CCT41/07

[2008] ZACC 10

2008 (5) SA 171 (CC)

2008 (10) BCLR 968 (CC)

Van der Westhuizen J Majority judgment

13 June 2008

http://hdl.handle.net/20.500.12144/3386

Application for direct access in terms of section 167(4)(e) which concerns a constitutional challenge to a part of the Constitution Twelfth Amendment Act .

Challenge concerning the rationality of a decision by the Gauteng provincial legislature to vote in favor of the Constitution Twelfth Amendment Bill in the National Council of Provinces and the fulfillment of the legislature?s duty to facilitate public participation in relation to the Bill. The Court held that the constitutional duty to facilitate public participation requires that the public be afforded a reasonable opportunity to make submissions. It does not require a legislature to re-engage with the public if it initially supports the view expressed by the majority of the public but ultimately departs from it. The Court confirmed that all public power must be exercised rationally, but held that the contentious political nature of a decision is irrelevant to the rationality enquiry. If a public body changes its mind, its final decision is not irrational where the change is based on legitimate considerations and a correct appreciation of its powers and obligations. The actions of the Gauteng provincial legislature were therefore not unconstitutional Majority: Van der Westhuizen J (Langa CJ, Mpati AJ, Ngcobo J, Skweyiya J, Yacoob J concurring) Separate Concurrences: Ngcobo J (Langa CJ, Mpati AJ, Ngcobo J, Skweyiya J, Van der Westhuizen J, Yacoob J concurring); Skweyiya J (Yacoob J concurring). Dissents: Moseneke DCJ (Madala J, Nkabinde J, Sachs J concurring); Madala J; Sachs J.