It is true that section
172(1)(a) of the Constitution is referred to in the order but
the
reference to that section is in my view a patent error being
intended as a reference to section 72(1)(a) of the Constitution
which is a pillar of the case contended for by DFL and which is not
mentioned in the order sought at all. Indeed the reference
to
“public involvement” in the order is a reference to section
72(1)(a) and not to section 172(1)(a). Secondly the prayer
for a
“just and equitable order” cannot be a claim for invalidity.
Invalidity has nothing to do with a just and equitable
order; if a
law is invalid it must be declared to be invalid.
The
affidavits filed on behalf of DFL do not make out a case for
invalidity either. The thrust of their case is that the
constitutional
obligations must be fulfilled. The directions
issued by this Court including the following question on which the
parties were
asked to present argument:
“
if the process followed by
Parliament is inconsistent with the Constitution, what is the
appropriate relief, in particular, is there
appropriate relief other
than a declaration of invalidity?”
21
The
argument submitted by DFL pursuant to these directions took the
view, in support of the contention that a court should and could
intervene at any time during the legislative process in relation to
a failure during that process that the absence of “public
involvement” would result in inevitable invalidity. The approach
taken in argument softened somewhat and conceded that
“
this is a case where the
public interest and the interests of justice require that the
declaration
simpliciter
should be granted if the Court does
not strike down the Act.”
Despite
this the notice of motion was never amended. This is accordingly a
case in which apart from suggestions in argument about
invalidity,
the applicant required an order declaring that the obligations had
not been fulfilled. It was therefore never an
invalidity case. In
any event, only this Court can make an order to the effect that
Parliament has not fulfilled the obligations
imposed upon it by the
Constitution. Section 167(4)(e), in my view, prohibits any other
court from doing this. This Court would
therefore be the only
court with jurisdiction even if an order of invalidity was sought
in addition to a declaration in relation
to the failure to fulfil a
constitutional obligation. There was no order requiring fulfilment
of the obligations of the National
Assembly in
King
and it
is therefore arguable that
King
was in reality not a section
167(4)(e) obligation case but a validity case. This judgment must
not be understood to approve
the conclusion in that case that only
this Court had the power to adjudicate it.
A
literal approach to constitutional interpretation might yield the
result that the obligation in question here is not covered
by
section 167(4)(e). The argument would proceed: that section
167(4)(e) refers to obligations imposed on Parliament while section
72(1)(a) which is central to the applicant’s case, as I have
already said, imposes obligations on the National Council of

Provinces. But the National Council of Provinces is part of
Parliament and in a political hierarchical sense no different from
Parliament. The contention that only this Court may pronounce upon
whether Parliament as a whole has fulfilled its obligations
and
that all other courts may decide this question if it concerns the
National Assembly or the National Council of Provinces
makes little
sense in relation to the purpose of the provision. I conclude
therefore that no other court has jurisdiction to
determine this
case which requires a decision whether Parliament has fulfilled the
constitutional obligation contemplated in
section 167(4)(e) and
imposed upon the National Council of Provinces by section 72(1)(a).
The
obligation to facilitate public involvement
The
applicant requires an order to the effect that the NCOP has failed
to fulfil the obligation to facilitate public involvement
in the
process of the passage of the Health Bills. A declaration to this
effect can be made with justification only if DFL establishes
that
the section, properly interpreted, obliges the NCOP to have a
public hearing either in the NCOP or in the provinces or to
give
the public an opportunity to comment on each Bill at some stage
before it is passed. If this is established, the applicant
must
succeed. The question would then arise whether an appropriate
order is simply a declarator or whether invalidity should
follow.
I may say at this stage that invalidity would follow only if it can
be said that it is a pre-requisite to constitutional
validity for
the public to be heard or to be given an opportunity to comment.
I
must clarify the nature of the enquiry before us. We are concerned
neither with the merits or demerits of participatory or
representative democracies, nor with what in our view would be the
ideal balance between participation and representation in
our
democracy. This Court must determine what the Constitution
requires. Equally this case has nothing to do with the views
of
the members of this Court in relation to whether public involvement
is necessary in a democracy, that public participation
would lead
to better legislation, that it would be unfair to pass legislation
without public hearings or that it is desirable
for the public to
be given an opportunity to be consulted. I may have answered many
of these questions in the affirmative but
all we must decide is
what our Constitution requires in relation to public involvement.
It is true that the Constitution must
be interpreted in relation to
the international context but the words of the Constitution must
not be lost sight of within that
context.
The
provisions must be interpreted in their textual and historical
context.
22
The characteristics of the democracy contemplated by our
Constitution fall to be considered first. I then consider the
meaning
and effect of the public involvement provision in our
Constitution and refer to the historical context where appropriate.
Our
constitutional democracy: characteristics
It
is necessary to be acutely aware in the process of this analysis
that it is not concerned with the investigation of a democracy
at
the level of abstraction but rather to determine the place of
“public involvement” within our constitutional democracy.
This
is a different enquiry than one into the place of “public
involvement” in theory in relation to the concept of democracy.
It
is perhaps an oversimplification to speak of a participatory
democracy on the one hand and a representative democracy on the
other. Our democracy can be described neither as participatory nor
representative. It has, like most democracies both participatory
and representative elements. It would also be a mistake, in my
view, to conclude that a democracy has participatory elements
only
if it permits a level of direct public involvement in the
legislative process. In other words, democracies that permit
a
measure of direct public involvement are not the only democracies
with participatory elements in them. The place of public
involvement in our democracy can be ascertained by looking at the
relationship between representative and participatory elements
in
our constitutional democracy. The meaning of public involvement
must be determined in that context.
The
starting point in determining the balance in our constitutional
democracy between participatory and democratic elements is
section
1 of the Constitution which provides:
“
1. The Republic of South
Africa is one, sovereign, democratic state founded on the following
values:
(a) Human dignity, the
achievement of equality and the advancement of human rights and
freedoms.
(b) Non-racialism and
non-sexism
(c) Supremacy of the
constitution and the rule of law.
(d) Universal adult suffrage, a
national common voters roll, regular elections and a multi-party
system of democratic government,
to ensure accountability,
responsiveness and openness.”
South
Africa is a democratic state founded on certain values. The only
value which provides information about the participatory
and
representative elements of our democracy and public involvement is
the value set out in section 1(d). Four ingredients of
democracy
are mentioned: universal adult suffrage, a national common voters’
roll, regular elections and a multi-party system
of democratic
government. The object of all these elements of democracy is to
ensure accountability, responsiveness and openness.
The first
three elements emphasise a participatory aspect of democracy. They
imply that every person should have the right
to vote in elections
held regularly and to be registered on a national voters’ roll
precisely for the purpose of being able
to exercise that right.
The multi-party democracy aspect is the first pointer to the
representative nature of the democracy
contemplated in our
Constitution. It implies that our democracy requires citizens to
vote for members of a political party who
would represent them.
Public
involvement in the legislative process is not mentioned at all as
an essential principle of the Constitution. It has been
suggested
that the phrase “to ensure accountability, responsiveness and
openness” entrenches some public involvement element.
I do not
agree. The phrase simply signifies the broad objective of having a
universal franchise, a national voters’ roll,
regular elections
and a multi-party system of democracy. The phrase certainly does
not add any public participation component
or public involvement
element. It does however require all representatives to be
accountable, responsive to peoples’ needs,
and open in the way in
which they perform their representative functions. Moreover these
elements of democracy have been entrenched
in the Constitution to
the extent where they may only be altered by a seventy five percent
vote in the National Assembly and
a positive vote of six
provinces.
23
No element of democracy concerning public involvement has been
entrenched in this way.
The
participatory and representative elements suggested in section 1 of
our Constitution are meaningfully reinforced by the way
in which
political rights are entrenched in section 19 of the Constitution.
Section 19 provides:
“
(1) Every citizen is free to
make political choices, which includes the right-
(a) to form a political party;
(b) to participate in the
activities of, or recruit members for, a political party; and
(c) to campaign for a political
party or cause.
(2) Every citizen has the right
to free, fair and regular elections for any legislative body
established in terms of the Constitution.
(3) Every adult citizen has the
right-
(a) to vote in elections for
any legislative body established in terms of the Constitution, and
to do so in secret; and
(b) to stand for public office
and, if elected, to hold office.”
Subsection
(1) contains decisive participatory elements. It emphasises the
importance of the fundamental freedom to make political
choices and
gives all citizens the right to join political parties and to
participate in their activities, as well as to recruit
membership
and campaign for them. Every citizen also has the right to
campaign for any cause outside a political party.
These
rights must be understood against the background of the fact that
our Constitution at the national and provincial level,
generally
speaking embodies a system of political representation in terms of
which political parties are the only entities represented
in
national and provincial legislatures. The citizen’s right to
participate in the activities of a political party is the
route by
which any citizen would, in a real way, be able to bring influence
to bear on the way in which that representative performs
her
functions in the relevant legislature. In this sense the right
places an obligation on political parties to ensure that
they take
account of what members say within their structures. This is how a
multi-party system of democracy ensures accountability,
responsiveness and openness. I emphasise again that the use of
this phrase has little to do with public involvement: it is

