SKWEYIYA J
avenue open to parties asserting the rights of children in our legal system.
Importantly, when a court engages in abstract constitutional review under section 38
of the Constitution, as when this Court engages in the review of bills, the authority of
the judiciary is, in the words of this Court, “mandated by the Constitution.”16
[225] In our constitutional order it is appropriate for litigants to launch facial
challenges to the constitutionality of legislation, and for courts to hear such challenges
where it is in the interests of justice. It is quite another thing for a judge, of his own
accord, to raise questions about the constitutionality of provisions which do not arise
on the facts of the case before him.
[226] Moreover, in the abstract review procedures authorised by the Constitution, the
abstract challenge is the very dispute in the case. Consequently, the Court in those
instances does not, while conducting such abstract review, neglect its core
responsibility to resolve disputes before it. By way of example, when the President
refers a bill to this Court for a decision on its constitutionality – a classic case of
constitutionally contemplated abstract review – the constitutionality of the bill is the
only live issue before the Court.
[227] Conversely, in a matter like the one before us, the live dispute – the criminal
cases of Messrs Phaswane and Mokoena – was placed on hold while largely irrelevant
constitutional issues took centre stage. Consequently, the core responsibility of the
16
Doctors for Life above n 11 at para 37; 1417D-E.
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