Mary Patricia King & 92 Others and Others v Attorneys Fidelity Fund Board of Control and Another

Over 100 appellants (individuals, corporations and trustees) claimed compensation from the Attorneys Fidelity Fund for losses suffered after depositing money in the trust account of a Port Elizabeth law firm, van Schalkwyks, for a factoring scheme. The attorneys allegedly stole the money. In 1998, Parliament amended the Attorneys Act 53 of 1979 (through Act 115 of 1998) to preclude recovery of moneys deposited with an attorney for investment purposes rather than in the usual course of practice. Most deposits occurred after this amendment. The appellants challenged the validity of the amendment Act, alleging Parliament failed to comply with section 59 of the Constitution, which requires the National Assembly to 'facilitate public involvement in the legislative and other processes'. They acknowledged there was public consultation but contended it was insufficient. The Bill was introduced on 30 January 1998 with consultation of professional bodies. The Portfolio Committee on Justice invited public representations through media statements. Public hearings were held on 20 April and 4 May 1998. Articles were published in seven of seventeen daily newspapers. The Grahamstown High Court (Chetty J) dismissed the challenge, finding compliance with the public involvement requirement.

• Whether the Supreme Court of Appeal has jurisdiction to decide that Parliament failed to fulfil a constitutional obligation under section 167(4)(e) of the Constitution
• Whether section 172(2)(a) empowers the SCA and high courts to make orders of constitutional invalidity when the alleged defect arises from breach of a constitutional obligation
• What constitutes sufficient 'public involvement' under section 59 of the Constitution
• The distinction between different forms of statutory invalidity: capacity-defining procedural formalities versus breach of constitutional obligations
• Whether Parliament's public consultation process was sufficient to meet the constitutional requirement to 'facilitate public involvement'

The appeal was struck from the roll with costs, including costs of two counsel. The court held it lacked jurisdiction to entertain the application, which should have been brought before the Constitutional Court.

Section 167(4)(e) of the Constitution vests exclusive jurisdiction in the Constitutional Court to decide whether Parliament has failed to fulfil a constitutional obligation. When a challenge to legislative validity is predicated on Parliament's alleged failure to fulfil a constitutional obligation (as opposed to a capacity-defining procedural formality or substantive unconstitutionality of the legislation's content), neither the Supreme Court of Appeal nor the high courts have jurisdiction under section 172(2)(a) to entertain the challenge or make an order of constitutional invalidity. Such challenges involve 'crucial political questions' that only the Constitutional Court may decide. The distinction between legal limitations arising from procedural prerequisites (disabilities) and those arising from duties (obligations) is critical to determining jurisdiction. Only when Parliament so completely renounces its constitutional obligations that it ceases to function as the Constitution envisages would purported legislation be invalid, and the question whether that extreme has been reached is reserved exclusively for the Constitutional Court.

The court made significant non-binding observations about the nature of the constitutional requirement for public involvement in legislative processes under section 59. 'Public involvement' is necessarily an inexact concept with many possible facets that can be fulfilled in different ways. It may include public participation through submissions and representations, but is not limited to that. The public may become involved as much by understanding and being informed of what Parliament is doing as by direct participation. Section 59 sets a base standard but leaves Parliament significant leeway in fulfilling it. Whether the obligation has been fulfilled cannot be assessed by examining only one aspect in isolation. The court also suggested that if the National Assembly were to convene in secret or at an undisclosed venue in violation of constitutional obligations to conduct business openly and in public, it might be held that this was not Parliament functioning as constitutionally contemplated, rendering purported legislation invalid. The court noted that the Constitutional Court's flexible principle regarding costs in constitutional litigation (that bona fide litigants raising genuine constitutional issues of broad concern should not be inhibited by costs) does not apply to essentially private claims for compensation that incidentally raise constitutional challenges.

This case establishes important principles regarding court jurisdiction in constitutional challenges to legislation and the separation of powers. It clarifies that challenges based on Parliament's alleged failure to fulfil constitutional obligations (particularly procedural obligations like public participation) fall within the exclusive jurisdiction of the Constitutional Court under section 167(4)(e). The judgment provides a framework for distinguishing between different types of constitutional challenges to legislation and allocating jurisdiction accordingly. It protects parliamentary sovereignty and the comity between branches of government by ensuring only the Constitutional Court intrudes into 'crucial political areas' involving assessment of Parliament's compliance with its constitutional obligations. The case also provides important obiter dicta on the meaning and content of the constitutional requirement for 'public involvement' in legislative processes, recognizing it as an inexact concept with multiple facets that Parliament has significant leeway in fulfilling. This supports participatory democracy while respecting Parliament's institutional autonomy.