pre-eminently concerned with accountability within the multi-party
framework. Section 19(1) demonstrates this conclusively.
Subsections
(2) and (3) emphasise the importance of elections, the right to
vote, and the right to stand for and hold public office.
They
demonstrate again that a person has the right to participate by
voting and standing for public office, that the voter has
the right
to be represented and that the person who stands for public office
has the duty to represent.
The
importance of voting and appropriate representation is also
emphasised by the establishment of an Electoral Commission as
a
constitutional institution “SUPPORTING CONSTITUTIONAL
DEMOCRACY”.
24
The purpose of the Electoral Commission is to strengthen
constitutional democracy in our country.
25
The Commission does this by managing all elections for legislative
bodies
26
and by ensuring that the elections are free and fair.
27
Members of the Commission are appointed by the President on the
recommendation of the majority of the members of the National
Assembly and nominated by a committee of the Assembly
proportionally composed of members of all political parties
represented
in it.
28
The Commission must be independent and impartial, being obliged to
perform its functions without fear, favour or prejudice.
29
What is more all other organs of state are obliged to protect this
institution to ensure its independence, impartiality and
effectiveness.
30
Finally, no person or organ of state may interfere with the
functioning of the Commission.
31
In
my view these provisions underline the constitutional importance of
ensuring that the right to vote is exercised in free elections
and
that the representatives chosen in consequence of elections are, as
far as is practicable, truly representative. This is
because the
heart of the political system entails participation by
representatives of the South African people in the process
of
decision-making. The existence of the Commission emphasises that
representation is fundamental.
The
role of the National Assembly must be considered next. The
Constitution says:
“
The National Assembly is
elected to represent the people and to ensure government by the
people under the Constitution. It does
this by choosing the
President, by providing a national forum for public consideration of
issues, by passing legislation and by
scrutinizing and overseeing
executive action.”
32
The
National Assembly must do two things: it must represent the people
and ensure government by the people. The Constitution
specifies
how these results are to be achieved. It is to be noted that
government by the people is not achieved by public involvement
in
law-making. One way in which government by the people is achieved
is by choosing the President. This means that the National
Assembly in choosing the President ensures government by the
people. The fact that the members of the National Assembly choose
the President, constitutionally speaking, means that the people
have chosen the President. The National Assembly also achieves
government by the people by providing a national forum for the
public consideration of issues. This does not mean that the public
must be allowed to participate in debates in the National Assembly
and that the National Assembly must provide a forum for members
of
the public to consider issues. When matters are debated in the
National Assembly, in public, amongst members of the Assembly
they
represent the people and ensure government by the people. The
National Assembly is a forum for those debates.
Of
great importance is the fact that the National Assembly, by passing
laws, also represents the people and ensures government
by the
people. In our constitutional scheme, laws passed by
representatives of the people must be regarded as government by
the
people and as laws passed by the people. This is a vital
contextual factor in determining what “public involvement”
in
the Constitution means.
The
way in which the role of the NCOP is defined also does not point in
the direction of the constitutional necessity of public
hearings in
the making of legislation. The Constitution provides:
“
The National Council of
Provinces represents the provinces to ensure that provincial
interests are taken into account in the national
sphere of
government. It does this mainly by participating in the national
legislative process and by providing a national forum
for public
consideration of issues affecting the provinces.”
33
Again
“public involvement” is not mentioned. The NCOP represents
provincial interests. It ensures that the provincial legislatures
have a say in national legislation. Although the Constitution does
not say so, provincial legislators, like members of the National
Assembly also represent the people of the province and ensure
government of the province by the people of the province. In these
circumstances, any mandate given by provincial legislatures to
delegates at the NCOP is given by them as representatives of the
people of the province, and indeed, must be taken to have been
given by the people of the province themselves.
The
obligations placed upon legislative bodies in relation to their
rule-making power are also significant in the investigation
of the
kind of democracy we have and the place of “public involvement”
within it. Like in relation to “public involvement”
there are
three identical provisions concerned with internal arrangements,
proceedings and procedures of the National Assembly,
34
the NCOP
35
as well as each provincial legislature.
36
The provision in relation to the NCOP provides:
“
(1) The National Council of
Provinces may-
(a) determine and control its
internal arrangements, proceedings and procedures; and
(b) make rules and orders
concerning its business, with due regard to representative and
participatory democracy, accountability,
transparency and public
involvement.
(2) The rules and orders of the
National Council of Provinces must provide for-
(a) the establishment,
composition, powers, functions, procedures and duration of its
committees;
(b) the participation of all
the provinces in its proceedings in a manner consistent with
democracy; and
(c) the participation in the
proceedings of the Council and its committees of minority parties
represented in the Council, in a
manner consistent with democracy,
whenever a matter is to be decided in accordance with section 75.”
The
section permits the NCOP to determine its own arrangements,
proceedings and procedures. It also authorises the Council to
make
rules and places certain constraints on that rule-making power and,
in that way, limits the freedom of the NCOP to determine
and
control its own internal arrangements, proceedings and procedures.
There are two kinds of limitation on the rule-making
power. The
first is contained in subsection (1)(b) and the second is contained
in subsection (2). Subsection (1)(b) limits
the NCOP’s
rule-making power only to the extent that the rules must be made
“with due regard to certain matters.” Subsection
(2) refers to
matters which the rules of the NCOP “must provide for”. If the
purpose was to create the kind of democracy
that required a measure
of public involvement as essential in the process of each law that
is made one would have expected the
Constitution to oblige the NCOP
to provide for public involvement. One would have expected to find
public involvement mentioned
in subsection (2). Far from it.
Subsection
(1)(b) says that the NCOP may make rules and orders concerning its
business with due regard to representative and participatory
democracy, accountability, transparency and public involvement. It
is significant that subsection (2)(b) requires the rules
of the
NCOP to provide for the participation in its proceedings and those
of its committees, of minority parties represented
in the NCOP in a
manner consistent with democracy.
Finally
it must be mentioned that there are two “public involvement” or
participatory elements suggested in the Constitution
in relation to
the work that legislators do. The first of these is the “public
involvement” provisions under discussion
here; while the second
is those provisions that empower the National Assembly, the
National Council of Provinces and the provincial
legislatures
respectively to receive petitions.
37
I
conclude the above analysis by re-stating the broad elements of our
democracy and elaborating on them slightly. The right to
vote is a
participatory element which is both essential to our democracy and
fundamental to it and must not be undermined. This
Court has
pronounced on the significance of the right to vote in this
country. In the
NNP
case it was emphasised that:
“
a free,
fair and credible election is both essential and fundamental to the
continued deepening of the new South African democracy.”
38
It was
also stressed that:
“
The
Constitution takes an important step in the recognition of the
importance of the right to exercise the vote by providing that
all
South African citizens have the right to free, fair and regular
elections.
It
is to be noted that all South African citizens irrespective of their
age have a right to these elections. The right to vote is
of course
indispensable to, and empty without, the right to free and fair
elections; the latter gives content and meaning to the
former. The
right to free and fair elections underlines the importance of the
exercise of the right to vote and the requirement
that every
election should be fair has implications for the way in which the
right to vote can be given more substantive content
and legitimately
exercised.”
39
Sachs
J described the right in most appropriate terms:
“
Universal
adult suffrage on a common voters roll is one of the foundational
values of our entire constitutional order. The achievement
of the
franchise has historically been important both for the acquisition
of the rights of full and effective citizenship by all
South
Africans regardless of race, and for the accomplishment of an
all-embracing nationhood. The universality of the franchise
is
important not only for nationhood and democracy. The vote of each
and every citizen is a badge of dignity and of personhood.
Quite
literally, it says that everybody counts. In a country of great
disparities of wealth and power it declares that whoever
we are,
whether rich or poor, exalted or disgraced, we all belong to the
same democratic South African nation; that our destinies
are
intertwined in a single interactive polity.”
40
Citizens
of this country cast their votes in favour of political parties
represented in the National Assembly and the provincial
legislatures. They have the right to become members of political
parties, to campaign for them, to take part in their activities
and
to call them to account. It is these elected representatives that
govern the people and their representative activities
are
activities of the people. In passing legislation or in conducting
any other activity, members of provincial legislatures
and the
National Assembly do not act on their own whims but represent the
people of this country. To undermine these representatives
is to
undermine the political will of the people and to negate their
choice at free and fair elections. Provincial representatives
on
the NCOP are mandated by the provincial legislatures in their
capacities as representatives of the people. They are therefore
mandated by the people in the same way as the President is elected
by the people when the National Assembly elects him.
Constitutionally
speaking, it is the people of our country who,
through their elected representatives pass laws.
The
Constitution deals extensively with voting, free and fair
elections, multi-party democracy, a voters’ roll and the means
by
which decisions may be taken in Parliament. The provisions are
detailed and specific. By contrast and leaving aside the
provisions for public access, there are only two references to
public involvement in relation to each of the National Assembly,
the NCOP and the provincial legislatures. First, each of them is
required to facilitate public involvement in their legislative
and
other processes. Second, each of them must have “due regard”
to “public involvement” when making their rules.
The
oppression and exploitation of people in apartheid was not the
result of the absence of public participation in government
processes in the sense in which it is used in the Constitution.
Oppression and exploitation during apartheid was the result
of the
painful fact that the majority of people had no vote and were not
represented in Parliament. Millions of people suffered,
tens of
thousands of people were tortured and even died and millions of
people struggled against the apartheid regime. Any suggestion
that
the struggle and sacrifice of the past was predominantly aimed at
securing public participation in the making of laws represents,
in
my view, a cynical denial of the phenomenal extent of apartheid
devastation and pain. The failure to accord due weight to
the
actions and decisions of the representatives of the people of South
Africa would demean the very struggle for democracy.
In the
circumstances it would, in my view, require the clearest language
to justify the construction of any “public involvement”
provision to mean that these elected representatives exercising the
power of the people consequent upon their vote cannot pass
a law
unless they have public hearings or give the public an opportunity
to make written or oral submissions before that law
can be validly
passed.
I
now examine the public involvement provision against this
background in order to determine whether the provision places a

duty upon the NCOP to give the public an opportunity to be heard in
the process of passing each law.
The
section 167(4)(e) obligation
DFL
requires an order in terms of section 167(4)(e) which requires only
this Court to pronounce on whether Parliament has fulfilled
a
constitutional obligation. Something therefore needs to be said
about this section. The jurisdiction to make a section 167(4)(e)
order is given to this Court because it is a very serious matter
for one branch of government to say to another that the latter
has
not complied with its constitutional obligations. The making of
such an order has immense separation of powers implications
and
cannot be made lightly. There must be the clearest of evidence
that the obligation has not been complied with before any
order can
be made.
This
Court has not yet had occasion to determine under what
circumstances an order of this kind with grave separation of powers
implications should be made. In my view section 167(4)(e) orders
can only be made when it is in the interests of justice and
good
government to do so. Circumstances that come into the equation
when determining whether an order must be made cannot be
exhaustively defined. They do include the following: the nature of
the obligation; the importance of its performance to a society
based on dignity, equality and freedom; whether the obligation
emerges sufficiently clearly from the Constitution so as to draw
the inference that Parliament, that is to say, the majority of
legislators in the legislative body concerned, would have
understood
the nature of the obligation and would have known that
they had to perform it and whether there had been sufficient time
after
the knowledge and understanding by the relevant legislators
to facilitate compliance with the obligation.
Public
involvement in the Constitution
The
whole of section 72 must be set out:
“
(1) The National Council of
Provinces must-
(a) facilitate public
involvement in the legislative and other processes of the Council
and its committees; and
(b) conduct its business in an
open manner, and hold its sittings, and those of its committees, in
public, but reasonable measures
may be taken-
(i) to regulate public access,
including access of the media, to the Council and its committees;
and
(ii) to provide for the
searching of any person and, where appropriate, the refusal of entry
to, or the removal of, any person.
(2) The National Council of
Provinces may not exclude the public, including the media, from a
sitting of a committee unless it is
reasonable and justifiable to do
so in an open and democratic society.”
An
identical section is applicable to the National Assembly
41
and each provincial legislature.
42
The section must be interpreted as a whole. The section is headed
“Access to and involvement in the National Council of Provinces”
and concerns itself with two distinct topics: public access to the
National Council of Provinces and public involvement in the
National Council of Provinces. As foreshadowed by this heading
this dichotomy is continued in the section itself. Subsections
(1)(a) and (1)(b) of section 72 are concerned with public
involvement and public access respectively and therefore define the
obligation imposed on the legislative entity concerned differently.
Subsection (2) like subsection (1)(b) is also concerned
with
public access, not public involvement. It is convenient to start
our analysis with an examination of the obligation imposed
by
subsection (1)(b).
In
contrast with subsection (1)(a) this subsection is specific. It
requires the NCOP to conduct its business in an open manner
and
hold its sittings and those of its committees in public. This is a
basic provision which entitles the public to access the
proceedings
of the NCOP and its committees. Its meaning is plain and clear.
Access of the public and the media must be allowed.
However, the
exception to this general rule permits the NCOP to take reasonable
measures to regulate public access and to provide
for the searching
of people and, where appropriate, the refusal of entry to or the
removal of any person. Subject to these measures
therefore the
public is entitled to access to the NCOP. In my view, this is a
clear specific self-contained provision enforceable
in itself and
not susceptible to the vagaries of differing interpretations and is
a provision binding upon the NCOP. Indeed
non-compliance with this
provision would have grave implications for the validity of any
conduct that passes a law. It is a
manner and form provision
equivalent to the provision for a quorum,
43
and the number of votes required to take a decision.
44
Subsection
(2) must be considered before subsection (1)(a) because it throws
some light on the construction of the latter and
because it like
subsection (1)(b) is concerned with public access. It does not
concern the NCOP itself but refers only to sittings
of its
committees. The public may not be excluded from the sittings of
committees unless it is reasonable and justifiable to
do so in an
open and democratic society. The provisions relating to public
access to the NCOP
45
are different from the conditions upon which public access to the
NCOP’s committees
46
may be limited. Access to the NCOP may only be regulated in
certain respects and cannot be limited as provided for in
subsection
(2) for committees of the NCOP. In other words access
to the NCOP can only be regulated in terms of subsection (1)(b) but
access
to committees may, in addition to being regulated also be
limited in terms of subsection (2). The point to be emphasised is

that subsection (2) has no application to the NCOP sitting in
plenary session.
47
It applies only to the committees of the NCOP. Although, as
suggested by the heading to the section, subsection (1)(a) and
(2)
deal with the same broad matter of public involvement and public
access they are concerned with different elements. It would
therefore be a mistake to apply subsection (2) to the provisions of
subsection 1(b).
It
is now time to examine subsection (1)(a) more carefully. The first
point to be made is that subsection (1)(a) like subsection
(1)(b)
creates obligations. But the obligations they create are
different. The obligations created by subsection (1)(a) is
to
“facilitate public involvement in the legislative and other
processes of the Council and its committees”. At first blush
it
seems that this provision uses words that are less precise and more
general in their nature. The phraseology is not of the
kind one
would expect to find in the wording of an obligation in respect of
which the order in relation to specific fulfilment
could easily be
made. By contrast the obligations imposed by subsection (1)(b) are
sufficiently specific to render it susceptible
to an order
requiring fulfilment. Finally the concept of “reasonableness”
while employed in subsection (1)(b) and subsection
(2) is absent
from subsection (1)(a). Indeed the absence of the concept of
reasonableness or any other measure contributes to
the lack of
specificity of the subsection. Before I examine each of the
concepts in subsection (1)(a) in some detail, it must
be emphasised
that the section, while placing certain specific obligations on the
NCOP, places no express obligation on the NCOP
to give the public
an opportunity to be heard before any legislation is passed.
(a)
Facilitate
The
word “facilitate” is crucial to an assessment of the nature of
the obligation imposed. Before going to any dictionary
definition
of the word it must be emphasised that “facilitate” is in
essence what may be described as “softer” than words
such as
“require” or “ensure”. The word is used in two other
places in the Constitution. There is a provision which
requires an
Act of Parliament to establish or provide for structures and
institutions to promote and facilitate inter-governmental
relations.
48
Here, promote and facilitate apparently have different meanings.
The second provision requires an Act of Parliament to provide
for
appropriate mechanisms and procedures to facilitate settlement of
inter-governmental disputes.
49
In these two settings “facilitate” probably means to enable or
to make easier. An obligation to “require” public involvement
or to “ensure” public involvement is a more onerous obligation
than one which demands facilitation alone.
The
word “ensure” is used at many points in the Constitution. Some
examples would suffice. In the process of defining the
right to
education
50
the Constitution provides that “[e]veryone has the right to
receive education in the official language or languages of their
choice in public educational institutions where that is reasonably
practicable.” The section proceeds to say “in order to
ensure
the effective access to, and implementation of, this right, the
state must consider all reasonable alternatives…”.
The
Constitution also says that the National Assembly is elected to
represent the people and to “ensure government by the
people …”
51
In the same vein the NCOP is obliged to “ensure” that
provincial interests are taken into account in the national sphere
of government.
52
The final example to which I will refer is the provision that
requires the National Assembly to provide for mechanisms to

