Shane Van Straaten v President of the Republic of South Africa

The applicant, Mr van Straaten, representing himself, brought an urgent application for direct access under section 167(4)(d) of the Constitution. He sought to declare the National Prosecuting Authority Amendment Bill, 2008 and the South African Police Service Amendment Bill, 2008 invalid. These bills disbanded the Directorate of Special Operations (the Scorpions) and established a new specialised unit to fight crime. The applicant alleged that some members of the African National Congress who voted for these bills should not have participated because they were biased against the Scorpions, being either under investigation or facing criminal charges. He characterized their conduct as unlawful, unconstitutional and corrupt. The applicant appeared to confuse these bills with a constitutional amendment and thus brought the matter under section 167(4)(d). The papers were served on the State Attorney, Johannesburg on 11 December 2008, but no response was received from the State Attorney, the President, or the Minister for Justice and Constitutional Development despite the expiry of the time limits.

• Whether the Constitutional Court has jurisdiction to consider the constitutional validity of parliamentary bills outside the limited circumstances contemplated in sections 79 and 121 of the Constitution
• Whether the bills in question constituted a constitutional amendment within section 167(4)(d) of the Constitution
• At what point in time must the Court's jurisdiction be determined - when proceedings commence or when the Court considers the matter
• Whether service on the State Attorney constitutes proper service on the President and relevant Ministers

The application was dismissed. The Registrar was directed to send copies of the judgment to the offices of the President and the Minister for Justice and Constitutional Development. No order as to costs was made as there had been no opposition.

The Constitutional Court has no jurisdiction to consider the constitutional validity of parliamentary bills outside the limited circumstances contemplated in sections 79 and 121 of the Constitution, which provide for referral by the President or a Premier respectively. The crucial time for determining whether a court has jurisdiction is when proceedings commence, not when the court subsequently considers the matter. A bill does not constitute a constitutional amendment for purposes of section 167(4)(d) of the Constitution unless it actually amends the Constitution itself.

The Court expressed grave concern about the failure of the State Attorney, Johannesburg to respond to the application, noting this was not the first such occasion. The Court observed that the state has an obligation to respond to court processes and cannot simply disregard them, and must lead by example in a country governed by the rule of law. While the Court considered requiring the Minister for Justice and Constitutional Development to provide a report on steps to prevent recurrence, it decided against this course but directed that a copy of the judgment be sent to the offices of the President and Minister to ensure appropriate steps would be taken to prevent similar situations in future. The Court confirmed that service on the State Attorney constitutes proper service on the President and relevant Ministers in terms of Rule 1(8) of the Rules of the Constitutional Court read with Rule 4(9) of the Uniform Rules of Court.

This case reinforces important principles regarding the separation of powers and the limited circumstances in which courts may interfere with the legislative process. It confirms that courts cannot review the constitutionality of bills while they remain bills (before assent), except in the narrow circumstances provided in sections 79 and 121 of the Constitution. The judgment also establishes that jurisdiction must be determined at the time proceedings are instituted, not retrospectively. Additionally, the case serves as an important reminder to state organs, particularly the State Attorney's office, of their obligation to respond to court processes and to uphold the rule of law by engaging with judicial proceedings, even when the matter may appear to lack merit.