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[2018] ZACC 49
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South African Veterinary Association v Speaker of the National Assembly and Others (CCT27/18) [2018] ZACC 49; 2019 (2) BCLR 273 (CC); 2019 (3) SA 62 (CC) (5 December 2018)
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Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
27/18
In the matter
between:
SOUTH AFRICAN
VETERINARY
ASSOCIATION
Applicant
and
SPEAKER OF THE
NATIONAL
ASSEMBLY
First Respondent
CHAIRPERSON OF
THE NATIONAL
COUNCIL OF
PROVINCES
Second Respondent
MINISTER OF
HEALTH
Third Respondent
MINISTER OF
AGRICULTURE,
FORESTRY AND
FISHERIES
Fourth Respondent
SPEAKER OF THE
EASTERN CAPE
PROVINCIAL
LEGISLATURE
Fifth Respondent
SPEAKER OF THE
FREE STATE
PROVINCIAL
LEGISLATURE
Sixth Respondent
SPEAKER OF THE
GAUTENG
PROVINCIAL
LEGISLATURE
Seventh Respondent
SPEAKER OF THE
KWAZULU-NATAL
PROVINCIAL
LEGISLATURE
Eighth Respondent
SPEAKER OF THE
LIMPOPO
PROVINCIAL
LEGISLATURE
Ninth Respondent
SPEAKER OF THE
MPUMALANGA
PROVINCIAL
LEGISLATURE
Tenth Respondent
SPEAKER OF THE
NORTHERN CAPE
PROVINCIAL
LEGISLATURE
Eleventh Respondent
SPEAKER OF THE
NORTH WEST
PROVINCIAL
LEGISLATURE
Twelfth Respondent
SPEAKER OF THE
WESTERN CAPE
PROVINCIAL
LEGISLATURE
Thirteenth Respondent
PRESIDENT OF THE
SOUTH AFRICAN
VETERINARY
COUNCIL
Fourteenth Respondent
Neutral citation:
South African Veterinary Association v Speaker of the National
Assembly and Others
[2018] ZACC 49
Coram:
Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ,
Khampepe J, Mhlantla J, Petse AJ and Theron
J
Judgment:
Goliath AJ (unanimous)
Heard on:
11
September 2018
Decided on:
5
December 2018
Summary:
Constitution — sections 59(1)(a), 72(1)(a) and 118(1)(a) —
Parliamentary duty to facilitate public participation in the
law-making process — non-compliance with duty
Medicines and
Related Substances Act — section 22C(1)(a) —
veterinarians require licences to compound and dispense medicines
—
constitutionally invalid
ORDER
In an application
for direct access, the following order is made:
1. Direct access is granted.
2. To the extent that it includes the word “veterinarian”,
section 22C(1)(a) of the Medicines and Related Substances
Act 101 of
1965 (Act) is declared to have been amended in a manner inconsistent
with the Constitution.
3. The word “veterinarian” is severed from
section 22C(1)(a) of the Act.
4. The first and second respondents are ordered to pay the costs of
the applicant, jointly and severally, including the costs of
two
counsel.
JUDGMENT
GOLIATH AJ
(Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J,
Khampepe J, Mhlantla J, Petse AJ and Theron
J concurring):
Introduction
[1]
Veterinarians are experts in the field of veterinary medicine
and work hard to address the health and welfare needs of animals.
They also play critical roles in environmental protection, research,
food safety and public health. The South African Veterinary
Association (SAVA) approaches this Court, as a body representing over
a thousand veterinarians, to challenge the validity of an
Act of
Parliament which would alter the conditions under which veterinarians
are able to perform these vital roles.
[2]
SAVA, the applicant, brought an application for direct access
to this Court in terms of section 167(4)(e) of the
Constitution.
[1]
It concerns whether Parliament failed in its constitutional duty to
facilitate public participation in the legislative process
when it
enacted section 16 of the Medicines and Related Substances Amendment
Act
[2]
(Amendment Act). This amended the Medicines and Related
Substances Act
[3]
(Principal Act), and was, it is contended, done contrary to
sections 59(1)(a),
[4]
72(1)(a)
[5]
and 118(1)(a)
[6]
of the Constitution.
[3]
Section 16 of the Amendment Act, introduces the word
“veterinarian” into section 22C(1)(a) of the Principal
Act.