“ensure” that certain organs of state are accountable to it.
53
Nor
is the National Assembly, the NCOP or any provincial legislature
enjoined to require public involvement in the legislative
and other
processes. They are required to facilitate to public involvement.
I accordingly respectfully disagree with the statement
of
Chaskalson CJ in
New Clicks
54
that the National Assembly equivalents of sections 72(1)(a) and
70(1)(b)
55
require the National Assembly to ensure public involvement.
The
word “facilitate” implies that the NCOP as well as the National
Assembly and all provincial legislatures are required
to be
facilitators of public involvement. In other words they are
required to engage in the process of facilitation. The fact
that
we speak here of a “process” and not an event implies that the
process must be a continuing one. There is no qualification
in the
section as to the way in which public involvement is facilitated.
That is left to the relevant legislative body to determine.
Each
legislative body must engage in the process of facilitating public
involvement in its legislative and other processes.
The subsection
does not even require the NCOP to take reasonable measures to
facilitate public involvement unlike the many instances
in our
Constitution in which the state is obliged or permitted to take
reasonable legislative measures to achieve a particular
result,
56
there is no such stipulation here. The absence of the concept of
“reasonableness” or any other standard is all the more

remarkable when it is borne in mind that it is employed twice in
the same section and in close proximity to the words with which
we
are now concerned.
I
conclude therefore that the NCOP is obliged to put in place a
process by which public involvement in legislative and other

processes is facilitated. In this context, “facilitate” cannot
be equated to “promote”. If the word “promote” had
been
used, a greater burden might well have been placed on the NCOP.
(b)
Public involvement
What
does public involvement mean? Perhaps it will be better to start
by determining what the term cannot mean in our constitutional
context. Public involvement cannot be equated to public
participation. This is because the Constitution uses the word
participate
in context which lend an interesting colour to the
relative meaning of the words “involvement” and “participat
(e) (ing)
(ion)”. Our Constitution uses the word “participate”
in the Bill of Rights on three occasions. The concept of
participation
is first employed in the Constitution in the Bill of
Rights which guarantees the rights of citizens to participate in
the activities
of or recruit members for a political party.
57
It is next used in a similar way guaranteeing the right of workers
and employers to participate in the activities and programmes
of a
trade union and employers’ organisations respectively.
58
Thirdly our Constitution gives everyone the right to participate
in the cultural life of their choice.
59
The
concept of participation is employed in the context of the
legislative process in very interesting ways. First, the National
Assembly and the NCOP participate in the legislative process.
60
The Constitution requires that the rules and orders of the
National Assembly,
61
the NCOP
62
and the provincial legislatures
63
must provide for the participation in their proceedings and those
of their committees of minority parties, and for the participation
of provinces in the NCOP
64
in a manner consistent with democracy. Furthermore, the role of
the National Executive and local government representatives
in the
NCOP is described as participation even though none of them has any
vote in the NCOP.
65
There
is no need to give further examples. The pattern is clear.
Citizens participate in the activities of political parties;
elected representatives, minority parties, and certain others
participate in the processes of the National Assembly, the NCOP
and
the provincial legislatures; public involvement must be facilitated
in the National Assembly, the NCOP and the provincial
legislatures.
Citizens have the right to participate in political parties.
There is a duty to facilitate public involvement
of all people
including citizens in the legislative and other processes of the
NCOP. Involvement must mean something less than
participation.
Public
involvement is in any event a wide term. There are a myriad ways
of facilitating public involvement in certain processes.
If as is
the case with many people in our country, most members of the
public are unable to speak English, conducting of English
classes
will facilitate public involvement. A certain level of education
and understanding is important. Indeed the greater
the level of
education and understanding the better the public involvement.
This means that increasing the educational levels
of children will
also facilitate public involvement; increasing an understanding of
the ways in which the National Assembly and
the NCOP work will also
facilitate public involvement.
It
is impermissible to conclude that the term “public involvement”
at the level of interpretation postulates as a minimum
that the
public must be given an opportunity to comment on draft
legislation. The term is not capable of that construction.
To
interpret the phrase in this way would amount to re-drafting the
Constitution. The facilitation of public involvement would
in
general therefore mean the putting in place a process which is
necessarily long term ensuring that more and more people and
a
wider range of people become involved in a wider range of ways as
time progresses. But a wide general meaning of “public
involvement” is not very helpful. It becomes possible to
ascertain a narrower contextual meaning of public involvement if
we
have regard to the activity in relation to which “public
involvement” is to be facilitated by the NCOP and the two other
legislative bodies to which the duty to “facilitate public
involvement” applies.
(c)
In the legislative and other processes
What
is the activity that the public must be involved in? The National
Assembly, the NCOP and the provincial legislatures must
facilitate
public involvement in their legislative and other processes. The
reference to “legislative and other processes”
means that no
process is excluded. All legislative bodies at the national and
provincial level are required to facilitate public
participation in
all
their processes. The generality of this provision
implies that the legislative body concerned is not required to do
anything
specific in relation to specific processes. The notion
that the legislative bodies concerned are required by this section
to
do something specific that is, give the public an opportunity to
be heard, in the process of making every law is, at best strained.
We
are concerned here though with the contention that national and
provincial legislative bodies are obliged to provide the public
with an opportunity to comment in relation to legislation to be
passed. We are therefore concerned with “public involvement”
in relation to the legislative process. Section 72(1)(a) and its
equivalent provisions certainly require the facilitation of
public
involvement in the national and provincial legislative process. We
are not concerned with the provincial legislative
process but the
process that must be complied with in the making of national laws.
The
facilitation of public involvement in the national legislative
process
The
question we have to answer here is whether section 72(1)(a)
requires that the process of passing national legislation must
have
built into it the obligation to give the public an opportunity to
be heard before national legislation is passed and as
a
pre-requisite to national legislation being properly passed. The
national legislative process is described in detail in the
Constitution under that heading.
66
This part of the Constitution describes the process to be followed
in the passing of legislation step by step in specific terms.

These sections cover the whole process from the time legislation is
introduced into the National Assembly or the NCOP until
the Bill
lapses at some stage in the process or, if it does not lapse, until
it is passed by Parliament, signed by the President
and becomes an
Act of Parliament. We are not concerned with the process of the
preparation of the Bill or with publication of
policy papers in
relation to the Bills. Although the Constitution does not say so,
we can take judicial notice of the fact that
Bills are ordinarily
prepared by the Executive and the administration. The relevant
government department is largely responsible
for determining
whether a particular law is necessary and for determining the
process by which the law will be prepared.
The
process by which legislation is passed is crucial to a
constitutional order. It must be clear, specific and sufficiently
comprehensible to enable legislators to know exactly what steps
they need to pass any legislation. Moreover, as I have said
earlier, due regard to the value of the vote requires that acts of
elected legislators be set aside only if the pre-requisites
not
complied with are stated in the clearest possible terms. It is
therefore not surprising that the process in the Constitution
is
set out step by step in a defined way. In so far as it is
concerned with legislation other than legislation amending the
Constitution
67
the process contains no express provision to the effect that the
public must be given any opportunity at all to comment or to
be
heard as a pre-requisite for the valid adoption of any law. The
question is whether such a provision is implied. I have
grave
doubts as to whether it is permissible for courts to determine
implied terms in relation to the process by which national
legislation is to be passed but I will assume for the purposes of
this judgment in favour of DFL that processes by which national
legislation is to be passed can be interpreted by the courts to
include implied terms. I would say however that if this be the
case it must be required that the only possible inference that can
be drawn from all the circumstances is that the term was

necessarily implied and that the inference is so compelling that
the reasonable legislator would doubtless have understood the
implication. The question to be asked therefore is whether an
additional step is necessarily implied and is so compelling that
it
must be read into the national legislative process in so far as it
does not concern constitutional amendments by reason of
the
provisions of section 72(1)(a).
It
has been contended that section 72(1)(a) obliges the National
Council of Provinces to ensure that reasonable steps are taken
to
facilitate public involvement in the national legislative process.
This means that it is implicit in sections 75 and 76 read
with
section 72(1)(a) of the Constitution that reasonable steps must be
taken to facilitate public involvement before the legislation
can
be said to be valid. The suggestion has no merit for at least six
reasons.
Firstly,
as has already been pointed out, section 72(1(a) does not employ
the concept of reasonableness. It is impossible to
explain, if
the constitutional purpose is to oblige Parliament to take
reasonable measures to facilitate public involvement
in all its
processes, why the section does not say so in so many words. It
seems that the concept of reasonableness is deliberately
employed
twice in other parts of section 72. This points strongly to a
conclusion that a deliberate choice was made and a
deliberate
decision taken to employ the words in two other parts of the
section but not to employ them in subsection (1)(a).
Subsections
(1)(b) and (2) are self-contained and concern themselves with
matters different from subsection (1)(a) and it
would be
artificial to apply the concept of reasonableness to subsection
(1)(a) in the circumstances. There is in any event
no warrant for
doing so.
Secondly,
if the correct meaning of section 72(1)(a) is that Parliament must
take reasonable measures, one would have expected
the provision
concerned with the internal arrangements and procedures of the
NCOP and its rule-making power
68
to oblige the NCOP
69
to make rules that must provide for reasonable steps to be taken
to facilitate public involvement. The relevant subsection
requires merely that the NCOP make its rules with “due regard”
to “public involvement”.
Thirdly,
the provision in the Constitution concerned with the joint rules
and orders and joint committees of both the National
Assembly and
the NCOP
70
is also inconsistent with the idea that reasonable steps to
facilitate public involvement are implied in the national
legislative
process set out in sections 75 and 76. The section
concerning the joint rules specifically authorises a joint
committee to
make rules and orders, amongst other things, “to
determine procedures to facilitate the legislative process
including setting
a time limit to complete any step in the
process”. There is not a word about public involvement in the
section.
Fourthly,
it is inexplicable why, if the constitutional purpose was to
include reasonable public involvement as part of the
national
legislative process, this measure was not built into the national
legislative process. The drafters must be taken
to have been
aware of the fact that all steps in the national legislative
process should be clearly set out.
Fifthly,
implying a step in the process to the effect that the NCOP is
obliged to take reasonable measures to ensure public
involvement
in the process of passing each Bill would introduce a formidable
difficulty which ought to be avoided in any constitution.
It
builds into the process of making national legislation a provision
that is not sufficiently clear and specific in relation
to that
process. There may be huge differences of opinion within
Parliament in relation to whether the nature of the public
involvement required in relation to particular Bills is
reasonable. If those debates remain unresolved, this Court will

have to determine whether the public involvement steps are
reasonable in a particular case. This Court will then finally

determine whenever there is a dispute whether the national
legislative process has been complied with. It will be this Court
and not the Constitution which will effectively determine an
element of the national legislative process. This is in my view
inconsistent with the very spirit of constitutionalism. By way of
example, if Parliament made a rule to the effect that reasonable
steps must be taken to bring the legislation to the attention of
the public at some stage in the legislative process the

constitutionality of such a rule would be highly questionable.
Sixthly,
a further difficulty with the reasonableness criterion being
applicable in this context is concerned with the requirement
or at
least the desirability of ensuring that, as far as is possible,
all Bills of a similar kind are passed utilising a consistent
procedure. The reasonableness proposition produces the
consequence that different processes may be applicable depending

on the legislation concerned and the circumstances.
All
the arguments mentioned in the preceding paragraph apply with equal
if not greater force to the suggestion that the NCOP was
obliged,
at the very least, to give the public a reasonable opportunity to
comment on the Bills. There are however five additional
factors
that militate against the correctness of this proposition.
The
first is that the Constitution expressly defines minimum levels of
public involvement in sections 72(1)(b) and 72(2). Again
it would
seem that there was a deliberate decision to define the minimum in
a very limited way and leave the rest to Parliament.
The
drafters of the Constitution expressly considered the issue of
public involvement in relation to constitutional amendments.
The
national legislative process to be followed includes an
interesting provision. The person or committee intending to

