Picture source: Getty/iStock
Linda Nyati submits that the Freedom Charter declared that ‘the people shall govern’ (L Nyati ‘Public participation: What has the Constitutional Court given the public?’ (2008) 12 Law, Democracy & Development 102). The author adds that the drafters of the Constitution may have had those four important words at the back of their minds when they were in process of devising a legal foundation and source of law for our democracy. The South African democracy represents all aspects of multi-party democracy achieved with the use of regular elections that are based on a ‘common voters’ roll and proportional representation’ (Nyati (op cit) at 102). In the context of the South African Republic, democracy is public participation. Public participation is essential in all aspects that concern the public, including the process of making laws. Laws are made for the regulation of people that are regarded as subjects of a certain state and participation by such people seem relatively inevitable.
In Mogale and Others v Speaker of the National Assembly and Others 2023 (9) BCLR 1099 (CC), it was held that Parliament had failed to comply with its constitutional obligation of facilitating public involvement before passing the Traditional and Khoi-San Leadership Act 3 of 2019 (TKLA). Failure to adhere to proper laws and regulations when it comes to passing Acts of Parliament basically renders such Acts invalid because they were passed contrary to the provisions of the Constitution. This is why the TKLA was declared invalid. Against this background, an analysis of public involvement in processes of enacting laws will be provided in the light of Mogale.
Chapter 4 of the Constitution of the Republic of South Africa deals with matters pertaining to Parliament. In terms of s 43(a) of the Constitution, Parliament is granted the authority to enact legislation on a national level. On the other hand, the National Assembly is also vested with the power to amend the Constitution.
Section 59(1) of the Constitution grants the public powers to participate in processes of the National Assembly by asserting that the National Assembly must enable public involvement in legislative processes and other processes of the Assembly and its committees. Section 59(2) adds that the National Assembly is prohibited from excluding the public (including the media) from a sitting of a committee, unless such exclusion is reasonable and justifiable in an open and democratic society. It can legitimately be argued that public participation is a constitutional mandate.
In Doctors for Life International v Speaker of the National Assembly and Others 2006 (12) BCLR 1399 (CC), the court set out a test to use when seeking to determine appropriate procedures to be used in the process of ensuring the involvement of the public. The test is an inquiry into ‘whether the legislature acted reasonably in discharging the duty to facilitate public involvement’ (Nyati (op cit) at 104). The factors that ought to be considered when determining reasonableness include ‘the nature of the legislation concerned’ in question, ‘the importance of the legislation’, ‘the impact on the public’ and ‘other relevant factors which will depend on the circumstances of each case’ (Nyati (op cit) at 104).
In Doctors for Life International (at 1473), it was submitted that public participation refers to the need for all parties with interest in legislation to feel that they were granted a real opportunity to furnish their sentiments. It also refers to the need for citizens of the state to feel that they are taken seriously as citizens and that their views matter.
In Matatiele Municipality and Others v President of the Republic of South Africa and Others 2006 (5) BCLR 622 (CC) at para 2, the legal issue was whether correct procedures had been followed by the legislature in passing the Constitution Twelfth Amendment Act of 2005 that would effectively alter the borders of KwaZulu-Natal and the Eastern Cape provinces. ‘The appellants challenged the constitutionality of the Constitution’s Twelfth Amendment Act of 2005’ and ‘the Cross-boundary Municipalities Laws and Repeal Related Matters Act 23 of 2005’ (Nyati (op cit) at 105). The challenges referred to were made on grounds of failure (by the KwaZulu-Natal Provincial Legislature) to discharge duties of facilitating public involvement. The Acts were not passed (Nyati (op cit) at 105).
According to Nyati, compliance with laws that provide for public participation is essential for the improvement of the legislative process particularly in an instance where the importance of such legislation can be used in the altering of a provincial boundary (Nyati (op cit) at 105).
At para 81, the court held that the deficiencies that were found to have occurred at different stages of the public participation process in the quest to pass the TKLA are numerous and substantial. The deficiencies include failure to provide proper notice ahead of the relevant hearings (para 61), failure to provide a proper explanation of the purpose of the hearing being conducted (para 64), and failure to ensure that the venues of hearings are accessible to the public.
Parliament attempted, in its submissions, to explain its reasons for the deficiencies referred to by referring to the lack of resources (para 81). Considering the scale of the evidence placed before the court, the deficiencies support the idea that ‘a wide-ranging and substantial failure to facilitate public participation’ occurred (para 81). The wide-ranging failure referred to includes the failure to provide sufficient notice ahead of the hearings, the providing of notice by word of mouth and providing notice on an uneven basis (para 61).
Because of the failure to provide sufficient notice, the Eastern Cape ended up having to postpone several hearings that were scheduled to take place in the province (para 62). Additionally, the failure resulted in organisations and members of the society not having enough time to prepare themselves for hearings. The court noted that in Moutse Demarcation Forum and Others v President of the RSA and Others 2011 (11) BCLR 1158 (CC), it was held that the public should be given enough opportunity to prepare for hearings (para 61). Additionally, in Land Access Movement of South Africa and Others v Chairperson, National Council of Provinces and Others 2016 (5) SA 635 (CC), the Constitutional Court (CC) held that a notice of less than seven days is unreasonable (para 80).
Additionally, the apex court found that the provincial legislatures did not provide the required pre-hearing education to members of the society, while it was unclear whether there was pre-hearing education in Mpumalanga (para 65).
Another issue that was noted by the apex court is that of hearings being inaccessible to members of the public (para 66). It may be because the venue is too far or because no travel arrangements were made. In the Eastern Cape, members complained during the hearing that the legislature did not assist them with any transport that would take them to and from the venue of the hearing (para 67).
Another issue noted by the CC is the failure to provide copies of the Traditional and Khoi San Leadership Bill (TKLB) that was meant to be discussed at the hearing (para 68). At many hearings, there were issues relating to translation and at one hearing held in the Northern Cape, attendees had to volunteer to serve as translators (para 70).
One other issue noted by the court is that legislatures failed to maintain equality among members, by giving improper attention to certain groups to the exclusion of others (para 73). Notably, in KwaZulu-Natal, attendants who accused traditional leaders of abusing power were prevented from speaking (para 74).
The list of deficiencies assessed by the CC in the matter were numerous. One other issue noted was the failure to draft accurate and adequate reports on public hearings that were conducted (para 78). This relates particularly to comments of members of the public regarding the TKLB.
Ultimately, the court held that Parliament failed to facilitate public involvement before passing the TKLA. In this instance, the Act was adopted in a manner that contradicts the Constitution and was, therefore, declared invalid.
From assessing Mogale, it becomes clear that the need for the involvement of the public in processes of enacting laws is a constitutional mandate that demands due compliance. In Mogale, the issues that led the court to find that the Act was not passed in accordance with the law, included failure to organise transport for members of the public. This goes to substantiate the fact that the public plays a crucial role in the development of South African law, especially when one considers the fact that the public is also required to provide comments on a Bill.
Mpho Titong LLB LLM LLM (NWU) is a legal intern at the Legal Practice Council in Mahikeng.
This article was first published in De Rebus in 2024 (April) DR 15.