The amended section reads:
“[T]he Director-General may on application in the prescribed
manner and on payment of the prescribed fee issue to a medical
practitioner, dentist, practitioner,
veterinarian
, nurse or
other person registered under the Health Professions Act, 1974 (Act
56 of 1974), a licence to compound and dispense medicines,
on the
prescribed conditions.” (Emphasis added.)
[4]
The effect of this amendment is that, along with other
professionals listed in the section, veterinarians now require a
licence
issued by the Director-General of Health on prescribed
conditions, to compound and dispense medicines. Under the
provisions
of section 34(1) of the Veterinary and Para-Veterinary
Professions Act
[7]
which governed the compounding and dispensing of medicines prior to
the Amendment Act, this was not required.
[8]
[5]
This case raises three questions. The first is whether
direct access should be granted. If so, the second, and main
issue, is whether Parliament failed properly to facilitate public
participation in the law-making process, specifically relating
to the
insertion of the word “veterinarian”. Finally, if
this Court finds that the process through which the
Act was passed
falls short of the constitutionally enshrined standards of
participation, it must determine an appropriate remedy.
Parties
[6]
SAVA brings this application in terms of section 38(e) of the
Constitution.
[9]
It acts in the interests of veterinarians. It also claims to
bring this application in its own interest
[10]
and in the public interest.
[11]
[7]
The first and second respondents, the Speaker of the National
Assembly (NA) and the Chairperson of the National Council of
Provinces
(NCOP) respectively, initially indicated that they intended
to oppose the application brought by SAVA. They subsequently
withdrew their opposition and indicated that they would abide the
decision of this Court. The fifth to fourteenth respondents
did
not participate in the proceedings before this Court. The third
and fourth respondents, who are members of the Executive
responsible
for the Amendment Bill and for oversight of the veterinary
profession, were represented at the hearing before us but
made
submissions only with regard to remedy.
[8]
This Court requested the Johannesburg Bar Council to appoint
counsel as amicus curiae (friend of the court) to make independent
submissions to facilitate a proper hearing of the matter. Counsel
made both written and oral submissions, primarily on the
subject of
remedy. The Court is deeply indebted to them for their
assistance.
Background
[9]
The Amendment Bill was approved by Cabinet during December
2011 and was published in the Government Gazette for public comment
on
15 March 2012.
[12]
[10]
A second version of the Amendment Bill was published in the
Government Gazette on 20 February 2014.
[13]
This version did not include the word “veterinarian”, but
instead only added “practitioner” to the
list of people
required to hold a licence to dispense and compound medicines.
In terms of the Principal Act, “practitioner”
was defined
as “a person registered as such under the Allied Health
Professions Act”.
[14]
Notably, veterinarians do not fall into this definition. The
Amendment Bill was introduced in the NA on 26 February
2014.
Public hearings were held on 29 and 31 October and 5 November 2014.
At one of these hearings the Pharmaceutical
Society of South Africa
(PSSA) commented that veterinarians should be treated in the same way
as other health professionals regarding
the dispensing and
compounding of medicines. Consequently, it was suggested that
the word “veterinarian” should
be inserted into section
16. The PSSA’s reason for this suggestion was an
allegation that veterinarians are not properly
trained to compound
and dispense medicine despite this being part of their university
curriculum.
[11]
On 19 November 2014, the NA Portfolio Committee on Health
(Health Committee) met with the Department of Health
(Department),
who submitted comments about proposals made at the
public hearings. The Department agreed that veterinarians
should be regulated
like other health professionals and should
require licences for dispensing and compounding of medicines.
The Health Committee
accepted this suggestion and included it in the
Health Committee’s amendments to the Bill. Thereafter
followed a series
of further deliberations conducted by the
Health Committee until the Amendment Bill was adopted on 5
August 2015 and passed
to the NCOP on 13 August 2015.
[12]
The NCOP referred the Amendment Bill to the NCOP Social
Services Select Committee (Select Committee) which was briefed
by the
Department about the contents of the Amendment Bill.
SAVA submits that the Department did not brief the Select Committee
about the insertion of the word “veterinarian” into
section 22C(1)(a) of the Principal Act through its inclusion in
section 16 of the Amendment Bill.
[13]
The NCOP referred the Amendment Bill to the Provincial
Legislatures (PLs) to enable the Provinces’ representatives in
the
NCOP to obtain negotiating mandates and hold public hearings.
