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[2015] ZACC 2
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President of the Republic of South Africa and Others v South African Dental Association and Another (CCT 201/14) [2015] ZACC 2; 2015 (4) BCLR 388 (CC) (27 January 2015)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 201/14
In
the matter between:
PRESIDENT
OF THE REPUBLIC OF SOUTH
AFRICA
............................................
First
Applicant
MINISTER
IN THE
PRESIDENCY
............................................................................
Second
Applicant
DIRECTOR-GENERAL
IN THE
PRESIDENCY
........................................................
Third
Applicant
MINISTER
OF
HEALTH
..............................................................................................
Fourth
Applicant
DIRECTOR-GENERAL
OF
THE
DEPARTMENT OF
HEALTH
................................................................................
Fifth
Applicant
and
SOUTH
AFRICAN DENTAL
ASSOCIATION
............................................................
First
Respondent
HOSPITAL
ASSOCIATION OF SOUTH
AFRICA
................................................
Second
Respondent
Neutral
citation:
President of the Republic
of South Africa and Others v South African Dental Association and
Another
[2015] ZACC 2
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J, Tshiqi AJ, Van der
Westhuizen
J and Zondo J
Decided
on:
27 January 2015
Summary:
Section 167(6) of the Constitution —
direct access — application to declare invalid and set aside
President’s
Proclamation — review of exercise of public
power
National
Health Act 61 of 2003
—
sections 36
to
40
— decision to
bring provisions into operation premature — rationality review
ORDER
On
application for direct access:
1.
Direct access is granted.
2.
Proclamation 21 of 2014 is declared invalid
and set aside.
3.
There is no order as to costs.
JUDGMENT
THE
COURT:
Introduction
[1]
This
is an application for direct access in terms of section 167(6)(a) of
the Constitution.
[1]
The matter
concerns the premature promulgation of a proclamation bringing
certain sections of the
National Health Act
[2
]
into operation.
[2]
The
President, the Minister in the Presidency, the Director-General in
the Presidency, the Minister of Health and the Director-General
of
the Department of Health (the applicants) maintain that the
President’s decision to bring the provisions into operation
was
made in error and was therefore irrational in law. They seek an
order declaring the Proclamation
[3]
invalid and setting it aside. The South African Dental
Association (SADA) and the Hospital Association of South Africa
(HASA)
are cited as respondents in this matter. They support
the relief sought by the President. Indeed, it was SADA who
brought
the alarming situation that necessitates this application to
the attention of the Presidency.
Factual
and legal background
[3]
On
21 March 2014 the President signed the Proclamation pursuant to
section 94
of the
National Health Act.
[4
]
As its only purpose, the Proclamation brought
sections 36
,
37
,
38
,
39
and
40
of the
National Health Act into
operation on 1 April 2014.
Taken together, these sections criminalise providing health services
without holding a certificate
of need. The
National Health Act
authorises
the Minister of Health (the Minister) to prescribe
regulations regarding applications for, and the granting of,
certificates of
need.
[5]
These regulations are not yet in place.
[4]
The consequence is that health service
providers in South Africa are currently engaging in criminal conduct,
as no individual or
entity that provides health services is in a
position to obtain the required certificate of need as long as the
regulations have
not taken effect.
[5]
The
President approached this Court directly to rectify this.
[6]
He submits that the regulations, which do not yet exist, form an
essential part of the legislative scheme.
[6]
He submits that the untimely effect of the
Proclamation was unintentional since it was promulgated in error.
According to
the President, he acted in good faith when he determined
a date for the statutory provisions to take effect, but was led
astray
by his advisors’ mistaken counsel. Had he been
aware of the correct position, namely that the necessary regulations
were still pending, he would have selected a later date. Thus
the Proclamation should be reversed to allow the consultative
process
to run its course. Since the provision of health services is
now proscribed, the issuing of the Proclamation was
objectively
irrational as a matter of law.
[7]
The
President also maintains that the Proclamation is at odds with
sections 1, 7, 8, 11, 27, 28 and 195 of the Constitution.
[7]
Accordingly, he asks this Court to declare the Proclamation invalid
in terms of section 172(1)(a) of the Constitution.
[8]
[8]
SADA and HASA agree that this Court is the
proper forum to grant the relief and that the Proclamation should be
declared invalid
and set aside.
