Constitutional application

Pillay, Anashri

Constitutional application

Journal Article

2003

Journal Title

South African Journal of Criminal Justice

Link to Journal

http://reference.sabinet.co.za/sa_epublication/ju_sajcj

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

In Phillips v Director of Public Prosecutions, Witwatersrand Local Division 2003 (1) SACR 425 (CC), the High Court's finding that s 160(d) of the Liquor Act 1989 was unconstitutional came to the Constitutional Court for a confirmation of invalidity. Section 160(d) `made it an offence for any holder of an on-consumption licence who allowed any person (i) to perform an offensive, indecent or obscene act; or (ii) who was not clothed or not properly clothed, to perform or to appear, on a part of the licensed premised where entertainment of any nature was presented or to which the public had access' (at 430g-h). The court noted, per Yacoob J, that findings of invalidity would not be routinely confirmed (at 432b-c). The court is obligated to enter into a thorough investigation into the constitutionality of the legislative provision (at 432d). The court found it unsatisfactory that the relevant members of the executive provided no reasons for their decision not to oppose the application for confirmation of invalidity (at 432i-j). Under the separation of powers doctrine, the courts, and not the executive, must decide on the constitutionality of laws.

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