SKWEYIYA J
[230] The consideration by the High Court of the other four provisions that were in
bill form is far more troubling. Only this Court may enquire into the constitutionality
of a bill.20 This enquiry is limited in two respects. First, the bill must be referred by
the President pursuant to section 79(4) of the Constitution, or by a Premier pursuant to
section 121 of the Constitution, to this Court for consideration. Second, as this Court
stated in the Liquor Bill case in relation to a request pursuant to section 79(4), it can
only consider reservations that the President has expressed.21 Moreover, as was made
clear by this Court in UDM:
“This power of abstract judicial review is exceptional and something quite distinct
from the power, having found an enactment inconsistent with the Constitution, to
strike it down and to grant appropriate consequential relief relating to its effect”.22
This Court concluded that “on a proper reading of the Constitution, no court may,
save as provided in [sections] 79 and 121, consider the constitutionality of a Bill
before the National Assembly or a provincial legislature.”23 (My emphasis.)
The difficulties inherent in resolving irrelevant constitutional issues
20
Section 167(4)(b) of the Constitution states:
“Only the Constitutional Court may—
(b)
decide on the constitutionality of any parliamentary or provincial Bill, but may do so
only in the circumstances anticipated in section 79 or 121”.
21
Ex parte President of the Republic of South Africa: In re Constitutionality of the Liquor Bill [1999] ZACC 15;
2000 (1) SA 732 (CC); 2000 (1) BCLR 1 (CC) at para 16. See also Van Straaten v President of the Republic of
South Africa and Others [2009] ZACC 2 (unreported) at para 4.
22
President of the Republic of South Africa and Others v United Democratic Movement (African Christian
Democratic Party and Others Intervening; Institute for Democracy in South Africa and Another as Amici
Curiae) [2002] ZACC 34; 2003 (1) SA 472 (CC); 2002 (11) BCLR 1164 (CC) at para 26.
23
Id.
116
اختر الفقرة المستهدفة3
الاتصال بفقرة
Connect to an entity
Disable highlights
أضف إلى جدول المحتويات