The contention that this Court has exclusive jurisdiction under section 167(4)(e) to decide the present dispute rests on two principal propositions: first, section 72(1)(a) imposes an obligation on the NCOP to facilitate public involvement in its legislative processes and those of its committees; and second, the obligation imposed by section 72(1)(a) is of a kind contemplated in section 167(4)(e). facilitate public involvement in [its] legislative and other processes and [those of] its committees”.If both of these propositions are sound in law, the applicant is entitled to come directly to this Court. The use of the word “must” in this context denotes an obligation.
(e) If the process followed by the NCOP and the provincial legislatures fell short of that required by the Constitution, what is the appropriate relief?
Whether the applicant is entitled to come directly to this Court in regard to its complaint against the NCOP depends on whether that complaint falls under section 167(4)(e) of the Constitution.
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?