Ahmed Raffik Omar v Minister of Justice and Constitutional Development

The applicant challenged the constitutionality of section 8 of the Domestic Violence Act 116 of 1998, which mandates the issue of a warrant of arrest whenever a protection order is granted. The applicant alleged that his wife (according to Islamic law) had secured several protection orders against him and that a warrant for his arrest had been irregularly issued. He initially approached the High Court in Pietermaritzburg, citing the Government of South Africa, the Minister of Justice, and Ms Halima Joosab as respondents. All respondents filed notices indicating their intention to abide by the court's decision. The High Court struck the matter off the roll on 29 July 2003 on the ground that the Government and Minister were obliged to inform the court of their reasons for not opposing the constitutional challenge. The applicant then approached the Constitutional Court directly ex parte, seeking direct access to challenge section 8 of the Act as violating his constitutional rights, including his right to freedom and security of the person.

• Whether the Constitutional Court should grant direct access to the applicant to consider the constitutional challenge
• Whether the High Court erred in striking the matter from the roll merely because the executive failed to file affidavits on the constitutional challenge
• Whether the failure of the executive to put its views before a court can deprive an applicant of having an application for constitutional relief adjudicated
• Whether the applicant complied with the Rules of the Constitutional Court regarding lodgment of documents

The application for direct access was dismissed. The applicant was entitled to and should re-enrol his application in the High Court in Pietermaritzburg and seek relief there.

The binding legal principles established are: (1) Direct access to the Constitutional Court will only be granted where exceptional circumstances exist, even where all interested parties are cited. The Constitutional Court will not grant direct access to consider a constitutional challenge where the Minister responsible for the legislation is not cited. (2) The failure of the executive to file affidavits or put its views before a court in a constitutional challenge cannot deprive an applicant of having an application for constitutional relief adjudicated. (3) A High Court cannot strike a constitutional challenge from the roll solely on the ground that the executive has chosen to abide by the court's decision without filing explanatory affidavits. (4) Where the executive fails to put its views before the court on a constitutional challenge, the appropriate order is to adjourn the application and request the relevant respondents to file affidavits indicating their attitude, not to strike the matter from the roll. (5) Rule 17(2) read with Rule 1(3) of the Constitutional Court Rules requires that applications for direct access be lodged with 25 copies furnished to the Registrar, and failure to comply without a condonation application constitutes a further ground for rejection.

The Court made important observations regarding the significance of having the executive's views in constitutional challenges: Constitutional challenges to legislation adopted by Parliament are not mere formalities. Parliament is obliged to consider the constitutionality of legislation before it is passed, and state law advisors would presumably have certified the Act as being consistent with the Constitution. If the government takes the view that it cannot support the legislation, it ought to explain to the Court the reasons for its attitude and what it considers to be an appropriate order in the circumstances. The Court has on several occasions pointed to the importance of having the attitude of the member of the executive responsible for the implementation of the legislation before the Court in any constitutional challenge. However, this does not create an absolute bar to adjudication where such views are not provided. The Court also commented that if the allegation was correct that the High Court struck the matter from the roll solely on the ground of the executive's failure to file affidavits, then the High Court erred in doing so.

This case is significant for establishing important principles regarding direct access to the Constitutional Court and the role of the executive in constitutional challenges. It clarifies that: (1) direct access to the Constitutional Court requires exceptional circumstances and is not granted merely because a matter raises constitutional issues; (2) the High Court cannot refuse to adjudicate a constitutional challenge simply because the executive chooses to abide by the court's decision without filing affidavits; (3) while the executive's views on constitutional challenges to legislation are important and should be sought, their absence does not deprive applicants of their right to constitutional relief; and (4) strict compliance with the Rules of Court is required, particularly regarding the lodgment of documents. The judgment reinforces access to justice principles while maintaining proper procedural requirements and the importance of the High Court as the court of first instance for most constitutional challenges.