Ex Parte Christopher Lance Mercer and Beverley Pervan In Re: The Problem Animal Control Ordinance 26 of 1957 and the National Prosecuting Authority of South Africa

The applicants were convicted in the Kuruman Magistrates' Court in September 2001 of contravening provisions of the Nature and Environmental Conservation Ordinance, 1974 for harbouring three Northern Cape lynx without a permit. The applicants had been denied permits on several occasions to harbour these animals on the basis that the animals were earmarked as potential problem animals to farmers in the region in terms of the Problem Animal Control Ordinance, 1957 (an ordinance of the former Cape of Good Hope province). The applicants launched proceedings in the Northern Cape High Court seeking to appeal their convictions and sentences and to challenge the constitutionality of the Ordinance in its entirety. After the matter was set down for 9 September 2002 in the High Court, it was postponed to 3 March 2003. The applicants then applied directly to the Constitutional Court to hear the matter without awaiting the outcome of the appeal in the High Court.

• Whether the Constitutional Court should grant direct access to hear the constitutional challenge before the High Court dealt with the matter
• Whether the Problem Animal Control Ordinance, 1957 was unconstitutional on the grounds that it breached the right to equality under section 9 of the Constitution
• Whether the Ordinance breached environmental rights contained in section 24 of the Constitution

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

The binding principle established is that the Constitutional Court will not grant direct access to hear constitutional challenges where it would be premature to do so before the High Court has had an opportunity to consider the matter, even where there may be delays in the High Court proceedings. The principle of subsidiarity requires that lower courts with appropriate jurisdiction should first be given the opportunity to adjudicate on constitutional matters before the Constitutional Court exercises its discretion to grant direct access.

The Court made no substantive obiter observations in this brief judgment. The Court did not express any views on the merits of the constitutional challenges to the Problem Animal Control Ordinance, 1957, or on the validity of the applicants' convictions, as these matters were left for determination by the High Court in the pending appeal.

This case demonstrates the Constitutional Court's approach to direct access applications and its preference for matters to proceed through the normal court hierarchy before reaching the apex court, even where constitutional issues are raised. It illustrates the Court's adherence to the principle of subsidiarity and its reluctance to bypass lower courts, particularly the High Court, which has concurrent jurisdiction to hear constitutional matters. The case also touches on the intersection of environmental conservation law, administrative law relating to permits, and constitutional rights.