Because they concerned the provision of healthcare services, the statutes were passed in both houses of the Parliament of South Africa, as required by section 76 of the Constitution.

In turn, the upper house, the National Council of Provinces (NCOP), was required to obtain a mandate from each of the nine provincial legislatures before passing the statutes.

The applicants in the case, the non-profit Doctors for Life International, complained that, in respect of the health legislation, the NCOP and provincial legislatures had not complied with their constitutional obligations.

Sachs also wrote a separate concurrence with additional comment on the "special meaning" of participatory democracy in South Africa, as well as on the proper remedy in such cases.

Using this standard, he found that the NCOP's process in respect of the Dental Technicians Amendment Act had been reasonable, because there had been little evidence of public interest in the legislation.

The Sterilisation Amendment Act was excluded from consideration because it had not been signed into law at the time that Doctors for Life launched the proceedings; the court held that it was not competent to grant relief in relation to bills before they were assented to by the President.

Yacoob's dissent turned on a narrower examination of the meaning of the constitutional directive to "facilitate public involvement in... legislative and other processes".

Even the implication that Parliament is required to take "reasonable steps" to facilitate public involvement would be too strong: the provision was carefully drafted at a high level of generality.

The majority's interpretation of section 72(1)(a) thus imposed a significant "limitation on the power of elected representatives of the people to make law", which in turn undermined the public's political rights.

I fear that the virtues of participatory democracy risk being undermined if the result of automatic invalidation is that relatively minor breaches of the duty to facilitate public involvement produce a manifestly disproportionate impact on the legislative process.