DOCTORS FOR LIFE INTERNATIONAL V THE SPEAKER OF THE NATIONAL ASSEMBLY AND OTHERS

1. CASE TITLE & CITATION 

Full Name of the Case: Doctors for Life International v The Speaker of the National  Assembly and others 2006. 

Official Citation: CCT 12/05; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17  August 2006). 

2. COURT NAME & BENCH 

Name of the Court: Constitutional Court. 

Name of the judges:  

• Ngcobo J (delivered the majority judgement, Langa CJ, Moseneke DCJ, Madala  J, Mokgoro J, Nkabinde J, O’Regan J, Sachs J concurring) 
• Yacoob J (delivered a minority judgement, concurred in by Van der Westhuizen  J). 
• Van der Westhuizen J (concurred with Yacoob J). 

Bench Type: Full Constitutional Court.  

3. DATE OF JUDGEMENT  

Hearing dates: 23 August 2005 and 21 February 2006 

Date of Judgement: 17 August 2006 

4. PARTIES INVOLVED  

Applicant: Doctors for Life International (DFL), a non-profit organisation of medical  professionals engaged in health advocacy, humanitarian work on HIV/AIDS, substance abuse,  and other social health issues. It sought to uphold constitutional principles in legislative  processes concerning health laws. 

Respondents:  

• First Respondent: The Speaker of the National Assembly 
• Second Respondent: The Chairperson of the National Council of Provinces  (NCOP) 
• Third Respondent: The Minister of Health (joined on 2 June 2005) 
• Fourth to Twelfth Respondents: The Speakers of the nine Provincial  Legislatures (Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo,  Mpumalanga, Northern Cape, North West, and Western Cape) – joined on 23  September 2005

5. FACTS OF THE CASE 

The matter arose from the enactment of four health-related statutes by Parliament:

• Choice on Termination of Pregnancy Amendment Act 38 of 2004, 
• Traditional Health Practitioners Act 35 of 2004, 
• Dental Technicians Amendment Act 24 of 2004, and 
• Sterilisation Amendment Act 3 of 20051. 

Doctors for Life alleged that during the legislative processes leading to these enactments, the  National Council of Provinces (NCOP) and provincial legislatures had failed to comply with  their constitutional obligation to “facilitate public involvement” under sections 72(1)(a) for the  NCOP and section 118(1)(a) of the Constitution for provincial legislatures. While the National  Assembly had called for written submissions and held public hearings, DFL argued that the  NCOP and provincial legislatures did not invite similar public participation. It maintained that  these omissions violated constitutional provisions ensuring participatory democracy. Initially,  only the Speaker of the National Assembly and Chairperson of the NCOP were cited. The  Minister of Health and the nine provincial Speakers were later joined as respondents following  directions from the Chief Justice2. 

The respondents denied the allegations, contending that adequate opportunities for  participation existed within the national legislative process as a whole and that not every  legislative stage required separate hearings. The application was brought directly before the  Constitutional Court, relying on section 167(4)(e) of the Constitution, which grants that only  the Constitutional Court may decide whether Parliament or the President has failed to fulfil a  constitutional obligation3. 

6. ISSUES RAISED 

The issues that were considered in the judgment by Ngcobo J are therefore these:  • “Does this Court have exclusive jurisdiction over the present dispute under section  167(4) (e) of the Constitution? 

• Is it competent under our constitutional order for declaratory relief to be granted by a  court in respect of the proceedings of Parliament?  
• What is the nature and the scope of the duty to facilitate public involvement  comprehended in sections 72(1) (a) and 118(1) (a) of the Constitution?  • Did the NCOP and the provincial legislatures comply with their constitutional  obligations to facilitate public involvement as contemplated in section 72(1) (a) and  section 118(1) (a)?  
• If the process followed by the NCOP and the provincial legislatures fell short of that  required by the Constitution, what is the appropriate relief?”4

7. ARGUMENTS OF THE PARTIES 

Applicant’s Contentions: 

∙ The NCOP and provincial legislatures failed to invite public submissions or hold  hearings, thereby violating the constitutional right to participatory democracy under  sections 72(1) (a)5and 118(1) (a)6. 