introduce a Bill amending the Constitution is required to publish
particulars of the proposed amendment in the national Government
Gazette, and to submit those particulars to provincial
legislatures for their views.
71
Thirdly,
Parliament is expressly empowered to determine its own internal
arrangements and procedures.
72
Whether the public is given an opportunity by the NCOP to be
heard on legislation which is to be passed by it is an internal
procedure. Parliament was left to determine the parameters
subject to the limitations and conditions prescribed.
73
A court’s determination of a minimum in these circumstances is
an intrusion into the domain of Parliament which is unauthorised
and objectionable.
Fourthly,
the idea that the section requires at least that the public be
heard in respect of each law that is made carries with
it other
difficulties. The difficulties arise principally from the
possible consequence that the public must be given an opportunity
to comment or be involved in relation to every process of the
various legislative bodies. I mention a few of the processes
that
may be implicated: the election of the President, the Premier, the
respective speakers, and other office-bearers; votes
of no
confidence and the appointment of provincial delegates to the
NCOP. The suggestion is untenable.
Fifthly,
to read the relevant provisions in this fashion would be to
elevate section 72(1)(a) and its cousin provisions to manner
and
form provisions in the Constitution. But manner and form
provisions must be clear and straightforward.
I
therefore conclude that Parliament has to decide how public
involvement must be facilitated in the national legislative process
and that Parliament is not obliged to ensure that reasonable steps
to facilitate public involvement in that process are taken.
It is
by no means clear or necessarily implied that a public opportunity
to be heard or comment on legislation is a pre-condition
to
validity of legislation according to the Constitution. Nor in my
view is it appropriate to expect of the reasonable member
of
Parliament to understand the relevant constitutional provisions in
this way. The effect of reading the relevant provisions
in such a
way that they oblige legislative bodies to give the public a
reasonable opportunity to be heard or consulted before
legislation
is adopted for it to be valid constitutes a limitation on the power
of elected representatives of the people to make
law. That
limitation is an impermissible intrusion and has a fundamental
impact on the value of the right to vote acquired through
bitter
struggle. The approach undermines the right substantially.
I
have thus far considered whether section 72(1)(a) results in the
implicit prescription of manner and form provisions into the
national legislative process and have concluded that it does not.
This could lead to an enquiry in relation to whether there
are
other reasons concerning process in which legislation may be
regarded as having been adopted inconsistently with the
Constitution
and therefore invalid. In other words, it could bring
to the fore whether the “third possibility” conceived by the
Supreme
Court of Appeal
74
or any other such possibility might be relevant to the validity of
legislation. I do not think it is necessary to decide this
question.
The
obligations of legislative bodies and the powers of this Court
The
conclusion in the preceding paragraph may be criticised by some on
the basis that its correctness would result in the unhappy
circumstance that the sufficiency of parliamentary action in
relation to public involvement could never be tested. Parliament
could do what it liked and the requirement to facilitate public
involvement in the legislative process would mean nothing at
all.
Parliament could ignore the provision altogether. If this were to
be so there would be much force in the contention that
an
interpretation that renders a constitutional provision nugatory
must be avoided if it can be. However I am of the view that
this
conception of the consequences of the conclusion to which I have
come are without merit.
Sections
72(1)(a) and 70(1)(b) must be read together in relation to the
National Council of Provinces as must sections 59(1)(a)
and
57(1)(b) in relation to the National Assembly. It will be recalled
that both the NCOP
75
and the National Assembly
76
are required to facilitate public involvement in the national
legislative process while these legislative bodies are also
required
to make their rules with due regard to public
involvement.
77
In my view the phrase “public involvement” in the rule-making
provision is in each case an attenuated reference to the public
involvement provision with which it must be paired. I would read
both sections together. The rule-making provision informed
by the
obligation to facilitate public involvement would oblige the NCOP
and the National Assembly to make rules with due regard
to the
obligation to facilitate public involvement in the national
legislative process.
The
national legislative process must be clear, specific and beyond
debate in the sense that it must be capable of generating
a common
understanding of what is required. It is permissible for the NCOP
to make rules which require manner and form provisions
additional
to those prescribed by the national legislative process in the
Constitution provided they are consistent with the
latter. Indeed
the only acceptable practicable way of ensuring that the national
legislative process did have within it elements
that facilitated
the involvement of the public in that process is for the National
Assembly or the NCOP to make rules that are
clear, specific and
certain, and that add requirements in relation to the passage of
legislation with regard to the facilitation
of public involvement.
If for example the rules made no provision at all for any public
involvement in that process it will
be difficult if not impossible
to contend that the rules were made with due regard to public
involvement.
If
the rules were not made with due regard to facilitating public
involvement in the national legislative process, Parliament
would
have failed to fulfil a constitutional obligation within the
meaning of section 167(4)(e). In these circumstances, this
Court,
and only this Court, will have the power to decide that Parliament
has failed to fulfil a constitutional obligation and
make an
appropriate order. The Court might either:
declare
that the constitutional obligations have not been fulfilled as
required by section 2 of the Constitution or, if appropriate
circumstances exist,
order
Parliament or the relevant legislative body to fulfil this
constitutional obligation.
This
approach is consistent with the view that it is Parliament that
must first decide how participation in the national legislative
process is to be facilitated. That decision would be reflected in
the rules. If Parliament does not make any decision as it
is
obliged to do, it will have failed to fulfil an obligation imposed
upon it by the Constitution. The NCOP and the National
Assembly
are both deliberative legislative bodies. All their decisions are
deliberative in nature. The only way in which any
of these
legislative bodies could make a decision that would add
requirements that must be complied with for a valid national
legislative process would be to make rules or to pass legislation.
There is no evidence in this case that Parliament has made
any
decision in connection with public involvement in the national
legislative process. An appropriate decision by Parliament
is a
pre-condition to review by this Court of the decision in relation
to whether it constitutes fulfilment of the constitutional
obligation.
It
follows that there is judicial control in relation to the
implementation of the requirement of the Constitution that public
involvement must be facilitated in the national legislative process
and that rules of national and provincial legislative bodies
must
be made with due regard to that requirement. It is not appropriate
to discuss here the standard by which the relevant rules
must be
evaluated. This may have to be done on another day.
International
law and foreign law
International
law is in perfect harmony with the conclusion that our Constitution
does not require the public to be heard as a
pre-requisite to
national legislation being validly passed. Relevant provisions in
international instruments are concerned with
public rights. The
International Covenant on Civil and Political Rights
78
(ICCPR) provides:
“
Every citizen shall have the
right and the opportunity, without any distinctions mentioned in
Article 2 and without unreasonable
restrictions:
(a) To take part in the conduct
of public affairs, directly or through their freely chosen
representatives;
(b) To vote and to be elected
at genuine period elections which shall be by universal suffrage and
shall be held by secret ballot,
guaranteeing the free expression of
electors.”
79
This
provision dictates a very low threshold. In the first place its
requirements are satisfied even if the law in a particular
country
allows for citizens to take part in public affairs through freely
chosen representatives alone. But this is not the
minimum
requirement of the ICCPR. The section renders it legitimate even
for this low threshold to be subject to further reasonable
restriction. It is true that many agencies and writers have said
that in terms of their conception of public participation,
improved
public participation requires more to be done. South Africa
requires more in relation to public involvement and participation
in its Constitution than the ICCPR does. Any contention that the
ICCPR, on any interpretation requires member countries to ensure
that it is essential for the public to be consulted before
legislation is adopted and the legislation to be invalid absent

