Minister of Agriculture, Forestry and Fisheries v National Society for the Prevention of Cruelty to Animals

On 11 July 2013, the Constitutional Court confirmed a declaratory order of constitutional invalidity of sections 2 and 3 of the Performing Animals Protection Act 24 of 1935 (as amended), insofar as they required a magistrate to decide applications for and issue licences. The order of invalidity was suspended for 18 months (until 10 January 2015) to allow Parliament to cure the defect. In November 2014, the Minister applied for an extension, which was granted for six months until 12 July 2015. By Cabinet approval on 10 December 2014, a Bill was prepared to cure the defect. The Bill was submitted to Parliament on 3 March 2015 and referred to the relevant Portfolio Committee. On 5 June 2015, the Portfolio Committee resolved to amend additional sections (4, 5, and 7) beyond the initially proposed sections 2 and 3. On 6 July 2015, one week before the deadline, the Minister launched an urgent application for a further extension of 12 months.

• Whether it would be just and equitable to extend the suspension of the order of invalidity
• What principles govern applications for extension of suspension orders
• What period of extension should be granted in the circumstances
• Whether the applicant acted diligently in taking steps to cure the constitutional defect
• What weight should be given to consequences to the public if the extension is refused

The order suspending the operation of the order of constitutional invalidity made on 11 July 2013 concerning sections 2 and 3 of the Performing Animals Protection Act 24 of 1935, as amended, was extended from 28 August 2015 to 27 August 2016 (a period of 12 months).

An extension of the suspension of an order of invalidity depends on what is just and equitable in the circumstances. The Court must consider various factors including: (1) an explanation as to why the previously granted period was inadequate to cure the constitutional defect; (2) whether the applicant acted diligently in taking steps to cure the defect within the period fixed by the Court; and (3) the consequences to the public, Government or Parliament if the extension is refused. An order extending a suspension cannot be had for the asking - the Court must satisfy itself there is a proper basis for granting it, even in unopposed applications. Where an applicant has acted reasonably diligently and where refusal would result in serious prejudice to the public who are not to blame for delays, it will be just and equitable to grant an extension.

The Court observed that it is unacceptable for an applicant to delay in bringing an extension application until only one week before the expiry of the suspension period, particularly where a previous extension application was brought two months before the deadline. The Court also noted that while it was granting a 12-month extension (which would give Parliament a total of three years), this 'will have been more than enough time for the Bill to be passed into law and assented to by the President if all concerned give the matter the urgent attention it deserves.' The Court stated it was taking the Minister at his word regarding the period finally required to pass the Bill into law, implying this should be the final extension granted.

This case is significant for establishing and applying the principles governing extensions of suspension orders in constitutional invalidity cases. It demonstrates the Constitutional Court's approach to balancing parliamentary sovereignty and the need for time to legislate against the imperative of constitutional compliance and protection of the public interest. The case illustrates that while courts will show patience and grant extensions where Parliament is acting diligently, such extensions are not automatic and require proper justification. The judgment emphasizes that extensions cannot be 'had for the asking' and courts will scrutinize the reasons for delay and the steps taken toward compliance. It also reinforces the importance of applying timeously for extensions, as the Court criticized the applicant for waiting until one week before the deadline.