Public hearings were held in seven provinces: Free State,
Gauteng,
Limpopo, Mpumalanga, Northern Cape, North West and Western
Cape. There is no indication that hearings took place in the
Eastern
Cape or in KwaZulu Natal. In Gauteng, Mpumalanga
and North West, only one to two days’ notice was given before
the public hearings. In the remaining four provinces it could
not be established that notice was given at all.
[14]
On 2 November 2015, the NCOP passed the Amendment Bill with
amendments and sent it back to the NA. The NA adopted the
NCOP’s
amendments, and the Bill was signed into force by the
President on 23 December 2015.
Direct access
[15]
It is common cause that this matter engages this Court’s
exclusive jurisdiction. Section 167(4)(e) of the Constitution
grants this Court exclusive jurisdiction in respect of matters where
it is alleged that Parliament or the President has failed
to fulfil a
constitutional obligation. This Court has carefully
circumscribed the circumstances in which it will exercise
its
exclusive jurisdiction.
[15]
It is wary of encroaching upon the jurisdiction which is conferred on
High Courts and the Supreme Court of Appeal to make
declarations of
constitutional invalidity in terms of section 172(2)(a) of the
Constitution.
[16]
An allegation that Parliament or the President has failed to fulfil a
constitutional obligation must be interpreted narrowly.
This
narrow interpretation prevents any possible conflict with section
172(2)(a).
[16]
The purpose of the constitutional provisions giving exclusive
jurisdiction to the Constitutional Court is—
“to preserve the comity between the judicial branch of
government, on the one hand, and the legislative and executive
branches
of government, on the other, by ensuring that only the
highest Court in constitutional matters intrudes into the domain of
the
principal legislative and executive organs of State.”
[17]
[17]
In
Doctors for Life
this Court pointed out that section
42(1) of the Constitution defines Parliament as consisting of both
the NA and the NCOP.
[18]
Where either House fails to satisfy its obligation to facilitate
public involvement, as specified in sections 59(1)
and 72(1) of
the Constitution respectively, in the process of making law,
Parliament as a whole has failed in its constitutional
obligation.
[19]
This case raises questions about whether Parliament failed to comply
with sections 59(1)(a), 72(1)(a) and 118(1)(a) of the
Constitution.
In
King
, the Supreme Court of Appeal held that it did not have
jurisdiction to decide a matter based on section 59(1)(a) of the
Constitution
as this fell within the exclusive jurisdiction of this
Court.
[20]
Similarly, in
Doctors for Life
, this Court established that a
challenge based on a failure to fulfil the obligation contained in
section 72(1)(a) falls into this
Court's exclusive jurisdiction.
[21]
Therefore, this matter falls squarely within the exclusive
jurisdiction of this Court.
Public
participation
[18]
Democracies the world over vary in form and tradition.
However, they share the common foundational value of government by
the people.
[22]
In South Africa this occurs through a representative democracy that
is both participatory and deliberative. This stems
from the
recognition that political rights in the Constitution facilitate both
the election of representative leaders and a continuing
entitlement
by the people to be involved in political decision-making.
[23]
[19]
This Court’s jurisprudence reaffirms the existence of a
justiciable duty on the Legislature to involve the public when
drafting
and enacting legislation.
Doctors for Life
is the seminal authority for the principle that legislation can be
declared invalid for lack of public participation in the law-making
process. This Court recognised:
“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 but also by imposing a constitutional obligation
on
legislatures to facilitate public participation in the law-making
process.”
[24]
[20]
In the majority judgment, participation was underscored as a
core constitutional value. Ngcobo J said:
“[O]ur 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.”
[25]
[21]
Sachs J, in a concurring judgment in
Doctors for Life
,
stated:
“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.”
[26]
[22]
Beyond the remarks made in
Doctors for Life,
this
Court, in
Democratic Alliance
, underlined the importance
of public participation:
“The requirement of fair representation emphasises that the
Constitution does not envisage a mathematical form of democracy,
where the winner takes all until the next vote-counting exercise
occurs. Rather, it contemplates a pluralistic democracy
where
continuous respect is given to the rights of all to be heard and have
their views considered. . . . It would accordingly
be perverse
to construe its terms in a way that belied or minimised the
importance of the very inclusive process that led to its
adoption,
and sustains its legitimacy.
The open and deliberative nature of the process goes further than
providing a dignified and meaningful role for all participants.
It
is calculated to produce better outcomes through subjecting laws and
governmental action to the test of critical debate,
rather than
basing them on unilateral decision-making.”