Direct
access
[9]
This
Court is generally reluctant to sit as a court of first and final
instance.
[9]
Direct access
is granted only if it is in the interests of justice to do so.
[10]
In determining whether direct access is in the interests of
justice, a range of factors is relevant, including—
“
the
importance of the constitutional issue raised and the desirability of
obtaining an urgent ruling of this Court on that issue,
whether any
dispute of fact may arise in the case, the possibility of obtaining
relief in another court, and time and costs that
may be saved by
coming directly to this Court.”
[11]
[10]
The
matter raises an issue of constitutional importance – the
provision of health services. The provisions brought into
force
by the Proclamation contemplate a legislative scheme detailed in
regulations that are non-existent and consequently criminalise
the
provision of health services. There are no disputes of fact or
contested legal averments that necessitate the matter
first being
heard by the High Court and the Supreme Court of Appeal. This
Court is the only court that can finally and effectively
dispose of
it.
[12]
The legislative
process required for Parliament to address the consequences of this
Proclamation would be lengthy and burdensome
and may fail to
expeditiously address the precarious position that the health
services industry finds itself in.
[13]
There is no reason to believe that this Court’s
intervention would upset the legislative process or programme or
infringe
the separation of powers. The impugned provisions are
intended to come into force only once the regulations are in place.
It is in the interests of justice that application for direct access
be granted.
Merits
[11]
At
stake is the exercise of public power in accordance with the
Constitution and the rule of law.
[14]
The President’s issuing of the Proclamation bringing into
operation
sections 36
to
40
of the
National Health Act, before
the
issuing of regulations that are essential to the operation of these
sections, has led to an untenable and unintended situation.
Health service providers are practising without a certificate of
need. And that certificate cannot be issued without the
promulgation of the necessary regulations. This renders the
provision of health services unlawful. Though, it seems,
no
criminal prosecutions have been brought, the position is clearly
undesirable. South African health service providers may
be
inhibited or discouraged from providing an essential service at the
risk of criminal sanction for doing so.
[12]
The
Proclamation was issued in error and the President submits that this
exercise of his public power was
bona
fide
but
irrational. He is unable to withdraw the Proclamation because
the date for its commencement has long since passed.
[15]
There is no mechanism contained in the
National Health Act
itself
to remedy the consequences of the Proclamation. Even
though the Proclamation was issued in error, it remains in force and
has legal effect. It is an inevitable consequence of the rule
of law that the Proclamation may not be ignored until it is
set
aside.
[16]
This Court is
therefore called upon to consider and set aside the Proclamation.
[17]
[13]
In
Pharmaceutical
Manufacturers
this
Court held that the President’s decision to bring an Act into
force is reviewable and the standard is that of rationality.
[18]
This
Court stated:
“
It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which
the power was given, otherwise they are in effect
arbitrary and
inconsistent with this requirement. It follows that in order to
pass constitutional scrutiny the exercise of
public power by the
Executive and other functionaries must, at least, comply with this
requirement. If it does not, it falls
short of the standards
demanded by our Constitution for such action.”
[19]
(Footnote omitted.)
[14]
This
Court must therefore determine whether the President’s decision
is rationally related to the purpose for which the power
was given.
This is an objective enquiry, unaffected by any good intentions the
President may have had.
[20]
[15]
The
purpose of the President’s power to bring portions of the
National Health Act into
operation is to achieve an orderly and
expeditious implementation of a national regulatory scheme for health
services.
[21]
Clearly
the decision to issue the Proclamation before there was any mechanism
in place to address applications for certificates
of need, thereby
rendering the provision of health services a criminal offence, was
not rationally connected to this purpose (or
any other governmental
objective).
[16]
This
mirrors the finding of this Court in
Pharmaceutical
Manufacturers
.
There, the President had prematurely brought into operation an Act
regulating the manufacture and sale of medicines before
the
appropriate regulatory infrastructure was in place.
[22]
[17]
Accordingly, the President’s decision
was irrational and therefore invalid. The Proclamation must be
set aside.
Order
[18]
The following order is made:
1.
Direct access is granted.
2.
Proclamation 21 of 2014 is declared invalid
and set aside.
3.
There is no order as to costs.
For
the Applicants: State Attorney, Cape Town.
