failure to facilitate public involvement resulting in invalid legislation
Posted 18 August 2006

The Constitutional Court declared the The Choice on Termination of Pregnancy Amendment Act and the Traditional Health Practitioners Act invalid, because the NCOP did not comply with its duty to facilitate public involvement. According to Ngobo, J, these two Bills had generated great public interest and was of such nature that public hearings should be held. A majority of the provinces did not hold hearings on these Bills because of insufficient time and this fact was drawn to the attention of the NCOP which did not hold public hearings. In the light of this, Ngcobo J held that the failure by the NCOP to hold public hearings was unreasonable. The Court suspended the order of invalidity for a period of 18 months to enable Parliament to enact these statutes afresh in accordance with the provisions of the Constitution.

However, in relation to the Dental Technicians Amendment Act, Ngcobo J found that when the Bill was first published for public comment, it did not generate any public interest. Having regard to this and the nature of the Bill, Ngcobo J held that the NCOP did not act unreasonably in not inviting written representations or holding public hearings on this statute. He concluded that the NCOP did not breach its duty to facilitate public involvement in relation to this statute. He accordingly dismissed the challenge relating to the Dental Technicians Amendment Act.

To view the full judgment, click here.