∙ The failure rendered the legislative process unconstitutional, and any laws passed in  this manner were invalid. 

∙ DFL argued that the obligation to facilitate public participation is mandatory, not  discretionary, and that meaningful participation requires more than symbolic gestures. ∙ The applicant maintained that section 167(4) (e)7vested exclusive jurisdiction in the  Constitutional Court to decide such disputes. 

Respondents’ Contentions: 

∙ The respondents asserted that Parliament had indeed facilitated sufficient public  involvement through earlier processes in the National Assembly. 

∙ They argued that the duty to facilitate public involvement did not require identical  procedures at each legislative level, only a reasonable opportunity for public input  somewhere in the legislative process. 

∙ The respondents emphasized separation of powers, warning against excessive judicial  interference in parliamentary processes. 

∙ They maintained that the Court could not invalidate statutes solely on procedural  participation grounds unless the violations were egregious. 

8. JUDGEMENT/FINAL DECISION 

Majority Decision (Ngcobo J): 

The Court held that Parliament had failed to comply with its constitutional obligation to  facilitate public involvement before passing two of the four Acts, which is the Choice on  Termination of Pregnancy Amendment Act 38 of 2004 and the Traditional Health Practitioners  Act 35 of 20048. 

These statutes were declared invalid, but the order of invalidity was suspended for 18 months to allow Parliament to remedy the defect by re-enacting them in a constitutionally compliant  manner. The challenges to the Dental Technicians Amendment Act and the Sterilisation  Amendment Act were dismissed. The respondents were ordered to pay 60% of the applicant’s  costs, excluding those relating to the joinder of the provincial Speakers and the first hearing9. 

Sachs J concurred, stressing that participatory democracy enhances the legitimacy of laws and  fosters inclusion. He emphasised that public consultation enriches democracy and ensures  respect for citizens’ dignity. Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Nkabinde J, and  O’Regan J agreed with Ngcobo J’s reasoning and conclusions. 

Minority Judgment (Yacoob J, concurred in by Van der Westhuizen J): The minority judgment agreed with the majority on issues of jurisdiction and timing of  intervention but differed fundamentally on the scope of the duty to facilitate public involvement  and whether the NCOP had failed to fulfil that duty. 

Yacoob J held that the duty to facilitate public involvement does not mandate public hearings  or written submissions at every stage of the legislative process. The Constitution uses the word “facilitate,” which means “to enable or make easier,” implying a degree of generality and  flexibility rather than rigid, specific requirements. The duty requires that reasonable measures  be taken to make public involvement possible, but does not prescribe particular mechanisms  such as public hearings. 

The minority concluded that the NCOP and provincial legislatures had complied with their  constitutional obligations because the National Assembly had conducted extensive public  hearings and invited submissions, and there was no evidence that any interested party had been  denied an opportunity to participate. The minority emphasized that the Constitution  contemplates a representative democracy with participatory elements, not pure participatory  democracy. 

Van der Westhuizen J expressed concern that imposing a standard of reasonableness on the  manner in which Parliament facilitates public involvement risks excessive judicial intrusion  into the legislative process and undermines the separation of powers. He cautioned against  using a “steam-roller to crack a nut” and warned that automatic invalidation for minor breaches  would have a disproportionate impact on the legislative process. The minority would have  dismissed the application on the merits, holding that no constitutional obligation had been  breached. 

9. LEGAL REASONING/ RATIO DECIDENDI 

(a). Jurisdiction: 

The Court confirmed that under section 167(4) (e), only the Constitutional Court has authority  to determine whether Parliament has failed to fulfil constitutional obligations. Hence, the case  was properly before it10. 

