Ex parte Ahmed Raffik Omar

The applicant, Ahmed Raffik Omar, brought an ex parte application for direct access to the Constitutional Court seeking an order declaring section 8 of the Domestic Violence Act 116 of 1998 unconstitutional. He alleged that his wife, cited according to Islamic law, had obtained several protection orders against him and that a warrant of arrest had been irregularly issued. He contended that the mandatory issuing of a warrant of arrest upon the granting of a protection order infringed his constitutional rights, including the right to freedom and security of the person. The applicant initially approached the Pietermaritzburg High Court, but the matter was struck from the roll after the government respondents indicated they would abide the decision of the court without filing affidavits. Aggrieved, the applicant sought direct access to the Constitutional Court.

The application for direct access to the Constitutional Court was dismissed.

The case reinforces the strict approach of the Constitutional Court to direct access applications and underscores the principle that constitutional challenges to legislation should ordinarily be determined first by the High Courts. It also clarifies that an executive decision to abide a court’s ruling does not justify a court refusing to hear a constitutional challenge.