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- Mistry v Interim National Medical and Dental Council of South Africa 1998 (4) SA 1127 (CC); 1998 (7) BCLR 880 (CC) is an important case in the South African law of medicine, constitutional law, constitutional litigation and criminal procedure. In the area of constitutional litigation, the court dealt with an application for a certificate in terms of Rule 18 of the Constitutional Court Rules. And it held that the considerations relevant to deciding whether the certificate should be positive or negative are similar to those which should influence the court in deciding whether or not to grant leave to appeal to Supreme Court of Appeal (SCA): The High Court is required in both instances to consider
* whether or not there are reasonable prospects of success; and
* whether the issues raised are of sufficient substance to be dealt with by the SCA. It was appropriate, in other words, that an application for a certificate in terms of Rule 18 be dealt with in the same manner as a conventional application for leave to appeal. In both instances, judgment on the application is required. The case is also important, in this area of the law, for its treatment of the power of the Constitutional Court to suspend a declaration of invalidity, in the interests of justice and good government, pending a correction of the invalid statute by the competent authority. As a general rule, the court held, it will not suspend an order of invalidity, with exceptions to be made only when the reasons are good and persuasive. The party requesting the suspension carries the burden of proof; it must provide the court with reliable information to justify a suspension, indicating at the very least
* what negative consequences there may be for justice and good government of an immediately operational declaration of invalidity;
* why other existing measures would not be an adequate alternative stop-gap;
* what legislation on the subject, if any is in the pipeline, and
* how much time would reasonably be required to adopt the corrective legislation. (en)
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