[27]
[23]
This Court has held that legislation must conform to the
Constitution in terms of both its content and the manner in which it
was
adopted. Further, the obligation to facilitate public
participation is a material part of the law making process, and
the failure to comply with this requirement renders the resulting
legislation invalid.
[28]
Failure by the NA
to facilitate public involvement
[24]
Parliament itself recognises the importance of public
participation in the law making process by regularly involving
the public
in its processes. In the present case, it is evident
that the NA attempted to fulfil its section 59(1)(a) obligation to
facilitate
public participation. It held public hearings for
the majority of the Amendment Bill. SAVA’s challenge to
the
procedure adopted by the NA is a narrow one: the NA’s
failure to hold further public consultations following the insertion
of the word “veterinarian” did not comply with the
Constitution and the rules of the NA.
[25]
Veterinarians were brought under the auspices of the Amendment
Bill only after the NA’s official public hearings. On
this aspect of the Bill, therefore, there was no public participation
whatsoever. This is despite the fact that the rules
of the NA
attempt to guard against this kind of non-consultative process when
amendments take place after the NA public hearings.
[26]
Section 59(1)(a) requires that public involvement be
facilitated at all stages of the NA’s processes, including at a
Committee
level.
[29]
The insertion of a word, by the Health Committee, that materially
affects a specific group would be exactly the situation
for which
this obligation was created.
[27]
SAVA submits that the word “veterinarian” in
section 22C(1)(a) affects the entire veterinary profession. It
is
alleged that the amendment materially changes the way that
veterinarians will be able to compound and dispense medicines, and
that
for the insertion to be effectual a number of consequential
amendments to other sections of the Principal Act are required.
SAVA has placed before the Court at least fifteen amendments that
would be necessary following the insertion, including amendments
to
the various schedules of the Principal Act. The vast number of
required amendments stem from the fact that veterinarians
were not
previously included in the Principal Act. This absence in
itself illustrates the material nature of the amendments.
They
had the effect of bringing an entire profession under the control of
an Act that never applied to it. This cannot be
considered a
technical or semantic amendment.
[28]
The failure by the Health Committee to facilitate public
involvement renders the procedure followed in inserting the word
“veterinarian”
constitutionally invalid in terms of
section 59(1)(a). To bolster this finding, an examination of
the rules of the NA is
useful. Rule 286 regulates the process
to be followed when a Bill is before a relevant committee. Rule
286(4)(b) and
(c) state:
“The committee—
. . .
(b)
may seek the permission of the Assembly to inquire into extending the
subject of the Bill;
(c)
if the Bill amends provisions of legislation, must, if it intends to
propose amendments to other provisions of that legislation,
seek the
permission of the Assembly to do so.”
[29]
The requirement that veterinarians be licensed to compound and
dispense medicines is seemingly an extension of the subject of the
Bill for which the Committee ought to have sought the NA’s
permission. Moreover, the amendment necessitates a number
of
further amendments to the other provisions of the legislation.
The rules of the NA prescribe that permission must be attained
before
making changes of this nature. No such permission was requested
or granted.
[30]
Beyond the constitutional obligation to involve the public
when making and amending Bills, the rules of the NA make it clear
that
there is an expectation that public participation will occur in
all inquiries by the Committee. Rule 286(6)(c) states:
“In the process of inquiring into a Bill, the committee must,
where applicable, as far as possible apply the following separate
formal stages:
. . .
(c)
invitation for further public comment and submissions on the
substance of the Bill, followed by the hearing and examination
of
such or other oral submissions if deemed necessary.”
[31]
This rule gives expression to the constitutional obligation
that is placed upon the NA. Having regard to the material
nature
of the amendment, the Health Committee is required, as
far as possible, to invite further public comment. It is
evident
that there was no attempt to do this, and no argument was put
forward that facilitating public participation was impossible.
[32]
The amendment made at the Committee stage constituted a
material amendment to the Bill and will have lasting effects on the
professional
operations of veterinarians. It is clear that
there was no public participation facilitated by the NA with respect
to this
aspect of the Bill. In
New Clicks
, Sachs J
wrote:
“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.”
[30]
(Emphasis added.)
From the above it is
obvious that the standard by which public participation must be
measured is reasonableness. The content
of this standard will
vary from case to case. However, a complete failure to take any
steps to involve the public in a material
amendment to a Bill cannot
be reasonable by any measure. Therefore, we find that the NA
failed in its section 59(1)(a) duty
and the validity of the insertion
of the word “veterinarian” is consequently tainted.
