Contentious amendment Act found to be invalid

The Choice on the Termination of Pregnancy (CTOP) Amendment Act and the Traditional Health Practitioners (THP) Act were declared invalid by the Constitutional Court on Thursday.

” ... The Traditional Health Practitioners Act and the Choice on Termination of Pregnancy Amendment Act must be declared invalid,” Judge Sandile Ngcobo said in a 117-page judgment, concurred with by seven of the other judges.

Judges Zak Yacoob and Johann van der Westhuizen held opposing views.

A challenge was brought last year by Doctors for Life International to the validity of four health-related Acts: the Choice on Termination of Pregnancy Amendment Act, the Traditional Health Practitioners Act, the Dental Technicians Amendment Act and the Sterilisation Amendment Act.

The CTOP Amendment Act allows for nurses to perform abortions.

Doctors for Life held that the National Council of Provinces (NCOP) did not comply with its constitutional obligation to “facilitate public involvement in the passing of the Bills”.

Originally only the speaker of the National Assembly and the chairperson of the NCOP were mentioned as respondents. After the initial hearing in August last year, the minister of health and the speakers of the nine provinces were also added.

The Constitutional Court had to contemplate four questions, Ngcobo said.

Firstly, whether the court was the only one which could hear a matter of this nature and secondly, whether it was within the court’s rights to “grant declaratory relief in respect of the proceedings of Parliament”.

Thirdly, the Constitutional Court had to consider the “nature and scope” of a legislative organ of state to ensure public participation in law-making processes.
Lastly, the court had to deal with the question on whether the NCOP had fulfilled its obligation to facilitate public participation when the Bills were passed. If not, the court had to consider the consequences of such an act.

Ngcobo came to the conclusion that the nature of the challenge was such that only the Constitutional Court could hear the challenge.

He further said that the court could not grant “declaratory relief” before the legislative process had been completed and the Bill signed into law by the President.

“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 ...”

Since the challenge to the validity of three of the Acts was brought after they had already been enacted, the Constitutional Court did have the right to grant “declaratory relief”.

The only Act that was still in Bill form at the time of the challenge, was the Sterilisation Amendment Act.

Ngcobo therefore dismissed the challenge to this Act.

He said the Dental Practitioners Amendment Act did not attract any public interest and therefore it was unnecessary to facilitate public participation.

The challenge to this Act was dismissed on these grounds.

The other two Acts, the Choice on Termination of Pregnancy Amendment Act and the Traditional Health Practitioners Act, however, generated great public interest at the NCOP. Several interest groups requested public hearings, Ngcobo said.

“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.”

The reason given for not holding the hearings was a lack of time.

But this, Ngcobo said, was not a good enough excuse.

“When it comes to establishing legislative timetables, the temptation to cut down on public involvement must be resisted.

“The timetable must be subordinated to the rights guaranteed in the Constitution, and not the rights to the timetable.”

Based on this, he declared the CTOP Amendment Act and the THP Act invalid. But the invalidity order was suspended for 18 months, to enable Parliament to fulfil its constitutional duty and to ensure that sufficient public participation is allowed.

Ngcobo ordered the respondents to pay 60% of the applicant’s costs, excluding the costs of the first hearing in August last year and the costs of adding the speakers of the provinces to the list of respondents.

Doctors for Life International on Thursday welcomed the decision by the court to declare two pieces of legislation invalid due to lack of public participation.

DFL spokesperson John Smyth said in a statement the judgment would show Parliament that it could not get away with “cutting corners”.

“The case will be of great importance to Parliament in respect of all legislation, not merely health Bills, because the highest court in the land has now made it clear ... that Parliament must not cut corners but provide sufficient time and opportunity for citizens ... to have their say in respect of all Bills passing through Parliament.”—Sapa

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