Online Reporter
Fidelis Munyoro
Chief Court Reporter
THE legal battle over abortion access for minors and victims of marital rape has been sent back to the High Court after the Constitutional Court overturned a landmark ruling that had declared part of the country’s Termination of Pregnancy Act unconstitutional.
However, the Constitutional Court did not rule that the disputed abortion provision is constitutional, leaving the substantive question of who qualifies for a lawful termination of pregnancy unresolved.
Instead, the highest court ordered the High Court to hear the matter afresh, saying the original proceedings were not properly conducted and that critical arguments had not been placed before the lower court.
In a judgment delivered by Justice Ben Hlatshwayo, the Constitutional Court refused to confirm the High Court’s November 22, 2024 declaration of invalidity and set aside the judgment in HH 552/24.
The case was brought by Women and Law in Southern Africa and Talent Forget, who challenged Section 2(1) of the Termination of Pregnancy Act.
They argued that the definition of “unlawful intercourse” was too narrow because it excluded certain pregnancies involving minors and pregnancies resulting from marital rape.
The High Court upheld their challenge and declared the provision unconstitutional.
That ruling has now been wiped from the legal record, with the Constitutional Court ordering a fresh hearing.
Justice Hlatshwayo said the State parties – the Minister of Health and Child Care, the Attorney General and Parliament – had failed to properly participate in the original proceedings despite the case raising issues of profound public importance.
“It was wrong for the respondents in the court a quo (lower court) to refrain from participating when their input was critical for the court to make a balanced assessment,” he said.
The State parties had initially indicated that they would abide by whatever decision the High Court made instead of actively presenting arguments and relevant material.
But the Constitutional Court said the matter could not be treated like an ordinary private dispute because it involved constitutional questions affecting the public at large.
“It was essential for both sides of the argument to be fully aired before the court a quo,” Justice Hlatshwayo said.
The Constitutional Court also rejected an attempt by the State to introduce a fresh position on marital rape during the confirmation proceedings.
The State opposed the inclusion of marital rape as a ground for lawful termination of pregnancy, but the Constitutional Court said confirmation proceedings could not be used to introduce arguments that had not been properly presented before the High Court.
There was also a problem with the scope of the High Court’s order.
The applicants had challenged Section 2(1) only to the extent that it excluded particular forms of unlawful intercourse, but the High Court declared the entire provision invalid.
The Constitutional Court found that the High Court had therefore gone beyond the scope of the challenge.
Despite setting aside the ruling, the Constitutional Court upheld the applicants’ right to bring the case.
It confirmed that they had standing under Section 85(1)(d) of the Constitution, which allows individuals to approach the courts in the public interest.
The court found that the applicants were entitled to litigate on behalf of vulnerable groups whose interests were at stake.
Forget had told the court that she became pregnant while still a minor in 2014.
However, the Constitutional Court found that her reliance on the later legal position concerning children was misplaced because the law applicable at the time defined a young person as someone under 16.
The court nevertheless said this did not undermine the applicants’ broader public-interest standing.
The High Court can also consider appointing amici curiae, or “friends of the court”, to assist it with the complex constitutional and legislative issues raised by the case.
The matter will now return to the High Court for a fresh hearing.
For now, neither side has won the substantive constitutional battle.
The High Court must start again and determine whether Section 2(1) of the Termination of Pregnancy Act, as it currently stands, passes constitutional muster.
The Constitutional Court made no order as to costs but warned that parties in future public-law litigation could face costs where their conduct causes constitutional proceedings to become ineffective.