Failure of the
NCOP to facilitate public participation
[33]
A finding that the NA failed properly to facilitate public
participation in the amendment process is sufficient to invalidate
the
insertion of the word “veterinarian” in section
22C(1)(a) of the Principal Act. However, SAVA contends that the
NCOP also failed to fulfil their section 72(1)(a) constitutional
obligation to facilitate public participation and the PLs fell
short
of the twin duty imposed upon them by section 118(1)(a) of the
Constitution. In contrast to the NA’s procedure,
it is
evident that some steps were taken at a provincial level to
facilitate public participation.
[34]
The NCOP referred the Bill to its Select Committee. The
Department briefed the Select Committee about the contents of the
Bill but seemingly did not mention the insertion of the word
“veterinarian”. It is generally at the
Select Committee
stage where public involvement is facilitated
by the NCOP. The Select Committee referred the Amendment Bill
to the PLs
to enable the provinces’ representatives in the NCOP
to obtain negotiating mandates and hold public hearings.
[35]
SAVA has placed evidence before the Court regarding the public
hearings that were held in the various provinces. The PLs have
been less than forthcoming with information about the processes that
were followed. All of the respondents are abiding this
Court’s
decision and have offered no counter-arguments or facts.
Consequently, even with the limited facts that this
Court has
before it, we are able to reach a conclusion about the adequacy, or
otherwise, of attempts to facilitate public participation
on the
insertion of the word “veterinarian” at a provincial
level.
[36]
It is not necessary for this Court to determine whether the
NCOP’s process through which public participation was
facilitated
at this stage was so unreasonable that it invalidates the
entire Act. We can concern ourselves only with the procedure
followed
by the NCOP with regard to the insertion of the word
“veterinarian” because SAVA approaches us as a specific
interest
group, challenging only the amendments that affect
veterinarians. This does not close the door for future
litigants to bring
cases in their own interest, or the public
interest, based on flaws in the consultation procedure followed by
the NCOP when passing
this Act.
[37]
SAVA’s challenge to the procedure followed at a
provincial level, which is described in the background,
[31]
is two-pronged. First, it is based on the short notice period
given in some provinces. Second, SAVA submits that the
failure
to inform organisations representing the interests of veterinarians
of the Bill, and the consequent denial of the opportunity
to make
submissions, was unreasonable.
Notice periods
[38]
This Court in
Land Access Movement
held that when this
Court considers the reasonableness of public involvement, it will
examine the self-same factors that Parliament
ought to consider when
deciding how public participation will be facilitated.
[32]
These factors include: the Parliamentary rules regarding public
participation, the nature of the legislation and any need
for urgency
in its adoption.
[33]
[39]
In
Land Access Movement
, the facts regarding the notice
periods provided are similar to the ones before us. There, this
Court held that a notice
period of less than seven days was
unreasonable. This is because it is highly likely that the
short notice deprived people
affected by the Bill of the opportunity
to participate in the hearings.
[34]
It also prevented the public, interested parties and organisations
from studying the Bill in order to prepare adequately
for the
hearings.
[35]
SAVA says that it was aware that the Principal Act was undergoing
various amendments but believed that the amendments did
not affect
its members. Perhaps with a longer notice period, SAVA would
have noticed the insertion of the word “veterinarian”
and
would have been able to make representations about the legitimacy of
its inclusion in the Bill.
[40]
The parliamentary rules mandate public participation. The
Bill is of importance to the veterinary profession and there was
no
reason for adoption to take place with urgency. Consequently, I
am of the view that, at least in Gauteng, Mpumalanga and
the North
West, the short notice periods were unreasonable and public
participation was not properly facilitated for the extension
of the
scope of the Principal Act to veterinarians.
Invitation to
interested groups
[41]
Doctors for Life
established the purpose of public
participation when this Court held:
“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.”
[36]
[42]
The failure to notify SAVA, and other similar organisations
representing the interests of veterinarians, such as the South
African
Veterinary Council, undermines the purpose of facilitating
public participation. The Amendment Bill predominantly affected
veterinarians but they cannot reasonably be expected to have known
about the amendment without its being brought to their attention.
The Bill was published twice in two separate Government Gazettes.
However, it was never published in the form that included
the
word “veterinarian”.