(b) Judicial Intervention in Legislative Processes: 

The Court held that it could not intervene while a Bill is still under parliamentary consideration  or before the President has signed it, except in the limited circumstances anticipated by sections  79 and 121 of the Constitution (i.e., presidential referrals). However, once legislation has been enacted, the Court may review whether the law-making process complied with constitutional  requirements11. 

(c) Scope of the Duty to Facilitate Public Involvement: 

Ngcobo J interpreted sections 72(1) (a) and 118(1)(a) as imposing a positive constitutional duty on the NCOP and provincial legislatures to create opportunities for meaningful participation.  The standard to assess compliance is reasonableness, which depends on the nature of the  legislation, importance of the issues, and practical constraints. He emphasized that representative democracy must be complemented by participatory democracy, as envisaged in  the Preamble and section 1(d) of the Constitution, which establishes a democratic state based  on accountability, responsiveness, and openness12. 

(d) Findings on Compliance: 

Applying the reasonableness standard, the Court found that: The NCOP had initially committed  to holding public hearings on the CTOP Amendment Bill and Traditional Health Practitioners  Bill but later abandoned them due to time constraints. This conduct was unreasonable and  inconsistent with constitutional obligations. Conversely, no such failures were shown regarding  the Dental Technicians and Sterilisation Acts, thus those remained valid. 

(e) Constitutional Principles: 

The judgment underscored several principles: Supremacy of the Constitution (section 2 of the  Constitution) – any law inconsistent with it is invalid. Participatory democracy is intrinsic to  South Africa’s constitutional order, ensuring that citizens can influence decisions that affect  them. Reasonableness review allows flexibility while holding Parliament accountable. 

Separation of powers does not bar courts from enforcing constitutional duties but requires  restraint and respect for institutional roles13. 

(f) Remedy: 

Given that the invalid statutes had already taken effect, the Court suspended invalidity for 18  months under section 172(1) (b) (ii) to prevent disruption and allow Parliament to correct the  defect14. 

10. CONCLUSION 

The Doctors for Life judgment is a landmark decision establishing that public participation is  a constitutional requirement in the legislative process. The Court affirmed that participatory  democracy is a foundational value of South Africa’s democracy, complementing representative  structures. Ngcobo J’s majority opinion recognised that the duty to facilitate public  involvement is not symbolic but substantive, requiring that citizens be given a genuine  opportunity to contribute. Sachs J’s concurring remarks linked this obligation to the restoration  of dignity for historically excluded communities, such as traditional healers affected by the  Traditional Health Practitioners Act. 

The case also clarified the judicial review limits regarding legislative processes, courts may  not interfere pre-enactment but may nullify laws adopted through unconstitutional procedures. Despite the dissenting cautions about separation of powers, the decision remains a cornerstone  of South African constitutional jurisprudence, shaping subsequent cases such as Matatiele  Municipality v President of the Republic of South Africa (2) 2007 (6) SA 477 (CC). It  entrenched the principle of deliberative participation as an indispensable element of  constitutional democracy. 

Reference(S):

1 Doctors for life international v The Speaker of the National Assembly and Others CCT 12/05; 2006 (12)  BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August 2006). 

2Ibid. 

3Ibid.

4Ibid. 

5 Section 72 (1) (a) of the Constitution. Which provides that the National Council of Provinces must facilitate  public involvement in the legislative and other processes of the Council and its committees.

6 Section 118 (1) (a) of the Constitution. Which provides that a provincial legislature must facilitate public  involvement in the legislative and other processes of the legislature and its committees.

7 Section 167 (4) (e) of the Constitution. Which provides that only the Constitutional court may decide that  Parliament or the President has failed to fulfil a constitutional obligation.

8 Doctors for life international v The Speaker of the National Assembly and Others CCT 12/05; 2006 (12)  BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August 2006). 

9Ibid.

10 Doctors for life international v The Speaker of the National Assembly and Others CCT 12/05; 2006 (12)  BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August 2006).

11 Ibid.  

12 Ibid.  

13 Ibid. 

14 Ibid.