CONSTITUTIONAL COURT OF SOUTH AFRICA

	Case CCT 201/14

In the matter between:

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA	First Applicant

MINISTER IN THE PRESIDENCY	Second Applicant

DIRECTOR-GENERAL IN THE PRESIDENCY	Third Applicant

MINISTER OF HEALTH	Fourth Applicant

DIRECTOR-GENERAL OF 
THE DEPARTMENT OF HEALTH	Fifth Applicant

and

SOUTH AFRICAN DENTAL ASSOCIATION	First Respondent

HOSPITAL ASSOCIATION OF SOUTH AFRICA	Second Respondent

Neutral citation:	President of the Republic of South Africa and Others v South African Dental Association and Another [2015] ZACC 2

Coram:	Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J, Tshiqi AJ, Van der Westhuizen J and Zondo J

Decided on:	27 January 2015

Summary:	Section 167(6) of the Constitution — direct access — application to declare invalid and set aside President’s Proclamation — review of exercise of public power

National Health Act 61 of 2003 — sections 36 to 40 — decision to bring provisions into operation premature — rationality review

ORDER

On application for direct access:
1.	Direct access is granted.
2.	Proclamation 21 of 2014 is declared invalid and set aside.
3.	There is no order as to costs.

JUDGMENT

THE COURT:

Introduction
[1]	This is an application for direct access in terms of section 167(6)(a) of the Constitution.  The matter concerns the premature promulgation of a proclamation bringing certain sections of the National Health Act into operation.

[2]	The President, the Minister in the Presidency, the Director-General in the Presidency, the Minister of Health and the Director-General of the Department of Health (the applicants) maintain that the President’s decision to bring the provisions into operation was made in error and was therefore irrational in law.  They seek an order declaring the Proclamation invalid and setting it aside.  The South African Dental Association (SADA) and the Hospital Association of South Africa (HASA) are cited as respondents in this matter.  They support the relief sought by the President.  Indeed, it was SADA who brought the alarming situation that necessitates this application to the attention of the Presidency.

Factual and legal background
[3]	On 21 March 2014 the President signed the Proclamation pursuant to section 94 of the National Health Act.  As its only purpose, the Proclamation brought sections 36, 37, 38, 39 and 40 of the National Health Act into operation on 1 April 2014.  Taken together, these sections criminalise providing health services without holding a certificate of need.  The National Health Act authorises the Minister of Health (the Minister) to prescribe regulations regarding applications for, and the granting of, certificates of need.  These regulations are not yet in place.

[4]	The consequence is that health service providers in South Africa are currently engaging in criminal conduct, as no individual or entity that provides health services is in a position to obtain the required certificate of need as long as the regulations have not taken effect.

[5]	The President approached this Court directly to rectify this.  He submits that the regulations, which do not yet exist, form an essential part of the legislative scheme. 

[6]	He submits that the untimely effect of the Proclamation was unintentional since it was promulgated in error.  According to the President, he acted in good faith when he determined a date for the statutory provisions to take effect, but was led astray by his advisors’ mistaken counsel.  Had he been aware of the correct position, namely that the necessary regulations were still pending, he would have selected a later date.  Thus the Proclamation should be reversed to allow the consultative process to run its course.  Since the provision of health services is now proscribed, the issuing of the Proclamation was objectively irrational as a matter of law.  

[7]	The President also maintains that the Proclamation is at odds with sections 1, 7, 8, 11, 27, 28 and 195 of the Constitution.  Accordingly, he asks this Court to declare the Proclamation invalid in terms of section 172(1)(a) of the Constitution. 

[8]	SADA and HASA agree that this Court is the proper forum to grant the relief and that the Proclamation should be declared invalid and set aside.

Direct access
[9]	This Court is generally reluctant to sit as a court of first and final instance.  Direct access is granted only if it is in the interests of justice to do so.  In determining whether direct access is in the interests of justice, a range of factors is relevant, including—

“the importance of the constitutional issue raised and the desirability of obtaining an urgent ruling of this Court on that issue, whether any dispute of fact may arise in the case, the possibility of obtaining relief in another court, and time and costs that may be saved by coming directly to this Court.”

[10]	The matter raises an issue of constitutional importance – the provision of health services.  The provisions brought into force by the Proclamation contemplate a legislative scheme detailed in regulations that are non-existent and consequently criminalise the provision of health services.  There are no disputes of fact or contested legal averments that necessitate the matter first being heard by the High Court and the Supreme Court of Appeal.  This Court is the only court that can finally and effectively dispose of it.  The legislative process required for Parliament to address the consequences of this Proclamation would be lengthy and burdensome and may fail to expeditiously address the precarious position that the health services industry finds itself in.  There is no reason to believe that this Court’s intervention would upset the legislative process or programme or infringe the separation of powers.  The impugned provisions are intended to come into force only once the regulations are in place.  It is in the interests of justice that application for direct access be granted.

Merits
[11]	At stake is the exercise of public power in accordance with the Constitution and the rule of law.  The President’s issuing of the Proclamation bringing into operation sections 36 to 40 of the National Health Act, before the issuing of regulations that are essential to the operation of these sections, has led to an untenable and unintended situation.  Health service providers are practising without a certificate of need.  And that certificate cannot be issued without the promulgation of the necessary regulations.  This renders the provision of health services unlawful.  Though, it seems, no criminal prosecutions have been brought, the position is clearly undesirable.  South African health service providers may be inhibited or discouraged from providing an essential service at the risk of criminal sanction for doing so.

[12]	The Proclamation was issued in error and the President submits that this exercise of his public power was bona fide but irrational.  He is unable to withdraw the Proclamation because the date for its commencement has long since passed.  There is no mechanism contained in the National Health Act itself to remedy the consequences of the Proclamation.  Even though the Proclamation was issued in error, it remains in force and has legal effect.  It is an inevitable consequence of the rule of law that the Proclamation may not be ignored until it is set aside.  This Court is therefore called upon to consider and set aside the Proclamation.

[13]	In Pharmaceutical Manufacturers this Court held that the President’s decision to bring an Act into force is reviewable and the standard is that of rationality.  This Court stated:

“It is a requirement of the rule of law that the exercise of public power by the Executive and other functionaries should not be arbitrary.  Decisions must be rationally related to the purpose for which the power was given, otherwise they are in effect arbitrary and inconsistent with this requirement.  It follows that in order to pass constitutional scrutiny the exercise of public power by the Executive and other functionaries must, at least, comply with this requirement.  If it does not, it falls short of the standards demanded by our Constitution for such action.”  (Footnote omitted.)

[14]	This Court must therefore determine whether the President’s decision is rationally related to the purpose for which the power was given.  This is an objective enquiry, unaffected by any good intentions the President may have had.

[15]	The purpose of the President’s power to bring portions of the National Health Act into operation is to achieve an orderly and expeditious implementation of a national regulatory scheme for health services.  Clearly the decision to issue the Proclamation before there was any mechanism in place to address applications for certificates of need, thereby rendering the provision of health services a criminal offence, was not rationally connected to this purpose (or any other governmental objective).

[16]	This mirrors the finding of this Court in Pharmaceutical Manufacturers.  There, the President had prematurely brought into operation an Act regulating the manufacture and sale of medicines before the appropriate regulatory infrastructure was in place.

[17]	Accordingly, the President’s decision was irrational and therefore invalid.  The Proclamation must be set aside.

Order
[18]	The following order is made:
1.	Direct access is granted.
2.	Proclamation 21 of 2014 is declared invalid and set aside.
3.	There is no order as to costs.

For the Applicants:

For the Respondents:

State Attorney, Cape Town.

Werksmans Attorneys.