South African Veterinary Association v Speaker of the National Assembly and Others

The South African Veterinary Association (SAVA) challenged the validity of section 16 of the Medicines and Related Substances Amendment Act 14 of 2015, which inserted the word "veterinarian" into section 22C(1)(a) of the Medicines and Related Substances Act 101 of 1965 (Principal Act). This amendment required veterinarians to obtain a licence from the Director-General of Health to compound and dispense medicines, which was not previously required under the Veterinary and Para-Veterinary Professions Act 19 of 1982. The word "veterinarian" was not included in the original Amendment Bill published for public comment in 2012 or 2014. It was inserted only after public hearings by the National Assembly (NA) Portfolio Committee on Health in November 2014, following a suggestion by the Pharmaceutical Society of South Africa. No further public consultation occurred after this insertion. Public hearings were subsequently held in only seven of nine provinces regarding the Bill, with some provinces giving as little as one to two days' notice, and veterinarians or their representative organizations were not specifically invited or notified about the amendment affecting them.

• Whether the Constitutional Court should grant direct access in terms of section 167(4)(e) of the Constitution
• Whether the National Assembly failed to comply with its constitutional obligation to facilitate public participation under section 59(1)(a) of the Constitution when inserting the word 'veterinarian' into the Amendment Bill
• Whether the National Council of Provinces (NCOP) failed to comply with its constitutional obligation to facilitate public participation under section 72(1)(a) of the Constitution
• Whether the Provincial Legislatures failed to comply with their constitutional obligation to facilitate public participation under section 118(1)(a) of the Constitution
• What remedy should be granted if Parliament failed to fulfill its constitutional obligations

1. Direct access was granted. 2. Section 22C(1)(a) of the Medicines and Related Substances Act 101 of 1965 was declared to have been amended in a manner inconsistent with the Constitution to the extent that it includes the word "veterinarian". 3. The word "veterinarian" was severed from section 22C(1)(a) of the Act. 4. The first and second respondents (Speaker of the National Assembly and Chairperson of the NCOP) were ordered to pay SAVA's costs jointly and severally, including the costs of two counsel.

The binding legal principles established are: (1) Legislation can be declared invalid for lack of public participation in the law-making process, as public participation is a justiciable constitutional duty. (2) The constitutional obligation to facilitate public participation under sections 59(1)(a), 72(1)(a) and 118(1)(a) applies at all stages of the legislative process, including at committee level when material amendments are made. (3) Where a material amendment is made to a Bill after public hearings have concluded, Parliament must facilitate further public participation on that amendment. An amendment is material when it fundamentally changes how a discrete group can operate professionally or brings an entire profession under the control of legislation that never previously applied to it. (4) A complete failure to take any steps to involve the public in a material amendment cannot be reasonable under any measure and constitutes a breach of the constitutional duty to facilitate public participation. (5) The more discrete and identifiable the potentially affected section of the population, and the more intense the possible effect on their interests, the more reasonable it is to expect the Legislature to ensure that population is given a reasonable opportunity to participate (principle from Matatiele confirmed). (6) Public participation requires not just holding hearings but also: (a) providing reasonable notice periods (less than seven days is generally unreasonable absent urgency); (b) specifically inviting and notifying the most directly affected groups; and (c) publishing amendments so affected parties can reasonably be expected to know about them. (7) When determining the appropriate remedy for unconstitutional legislation, courts must limit relief to what has been shown to be unconstitutional, and severance is appropriate where the invalid portion can be separated and the remainder still gives effect to the legislative purpose.

The Court made several non-binding observations: (1) It noted that the Department of Health's agreement not to implement the licensing regime for veterinarians for three years was evidence that no chaos or prejudice to good governance would result from immediate invalidation without suspension. (2) The Court observed that had proper public participation occurred, veterinarians' arguments about the unique nature of their profession would have been heard and considered, which may not necessarily have prevented inclusion of the word but would have made any inclusion more informed and procedurally sound. (3) The Court commented that it could not determine on the facts before it whether public participation was lacking in respect of other amendments to the Bill beyond the insertion of "veterinarian", leaving open the possibility for future litigants to challenge other aspects of the consultation process. (4) The Court stated that Parliament has a number of options it can pursue after holding proper consultations with veterinarians regarding their potential inclusion under the Principal Act. (5) The Court noted that the Department was entitled to make suggestions to Parliament but Parliament remained obliged to ensure compliance with constitutional requirements when considering such suggestions. (6) The judgment observed that proper public participation is not assisted by imposing a deadline on Parliament by which time it must make legislative decisions. (7) Goliath AJ emphasized that the constitutional form of democracy in South Africa is both representative and participatory, representing a pluralistic democracy where continuous respect is given to the rights of all to be heard.

This case is a significant affirmation of the constitutional duty to facilitate meaningful public participation in the legislative process. It reinforces the principles established in Doctors for Life International v Speaker of the National Assembly regarding participatory democracy as a foundational constitutional value. The judgment provides important guidance on when public participation is required following material amendments to Bills after initial public hearings have concluded. It establishes that the duty to facilitate public participation applies at all stages of the legislative process, including at committee level, and that amendments made after public hearings may require further consultation. The case also clarifies the test for reasonableness in public participation, emphasizing that complete failure to involve affected parties cannot be reasonable under any measure. It reinforces that the more discrete and identifiable the affected population, and the more intense the effect on their interests, the more Parliament must ensure they have a reasonable opportunity to participate. The judgment demonstrates the Court's willingness to intervene when Parliament fails its constitutional obligations while exercising restraint by limiting relief to the specific unconstitutional provision rather than invalidating entire statutes. It also illustrates the importance of parliamentary rules in giving effect to constitutional obligations and shows these rules can be used to measure compliance with constitutional duties.