consultation would, in my view, be liable to rejection with the
ridicule it deserves. Nor can it be said that the addition of
the
word “opportunity” in the introduction to the section improves
the position. The kind of right contemplated would have
to be
facilitated by a government whether the word “opportunity” was
in the text of the document or not. The hard fact is
though that
the provisions of the ICCPR are satisfied by indirect participation
reasonably restricted; DFL wants unrestricted
indirect
participation as well as substantial direct participation. It is
not necessary to go through any of the other international
instruments. All of them are understandably satisfied with
indirect participation without any direct component.
I
have examined many constitutions. None of them properly read
provide that legislation will be invalid unless some generally
stated unspecific requirement of public involvement is fulfilled.
Many have manner and form provisions that are clear and specific
and that facilitate a measure of public involvement. I have found
no judgment of any court anywhere in which a legislative provision
properly adopted in an open legislature and having been read
through in the way required by the relevant instrument has been
found to have been inconsistent with the constitution on the basis
of non-compliance with some generalised public involvement
provision even if the prescribed manner and form provisions have
all been complied with.
Provincial
participation in the national legislative process
The
reliance by DFL on section 118(1)(a) of the Constitution which
obliges provincial legislatures to facilitate public involvement
in
their legislative and other processes necessitates a brief enquiry
into the role of the provinces in the national legislative
processes in relation to ordinary Bills affecting the provinces.
80
Each province has one vote to be cast on behalf of its delegation
in relation to all section 76 matters.
81
At least five provinces must vote in favour of a decision
concerning section 76 legislation.
82
If each province has a single vote, and that vote is to be cast on
behalf of the provincial legislature, the question of the
authorisation of the delegation to cast a particular vote on behalf
of a particular legislature arises. The provincial legislature
must be duly authorised by the province to vote in a particular way
before that vote can be counted. For a decision to be carried
in
relation to section 76(1) legislation, at least five provinces must
not only vote for that decision but must be authorised
to vote for
it.
The
Constitution provides that an Act of Parliament must provide for a
uniform procedure in terms of which provincial legislatures
confer
authority on their delegations to cast votes on their behalf.
83
National legislation pursuant to this section has not been enacted
and it is fortunately not necessary to determine whether
this
constitutes a failure by Parliament to comply with a constitutional
obligation within the meaning of section 167(4)(e).
This is so
because the national legislation is required only in the interests
of consistency. In the absence of national legislation
therefore
provincial legislatures can make their own decisions as to how
mandates are to be given by provincial legislatures
to the NCOP.
The
casting of votes by provincial delegations in the NCOP is part of
the national legislative process. The process by which
the
provincial legislature confers a mandate on its delegation is not
part of the national legislative process. It is a provincial
process that is relevant to the national process because unless the
provincial process properly confers the mandate on the delegation,
the vote of the delegation cannot count.
Section
118(1)(a) of the Constitution is therefore engaged because the
process of mandating a provincial delegation is a process
of the
provincial legislature determined by that legislature. But the
process is not a legislative one. At best, the process
falls
within the “other processes” mentioned in section 118(1)(a).
The appropriate question is therefore whether section
118(1)(a) of
the Constitution requires that the members of public in the
province must be given an opportunity to comment on
a mandate
before the mandate is given to the provincial delegation in the
NCOP as a pre-condition to the validity of the authorisation.
Before
considering this question I must point out that it is doubtful
whether anyone other than the provincial legislature has
any
capacity to question the validity of the authority given by the
provincial legislature to the delegation. I assume in favour
of
DFL that it does have the capacity to attack the validity of
authority. DFL did not expressly attack the validity of the
authority conferred on the provincial delegations, however the
contention that section 118(1)(a) has not been complied with in
my
view necessarily entails the proposition that absent the compliance
with the public involvement provision authority will not
have been
validly conferred.
The
reasoning applicable to the finding in this judgment that the
public involvement provision in the national legislative sphere
does not require the public to be given an opportunity to be heard
or to comment as a pre-requisite to the validity of legislation
applies equally to the public involvement based contention in
relation to the provincial legislatures. There is no requirement
that a mandate cannot be given without an opportunity to be
consulted.
Is
a section 167(4)(e) order justified?
Attention
must finally be given as to whether a section 167(4)(e) order is
justified in the circumstances. No order to the effect
that
Parliament has failed to fulfil a constitutional obligation is
appropriate because no breach of section 72(1)(a) has been
established.
It
is nonetheless desirable that I say something more on this point.
I do not think that an order of this kind will be justifiable
even
if it were to be held that section 72(1)(a) of the Constitution has
been infringed and that the NCOP was obliged to allow
an
opportunity for a public hearing or public contributions before
passing the Health Bills. The public involvement provision
is
important to our society. Nevertheless the obligation that, at a
minimum a reasonable opportunity should be given to the
public to
make representations in the national legislative process does not
emerge readily from the legislative process itself
or from section
72(1)(a). In the circumstances it cannot be said that reasonable
legislators ought to have been aware that the
Constitution required
this as a minimum component of section 72(1)(a).
When
is intervention by this Court appropriate?
I
do not deem it necessary in the circumstances, to deal in detail
with the question when it is appropriate for this Court to
intervene during the processes of Parliament. I would however
advance the approach that this Court ought never to intervene
during the proceedings of Parliament unless irreparable and
substantial harm would otherwise result. However the question does
not arise in view of the conclusion I have reached.
Conclusion
The
Constitution does not require the section 72(1)(a) or section
118(1)(a) public involvement provision to be complied with
as a
pre-requisite to any legislation being validly passed. To infer a
requirement of this kind when it is not expressly provided
for is
to impermissibly undermine the legislature and the right to vote.
In the circumstances the fact that no opportunity was
given for
public comment in the National Council of Provinces and in most of
the provinces in the process of the passing of the
Health Bills
though regrettable is of no constitutional moment in relation
either to whether the National Council of Provinces
or the
provincial legislatures have complied with their constitutional
obligations or to whether the Health Bills have been validly
passed. In my view the application accordingly falls to be
dismissed.
Skweyiya
J concurs in the judgment of Yacoob J.
For the applicant: KJ Kemp SC instructed by Janse Van Rensburg,
Strydom & Botha Inc.
For the respondents: N Arendse SC and T Masuku instructed by the
State Attorney, Cape Town.
1
Section 59(1)(a) is the equivalent of section
72(1)(a) and it applies to the National Assembly. It provides:
“
(1) The National Assembly must –
(a) facilitate public involvement in the legislative
and other processes of the Assembly and its committees”.
2
On 2 June 2005, following an application by the Minister of Health,
this Court made an order joining the Minister of Health as
the third
respondent. Following the hearing on 23 August 2005, the Court made
an order on 23 September 2005 joining the Speakers
of the nine
provincial legislatures as the fourth to twelfth respondents in the
matter. The Chief Justice also issued directions
for the further
conduct of this case.
3
The
Dental Technicians Amendment Act 24 of 2004
was promulgated on 1 December 2004. Government Gazette 27034 GN
1395, 1 December 2004. It has not yet come into operation. The
Choice on Termination of Pregnancy Amendment Act 38 of 2004 was
promulgated and came into operation on 11 February 2005. Government
Gazette 27267 GN 129, 11 February 2005. The
Traditional Health
Practitioners Act 35 of 2004
was promulgated on 11 February 2005.
Government Gazette 27275 GN 132, 11 February 2005. Some but not all
sections of the Act
came into operation on 13 January 2006.
Government Gazette 28389 GN 19, 11 January 2006. The
Sterilisation
Amendment Act 3 of 2005
was promulgated and came into operation on
22 June 2005. Government Gazette 27702 GN 599, 22 June 2005.
4
On 3 November 2005, the Chief Justice issued the
following further directions amending paras 4, 5 and 6 of the
directions issued
on 22 September 2005:
“
1. The application is enrolled for hearing at 10h00
on Tuesday 21 February 2006.
2. The applicant is required to serve the application
papers on the Speakers of the nine provincial legislatures on or
before 7
October 2005.
3. The Minister of Health and the Speakers of the
provincial legislatures are required to lodge their respective
notices to oppose,
if they intend opposing the application, on or
before 21 October 2005.
4. All the respondents including the Speakers of the
nine provincial legislatures are required to lodge their opposing
affidavits,
if any, on or before 18 November 2005.
5. The applicant shall lodge its replying affidavit on
or before 2 December 2005.
6. Written argument shall be lodged as follows:
a. On behalf of the applicant, on or before 23 December
2005;
b. On behalf of the respondents, on or before 20
January 2006.
7. Written argument must address the merits of the
application including the following issues:
a. does the failure alleged by the applicant in the
present case amount to a failure to “fulfill a constitutional
obligation”
within the meaning of section 167(4)(e) of the
Constitution;
b. is it competent under our constitutional order for
declaratory relief to be granted by a court in respect of the
proceedings
of Parliament
i. before Parliament has concluded its deliberations on
a Bill, or
ii. after it has passed the Bill, but before the Bill
has been signed by the President, or
iii. after it has been signed by the President but
before it has been brought into force;
c. if the process followed by Parliament is
inconsistent with the Constitution, what is the appropriate relief,
in particular, is
there appropriate relief other than a declaration
of invalidity?”
5
Section 72 is cited in full at para below.
6
2006 (1) SA 474
(SCA);
2006 (4) BCLR 462
(SCA).
7
Id at para 19.
8
Section 172(2)(a) of the Constitution provides:
“
The Supreme Court of Appeal, a High Court or a court
of similar status may make an order concerning the constitutional
validity
of an Act of Parliament, a provincial Act or any conduct of
the President, but an order of constitutional invalidity has no
force
unless it is confirmed by the Constitutional Court.”
9
Section 167 of the Constitution provides:
“
The Constitutional Court makes the final decision
whether an Act of Parliament, a provincial Act or conduct of the
President is
constitutional, and must confirm any order of
invalidity made by the Supreme Court of Appeal, a High Court, or a
court of similar
status, before that order has any force.”
10
[1998] ZACC 21
;
1999 (2) SA 14
(CC);
1999 (2) BCLR 175
(CC).
11
Id at para 25.
12
Id.
13
King
above n 6.
14
Id at paras 1 and 12.
15
Id at para 23.
16
Id at para 23. However
, I have some
doubts about the correctness of the Supreme Court of Appeal’s
statement that it is only “where Parliament has
so renounced its
constitutional obligations that it ceases to be or to act as the
body the Constitution envisages and thus ceases
to have legislative
authority, that its purported enactments will not be valid.” Id.
This statement, to the extent that it may
be understood as setting a
test for invalidity, may be placing the bar too high. The flaw that
counts under our Constitution does
not have to go the length of
“that extreme”. Non-fulfilment of a constitutional obligation
will do.
17
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
(“
SARFU 2
”)
[1999] ZACC 9
;
1999 (4) SA 147
(CC);
1999 (7) BCLR 725
(CC) at para 72.
18
Id at para 73.
19
Section 167(4)(a) of the Constitution.
20
Section 167(4)(b) of the Constitution.
21
Section 167(4)(c) of the Constitution.
22
Section 167(4)(d) of the Constitution.
23
Section 167(4)(e) of the Constitution.
24
Section 167(4)(f) of the Constitution.
25
SARFU 1
above n
10 at para 29.
26
Id.
27
Section 43(a) and section 44(1) of the Constitution.
28
Section 42(3) of the Constitution.
29
Section 42(4) of the Constitution.
30
The full text of the directions of this Court are
set forth in note 4 above.
31
Section 57(1)(a) of the Constitution provides:
“
The National Assembly may determine and control its
internal arrangements, proceedings and procedures”.
Section
70(1)(a) gives the NCOP similar powers.
32
Ex parte Chairperson of the Constitutional 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) at para 110.
33
Section 44(4) of the Constitution.
34
Section 2 of the Constitution.
35
President of the Republic of South Africa and Others v United
Democratic Movement (African Christian Democratic Party and Others
Intervening; Institute for Democracy in South Africa and Another as
Amici Curiae
)
(
“UDM”)
[2002] ZACC 34
;
2003 (1) SA 472
(CC);
2002 (11) BCLR 1164
(CC) at para 25.
36
SARFU 2
above n 17 at para 72.
37
Section 2 of the Constitution.
38
Section 79 of the Constitution provides:
“
(1) The President must either assent to and sign a
Bill passed in terms of this Chapter or, if the President has
reservations about
the constitutionality of the Bill, refer it back
to the National Assembly for reconsideration.
(2) The joint rules and orders must provide for the
procedure for the reconsideration of a Bill by the National Assembly
and the
participation of the National Council of Provinces in the
process.
(3) The National Council of Provinces must participate
in the reconsideration of a Bill that the President has referred
back to
the National Assembly if ─
(a) the President’s reservations about the
constitutionality of the Bill relate to a procedural matter that
involves the Council;
or
(b) section 74(1), (2), or (3)(b) or 76 was applicable
in the passing of the Bill.
(4) If, after reconsideration, a Bill fully
accommodates the President’s reservations, the
President must assent to and sign the Bill; if not, the
President must either ─
(a) assent to and sign the Bill; or
(b) refer it to the Constitutional Court for a decision
on its constitutionality.
(5) If the Constitutional Court decides that the Bill
is constitutional, the President must assent to and sign it.”
Section
121, which applies to a provincial bill, in identical terms
provides:
“
(1) The Premier of a province must either assent to
and sign a Bill passed by the provincial legislature in terms of
this Chapter
or, if the Premier has reservations about the
constitutionality of the Bill, refer it back to the legislature for
reconsideration.
(2) If, after reconsideration, a Bill fully
accommodates the Premier’s reservations, the Premier must assent
to and sign the Bill;
if not, the Premier must either ─
(a) assent to and sign the Bill; or
(b) refer it to the Constitutional Court for a decision
on its constitutionality.
(3) If the Constitutional Court decides that the Bill
is constitutional, the Premier must assent to and sign it.”
39
In re Constitutionality of the Mpumalanga Petitions Bill,
2000
2002 (1) SA 447
(CC);
2001 (11) BCLR 1126
(CC) at para 11;
Ex
parte President of the Republic of South Africa: In re
Constitutionality of the Liquor Bill
[1999] ZACC 15
;
2000 (1) SA 732
(CC);
2000
(1) BCLR 1
(CC) at para 12.
40
UDM
above n 35
at para 26.
41
Section 79(3) of the Constitution.
42
Matatiele Municipality and Others v President of the Republic of
South Africa and Others
[2006] ZACC 2
;
2006 (5) BCLR 622
(CC) at para 51.
43
[1995] ZACC 15
;
1996 (2) BCLR 155
(CC).
44
Id at 156F-G.
45
1996 (4) SA 1098
(CC);
1996 (11) BCLR 1419
(CC).
46
Id at para 28.
47
Section 83(b) of the Constitution.
48
Thermo Radiant Oven Sales (Pty) Ltd v
Nelspruit Bakeries (Pty) Ltd
1969 (2)
SA 295
(A) at 310D-E. See also
MV Snow
Delta Serva Ship Ltd v Discount Tonnage Ltd
2000 (4) SA 746
(SCA) at para 7.
49
[2004] ZACC 11
;
2004 (6) SA 505
(CC);
2004 (6) BCLR 569
(CC).
50
Id at para 90.
51
Id at para 91.
52
Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong and
Another
[1970] AC 1136
(Privy Council);
Bahamas District of
the Methodist Church in the Caribbean and the Americas v Symonette
;
Poitier v Methodist Church of the Bahamas
[2000] JCJ 31
, 26 July
2000 (Privy Council);
Cormack and Another v Cope and Others
;
The State of Queensland and Another v Whitlam and Others
[1974] HCA 28
;
131 CLR
432
(High Court of Australia);
In re Canada Assistance Plan
(B.C.)
[1991] 2 SCR 525
(Supreme Court of Canada);
In re
Amendment of the Constitution of Canada
(1981) 125 DLR (3d) 1
(SCC) (Supreme Court of Canada).
53
The basic position under the jurisprudence of the Privy Council is
that courts have jurisdiction to interfere in the legislative
process. However, courts should where possible avoid interfering in
the legislative process. The appropriate time for courts
to
intervene is after the completion of the legislative process when
the resulting law may be declared invalid. But there may
be cases
that call for immediate intervention; in such a case, courts should
intervene.
In
the
Rediffusion
case, above n 52, the Judicial Committee of
the Privy Council had to consider, among other issues, whether a
court of justice in
Hong Kong had jurisdiction to grant declaratory
relief or an injunction in relation to the proceedings of the
Legislative Council
in carrying out its deliberative part of the
legislative process. In that case, the plaintiff sought an order
declaring that the
Legislative Council of Hong Kong had no
legislative power to pass certain amendments to the Hong Kong
Copyright Act of 1956 and
an interdict restraining members of the
Hong Kong Legislative Council from passing the bill in question and
from presenting it
to the Governor of Hong Kong for his assent.
While
concluding that a court in Hong Kong has jurisdiction to enquire
into the lawfulness or otherwise of the conduct of the Legislative
Council, the Committee held that a court has a discretion whether or
not to grant relief. Id at 1157. This discretion flows from
the
nature of declaratory or injunctive relief, which are discretionary
reliefs. In the exercise of this discretion, the existence
of an
alternative remedy once the legislative process is completed is a
relevant consideration. Id at 1156H-7A. Thus where there
would be
relief once the legislative process is completed, the court will not
interfere. However, where “there will be no remedy
when the
legislative process is complete and the unlawful conduct in the
course of the legislative process will by then have achieved
its
object, . . . there must be a remedy available in a court of justice
before the result has been achieved which was intended
to be
prevented by the law from which a legislature which is not fully
sovereign derives its powers.” Id at 1157E-F.
In
the
Bahamas
case, above n 52, the Judicial Committee had to
consider whether courts in the Bahamas had jurisdiction to pronounce
upon the constitutional
validity of a bill. In concluding that
courts have jurisdiction to pronounce on the constitutionality of a
bill, the Committee
held that courts have the right and the duty to
enforce the Constitution. However it held that courts must exercise
this power
with due regard to the principle of the separation of
powers and “be ever sensitive to the need to refrain from
trespassing,
or even appearing to trespass, upon the province of the
legislators”. Id at para 27. And “so far as possible, the
courts
of The Bahamas should avoid interfering in the legislative
process.” Id at para 31. However:
“
there may be a case where the protection intended to
be afforded by the Constitution cannot be provided by the courts
unless they
intervene at an earlier stage. For instance, the
consequences of the offending provision may be immediate and
irreversible and
give rise to substantial damage or prejudice. If
such an exceptional case should arise, the need to give full effect
to the Constitution
might require the courts to intervene before the
Bill is enacted. In such a case parliamentary privilege must yield
to the courts’
duty to give the Constitution the overriding
primacy which is its due.”
Id at para 31.
In
Cormack
, above n 52, the High Court of Australia had to
consider a case in which two members of the Senate sought a number
of declaratory
orders and injunctions. These included a declaratory
order to the effect that a proclamation issued by the
Governor-General convening
a joint sitting of the members of the
Senate and House of Representatives was invalid and an order
restraining the defendants from
introducing proposed laws into the
joint sitting and also preventing them from presenting to the
Governor-General the proposed
laws for his assent. The proceedings
before the Court were of an interlocutory nature and the main action
was not yet ready for
hearing. The Court refused to grant the
interlocutory orders. However, the justices who wrote judgments
differed in their reasons
for refusing the relief sought.
Barwick
CJ asserted the jurisdiction of the High Court to interfere at any
stage of the law-making process, holding that the Court
“has both
a right and a duty to interfere if the constitutionally required
process of law-making is not properly carried out.”
Id at 453.
And that “there is no parliamentary privilege which can stand in
the way of the Court's right and duty to ensure
that the
constitutionally provided methods of law-making are observed.” Id
at 454. While accepting that ordinarily, the Court
will not
interfere to ensure compliance with the Constitution in connection
with the making of laws by declaring invalid the resulting
legislation, he held that “in an appropriate, though no doubt
unusual, case . . . , the Court is able, and indeed in a proper
case
bound, to interfere.” Id at 454.
Gibbs
J expressed a substantially similar view, holding that the Court has
jurisdiction to interfere at any stage of the law-making
process in
order to prevent a violation of the Constitution. Id at 466.
However, he expressed the view that “the settled practice
of [the]
Court is to refuse to grant relief in respect of proceedings within
Parliament which may result in the enactment of an
invalid law and
that the proper time for the Court to intervene is after the
completion of the law-making process”. Id at 467.
He based the
limitation of judicial intervention on discretionary and not
jurisdictional grounds, holding that “[t]hese circumstances
are
relevant and important in deciding whether the discretionary
remedies of declaration and injunction should be granted in a
case
such as the present.” Id at 466-7.
Mason
J, who found it unnecessary to decide finally the question of
jurisdiction but assumed that the Court had jurisdiction, accepted
that intervention in the parliamentary process may be justified in
exceptional circumstances to prevent a violation of the
Constitution.
Id at 474.
A
different approach or emphasis appears from the judgments of Menzies
J and Stephen J. Both expressed the view that the principle
that
the court will not interfere with the proceedings of Parliament but
will only consider the validity of the resulting law is
based on
jurisdictional and not discretionary grounds. Menzies J expressed
the view that “it is no part of the authority of
[the] Court . . .
to restrain Parliament from making unconstitutional laws.” The
authority of the Court to declare an Act of
Parliament invalid
“assumes the completion of the parliamentary process to turn a
bill into an Act.” Id at 464. Stephen J,
however, acknowledged
that “[t]here may be exceptions to this rule in cases in which, if
such cases there be, the product of
any irregularity in legislative
procedure is other than a statute which is capable of challenge in
this Court by those affected
by its terms upon the ground that it is
not a true product of the constitutionally appointed legislative
process.” Id at 472.
It
is apparent that while the justices of the Australian High Court
differed on the proper basis for the non-intervention rule or
“settled practice”, there was nevertheless consensus among a
majority of the justices that this rule was subject to exceptions.

