Zelna Jansen
One of the key pillars of South Africa’s democracy is that it aims to move away from an oppressive system of government to one where the people can have a say in who governs them and have a say or can participate in governing decisions affecting them.
Having worked in the field of law and policy-making for many years, I will venture to say, and confidently too, that citizens with deep pockets are in an advantaged position to influence the system to suit them.
You may frown upon it or even regard this as unethical, however, it is legal. This is at the heart of capitalism. Those that have can continue to accumulate more and those that don’t are further marginalised into obscurity. It is no secret that South Africa is one of the most unequal societies in the world where 10% of the population owns 80% of the country’s wealth. This is confirmed by the World Bank and Statistics South Africa. Although, laws and policies deliberately seek to change this unequal society created by apartheid and South Africa’s history of colonialism, it has not succeeded.
These inequalities have surfaced in many spheres where those that do not have continue to be sidelined from processes. Processes that are put in place to help make a difference. The process of involving the public in law and policy-making is one that cannot be understated.
In the 2006 constitutional court judgment in the Doctors for Life International v Speaker of the National Assembly former Chief Justice Sandile Ngcobo said: “Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist”.
The court ordered a bill invalid as the process of public participation was flawed. The court stated that the process of public participation must involve:
1. meaningful opportunities for public participation in the law-making process; and
2. measures are taken to ensure that people had the ability to take advantage of the opportunities provided.
Although the court did not define meaningful opportunities to participate, it did speak of several factors that would indicate when a process of law-making and involving the public would be regarded as valid. It is important to be aware that the lawmaker has a discretion to determine the manner in which to fulfil the obligation to facilitate public involvement.
In the Merafong Demarcation Forum v President of the Republic of South Africa in 2008 the Constitutional Court said, “The obligation to facilitate public involvement may be fulfilled in different ways. It is open to innovation. Legislatures have discretion to determine how to fulfil the obligation. Citizens must however have a meaningful opportunity to be heard. The question for a court to determine is whether a legislature has done what is reasonable in all the circumstances.”
Since then, courts have been reluctant to encroach on the work of the legislative arm, particularly, in the law-making sphere.
However, the recent constitutional court case of Mogale and Others v Speaker of the National Assembly and Others this year, the court had to assess whether the process of involving the public in making of the Traditional and Khoi-San Leadership Act (TKLA) was reasonable. In this case, the court unanimously declared the TKLA invalid due to inefficient public participation.
Judge Leona Theron, in her opening remarks to the judgement, emphasised that, just as “voting is a badge of dignity and of personhood”. Similarly, when people – particularly the disempowered – participate in the making of laws that affect them, as is their constitutional entitlement, this enhances their dignity. Public participation acts as a safeguard to prevent the interests of the marginalized being ignored or misrepresented.”
An interesting point the court made was that in terms of the National Archives and Records Service of South Africa Act of 1996, public bodies such as Parliament are obliged to retain records and may not destroy them except as provided for in the Act. There had been complaints that people spend much time and resources in drafting submissions, however, there is no measure to ascertain whether that submission was considered. This is going to be an enormous task on the part of the lawmaker; however, it will make the process more credible which is important as public participation is one of the three pillars of the legislature. The other pillars being law making and conducting oversight over the Executive. In assessing whether the process of public participation was reasonable, Justice Theron noted that the TKLA legislation directly impacts the lives of millions of South Africans, and that the application is brought in the public interest and not for narrow individual interests.
The question before the Concourt therefore was whether Parliament’s process was reasonable. The court looked at the following factors:
– What Parliament itself has determined as reasonable, and how it has decided it will facilitate public involvement.
- The importance of the legislation and its impact on the public.
– Time constraints on the passage of a particular bill, and the potential expense.
The lawmakers have developed the Public Participation Framework which guides the process of public participation. This framework sets out time schedules and events that must take place prior to the public hearing. In terms of the framework, pre-hearing workshops must be conducted. This is an important factor as it enables the lawmakers to see whether the affected community that must participate has been capacitated to participate meaningfully. The court found that there were no pre-hearings workshops in certain provinces.
The court also found that the lawmakers did not keep to the time schedules it has placed on itself. The court noted that the TKLA replaces the Traditional Leaders Governance Framework (TLGFA) and seeks to address its failings. The legislation therefore had immense significance, impacting millions of South Africans.
Other complaints the Concourt considered was, providing transport, organising sufficient hearings, and translating the Bill.
The judgment is therefore groundbreaking as it furthers the narrative and dialogue on the topic of public participation, and places additional obligations on the lawmakers to ensure meaningful public participation.
I would venture to say that the court indirectly places an obligation on the lawmakers to empower disempowered communities to have a say in matters concerning them. This applies not only to Parliament but also the nine provincial legislatures and municipal councils.
Optimistically, I would hope to see Parliament and its counterparts become the Voice of the People and convey this Voice to the Executive on matters impacting the People. Educating the disempowered on how it can bring about change through making use of it as an institution for the people. Perhaps empowering the disempowered on how to conduct advocacy to change their communities could see a trend of moving away from participating through brick and less violent protest?
Zelna Jansen is a lawyer, She is CEO of Zelna Jansen Consultancy.
The views expressed do not necessarily reflect the views of Independent Media or IOL.