NGCOBO J
doubts as to whether the constitutional amendment had been enacted in accordance
with the Constitution.
A question then arose as to whether this Court should
investigate the issue. The Court held that the issue raised important constitutional
questions and concluded that “[i]t is in the interests of justice that these important
issues, which may well have a bearing on the validity of Twelfth Amendment, be
investigated.”38
[43] It must be stressed that the constitutional issue sought to be raised must arise on
the facts of the case before the court. In addition, the parties must be afforded an
adequate opportunity to deal with the issue. A court may not ordinarily raise and
decide a constitutional issue, in abstract, which does not arise on the facts of the case
in which the issue is sought to be raised. A court may therefore, of its own accord,
raise and decide a constitutional issue where (a) the constitutional question arises on
the facts; and (b) a decision on the constitutional question is necessary for a proper
determination of the case before it; or it is in the interests of justice to do so. The
question is whether these requirements were met in these cases. It is to that question
that I now turn.
Was it appropriate to decide these constitutional issues?
Mr Mokoena
38
Matatiele 1 above n 25 at para 68.
23
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