The Court will interfere in exceptional circumstances or in an
unusual case. Id at 474 (Mason J). However, the acknowledgment
of
exceptions to the rule suggests the acceptance of the power of the
courts to intervene in exceptional cases and thus the assertion
of
the existence of jurisdiction to grant declaratory relief or an
injunction in exceptional cases.
The
basic position in Canada is substantially similar to that in
Australia. Courts do not intervene during the legislative process
in Parliament or legislatures.
Canada
Assistance Plan
above
n 52 at 558h-9b.
They come into the
picture once the legislation is enacted unless they are asked for
their opinion on a bill or proposed enactment.
Amendment
of the Constitution of Canada
above n 52 at
30.
The
principle of non-intervention in Canadian jurisprudence stems from
the respect that courts have for the independence of the
legislative
branch of government.
Canada Assistance Plan
above n 52 at 558h-9b. The principle has its roots in the principle
of the separation of powers.
54
Section 165(2) of the Constitution.
55
Section 55(1) of the Constitution provides:
“
In exercising its legislative power, the National
Assembly may –
(a) consider, pass, amend or reject any legislation
before the Assembly; and
(b) initiate or prepare legislation, except money
Bills.”
Similarly, section 68 of
the Constitution provides:
“
In exercising its legislative power, the National
Council of Provinces may –
(a) consider, pass, amend, propose amendments to or
reject any legislation before the Council, in accordance with this
Chapter;
and
(b) initiate or prepare legislation falling within a
functional area listed in Schedule 4 or other legislation referred
to in section
76(3), but may not initiate or prepare money Bills.”
56
Murray and Simeon “From paper to practice: the National Council of
Provinces after its first year” (1999) 14
SA Public
Law
96 at 98.
57
Section 40(1) of the Constitution provides:
“
In the Republic, government is constituted as
national, provincial and local spheres of government which are
distinctive, interdependent
and interrelated.”
58
Murray and Simeon
above n 56 at
101.
59
In re Certification of the Constitution of the Republic of South
Africa
above n 32 at para 227. See also Malherbe “The South
African national council of provinces: Trojan horse or white
elephant?”
(1998) 1
Tydskrif Vir Die Suid-Afrikaanse Reg
77
at 82; Venter
Constitutional Comparison: Japan, Germany, Canada
and South Africa as Constitutional States
(Juta & Co Ltd,
Cape Town 2000) at 248.
60
Article 50 of the Basic Law for the Federal
Republic of Germany provides: “The
Länder
participates through the Bundesrat in the legislation and
administration of the Federation”. Basic Law for the Federal
Republic
of Germany article 50, in Flanz (ed)
Constitutions
of the Countries of
the
World
(Oceana Publications, Inc.,
Dobbs Ferry 2003).
61
The German Constitutional Court has defined “
Bundestreue
”
as the “constitutional obligation of trust and friendship that the
Bund [national government] and the Länder [regions]
have
towards each other.” BVerfGE 1, 300 (translated by Bertus de
Villiers in De Villiers “Intergovernmental relations: the
duty to
co-operate – a German perspective” (1994) 9 (1-2)
SA Public
Law
430 at 432). As one commentator has explained, the
principle of
Bundestreue
means that “[a]s constitutional
and political partners, both levels have an obligation to consult,
co-operate, co-ordinate and
communicate with each other. The
Bund
cannot therefore claim that because it has the status of ‘national’
government, it need not consult with the
Länder
. By the
same token, the
Länder
have to consult with the
Bund
,
even in those areas which have been allocated to the exclusive
jurisdiction of the
Länder
.” De Villiers
“Intergovernmental relations: the duty to co-operate – a German
perspective” (1994) 9 (1-2)
SA Public Law
430 at 433.
62
In
terms of section 67 of the Constitution, the
NCOP provides a forum for the representation of local government at
the national level.
That section provides:
“
Not more than ten part-time representatives
designated by organised local government in terms of section 163, to
represent the different
categories of municipalities, may
participate when necessary in the proceedings of the National
Council of Provinces, but may not
vote.”
63
Unlike the unwritten German principle of
Bundestreue
,
however, the principle of co-operative government has been codified
by the Constitution of our country as a set of binding obligations.

See Venter above n 59 at 245.
64
See Murray and Simeon above n 56 at 97.
65
Section 40(1) of the Constitution.
66
Section 41(1) of the Constitution.
67
Sections 60(2) and 61(4) of the Constitution. According to one
commentator, “[t]he idea behind the special delegates is that
normally, but not necessarily always, they will be members of the
provincial executive. This is an attempt, analogous to the

composition of the German
Bundesrat
, to enhance the direct
involvement of the provinces, particularly the executives, in
parliamentary decision-making.” Malherbe
above n 59 at 88.
68
Section 60(3) of the Constitution.
69
Section 61(1)-(2) of the Constitution.
70
Section 65(1)(a) of the Constitution. Again, the role of the NCOP
in voting on national legislation is similar to that of the
German
Bundesrat
, which must consider all national laws. Each
Länder
delegation has three to six votes, depending on
the population of the region it represents, and votes as a unit in
accordance with
the instructions of its
Länder
. In
general, the
Bundesrat
has a suspensive veto over proposed
national legislation. The
Bundestag
may override the veto by
a majority vote, unless the veto is passed by a two-thirds majority
of the
Bundesrat
, in which case a two-thirds vote is required
to re-pass the bill. If the legislation affects the vital interests
of the
Länder
, however, the
Bundesrat’
s consent
is required. Currie
The Constitution of the Federal Republic of
Germany
(University of Chicago Press, Chicago 1994) at 61-6;
Kommers
The Constitutional Jurisprudence of the Federal Republic
of Germany
2 ed (Duke University Press, Durham and London 1997)
at 96-7.
71
Section 65(2) of the Constitution contemplates legislation that
“must provide for a uniform procedure in terms of which provincial
legislatures confer authority on their delegations to cast votes on
their behalf.” The legislation has yet to be enacted. In
the
meantime, in terms of Schedule 6 item 21(5) of the Constitution,
“each provincial legislature may determine its own procedure
in
terms of which authority is conferred on its delegation to cast
votes on its behalf in the National Council of Provinces.”
Two
types of mandates are conferred by the provincial legislatures: a
flexible negotiating mandate to guide the delegation at
the first
stages of NCOP discussion, and final voting mandates, which are
often, but need not be, fixed. See Murray and Simeon
above n 56 at
119.
72
Ex Parte Chairperson of the Constitutional Assembly: In re
Certification of the Amended Text of the Constitution of the
Republic
of South Africa,
[1996] ZACC 24
;
1996
1997 (2) SA 97
(CC);
1997 (1)
BCLR 1
(CC) at para 62.
73
Constitutionality of the Liquor Bill
above n 39 at para 25.
74
Section 76(1)(a) of the Constitution.
75
Section 76(1)(d) of the Constitution.
76
Section 76(1)(e) of the Constitution.
77
Section 42(4) of the Constitution.
78
Id.
79
Id.
80
See Ebbesson “The Notion of Public Participation in International
Environmental Law” (1997) 8
Yearbook of International
Environmental Law
51 at 70-2.
81
International Covenant on Civil and Political Rights, adopted 16
December 1966 (entered into force 23 March 1976). South Africa
signed this instrument on 3 October 1994 and ratified it on 10
December 1998. Article 25 of the ICCPR was based in part on article
21 of the Universal Declaration of Human Rights, adopted 10 December
1948, which provides:
“
(1) Everyone has the right to take part in the
government of his country, directly or through freely chosen
representatives.”
82
ICCPR above n 81 article 25.
83
See Nowak
U.N. Covenant on Civil and Political Rights: CCPR
Commentary
(NP Engel, Kehl, Strasbourg and Arlington 1993) at
439.
84
American Convention on Human Rights, adopted 22 November 1969
(entered into force 18 July 1976) article 23(1)(a).
85
Harare Commonwealth Declaration of 1991, issued by Heads of
Government in Harare, Zimbabwe, 20 October 1991, article 4.
86
Inter-American Democratic Charter, adopted 11 September 2001,
preamble. Article 2 of the Charter provides that “[r]epresentative
democracy is strengthened and deepened by permanent, ethical, and
responsible participation of the citizenry within a legal framework
conforming to the respective constitutional order.”
87
Id article 6.
88
Human Rights Committee
General Comment No. 25: The right to
participate in public affairs, voting rights and the right of equal
access to public service
(Art. 25): 12/07/96
,
CCPR/C/21/Rev.1/Add.7 at para 5.
89
Marshall v Canada
No 205/1986, U.N. Doc. CCPR/C/43/D/205/19
(1991) at para 5.4.
90
Steiner “Political Participation as a Human Right” (1988) 1
Harvard Human Rights Yearbook
77 at 134. See also id at
96-113.
91
Minister of Home Affairs and Another v Fourie
and Another (Doctors for Life International and Others,
Amici
Curiae)
;
Lesbian and Gay Equality Project and
Others v Minister of Home Affairs and Others
[2005] ZACC 19
;
2006 (1) SA 524
(CC);
2006 (3) BCLR 355
(CC)
at para 102.
92
Human Rights Committee, General Comment 25 above n 88 at para 1.
93
See id at paras 5-8.
94
Inter-Parliamentary Union and U.N. High Commissioner for Human
Rights
Human Rights: A Handbook for Parliamentarians
(SADAG,
Bellegarde-sur-Valserine 2005) at 121.
95
Human Rights Committee
above n 88 at paras 6 and 9.
96
Ebbesson above n 80 at 70-1.
97
See, for example,
McDonald v Smith
[1985] USSC 158
;
472 US 479
, 482-3 (1985);
Adderley v Florida
385 US 39
, 49-50 (1966) (Douglas J
dissenting).
98
C 61 of the Magna Carta provided:
“
[T]hat, specifically, if we or our justiciar or our
bailiffs or any of our ministers are in any respect delinquent
toward any one
or trangress any article of the peace or the
security, and if the delinquency is shown to four barons of the
aforesaid twenty-five
barons, those four barons shall come to us, or
to our justiciar if we are out of the kingdom, to explain to us the
wrong, asking
that without delay we cause this wrong to be
redressed.”
C
61 of the Magna Carta in Stephenson & Marcham (eds)
Sources
of English Constitutional History: A Selection of Documents from
A.D. 600 to the Present
(Harper & Brothers Publishers, New
York and London 1937) at 125.
99
Mark “The Vestigial Constitution: The History and Significance of
the Right to Petition”
(1998) 66
Fordham Law Review
2153
at
2169.
100
For example, in 1641, the colony of Massachusetts adopted a Body of
Liberties, section 12 of which provided:
“
Every man whether Inhabitant or fforreigner, free or
not free shall have libertie to come to any publique Court,
Councell, or Towne
meeting, and either by speech or writing to move
any lawfull, seasonable, and materiall question, or to present any
necessary motion,
complaint, petition, Bill or information, whereof
that meeting hath proper cognizance, so it [can] be done in
convenient time,
due order, and respective manner.”
A Coppie of
the Liberties of the Massachusetts Collonie in New England (December
1641), reprinted in Chaffee (ed) vol. 1
Documents on Fundamental
Human Rights
Preliminary Edition (Harvard University Press,
Cambridge, Massachusetts 1951) 79 at 81.
101
The First Amendment of the United States Constitution guarantees
“the right of the people . . . to petition the Government for
a
redress of grievances.” While petitioning is no longer the
central mechanism of political participation in U.S. national

politics as it was in the days of the early Republic, the U.S.
Supreme Court has affirmed that “all citizens, regardless of the
content of their ideas, have the right to petition their
government”,
City of Cuyahoga Falls, Ohio v Buckeye Community
Hope Foundation
[2003] USSC 2362
;
538 US 188
, 196 (2003), and that this right “is
implicit in [t]he very idea of government, republican in form.”
McDonald
above n 97 at 482 (quoting
United States v
Cruikshank
[1875] USSC 172
;
92 US 542
, 552 (1876)).
102
Article 17 of the Basic Law for the Federal Republic of Germany
provides:
“
Everyone has the right individually or jointly with
others, to address written requests or complaints to the competent
authorities
and to the legislature.”
Basic
Law for the Federal Republic of Germany article 17, in Flanz above n
60.
103
Vitzthum “Petitions to Parliament” in Karpen (ed)
The
Constitution of the Federal Republic of Germany: Essays on the Basic
Rights and Principles of the Basic Law with a Translation
of the
Basic Law
(Nomos Verlagsgesellschaft, Baden-Baden 1988) at
122-6.
104
Constitution of the Republic of Tanzania article 21(2), in Flanz
(ed)
Constitutions of the Countries of the World
(Oceana
Publications, Inc, New York 2000).
105
Article 52(1) of the Constitution of the Portuguese Republic
provides:
“
All citizens have the right to present, individually
or jointly with others, petitions, representations, claims or
complaints to
the organs of the sovereignty, the organs of
government of the autonomous regions or any authority, for the
purpose of defending
their rights, this Constitution, the law or the
general interest, as well as the right to be informed, within a
reasonable time,
of the result of the respective consideration.”
Article
52(2) provides:
“
The law shall determine the conditions under which
joint petitions submitted to the Assembly of the Republic and to the
Legislative
Assemblies of the autonomous regions may be examined in
plenary session.”
Constitution
of the Republic of the Portuguese Republic, translated by
Inter-University Associates, Inc. in Wolfrum & Grote
(eds)
Constitutions of the Countries of the World
(Oceana
Publications, Inc., New York 2005).
106
The Political Constitution of Colombia (1991) article 2, in Wolfrum
& Grote (eds)
Constitutions of the Countries of the World
(Oceana Publications, Inc, New York 2005).
107
Id article 40(2). Article 103 further specifies that “the
people’s means of participating in the exercise of their
sovereignty”
include “the vote, the plebiscite, the referendum,
the popular consultation, the open town council meeting, the
legislative initiative,
and the recall of officials”, to be
regulated by law. Id.
108
For example, article 37 of the Constitution of the Republic of
Belarus provides that
“
[t]he direct participation of citizens in the
administration of the affairs of society and the State are
safeguarded by the holding
of referenda, the discussion of draft
laws and issues of national and local significance, and by other
means specified by law.
In instances determined by the law the
citizens of the Republic of Belarus take part in the discussion of
issues of State and
public life at republican and local meetings.”
Constitution
of the Republic of Belarus article 37, translated by
Inter-University Associates, Inc. in Flanz (ed)
Constitutions of
the Countries of the World
(Oceana Publications, Inc, New York
1997).
109
Section 19 of the Constitution provides –
“
(1) Every citizen is free to make political choices,
which includes the right –
(a) to form a political party;
(b) to participate in the activities of, or recruit
members for, a political party; and
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and
regular elections for any legislative body established in terms of
the Constitution.
(3) Every adult citizen has the right –
(a) to vote in elections for any legislative body
established in terms of the Constitution, and to do so in secret;
and
(b)
to stand for public office, and, if elected, to hold office.”
110
Id.
111
Proceedings of the National Council of Provinces, 4 November 2005 at
102-3.
112
Breyer
Active Liberty: Interpreting Our Democratic Constitution
(Knopf, New York 2005) at 15. U.S. Supreme Court Justice Stephen
Breyer has described the idea of a nation’s sovereign authority
as
one that is shared among its people through the concept of “active
liberty.” This kind of liberty refers not to the negative
freedom
from government coercion but to the freedom to participate actively
and constantly in collective power.
Id at 3-6.
113
In
City of Eastlake v Forest City Enterprises, Inc.
[1976] USSC 128
;
426 US
668
(1976), the U.S. Supreme Court explained that under its
constitutional system, “all power derives from the people, who can
delegate
it to representative instruments which they create. In
establishing legislative bodies,the people can reserve to themselves
power
to deal directly with matters which might otherwise be
assigned to the legislature.” Id at 672. This concept of reserved
public
power is applicable to other constitutional democracies that
recognise a right to political participation. By implication, such
power need not be reserved to either the legislature or to the
people but may be shared between them, as in the case of South