For
the Respondents: Werksmans Attorneys.
[1]
Section
167(6)
provides:
“
National
legislation or the rules of the Constitutional Court must allow a
person, when it is in the interests of justice and
with leave of the
Constitutional Court—
(a)
to bring a matter directly to the Constitutional Court; or
(b)
to appeal directly to the Constitutional Court from any other
court.”
Rule
18
of the Rules of the Constitutional Court provides:
“
(1)
An application for direct access as contemplated in section
167(6)(a) of the Constitution shall be brought on notice of motion,
which shall be supported by an affidavit, which shall set forth the
facts upon which the applicant relies for relief.
(2)
An application in terms of subrule (1) shall be lodged with the
Registrar and served on all parties with a direct or substantial
interest in the relief claimed and shall set out—
(a)
the grounds on which it is contended that it is in the interests of
justice that an order for direct access be granted;
(b)
the nature of the relief sought and the grounds upon which such
relief is based;
(c)
whether the matter can be dealt with by the Court without the
hearing of oral evidence and, if it cannot,
(d)
how such evidence should be adduced and conflicts of fact resolved.
(3)
Any person or party wishing to oppose the application shall, within
10 days after the lodging of such application, notify
the applicant
and the Registrar in writing of his or her intention to oppose.
(4)
After such notice of intention to oppose has been received by the
Registrar or where the time for the lodging of such notice
has
expired, the matter shall be disposed of in accordance with
directions given by the Chief Justice, which may include—
(a)
a direction calling upon the respondents to make written submissions
to the Court within a specified time as to whether or
not direct
access should be granted; or
(b)
a direction indicating that no written submissions or affidavits
need be filed.
(5)
Applications for direct access may be dealt with summarily, without
hearing oral or written argument other than that contained
in the
application itself: Provided that where the respondent has indicated
his or her intention to oppose in terms of subrule (3),
an
application for direct access shall be granted only after the
provisions of subrule (4)(a) have been complied with.”
[2]
61
of 2003.
[3]
Proclamation
by the President of the Republic of South Africa 21 of 2014:
Commencement of Certain Sections of the
National Health Act 61 of
2003
, GN 21
GG
37501,
31 March 2014 (Proclamation).
[4]
Section
94
provides that the
National Health Act “takes
effect on a
date fixed by the President by proclamation in the
Gazette
”
.
See also section 81 of the Constitution.
[5]
Section
1 defines “health services” as—
“
(a)
health care services, including reproductive health care and
emergency medical treatment, contemplated in section 27 of the
Constitution;
(b)
basic nutrition and basic health care services contemplated in
section 28(1)(c) of the Constitution;
(c)
medical treatment contemplated in section 35(2)(e) of the
Constitution; and
(d)
municipal health services.”
Section
36(1) proscribes the provision of health services absent the
certificate of need. Subsection 2 thereof directs applications
for this certificate to the Director-General “in the
prescribed manner” subject to a “prescribed fee”.
Section 37 provides that a certificate of need will be valid for a
“prescribed period”. And most importantly,
section
39(1) authorises the Minister to prescribe, through regulations, the
requirements for the issuing of a certificate of
need to individuals
and various categories of entities. Section 39(2) empowers the
Minister, also through regulations,
to prescribe fees and other
processes in relation to the application for certificates of need.
Lastly, section 40 makes
non-compliance with section 36(1) a
criminal offence accompanied by criminal sanctions. It follows
that section 40 of the
Act is currently enforceable against all
health service providers.
[6]
The
third applicant, the Director-General in the Presidency, deposed to
the founding affidavit to the application for direct access
on
behalf of the President and the other applicants. As the
President is the first applicant, this judgment will refer
to the
President when it is detailing the submissions of the applicants.
[7]
Section
1(c) of the Constitution provides for the supremacy of the
Constitution and the rule of law. Section 7(2) provides
that the state must respect, protect, promote and fulfil the rights
in the Bill of Rights. Section 8 provides that the
Bill of
Rights is applicable to all branches of government. Section 11
guarantees everyone the right to life. Sections
27 and 28
enshrine the right to access to health care for adults and the right
to basic health care for children. Section
195 sets out the
basic values and principles governing public administration
including transparency and accountability.
