Acting Speaker of the National Assembly v Teddy Bear Clinic for Abused Children and Another

This case arose from the Constitutional Court's previous judgment in Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development [2013] ZACC 35, where sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 were declared invalid for imposing criminal liability on children under 16 years for engaging in consensual sexual conduct. That declaration was suspended for 18 months until 2 April 2015 to allow Parliament to correct the defects. On 30 March 2015, just days before the suspension expired, the Acting Speaker of the National Assembly launched an urgent application for an extension to 5 August 2015. The Acting Speaker explained that the delay was due to extensive public consultation which attracted far greater participation than anticipated, and that the amendments were being considered together with those required by the J v NDPP case. The Teddy Bear Clinic and RAPCAN did not oppose the extension but indicated they would oppose any further extensions beyond 5 August 2015.

• Whether the period of suspension of a declaration of invalidity should be extended
• What factors should be considered when deciding whether to extend a suspension period under section 172(1)(b)(ii) of the Constitution
• Whether the explanation for Parliament's delay in correcting the constitutional defects was sufficient
• Whether the urgent application was brought in an appropriate manner and timeframe

1. Paragraph 1 of the order made by this Court on 31 March 2015 is varied so that the period of suspension is extended until Wednesday, 5 August 2015. 2. Costs are awarded in favour of the respondents.

When considering an application to extend the suspension of a declaration of invalidity under section 172(1)(b)(ii) of the Constitution, a court must consider: (1) the sufficiency of the explanation for failing to correct the defect within the period of suspension; (2) the prejudice likely to be suffered if the suspension is not extended; (3) the prospects of correcting the defect within the extended period; and (4) the need to promote a functional and orderly state administration for the benefit of the general public. The power to suspend declarations of invalidity must be sparingly exercised for the sake of finality. Courts must show deference to Parliament's constitutional obligations under sections 59(1) and 72(1) to facilitate public involvement in legislative processes and should be wary of directing Parliament as to how to regulate its own processes. Where Parliament has undertaken extensive public consultation and is addressing related constitutional defects in a holistic manner through a single legislative amendment, this may constitute sufficient explanation for delay in implementing a court order.

The Court made strong obiter remarks criticizing the manner in which the application was brought. Justice Nkabinde observed that the Acting Speaker was aware or ought to have been aware by December 2014 that the defects would not be corrected by the deadline, yet the application was only launched on 30 March 2015, giving the Court approximately two days to consider it before the suspension expired on 2 April 2015. The Court stated: "This Court is not institutionally designed to consider urgent applications of this kind. All state institutions must - with due deference to the rule of law, the separation of powers and the accepted checks and balances - treat this Court with the respect which the Court accords to organs of state in its dealing with them. It bears repeating that the kind of tardiness exemplified in this case should not be countenanced in the future." These remarks serve as a warning to state institutions about the need to approach the Constitutional Court with proper preparation and adequate notice, respecting the Court's institutional limitations and procedures.

This case clarifies the approach courts should take when considering applications to extend suspension periods following declarations of invalidity. It establishes important principles regarding the balance between judicial supervision of constitutional compliance and respect for Parliament's constitutional role in the legislative process. The judgment reinforces that while extensions should be sparingly granted, courts must be mindful of Parliament's obligations to conduct meaningful public consultation under sections 59(1) and 72(1) of the Constitution. The case also serves as a stern warning to organs of state about approaching the Constitutional Court with proper preparation and adequate notice, treating the Court with due respect while the Court accords deference to other branches of government. It demonstrates the Court's willingness to grant extensions where genuine efforts have been made to comply with orders, but emphasizes that last-minute applications undermine the institutional respect necessary for the proper functioning of the separation of powers.