Cases Flashcards
What are the facts in Doctors for life?
Doctors for Life argued that the Choice Act and related health provisions relating to the termination of pregnancy were unconstitutional and invalid on the basis that the NCOP and provincial legislatures failed to facilitate public involvement
in the lawmaking process as required by s72(1) of the Constitution, 1996. The CC considered whether it could intervene in the legislative process to
facilitate public participation.
What was held in Doctors for life?
The court held that public input in lawmaking is part of the right to political participation as set out in international human rights provisions and is part of the principle of participatory democracy promoted by our own Constitution, 1996. It found that the public input facilitation duty imposed by s72(1) on parliament is broad. As a result, two of the health provisions relating to the termination of pregnancy were unconstitutional and invalid on the basis that the NCOP and provincial legislatures failed to facilitate public involvement in the lawmaking process as required by s72(1) of
the Constitution, 1996. The provisions would remain in force for the 18-month period that the order is suspended, so as to allow Parliament to re-enact the
legislation in a manner compatible with s72(1).
What is the facts in the Land Access case?
The issue at hand was whether the public participation process followed in the enactment of the Restitution of Land Rights Amendment Act, which aimed to re-open the window for the lodgement of land claims, was sufficient for the legislation to be constitutionally valid. It was not. The notice provided ahead of
public hearings was too short for concerned citizens to adequately study the Bill or to make arrangements to attend hearings, likely adversely impacting the quality of public input . Notices for hearings in the Northern and Eastern Cape provinces were not available to most in those provinces,
and the Northern Cape held hearings in only one municipality within the entire province, with some citizens being as far as 900km away. The Bill and summaries were often unavailable to attendees at hearings in any language besides English
What was held in the Land Access case?
These factors all contributed to the conclusion that
public participation was far more limited than it would have been, had the
hearings been widely announced in advance, accessible to many communities
within the respective provinces, and accompanied by translated versions and
summaries of the Amendment Bill. The court’s view was that the parliamentary timetable should be built to accommodate the level of required public
participation, rather than public participation being shaped (and hence limited) by the parliamentary timetable. Madlanga J found that the Amendment Act was unconstitutional and invalid due to the failure of the parliament (the NCOP specifically, which implicates parliament as a whole) to facilitate sufficient public involvement at the provincial level in the lawmaking process as required by s72(1) of the Constitution, 1996. The Court did not apply its order of invalidity retrospectively due to the high degree of reliance placed by applicants to the
restitution programme; to invalidate the Act retrospectively would prejudice those who had made land claims in terms of it under the impression that it was
good law. The order, however, was not suspended due to concern that more land claims would be made and have to be processed in terms of the Act during the requested suspension period.
What are the facts in the UDM case?
The issue was whether the Speaker of the National Assembly could hold a
Motion of No Confidence in the President of the Republic via a secret ballot, and if so, whether the court could compel her to do so. The Speaker took the view that she did not have the power under the Constitution, 1996 and the Rules of the National Assembly to allow hold a motion of no confidence in the President via secret ballot. She did not, however, take a personal stance against this. The
CC found that the Constitution, 1996 does not prohibit nor prescribe a preferred method of conducting a motion of no confidence as far as secret or open ballot procedures are concerned.
What was held in the UDM case?
The CC held that either a secret ballot or an open
vote would be constitutionally acceptable, provided that the decision on which
process is used is rational and based on reasoning that intends to promote executive accountability, not shielding the executive from this. The CC would not, however, order the speaker to conduct the vote by secret ballot, as doing so would breach the separation of powers by prescribing the procedures which parliament is to decide for itself under s57 of the Constitution. This would constitute judicial overreach. Parliament is free to set its own procedures in terms of s57(1) so long as it does so in advancement of the South African “constitutional vision”.
What was held in Mazibuko case?
Ordering the Speaker to schedule a vote in parliament would amount to judicial involvement in the parliamentary calendar; arguably breaching the separation of powers. While the
CC would not order a vote to be scheduled, it found that the NA must take reasonable steps to accord the motion priority over other parliamentary business, so that it is considered “without undue delay”. The CC found that the motion must be given priority and be dealt with thorough “prompt and reasonable steps” in a reasonable timeframe. The CC did not order a specific time for the MoNC; however, Ch. 12 of the Rules of the National Assembly was found unconstitutional and invalid to the extent that it did not allow an MP or opposition party to enforce the right to call a debate and vote on a MoNC in the President; required to be amended to correct this defect, order suspended for 6 months to allow this
What are the facts in Muzibuko?
The applicant, Lindiwe Mazibuko (as Leader of the Official Opposition in the National Assembly), sought an order compelling the Speaker of the NA to take the necessary steps ensuring that a debate and vote regarding a motion of no confidence in the President is scheduled. Under s57(1) of the Constitution, 1996, the NA is able to determine its own internal business, procedures, and arrangements. It is the “master of its own process”.
What was held in the new clicks case?
The CC held in New Clicks case, that the Constitution calls for open and transparent government, and requires public participation in the making of laws by Parliament and deliberative legislative assemblies.
What was held in Moutse?
In Moutse the CC held that public involvement must be an opportunity capable of influencing the decision to be taken.
What was held in the first Harris case?
Harris v Minister of Interior I
* Voting rights had long been stripped from Black African voters. The Separate representation of the Voters Act passed to disenfranchise Coloured people in the Cape Colony
* Act struck down by AD on procedural grounds, since the Act did not pass with the required majority
What was held in the second harris case?
Minister of Interior v Harris II
* Parliament overrides Harris I through High Court of Parliament Act, which empowered
parliament to act as a court and overrule AD judgments
* AD found that parliament was still bound by the procedure, as a matter of rule of law,
irrespective of whether it hid behind a judicial facade; the Act was still held unconstitutional
What was held in the collins case?
Collins v Minister of the Interior
* Composition of Parliament and AD changed — stacked with individuals who favoured
government viewpoint
* The Separate Representation of Voters Act passed again by the newly composed Parliament;
challenged again in court in Collins
* The new 11 judge AD found that the Act was now valid, as it was passed with the required
majority — it was procedurally valid
* One judge on the AD bench said that the Act was substantively unjust, but this opinion did not prevail — the franchise was ended for Coloured South Africans
What was held in the first certification case?
Constitution not certified by CC due to four broad problems:
1. CC unsatisfied with amendment provision — too easy to amend; insufficient entrenchment
2. Provincial powers substantially less than Interim; federalism principle undermined
3. Some laws potentially shielded from judicial review
4. Formulation of some labour rights was problematic
What was held in th second certification case?
- The text of the Constitution was amended by the Constitutional Assembly and submitted back to the CC for certification by the prescribed deadline:
- The CC reviewed the final text and certified it
- It found that all of its concerns in the 1st Certification Case had been addressed
- It noted, however, that the provincial powers enshrined in the final text were less than
those in the 1993 Interim Constitution, but not substantially less so as to render it impossible to certify
What is the Tongoane?
The test in Tongona case, sets out the substantial measure test when tagging a bill does the bill affect the interests, concerns and capacity of the provinces?