[43]
In
Matatiele,
this Court held:
“The more discrete and identifiable the potentially affected
section of the population, and the more intense the possible
effect
on their interests, the more reasonable it would be to expect the
Legislature to be astute to ensure that the potentially
affected
section of the population is given a reasonable opportunity to have a
say.”
[37]
[44]
None of the respondents have disputed the fact that
veterinarians had a substantial interest in the Amendment Bill after
its scope
was extended to them. Moreover, there are no reasons
advanced why no consultation was held with members of the veterinary
profession or the organisations established to represent them.
At the very least, the South African Veterinary Council, the
statutory body created to regulate the veterinary profession, should
have been consulted. Veterinarians were not given notice
of the
amendment, nor were they specifically invited to give comment.
[45]
SAVA advances a number of arguments about the unique nature of
the veterinary profession and uses these arguments to aver that
veterinarians
do not have to be licensed to compound and dispense
medicines. Had the public participation process been
facilitated properly,
these arguments would have been heard and
considered. They would not necessarily have prevented the
inclusion of the word
“veterinarian” in the Amendment
Bill but any inclusion that did occur would have been more informed
and procedurally
sound. The attempts to facilitate public
participation cannot be considered reasonable because they failed to
ensure that
the most directly affected group participated in the
law-making process.
[46]
In summation, the insertion of the word “veterinarian”
is a material amendment to the Bill. This amendment was
made by
the NA without facilitating any public participation on this aspect.
This clearly falls short of the requirements
in section 59(1)(a)
of the Constitution. Further, the NCOP, through the PLs, failed
to properly facilitate public participation
due to the exceptionally
short notice periods that they gave before public hearings, and the
failure to invite specific comment
from members of the veterinary
profession. Consequently, the insertion of the word
“veterinarian” was also done
contrary to sections
72(1)(a) and 118(1)(a).
Remedy
[47]
Having found that the NA, the NCOP and the PLs failed to
fulfil their constitutionally imposed duties, what remains is
crafting
an appropriate remedy. SAVA has offered three possible
approaches. The first option is to declare the entire Amendment
Act invalid. The second option is to order that section
22C(1)(a) of the Principal Act is constitutionally invalid, but hold
that this order should be suspended for 18 months to allow Parliament
an opportunity to cure the invalidity. Finally, the
word
“veterinarian” in section 22C(1)(a) could be struck down
as specifically invalid.
[48]
In oral argument, counsel for SAVA averred that because public
hearings had not been held in all nine provinces, the NCOP did not
facilitate public participation in line with its constitutional
obligations. This affected not only the validity of the
insertion of the word “veterinarian” but the Act as a
whole. Consequently, it was submitted that the entire Act
should be invalidated. Counsel for the third and fourth
respondents and the independent counsel urged against this.
In
the NCOP, it is not clear that the failure to hold public hearings in
all provinces necessarily constituted a flouting of a
constitutional
obligation. It may have been that there was little interest in
other aspects of the Bill and the participation
that did occur,
barring the neglecting of veterinary representatives, amounted to
substantial compliance with Parliament’s
constitutional
duties.
[38]
This Court cannot, on the facts that we have before us, make a
determination about whether public participation was lacking
in
respect of amendments besides the inclusion of the word
“veterinarian”.
[49]
There is also no evidence before us to suggest that the
remainder of section 22C(1)(a) of the Principal Act was
improperly
amended, or that it should be reviewed. Therefore,
the third remedy provided by SAVA, and favoured by the third and
fourth
respondents and the independent counsel, seems to be the most
appropriate option. In
Coetzee
, this Court established
the test for severability as follows:
“Although severability in the context of constitutional law may
often require special treatment, in the present case the
trite test
can properly be applied: if the good is not dependent on the bad and
can be separated from it, one gives effect to the
good that remains
after the separation if it still gives effect to the main objective
of the statute. The test has two parts:
first, is it possible
to sever the invalid provisions and, second, if so, is what remains
giving effect to the purpose of the legislative
scheme?”
[39]
[50]
It is possible to sever the word “veterinarian”
from the remainder of section 22C(1)(a). The section would
then apply to all other identified professionals, but not to
veterinarians – the same position that applied before the
impugned
amendment process. The balance of the section remains
intact and capable of giving effect to the purpose of the legislative
scheme which is, amongst others, to provide for the licensing of
certain persons to compound, dispense or manufacture medicines.
[40]
[51]
Doctors for Life
established that this Court may
intrude into the realm of the legislative branch of government when
Parliament has failed to give
effect to its constitutional
obligations.
