The second question concerns the extent to which this Court may interfere in the processes of a legislative body in order to enforce the obligation to facilitate public involvement in law-making processes.
In particular, whether it is competent for this Court to interfere during the legislative process before a parliamentary or provincial bill is signed into law.
The first of these propositions, namely, that the provisions of section 72(1)(a) impose an obligation, is correct. It is plain from the wording of section 72(1)(a) that it imposes an obligation to facilitate public involvement.
Considering the provisions of section 59(1)(a), the National Assembly equivalent of section 72(1)(a), the Supreme Court of Appeal in King and Others v Attorneys Fidelity Fund Board of Control and Another, This holding is plainly correct.
The constitutional challenge was initially directed at the Speaker of the National Assembly and the Chairperson of the NCOP only. When the applicant launched the present proceedings it was under the mistaken belief that all the health legislation was still in bill form.
The Speakers of the nine provincial legislatures and the Minister of Health were subsequently joined as further respondents because of their interest in the issues raised in these proceedings. They maintain that both the NCOP and the various provincial legislatures complied with the duty to facilitate public involvement in their legislative processes. But, as it turned out, all of the legislation except the Sterilisation Amendment Act had been promulgated when these proceedings were launched on 25 February 2005. The challenge relating to the Sterilisation Amendment Act would have required this Court to intervene during the legislative process.
The jurisdiction of this Court to consider such disputes is conferred by section 167(4)(e) of the Constitution. (a) Does this Court have exclusive jurisdiction over the present dispute under section 167(4)(e) of the Constitution?