On 11 September, the Constitutional Court (the Court) in South African Veterinary Association (SAVA) v Speaker of the National Assembly, yet again affirmed the importance of public participation in the legislative process. SAVA argued that Parliament failed in its constitutional mandate to facilitate public participation when passing the Medicines and Related Substances Amendment Bill in 2015. The Amendment Act introduced the word “veterinarian”. This had the effect that other than practitioners, dentists, nurses or other persons registered in terms of the Allied Health Professions Act, veterinarians were also required to have a licence to compound and dispense medicines. This was not the case prior to the Amendment Act. When the Bill was first published in 2014, veterinarians were not included under the list of those requiring licences. The Bill was introduced in February 2014 and hearings were held on 29 and 31 October 2014, as well as on 5 November 2014. The Portfolio Committee on Health met the Department of Health (DoH) at the end of November 2014. The DoH agreed that veterinarians should be regulated like any other health professionals and should require licences for dispensing and compounding drugs. The Committee then included this suggestion in its amendments to the Bill without any further consultation. The Bill was passed to the National Council of Provinces (NCOP) for approval in August of the following year, after a briefing of the NCOP Social Services Select Committee by the DoH. The Bill was signed into law in December 2015. SAVA argued that the DoH did not brief this Parliamentary Committee about the consequences of including veterinarians, which among others would be establishing the licensing criteria for said licensing.
SAVA approached the Court arguing that both the National Assembly and NCOP failed to conduct adequate public hearings before inserting the word “veterinarian” into the Medicines and Related Substances Act. SAVA further argued that the National Assembly failed in its duty under section 59(1)(a) of the Constitution to allow for public participation in the passing of the initial Bill. They argued that the constitutional duty to facilitate public involvement in the legislative process is an aspect of the right to political participation. SAVA asked the Court for an order declaring that Parliament failed to comply with its constitutional obligation to facilitate public involvement before passing the Medicines and Related Substances Amendment Act, and that the declaration of invalidity be suspended for a period of 18 months to enable Parliament to re-enact this statute in a manner that is consistent with the Constitution.
The averments made by SAVA have been tested before the courts previously, in numerous instances. The landmark judgment in this regard is Doctors for Life International v the Speaker of the National Assembly (Doctors for Life) case, which was heard before the Court in 2006. The Court was asked to determine the nature of the duty to facilitate public participation, whether the Legislature had met its duty to facilitate public involvement in the legislative process, and the impact on the validity of such legislation, where the facilitation of public involvement was flawed. The test inquired whether the Legislature acted reasonably in discharging its duty. The Court considered, amongst other factors, the nature of the concerned legislation, as well as the impact it had on the public.
The Court held that the Legislature was bound to not only facilitate public involvement, but to ensure that such engagement was meaningful. In addition, the Court said that this duty extended to ensuring that the public had the ability to take advantage of the participation opportunities provided. This is to show the public that their input is respected and that their input will be, in good faith, considered in the legislative process.
The findings of the Court in the Doctors for Life case were once again reinforced in the Land Access Movement of South Africa v Chairperson of the National Council of Provinces matter. In this case, Parliament passed the Restitution of Land Rights Amendment Act,which amended the Restitution of Land Rights Act to open further claims made after 31 December 1998. This would affect the 80 000 claims that had been filed under the previous legislation. The new Act was passed hastily, without affording the public a meaningful opportunity to participate in the legislative process. This, despite that the Act was not urgent. The Court found this failure to be unreasonable and ruled the public participation process invalid. As a result, the Act itself was also deemed invalid.
Despite the above rulings, and others, which speak to the importance of public participation as a fundamental tenet of South Africa’s democracy, Parliament has again been brought before the Constitutional Court to answer for failing to meet its constitutional obligations in this regard.
It is clear that the content of the legislation is important, but equally so, is the constitutional duty to involve the public in the legislative process, particularly those who will be directly affected by the concerned legislation. SAVA relied heavily on the Doctors for Life case in making their arguments and this is indicative of the fact that public participation in the legislative process is an established tenet of the nation’s democracy. At a time where public participation is being rigorously exercised during the hearings on the possible constitutional amendment of section 25, a judgment which emphasises the importance of involving the public in all legislative processes will be welcome. South Africa’s constitutional democracy is thus enhanced.
By Rebecca Sibanda: Legal Assistant, Centre for Constitutional Rights
14 September 2018