King and Others v Attorneys Fidelity Fund Board of Control and another (ECJ 2004/024) [2004] ZAECHC 28; [2004] 4 All SA 216 (E) (2 September 2004)

King and Others v Attorneys Fidelity Fund Board of Control and another (ECJ 2004/024) [2004] ZAECHC 28; [2004] 4 All SA 216 (E) (2 September 2004)

The court held that the steps taken by Parliament in relation to the Attorneys Amendment Act 115 of 1998, including press releases, public hearings, and publication of notices, constituted sufficient compliance with section 59(1)(a) of the Constitution. The requirement to 'facilitate' public involvement does not demand direct participation by every affected individual, but rather reasonable measures to make the legislative process accessible. The court found that the plaintiffs' argument focused on the insufficiency, not the absence, of public involvement, and that the procedures followed were adequate. The impugned sections of the Attorneys Act were therefore not unconstitutional. The...

Citation
[2004] ZAECHC 28
Parties
Plaintiff: Mary Patricia King & 92 Others; Plaintiff: Colleen Judith Van Straaten & 6 Others; Plaintiff: Namcoast (Pty) Ltd; Plaintiff: C M Tapson & 2 Others; Defendant: Attorneys Fidelity Fund Board of Control; Defendant: Minister of Justice
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
2 September 2004
Case Number
ECJ 2004/024
Procedural Posture
Civil Trial / Determination of Stated Case Under Rule 33(6); Constitutional Challenge
Outcome
The stated case is answered in favour of the first and second defendants. The impugned sections are not unconstitutional.
Judges
Chetty
Legal Topics
Public Participation in Legislation, Attorneys Fidelity Fund Liability, Constitutional Interpretation, Costs in Constitutional Litigation
Constitutional Law Civil Procedure Public Participation in Legislation Attorneys Fidelity Fund Liability Constitutional Interpretation Costs in Constitutional Litigation

Case Brief

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Parties

Mary Patricia King & 92 Others

Plaintiff

Colleen Judith Van Straaten & 6 Others

Plaintiff

Namcoast (Pty) Ltd

Plaintiff

C M Tapson & 2 Others

Plaintiff

Attorneys Fidelity Fund Board of Control

Defendant

Minister of Justice

Defendant

Procedural Posture

Civil Trial / Determination of Stated Case Under Rule 33(6); Constitutional Challenge

Legal Issues

  1. 1 Whether sections 47(1)(g), (4), (5) and 47A of the Attorneys Act 53 of 1979 are unconstitutional due to insufficient public involvement in the legislative process.
  2. 2 Whether Parliament complied with section 59(1)(a) of the Constitution in facilitating public participation during the passage of the Attorneys Amendment Act 115 of 1998.
  3. 3 Whether the plaintiffs are entitled to compensation from the Attorneys Fidelity Fund for losses resulting from theft by attorneys when funds were invested on their behalf.

Ratio Decidendi

The court held that the steps taken by Parliament in relation to the Attorneys Amendment Act 115 of 1998, including press releases, public hearings, and publication of notices, constituted sufficient compliance with section 59(1)(a) of the Constitution. The requirement to 'facilitate' public involvement does not demand direct participation by every affected individual, but rather reasonable measures to make the legislative process accessible. The court found that the plaintiffs' argument focused on the insufficiency, not the absence, of public involvement, and that the procedures followed were adequate. The impugned sections of the Attorneys Act were therefore not unconstitutional. The...

Court Disposition

The stated case is answered in favour of the first and second defendants. The impugned sections are not unconstitutional.

Orders

  • The stated case is answered in favour of the first and second defendants. The impugned sections are not unconstitutional.
  • The plaintiffs are to pay the costs of the first and second defendants, jointly and severally, including the costs of two counsel, in relation to both the stated case and the hearing.