[41]
This power is limited by section 172(1)(a) of the Constitution which
states:
“When deciding a constitutional matter within its power, a
court—
(a)
must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency.”
[52]
In line with the narrow challenge that we have before us, the
relief granted should be similarly limited. Based on the
arguments
in the current case, a declaration invalidating the whole
Act, or any portion of it besides the insertion of the word
“veterinarian”,
would amount to judicial overreach
because the remainder has not been shown by SAVA to have been enacted
unconstitutionally.
Thus, the only appropriate remedy is to
declare section 22C(1)(a) constitutionally invalid to the extent that
it includes the word
“veterinarian” and order that this
word be severed from the rest of the section.
[53]
It remains to be decided whether the declaration of invalidity
should be suspended to allow Parliament an opportunity to rectify
its
error. The Court will make an order of suspension when it is
just and equitable to do so, taking into account the circumstances
of
the case.
[42]
SAVA and the independent counsel submit that this case does not
warrant a suspension order. This is because no chaos
or
prejudice to good governance will occur as a result of the severance
and striking down without a suspension. The fact
that the
Department has agreed not to implement the licensing regime for
veterinarians for three years is evidence of this lack
of
consequence. Parliament has a number of options that it can
pursue after holding proper consultations with veterinarians
and
there are no pressing time constraints involved in this matter.
Proper public participation is not assisted by imposing
a deadline on
Parliament by which time it must decide either to include or exclude
veterinarians from the purview of the Principal
Act. In light
of this the declaration of invalidity should not be suspended.
Costs
[54]
There is no reason why costs should not follow the result in
this matter. SAVA raised the possibility of holding the third
respondent liable for costs because it was responsible for the
content of the amendment. This suggestion cannot be sustained.
The Department was entitled to make any suggestions that it deemed
appropriate but Parliament was obliged to ensure that, in considering
them, it did so in compliance with the Constitution. It is
evident that the constitutional invalidity is as a result of the
failures by both the NA and the NCOP to facilitate public
participation in the process that inserted the word “veterinarian”
into the Principal Act. In the circumstances, the first and
second respondents are ordered, jointly and severally, to pay
SAVA’s
costs including the costs of two counsel.
[55]
In the result, the following order is made:
1. Direct access is granted.
2. To the extent that it includes the word “veterinarian”,
section 22C(1)(a) of the Medicines and Related Substances
Act 101 of
1965 (Act) is declared to have been amended in a manner inconsistent
with the Constitution.
3. The word “veterinarian” is severed from
section 22C(1)(a) of the Act.
4. The first and second respondents are ordered to pay the costs of
the applicant, jointly and severally, including the costs of
two
counsel.
For the Applicant: J
H Str
ö
h SC and R Doms instructed by
Whally & van der Lith Inc
For the Third and
Fourth Respondents: N Rajab-Budlender and Z Ngwenya instructed by the
State Attorney
For the Independent
Amicus Curiae: C Georgiades SC and O Ben-zeev at the request of the
Court
[1]
Section 167(4)(e) of the Constitution states:
“Only the Constitutional Court may—
. . .
(e) decide that Parliament or the President has failed to fulfil a
constitutional obligation.”
[2]
14 of 2015.
[3]
101 of 1965.
[4]
Section 59(1)(a) states:
“The National Assembly must—
(a) facilitate public involvement in the legislative and other
processes of the Assembly and its committees.”
[5]
Section 72(1)(a) states:
“
The National Council of Provinces must—
(a)
facilitate public involvement in the
legislative and other processes of the Council and its committees.”
[6]
Section 118(1)(a) states:
“
A provincial legislature must—
(a)
facilitate public involvement in the
legislative and other processes of the legislature and its
committees.”
[7]
19 of 1982.
[8]
Section 34(1) states:
“A person who is registered or deemed to be registered in
terms of this Act to practise a veterinary profession, may
personally compound or dispense any medicine which is prescribed by
himself or by any other person with whom he or she is in partnership
or with whom he or she is associated as a principal or an assistant
or a
locum tenens
, for use in the treatment of an animal
which is under his or her professional care: Provided that he or she
shall not be entitled
to keep an open shop or pharmacy.”
[9]
Section 38(e) of the Constitution states:
“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 a court are—
. . .
(e) an association acting in the interest of its members.”
[10]
See section 38(a) of the Constitution.
[11]
See section 38(d) of the Constitution.
