Langa CJ, Moseneke DCJ, Madala, Mokgoro, Ngcobo, Nkabinde, O'Regan, Sachs, Skweyiya, Van der Westhuizen and Yacoob JJ
Case opinions
The Constitution obliges the legislatures to take reasonable steps to enable effective public participation in the legislative process in respect of each bill passed. The National Council of Provinces failed to fulfil this obligation in respect of the Choice on Termination of Pregnancy Amendment Act, 2004 and the Traditional Health Practitioners Act, 2004; both laws are therefore invalid.
In Doctors for Life International v Speaker of the National Assembly and Others, the Constitutional Court of South Africa held that Parliament and the provincial legislatures are constitutionally obliged to take reasonable steps to enable effective public participation in the legislative process in respect of every law passed. The court invalidated the Choice on Termination of Pregnancy Amendment Act, 2004 and the Traditional Health Practitioners Act, 2004 on the basis that the National Council of Provinces had not solicited public submissions on the laws before passing them.[1][2]
The court was split eight-to-three on the merits of the application. Justice Sandile Ngcobo wrote the majority judgment, a lengthy judgment that drew heavily on the principle of participatory democracy. Justice Zak Yacoob, who wrote the leading dissent, disagreed with Ngcobo's conception of the nature, scope, and justiciability of the section 72 obligation, and he warned strongly against judicial trespass on the separation of powers, arguing that such trespass indirectly infringed the political rights of voters in a representative democracy.
^Czapanskiy, Karen Syma; Manjoo, Rashida (2008–2009). "The Right of Public Participation in the Law-Making Process and the Role of Legislature in the Promotion of This Right". Duke Journal of Comparative & International Law. 19: 1.
^Nyati, L (16 March 2010). "Public Participation: What has the Constitutional Court given the public?". Law, Democracy & Development. 12 (2). doi:10.4314/ldd.v12i2.52896. ISSN 2077-4907.
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