[8]
Section
172(1)(a) provides: “When deciding a constitutional matter
within its power, a court . . . must declare that any
law or conduct
that is inconsistent with the Constitution is invalid to the extent
of its inconsistency”.
[9]
Brink
v Kitshoff NO
[1996]
ZACC 9
;
1996 (4) SA 197
(CC);
1996 (6) BCLR 752
(CC) at para 14.
[10]
Zondi
v MEC for Traditional and Local Government Affairs and Others
[2004]
ZACC 19
;
2005 (3) SA 589
(CC);
2005 (4) BCLR 347
(CC) at para 12.
[11]
Id.
[12]
Section
172(2)(a) of the Constitution provides that the—
“
Supreme
Court of Appeal, the High Court of South Africa 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.” (Emphasis
added.)
[13]
In
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex Parte
President of the Republic of South Africa and Others
[2000]
ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) (
Pharmaceutical
Manufacturers
)
this Court noted at para 91:
“
The
President is answerable to Parliament and Parliament has the power
to correct the decision. But Parliament was not in
session at
the time because of the pending general election, and considerable
cost and inconvenience would have been occasioned
by calling
Parliament together on the eve of the election for the sole purpose
of reversing the President’s decision. The
fact that
another course might possibly have been open to the applicants in
the present case does not mean that the President’s
decision
was not justiciable. There might be cases in which a court
would decline to intervene in matters that are properly
matters to
be dealt with by the Legislature, but this is not such a case.”
A
similar impediment to Parliamentary involvement was not present in
this case. However, the Court did not find that only
Parliament may be called upon to address issues such as these.
In this case, the Court is satisfied that the facts justify
judicial
review.
[14]
Id
at para 20.
[15]
Kruger
v President of Republic of South Africa and Others
[2008] ZACC 17
;
2009 (1) SA 417
(CC);
2009 (3) BCLR 268
(CC) at para
61. In addition, this Court held at para 63 that—
“
the
President could lawfully have withdrawn the First Proclamation once
he had realised his mistake as long as he did so in unambiguous
terms, and before 31 July 2006. It would impose an undue
burden on the President to have required him to apply to court
to
have the incorrect proclamation set aside even when the proclamation
had not yet come into force.”
[16]
MEC
for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd
t/a Eye & Lazer Institute
[2014]
ZACC 6
;
2014 (3) SA 481
(CC);
2014 (5) BCLR 547
(CC) (
Kirland
)
at para 103. See also
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
[2004]
ZASCA 48; 2004 (6) SA 222 (SCA).
[17]
See
also
Kirland
id
at para 90, where this Court held that the appropriate remedy was
judicial review.
[18]
This
Court held at para 79:
“
This
is one of those difficult cases. The power is derived from
legislation and is close to the administrative process.
In my
view, however, the decision to bring the law into operation did not
constitute administrative action. When
he purported to
exercise the power the President was neither making the law, nor
administering it. Parliament had made
the law, and the
Executive would administer it once it had been brought into force.
The power vested in the President thus
lies between the
law-making process and the administrative process. The
exercise of that power requires a political judgment
as to when the
legislation should be brought into force, a decision that is
necessarily antecedent to the implementation of the
legislation
which comes into force only when the power is exercised. In
substance the exercise of the power is closer to
the legislative
process than the administrative process. If regard is had to
the nature and subject-matter of the power,
and the considerations
referred to above, it would be wrong to characterise the President’s
decision to bring the law into
operation as administrative action
within the meaning of item 23(2)(b) of the Sixth Schedule of the
Constitution. It was,
however, the exercise of public power
which had to be carried out lawfully and consistently with the
provisions of the Constitution
insofar as they may be applicable to
the exercise of such power.” (Footnote omitted.)
[19]
Pharmaceutical
Manufacturers
above
n 13 at para 85.
[20]
Id
at para 86.
[21]
In
terms of section 79(1) of the Constitution:
“
The
President must either assent to and sign a Bill passed in terms of
[Chapter 4 of the Constitution] or, if the President has
reservations about the constitutionality of the Bill, refer it back
to the National Assembly for reconsideration.”
In
terms of section 81:
“
A
Bill assented to and signed by the President becomes an Act of
Parliament, must be published promptly, and takes effect when
published or on a date determined in terms of the Act.”
[22]
Pharmaceutical
Manufacturers
above
n 13 at para 87.