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Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton (CCT108/17) [2018] ZACC 30

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Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton (CCT108/17) [2018] ZACC 30

21st September 2018

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[1] These are confirmatory proceedings brought in terms of section 167(5) of the Constitution[1] read with Rule 16 of the Rules of this Court.  They follow upon the lodgement by the Registrar of the Western Cape Division of the High Court of South Africa with the Registrar of this Court of the order of constitutional invalidity made by that Court in this matter.  The order was in relation to sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 (Drugs Act) read with Part III of Schedule 2 to that Act and sections 22A(9)(a)(i) and 22A(10) of the Medicines and Related Substances Control Act 101 of 1965 (Medicines Act) read with Schedule 7 of GN R509 of 2003 published in terms of section 22A(2) of the Medicines Act.

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[2] The High Court suspended the order of invalidity for a period of 24 months from 31 March 2017.  It said that that was to allow Parliament to correct the constitutional defects in the Drugs Act and Medicines Act set out in the judgment.  It is neither necessary nor competent for a High Court to suspend an order of constitutional invalidity that relates to a statutory provision or an Act of Parliament when it grants such an order of constitutional invalidity.  It is unnecessary because section 172(2) of the Constitution provides that “an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court”.  That means that any order of constitutional invalidity of an Act of Parliament or a provision of an Act of Parliament made by a court other than this Court does not take effect for as long as it has not been confirmed by this Court.  Such a suspension order is incompetent because it purports to suspend the operation of an order that is not in operation in any event.  That order of invalidity is not in operation because in terms of section 172(2) of the Constitution which I have just quoted above.

[3] The order of invalidity was made in favour of various persons to whom the High Court referred as applicants.  Three proceedings under different case numbers had been instituted by different persons in the High Court.  In respect of case no 8760/2013 the applicant was Mr Garreth Prince.  Those were motion proceedings.  The respondents in those proceedings were various Ministers including the Minister of Justice and Constitutional Development who was the first respondent, the Minister of Police who was the second respondent, the Minister of Health who was the third respondent and the Minister of Trade and Industry who was the fourth respondent.  The Directorate of Public Prosecutions was also cited.  Mr Jonathan David Rubin was the plaintiff in case no 7295/2013.  The defendants that he cited were the respondents in case no 8760/2013 but he added the National Director of Public Prosecutions, the Minister of Social Development and the Minister of International Relations and Cooperation.  The third proceedings related to an action instituted under case no 4153/2012.  It had four plaintiffs, namely, Jeremy David Acton, Ras Menelek Barend Wentzel and Caro Leona Hennegin.  The defendants in that action were the same as those cited under case no 7295/2013.

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[4] The High Court consolidated all the cases referred to above and heard them as one matter.  The papers lodged in the High Court were not prepared by practising lawyers.  That made it difficult for the High Court to understand the case that the applicants or plaintiffs wanted to put before it.  The respondents / defendants in the High Court proceedings have brought an application for leave to appeal against the decision of the High Court.  They also oppose confirmation of the High Court’s order of constitutional invalidity.

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