Africa.
114
Section 1(d) of the Constitution.
115
Proceedings of the National Council of Provinces
above n 111 at 104.
116
Parliament of the Republic of South Africa
People’s Voices: Shaping the Future,
Report of the People’s Assembly 2005
in
Announcements, Tablings and Committee Reports No 63, 5 June 2006 at
section 1.1.
117
Id at sections 1.2-1.3. The Peoples’ Assembly 2005 was held over
two days in June 2005. It is estimated that over 1400 people
participated in the event.
Id at section 1.2 and
1.4.
118
Id at section 3.3.
119
In 1992, at the Rio Conference on Environment and Development, 150
states agreed that
“
environmental issues are best handled with the
participation of all concerned citizens, at the relevant level. At
the national
level, each individual shall have appropriate access to
information concerning the environment that is held by the public
authorities,
including information on hazardous materials and
activities in their communities, and the opportunity to participate
in decision
making processes. States shall facilitate and encourage
public awareness and participation by making information widely
available.”
1992 United
Nations Declaration on Environment and Development, 13 June 1992,
U.N. Doc A/conf.151/156rv.1 (1992) 31 ILM 876, principle
10.
Following this declaration, the United Nations Economic Commission
for Europe (“UNECE”) Convention on Access to Information,
Public
Participation Decision-Making and Access to Justice in Environmental
Matters (“Aarhus Convention”) was signed in Denmark
on 25 June
1998 and entered into force on 30 October 2001. One of the main
elements of this convention, as its name suggests,
is public
participation in environmental decision-making processes.
120
The New Shorter Oxford English Dictionary
5
ed (Clarendon Press, Oxford 1993) at 903.
121
For example, according to the United States National Park Service,
“[p]ublic involvement (also called public participation) is
the
active involvement of the public in . . . planning and
decision-making processes.”
United States
National Park Service, Director’s Order No 75A:
Civic
Engagement and Public Involvement
, 17
November 2003, available at
http://www.nps.gov/policy/DOrders/75A.htm [accessed 24 July 2006] at
section V. See also United
States Code of Regulations, Title 40
(Protection of Environment), 40 CFR 25(1)(a), (b) and (d),
National
Wildlife Federation v Burford
[1987] USCADC 558
;
835 F.2d
305
, 322 (D.C. Cir. 1987).
122
New Shorter Oxford English Dictionary
above n 120 at 1412.
123
Id
at 2109.
124
Minister of Health and Another NO v New Clicks
South Africa (Pty) Ltd and Others (Treatment Action Campaign and
Another as
Amicus Curiae
)
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) at paras 111-3.
125
Section 57 for the National Assembly, section 70
for the NCOP and section 116 for the provincial legislatures.
126
New Clicks
above
n 124 at para 630 (Sachs J)
127
Id at para 647.
128
Khosa
above n 49.
129
United States National Park Service above n 121
at section V.
130
As the Canadian provincial legislature of Nova Scotia has
recognised, access to government information may be necessary “to

facilitate informed public participation in policy formulation.”
Freedom of Information and Protection of Privacy Act 1993 (Nova
Scotia, Canada), section 2. See
O’Connor v Nova Scotia
2001 NSCA 132
(Nova Scotia Court of Appeal 2001) at paras 35-41.
131
As U.S. Supreme Court Justice Stephen Breyer has suggested,
regardless of whether participation is direct or vicarious, “the
people, and their representatives, must have the capacity to
exercise their democratic responsibilities. They should possess the
tools, such as information and education, necessary to participate
and to govern effectively.” Breyer above n 112 at 15-6.
132
Human Rights Committee above n 88 at para 1. Likewise, public
participation in the administrative law context has been held to
require the implementation of “notice, comment and explanation”
procedures, so as to provide “public awareness, understanding
and
participation.”
Weyerhaeuser Co v Costle
590 F.2d 1011
,
1028 (D.C. Cir. 1978). Beyond these minimal requirements, the D.C.
Circuit held that “it is generally up to the Agency to select
among the myriad available techniques to accomplish the goal of
public understanding and participation.” Id.
133
Inter-Parliamentary Union
Parliamentary Involvement in
International Affairs
(Report to the Second World Conference of
Speakers of Parliaments, New York 7-9 September 2005) at 21.
134
Section 69(a) of the Constitution.
135
Section 69(b) of the Constitution.
136
Section 69(d) of the Constitution.
137
Section 70(1)(b) of the Constitution.
138
Section 72(1)(b) of the Constitution.
139
Section 72(1)(b) of the Constitution.
140
Section 72(2) of the Constitution.
141
Section 56 of the Constitution.
142
Section 115 of the Constitution.
143
New Clicks
above n 124 at paras 111-3.
144
King
above n 6
at para 22.
145
See for example Joint Rules of Parliament, Rule 6(1)(b)(ii); Rules
of the National Council of Provinces, Rule 5(1)(c)(iii); Standing
Rules of the Eastern Cape Provincial Legislature, Rule 32.1. See n
153 and n 154 below.
146
Parliament of the Republic of South Africa above
n 117 at section 2.2.2.
147
Id at section
3.3.1.
148
Section 69 of the Constitution.
149
Marshall
above n 89 at para 5.5.
150
Human Rights Committee, General Comment 25 above n 88 at para 8.
151
Inter-Parliamentary Union and High Commissioner
for Human Rights above n 94 at 121.
152
Inter-Parliamentary Union above n 133. In a number of countries,
including Belgium, Finland, Iceland, Italy, Jamaica, Lithuania,
Mexico, Morocco, Namibia, Norway, Romania, the Russian Federation
and Turkey, legislatures have increasingly held public hearings
and
consultations with civil society organisations and citizens,
generally through their standing committees. Id at 22. The