[12]
Publication of Medicines and Related Substances Bill 2012, GN 216
GG
35151, 15 March 2012.
[13]
Publication of Explanatory Summary of the Medicines and Related
Substances Bill 2013, GN 117
GG
37361, 20 February 2013.
[14]
63 of 1982. Section 1 states that—
“‘practitioner’ means a person registered as an
acupuncturist, ayurveda practitioner, chiropractor, homeopath,
naturopath, osteopath or phytotherapist, in terms of this Act.”
[15]
Economic Freedom Fighters v Speaker, National Assembly
[2016]
ZACC 11
;
2016 (3) SA 580
(CC);
2016 (5) BCLR 618
(CC) at paras
19-23;
My Vote Counts NPC v Speaker of the National Assembly
[2015] ZACC 31
;
2016 (1) SA 132
(CC);
2015 (12) BCLR 1407
(CC) at
paras 23-4 and 131-5;
Von Abo v President of the Republic of
South Africa
[2009] ZACC 15
;
2009 (5) SA 345
(CC);
2009 (10)
BCLR 1052
(CC) at para 37;
Doctors for Life International v
Speaker of the National Assembly
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC) (
Doctors for Life
) at para 22
and
President of the Republic of South Africa v South African
Rugby Football Union
[1998] ZACC 21
;
1999 (2) SA 14
(CC);
1999
(2) BCLR 175
(CC) (
SARFU
) at para 25.
[16]
SARFU
id at para 25.
[17]
Id at para 29.
[18]
Doctors for Life
above n 15 at para 29.
[19]
Id.
[20]
King v Attorneys’ Fidelity Fund Board of Control
[2005]
ZASCA 96
;
2006 (1) SA 474
(SCA) at para 23.
[21]
Doctors for Life
above n 15 at para 27.
[22]
Our own Constitution recognises this foundation in section 42(3)
which states:
“The National
Assembly is elected to represent the people and to ensure government
by the people under the Constitution.”
[23]
Doctors for Life
above n 15 at para 115.
[24]
Id at para 106.
[25]
Id at para 116.
[26]
Id at
para 235.
[27]
Democratic Alliance v Masondo N.O.
[2002] ZACC 28
;
2003 (2)
SA 413
(CC);
2003 (2) BCLR 128
(CC)
at paras
42-3.
[28]
Doctors for Life
above n 15 at para 209.
[29]
In accordance with the powers given to it by the Constitution, the
NA establishes a range of committees with assigned powers
and
functions. The committees are required to report regularly on
their activities and to make recommendations to the NA
for debate
and decision. A large part of the NA’s role in the
law making process happens in committees and much
of its
oversight over the executive is also done through committees,
particularly the portfolio committees. There is a
portfolio
committee for each corresponding government department. The
composition of the committees, as far as is practicable,
proportionately represents the parties in the NA. That
committee will deliberate on bills covering that department’s
area of jurisdiction and scrutinise and report on its annual budget
and strategic plan. “How Parliament is structured”
available at
https://www.parliament.gov.za/how-parliament-is-structured
.
[30]
Minister of Health v New Clicks South Africa (Pty) Ltd
[2005]
ZACC 14
;
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) (
New Clicks
)
at para 630.
[31]
See [13].
[32]
Land Access Movement of South Africa v Chairperson of the
National Council of Provinces
[2016] ZACC 22
;
2016 (5) SA 635
(CC);
2016 (10) BCLR 1277
(CC) (
Land Access Movement
) at para
60.
[33]
Id at para 61.
[34]
Id at para 77.
[35]
Id.
[36]
Doctors for Life
above n 15 at para 135.
[37]
Matatiele Municipality v President of the Republic of South
Africa
[2006] ZACC 12
;
2007 (6) SA 477
(CC);
2007 (1) BCLR 47
(CC) (
Matatiele
) at para 68.
[38]
Doctors for Life
above n 15 at paras 191-2.
[39]
Coetzee v Government of the Republic of South Africa; Matiso v
Commanding Officer Port Elizabeth Prison
[1995] ZACC 7
;
1995 (4)
SA 631
(CC);
1995 (10) BCLR 1382
(CC) at para 16.
[40]
Preamble to Principal Act.
[41]
Doctors for Life
above n 15 at para 23.
[42]
Minister of Home Affairs v Fourie
[2005] ZACC 19
;
2006 (1) SA
524
(CC);
2006 (3) BCLR 355
(CC) at para 132.