President of the Republic of South Africa and Others v South African Dental Association and Another

On 21 March 2014, the President signed Proclamation 21 of 2014 bringing sections 36-40 of the National Health Act 61 of 2003 into operation on 1 April 2014. These sections criminalized the provision of health services without a certificate of need. However, the Minister of Health had not yet promulgated the necessary regulations that would enable health service providers to apply for and obtain such certificates. This created an untenable situation where all health service providers in South Africa were effectively engaging in criminal conduct, as no one could obtain the required certificate of need in the absence of regulations. The President acknowledged that the Proclamation was issued in error, as his advisors mistakenly counseled him that the regulations were in place when they were not. The South African Dental Association (SADA) brought this alarming situation to the attention of the Presidency. The President, along with other government officials, applied directly to the Constitutional Court to declare the Proclamation invalid and set it aside.

• Whether direct access to the Constitutional Court should be granted under section 167(6)(a) of the Constitution
• Whether the President's decision to bring sections 36-40 of the National Health Act into operation was rationally connected to the purpose for which the power was given
• Whether the Proclamation was invalid and should be set aside
• Whether the exercise of public power by the President was subject to rationality review

1. Direct access granted. 2. Proclamation 21 of 2014 declared invalid and set aside. 3. No order as to costs.

The binding legal principle established is that the President's decision to bring legislation into operation through proclamation is subject to rationality review. Such a decision must be rationally connected to the purpose for which the power was given. Rationality is assessed objectively and is not affected by the President's good faith or intentions. Where a proclamation brings provisions into operation that criminalize conduct but provides no lawful means of compliance (such as bringing into force requirements for certificates of need without the regulations necessary to obtain such certificates), the decision is not rationally connected to achieving an orderly implementation of the regulatory scheme and is therefore invalid under the Constitution and the rule of law.

The Court noted that while Parliament has the power to correct the President's decision, in this case judicial intervention would not upset the legislative process or infringe the separation of powers. The Court also observed that no criminal prosecutions had apparently been brought under the invalid provisions, but their existence was nevertheless undesirable as health service providers might be inhibited or discouraged from providing essential services at risk of criminal sanction. The Court acknowledged that considerable cost and inconvenience might be occasioned by calling Parliament to address the matter, and that there is no mechanism in the National Health Act itself to remedy the consequences of the Proclamation. The Court emphasized that it is an inevitable consequence of the rule of law that the Proclamation may not be ignored until it is set aside, even though issued in error.

This case is significant in South African constitutional law for several reasons: (1) It affirms the principle established in Pharmaceutical Manufacturers that the President's exercise of power to bring legislation into operation is subject to rationality review under the rule of law; (2) It demonstrates the Constitutional Court's willingness to review executive action, even when done in good faith, if it fails the objective rationality test; (3) It reinforces that rationality review is an objective standard not dependent on subjective good intentions; (4) It illustrates the Court's approach to granting direct access in urgent matters of constitutional importance where there are no factual disputes and only the Constitutional Court can provide effective relief; (5) It confirms that even though the President could not withdraw the Proclamation after its commencement date had passed, judicial review remained available as a remedy; (6) It demonstrates judicial oversight of executive power in the context of health services regulation, an area of fundamental constitutional rights under sections 27 and 28 of the Constitution.