parliaments of the Netherlands and Yemen organise public round
tables to discuss pending issues with members of civil society.
See
id at 22-3. In Latvia, both the government ministry concerned with
a bill and the relevant parliamentary committee consult
with
stakeholders and members of the public on pending legislation. Id
at 23. While Canada does not have a statutory requirement
for
public consultation in the legislative process, public hearings have
become increasingly common, particularly for bills that
have major
impacts or implicate public concerns.
Parliamentary Centre of
Canada Executive Summary from the Sino-Canadian Symposium on Public
Participation in the Legislative Process
(Beijing, 12-13 July
2004) at 5. American legislatures also make frequent use of public
hearings to obtain public and expert testimony,
and nine U.S. state
legislatures require public hearings on all bills that come before
them. Kurtz
Public Participation and Confidence in the
Legislature
(National Conference of State Legislatures, 1997),
www.ncsl.org/public/internat/kurtz2.htm [accessed on 25 July 2006].
The state
legislatures of Minnesota, Missouri, Washington and West
Virginia often hold interim committee meetings outside of the
capital
to obtain public input from those who do not live within
easy travel distance of the capital. The state legislature of
Wisconsin
is required by statute to include citizen members as well
as legislators on legislative study committees. Id.
153
Rule 6 of the Joint Rules of Parliament provides:
“
Public Participation
6 (1) Members of the public may participate in the
joint business of the Houses by –
(a) attending joint sittings of the Houses or meetings
of joint committees;
(b) responding to public or specific invitations –
(i) to comment in writing on Bills or other matters
before a joint committee; or
(ii)
to give evidence or to make representations or recommendations
before joint committees on such Bills or other matters, either
in
person or through a representative.”
154
Rule 5 of the Rules of the NCOP provides:
“
Public Participation
5 (1) Members of the public may participate in the
proceedings of the Council by:
(a) attending sittings of the Council or meetings of
Council committees;
(b) submitting petitions to the Council on any matter
within the Council’s competence;
(c) responding to public or specific invitations:
(i) to comment in writing on Bills or other matters
before, or which are due to come before, the Council;
(ii) to make representations or recommendations in
writing on such Bills or other matters; or
(iii) to give evidence or to make representations or
recommendations before Council committees on such Bills or other
matters, either
in person or through a representative.
. . . .
(3)
The public has access to all official notices to members and to all
documents tabled in the Council, subject to reasonable measures
taken by the Chairperson of the Council to regulate such access.”
155
Section 65(2) of the Constitution.
156
Government Gazette 25553 GN 2581, 10 October 2003.
157
Traditional Health Practitioners Act 35 of 2004
.
158
Speech by the Minister of Health at Official Opening of the
Conference on Traditional Medicine, Kopaneng 30 March 2004,
http://www.doh.gov.za/docs/sp/2004/sp0330.html
at 3 [accessed on 23
July 2006].
159
Id.
160
See id.
161
Id.
162
Id.
163
Choice on Termination of Pregnancy Amendment Act
38 of 2004.
164
Section 42(4) of the Constitution.
165
Minister of Health and Others v Treatment
Action Campaign and Others
[2002] ZACC 15
;
2002 (5) SA
721
(CC);
2002 (10) BCLR 1033
(CC) at para 98.
166
Id.
167
Compare id at para 99.
168
Id at para 113.
169
Fourie
above n 91
at para 171.
170
National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para 81.
171
Section 2 of the Constitution.
172
Section 1(d) of the Constitution.
173
Section 2 of the Constitution.
174
Andres Alwin Azocar and Others v Chile
, Report No. 137/99 of
the Inter-American Commission for Human Rights, 27 December 1999, at
para 94 (quoting Inter-American Commission
for Human Rights
“Doctrine of the Inter-American Commission on Human Rights
(1971-1981)” in
Ten Years of Activities 1971-1981
(Washington, D.C. 1982) at 334) (emphasis omitted).
175
Ebbesson
above n 80 at 62. Indeed, as
commentators have observed, in the context of participatory
democracy for public land planning, “[t]he
central premise of
participatory democracy is that active participation by all citizens
is required to foster the collective governance
required for
democracy.” Moote and McClaran “Viewpoint: Implications of
participatory democracy for public land planning”
(1997) 50(5)
Journal of Range Management
473 at 474.
176
Section 70(2)(b) of the Constitution.
177
Section 42(2) of the Constitution.
178
R v Ndobe
1930
AD 484
at 493.
179
1952 (2) SA 428 (A).
180
Id at 456E-G.
181
In
Taomae v Lingle
118 P.3d 1188 (Hawaii Sup. Ct. 2005), the
Supreme Court of Hawaii had to consider a challenge to a proposed
constitutional amendment.
The amendment had been challenged on the
ground that, contrary to the Constitution, it was not entitled as a
constitutional amendment
and had not been subjected to three
readings in each House. The Supreme Court upheld the challenge,
concluding that the amendment
did not conform to the procedure set
forth in the Constitution and that this amounted to a plain, clear
and manifest violation
of the Constitution. It accordingly declared
that the constitutional amendment had been invalidly passed and
should not have been
signed by the Governor or presented to the
voters. In addition, it issued an injunction preventing the
defendants from printing
or publishing the amendment as part of the
Constitution.
Significantly
for the present purposes, the Court held that “the framers of the
Constitution manifestly contemplated public participation
in the
legislative procedure that was precluded [by the manner in which the
amendment was adopted].” Id at 1199. It added that
“[a]llowing
constitutional amendments to be approved in this manner precludes
the public from participating in the legislative
process with
respect to constitutional amendments”. Id at 1197. The Court
rejected the argument that by invalidating the proposed
amendment it
was intruding upon the province of the legislature and thus
violating the doctrine of the separation of powers. It
held that
“[i]t is well settled that the courts, not the legislature, are
solely vested with the responsibility to determine
whether a
constitutional amendment has been validly adopted.” Id at 1199.
Similarly,
in Portugal, the Portuguese Constitutional Court has on numerous
occasions invalidated laws on labour matters that had
otherwise been
duly adopted with requisite majorities by Parliament on the basis
that they had not been referred to Workers’
Commissions as
required by the Constitution. As commentators on the Constitution
have pointed out, participation by Workers’
Commissions in the
elaboration of legislation concerning work is a binding element in
the legislative process. It should be seen
not simply as a means of
institutional pressure with political but not juridical effect. It
is a guaranteed right whose violation
leads to unconstitutionality.
The commentators point out that the referral of the law should not
be seen as simply a formality
in relation to measures already
definitively adopted.
The process
envisages that the decisions have not been finally taken and that
the positions which the workers’ organisations will
take could
have an influence on the legislative proposals. The right of
participation does not translate itself into taking power
away from
the legislative organs but in having the real possibility of
influencing the way such organs take their decisions. Three
principles define the reach of the right of participation: (a) the
possibility of real influence in relation to the subject matter
of
the legislation; (b) the formal involvement of workers organisations
in the legislative process; and (c) adequate publicity
for the
participatory process.
Canotilho and Moreira
Constituicao da Republica Portuguesa
Anotada
3 ed (Coimbra Editora, 1993).
Thus,
in
Acordao
No 609/94, section 1, the Portuguese
Constitutional Court held that Articles 54(5)(d) and 56(2)(a) of the
Constitution of the Portuguese
Republic require the legislature to
listen to bodies representing workers when legislation concerning
work is being adopted. A
law concerning accidents at work has to be
considered as labour legislation. The participation of bodies
representing workers
is obligatory when such law is being passed.
The law in question makes no reference to such participation, from
which it may be
presumed that such participation did not take place.
The provisions of the instrument in question accordingly were
fatally invalid
and unconstitutional as a result. (Summary by Sachs
J.)
182
By Government Notice R 19, contained in
Government Gazette 28389 of 11 January 2006, certain provisions of
the THP Act came into
operation on 13 January 2006. The CTOP
Amendment Act came into operation upon its promulgation on 11
February 2005. Government
Gazette 27267 GN 129, 11 February 2005.
183
Indeed, in the case of the
Sterilisation
Amendment Act, too
soon, as we have discussed above at paragraphs
41-58.
184
Section 38 of the Constitution provides:
“
Anyone listed in this section has the right to
approach a competent court, alleging that a right in the Bill of
Rights has been
infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights. The persons
who may approach
the court are:
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who
cannot act in their own name;
(c) anyone acting as a member of, or in the interest
of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association
acting in the interest of its members.”
1
See
Ex parte Chairperson of the Constitutional 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) at paras 10-3.
2
Id. The Court observes (at para 20) that after
the Constitutional Assembly commenced its deliberations:
“
numerous public and private sessions were held and a
wide variety of experts on specific topics were consulted on an
on-going basis.
In response to an intensive country-wide
information campaign including public meetings and open invitations
to the general public,
[the Constitutional Assembly] also received
numerous presentations, both oral and written. Although the final
text concerning
some contentious issues was drafted only shortly
before adoption of the [text of the Constitution], the
[Constitutional Assembly]
had throughout its deliberations issued
interim reports containing progressive drafts of the text and of
alternative proposals
on outstanding provisions. In the result
political parties and other interested bodies or persons were kept
up to date and had
ample time to consider possible grounds for
objecting to certification [by the Constitutional Court that the
constitutional text
complied with Principles negotiated in
advance].”
3
See
Minister of Health and Another NO v New Clicks South Africa
(Pty) Ltd and Others (Treatment Action Campaign and Another as
Amici
Curiae)
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC), Sachs J at para
625.
4
Section 1 of the Constitution states:
“
The Republic of South Africa is one, sovereign
democratic state founded on the following values
. . . .
(d) Universal
adult suffrage, a national common voters roll, regular elections and
a multi-party system of democratic government,
to ensure
accountability, responsiveness and
openness
.”(My emphasis.)
5
See
August and Another v Electoral Commission and Others
[1999] ZACC 3
;
1999
(3) SA 1
(CC);
1999 (4) BCLR 363
(CC) at para 17.
6
It is not only in South Africa that the need to secure
public involvement is recognised. There is a growing move in
democratic
countries in various parts of the world to see constant
public involvement in law-making not only as integrally bound to
representative
democracy, but as an important contributor to its
re-vitalisation. This is illustrated by a recent report in Britain
concerning
what is seen as a growing trend in that country towards
disengagement by the public from formal democratic politics. The
report
observes that popular re-engagement with formal democracy is
vital to avoid:
- the weakening of the mandate and legitimacy for
elected governments because of plummeting turnouts;
- the further weakening of political equality because
whole sections of the community feel estranged from politics;
- the weakening of effective recruitment into politics;
- the rise of undemocratic political forces; and
the
rise of what the report calls “quiet authoritarianism” within
government.
Power
to the People
: The report of Power: An independent inquiry into
Britain’s democracy, The centenary project of the Joseph Rowntree
Charitable
Trust (The POWER Inquiry, York 2006), executive summary
15.
7
The interconnection and overlap between representative and
participatory democracy is expressly underlined in Section 70(1),
which
provides that
“
The National Council of Provinces may–
. . . .
(b) make rules and orders concerning its business, with
due regard to representative and participatory democracy,
accountability,
transparency and public involvement.”
Identical provisions apply to the National Assembly and
the nine provincial legislatures.
Section 72,
the key provision in the present matter, is even more directly in
point. It reads
“
(1) The National Council of Provinces must–
(a) facilitate
public involvement in the legislative and other processes of the
Council and its committees; and
(b) conduct its
business in an open manner, and hold its sittings and those of its
committees, in public [subject to reasonable
regulation] . . . .”
8
Id. Note the use of the word “must” in Section 72(1).
9
Steiner observes that the extent to which a country embraces
principles of participatory democracy will be influenced by
different
strands of political theory and national practices. He
points out that theorists who favour active taking part in the
conduct
of public affairs emphasise that in modern mass society
contested elections mean that the people have a choice, but
political elites
rather than the people decide what that choice is
between. Though elections are indispensable, they are themselves
insufficient
to realise the democratic ideal of the citizenry’s
continuing experience of involvement in public life. Such theorists
argue
that through increased participation in the institutions
affecting their lives, citizens develop a sense of their worth and
their
significance; feeling empowered to act rather than merely
re-act. This heightened sense of responsibility and competence
strengthens
an ethic of civic virtue which points toward
participation for reasons additional to the advancement of
self-interest. The inherent
good of political participation stems
from this possibility of self-realisation through development of the
social self as a member
of the polity. Steiner points out that many
states no longer treat the establishment of electoral machinery and
the protection
of speech and association as the outer boundary of a
government’s duty to honour citizens’ rights to participate. He
personally
proposes that the right to political participation be
viewed as a programmatic right, one responsive to a shared ideal but
to be
realised progressively over time in different ways in
different contexts through invention and planning that will often
have a
programmatic character. Henry Steiner,
Political
Participation as a Human Right
1 Harv. Y’bk Int. L. 77 (1988)
at 78, quoted in Steiner and Alston,
International Human Rights
in Context
, second edition, Oxford, 2000 at 890 et seq. For the
reasons given above, I believe that South Africa has joined those
states
that in line with their national philosophy and political
character have opted for ensuring that participatory democracy
functions
as an immediately enforceable feature of the legislative
process.
10
The importance for democracy of complementing equality of the vote
with equality of voice is well captured by Dworkin in “Equality,
Democracy and Constitution” (1990) Vol XXVIII No
2 Alberta Law
Review 324
at 337-41 where he argues that:
“
[I]n a genuine democracy, the people govern not
statistically but communally . . . (w)hen we insist that a genuine
democracy must
treat everyone with equal concern, we take a decisive
step towards a deeper form of collective action in which “we the
people”
is understood to comprise not a majority but everyone
acting communally. . . .”
See too the
instructive emphasis that Justice Stephen Breyer of the U.S. Supreme
Court gives to the notion of the people’s right
to an active and
constant participation in collective power, as derived from the
democratic nature of the Constitution.
Active Liberty:
Interpreting Our Democratic Constitution
(Knopf,
New York
2005) at 5.
11
Minister of Home Affairs and Another v Fourie and Another
(Doctors for Life International and Others,
Amici Curiae
);
Lesbian and Gay Equality Project and Others v Minister of Home
Affairs and Others
[2005] ZACC 19
;
2006 (1) SA 524
(CC);
2006 (3) BCLR 355
(CC);
Christian Education South Africa v Minister of Education
[2000] ZACC 11
;
2000
(4) SA 757
(CC);
2000 (10) BCLR 1051
(CC) at para 24.
12
38 of 2004.
13
35 of 2004.
14
Other matters which might need future consideration are, first,
whether there should be special opportunities for members of the
public who might be prejudiced by a declaration of invalidity, to
have their views heard, and second, whether in appropriate matters
only particular provisions on which involvement was sought could be
invalidated, leaving the rest of the legislation intact.
15
Attention should be paid to the observations made by the SCA in
King
and others v Attorneys’ Fidelity Fund Board of Control and Another
2006 (1) SA 474
(SCA);
2006 (4) BCLR 462
(SCA) to the effect that it
is necessary to locate the invalid conduct on a continuum
representing the degree to which the failure
impinges on
constitutional obligations. The SCA might have gone too far in
equating a failure to provide access under sub-section
(b) of the
relevant provision in that matter, with a failure to meet the
requirements of public involvement under sub-section (a).
In the
case of a failure to allow for public access to sittings of the
legislature, only an extreme exclusion of the public might
suffice
to require invalidation of the law being discussed at the time. As
far as the duty to involve the public in the legislative
process is
concerned, however, the conduct relates directly to processes
establishing the content of the law. In this respect
I would agree
with Ngcobo J at para 21 that the bar for invalidation should not be
nearly as high as the SCA suggests. Nevertheless
consideration
needs to be given to the underlying philosophy of the SCA that the
question under both sub-sections is one of degree,
not of kind.
Examining the reasonableness of the facilitation will provide a
significant degree of proportionate balancing between
responsibilities entrusted by the Constitution to the legislature
and the judiciary respectively. Yet there could still be varying
degrees of unreasonable conduct on the part of the legislature,
ranging from the trivial to the egregious, that possibly call for
proportionate rather than categorical judicial responses. Though
there might be principled reasons for regarding the reasonableness
of the legislature’s conduct as the appropriate doorkeeping
mechanism with regard to minor infringements, the present matter
does not, in my view, require that this issue be resolved in the
present case.
1
Imposed upon them by
section 72(1)(a) and section
118(1)(a) of the Constitution respectively.
2
The Choice on Termination of Pregnancy Amendment
Bill, the Traditional Health Practitioners Bill, the Sterilisation
Amendment Bill
and the Dental Technicians Amendment Bill.
3
I do not mention them in the order in which they
appeared in the directions.
4
President of the Republic of South Africa and
Others v South African Rugby Football Union and Others
[1998] ZACC 21
;
1999 (2) SA 14
(CC);
1999 (2) BCLR 175
(CC).
5
Id at para 25.
6
Section 167(5) read with section 172(2).
7
Section 172(1)(a).
8
Id.
9
King and Others v Attorneys’ Fidelity Fund Board of Control and
Another
2006 (1) SA 474
(SCA).
10
Section 59 of the Constitution which is identical to section 72 and
section 118 except that the obligation is placed on the National
Assembly.
11
Above n 9 at para 12.
12
Above n 4 at para 29.
13
Above n 9
at paras 15 and 16.
14
Id at paras 16 – 21.
15
Id at para 16.
16
Id at para 17.
17
Id at paras 17 and 18.
18
Id at para 19.
19
Id at para 21.
20
Sections 59(1)(b) and 72(1)(b).
21
Paragraph 7(c) of directions issued on 22 September 2005 and
paragraph 7(c) of directions issued on 3 November
2005.
22
Government of the Republic of South Africa and
Others v Grootboom and Others
2001 (1)
SA 46
(CC);
2000 (11) BCLR 1169
(CC) at para 22.
23
Section 74(1).
24
The heading to chapter 9 of the Constitution.
25
Section 181(1).
26
Section 190(1)(a).
27
Section 190(1)(b).
28
Section 193(4)(c) and (5).
29
Section 181(2).
30
Section 181(3).
31
Section 181(4).
32
Section 42(3).
33
Section 42(4).
34
Section 57.
35
Section 70.
36
Section 116.
37
Sections 56(d), 69(d) and 115(d) respectively.
38
New National Party of South Africa v Government of the Republic
of South Africa and Others
[1999] ZACC 5
;
1999 (3) SA 191
(CC);
1999 (5) BCLR
489
(CC) at para 2.
39
Id at para 12.
40
August and Another v Electoral Commission and Others
[1999] ZACC 3
;
1999 (3)
SA 1
(CC);
1999 (4) BCLR 363
(CC) at para 17.
41
Section 59.
42
Section 118.
43
Quorum is dealt with in sections 53(1)(b),
65(1)(b) and 76(5)(a) in relation to the National Assembly, National
Council of Provinces
and provincial legislatures respectively.
44
The number of votes required to take a decision
is set out in sections 53(1)(c), 65(1)(b) and 76(5)(b)(ii) in
relation to the National
Assembly, National Council of Provinces and
provincial legislatures respectively.
45
As well as the National Assembly by section 59(1)(b) and the
provincial legislatures by section 118(1)(b).
46
As well as the committees of the National
Assembly in section 59(2) and the provincial legislatures by section
118(2).
47
Nor do sections 59(2) and 118(2) have any
application to the National Assembly and the provincial legislatures
respectively.
48
Section 41(2)(a).
49
Section 41(2)(b).
50
Section 29(2).
51
Section 42(3).
52
Section 42(4).
53
Section 55(2)(a).
54
Minister of Health and Another NO v New Clicks
SA (Pty) Ltd and Others
(Treatment
Action Campaign and Another as
Amici
Curiae)
2006 (2) SA 311
(CC);
2006 (2) BCLR 1
(CC) at paras 111-13.
55
Sections 59(1)(a) and 57(1)(b) read together mean that the National
Assembly is mandated to require public consultation.
56
Sections 9, 26 and 27 are examples.
57
Section 19(1)(b).
58
Sections 23(2)(b) and (3)(b).
59
Section 30.
60
Sections 42(2), 42(4) and 44(1)(b).
61
Section 57(2)(b).
62
Section 70(2)(c).
63
Section 116(2)(b).
64
Section 70(2)(b).
65
The headings to sections 66 and 67 of the
Constitution.
66
Sections 73 – 79.
67
Sections 75 and 76.
68
Section 70.
69
And the National Assembly in section 57.
70
Section 45.
71
Sections 74(4).
72
Section 70(1).
73
Section 57 in respect of the National Assembly and section 70 in
respect of the National Council of Provinces.
74
Above para 259(c).
75
Section 72(1)(a).
76
Section 59(1)(a).
77
Sections 70(1)(b) and 57(1)(b) respectively.
78
It was adopted and opened for signature,
ratification and accession by General Assembly resolution 2200A
(XXI) of 16 December 1966.
79
Article 25.
80
Section 76.
81
Section 65(1)(a).
82
Section 65(1)(b).
83
Section 65(2).
233