Now that the dust has settled, ballots have been tallied, and everyone has aired their grievances regarding the IEC’s poor handling of elections, you’d be forgiven for thinking that you have executed your duty as a citizen of this country. But democracies are fragile institutions, and they continue to rest on the shoulders of the citizens long after the voting stations have closed, and your representatives have been chosen. Now begins the journey of holding those you have elected accountable for the decisions taken in your name. Fortunately, our Constitution has mechanisms in place for you to do this.
The Constitution of South Africa makes provision for public involvement in law-making, oversight and other processes of Parliament. In the seminal case of Doctors for Life International v The Speaker of the National Assembly, the Constitutional Court had the opportunity to decide what public involvement means in our country. To this end, the court stated that the right to vote was not the only expression of the right to political participation. ‘Public involvement’ includes the process of allowing the public to participate in the decision-making process concerning legislation.
Participative democracy is further encouraged through the Promotion of Administrative Justice Act. Any administrative decision that affects people’s rights must be procedurally fair. This includes public inquiries and/or notice and comment procedures held by the administrator. Administrative decisions include decisions taken by any organ of state, parastatal entities and any individual or corporation exercising public power. Individuals affected by such decisions are entitled to awareness of the decision is before it is taken, to deliver meaningful comment and be told of any internal appeals or review they can follow and the reasons for such decisions.
One might wonder why there is a need for public participation, especially in passing legislation/subordinate legislation, and the like. Political parties and their candidates are given a mandate by the electorate, who vote based on their campaign and manifestos. Any decision taken by them has the implicit, if not explicit, consent of their constituents. Indeed, this is the position taken by democracies like the United States of America, where both houses of Congress pass a bill, and it is sent to the President for assent. There is no need for any public participation. So why would South Africa need active participation in the legislative process? Perhaps this question is better answered by way of an example.
In 2015, the Government introduced the Traditional and Khoi-San Leadership Bill (now Act) in the National Assembly. The Bill went through various legally mandated public participation stages with crucial hearings taking place in key areas like George, Oudtshoorn, Overberg, and Cape Town. All these hearings and the input from the relevant Khoi and San leaders led to a complete reshaping of critical sections of the Bill, which better reflected the situation on the ground. More than that, it also gave these forgotten people a voice and recognition that they are finally being considered in crucial matters concerning their governance and welfare. Without this process being undertaken and had the Bill just been bounced between the two houses of Parliament, it would have been ill-suited for its purpose. A similar procedure was engaged within the much-maligned Hate Speech Bill. The jury is still out on whether they’ll take public input and shelve it (I can hope, can’t I).
As I stated above, this broader principle of participatory democracy finds expression in our legislative processes and decisions made by public officials exercising public powers. In July 2008, City Power, a parastatal wholly owned by the City of Johannesburg, disconnected the electricity supply to Ennerdale Mansions, a block of 44 apartments, due to the failure of the owner of the Mansions to pay his municipal accounts. In Josephs v City of Johannesburg, the Constitutional Court stated the provision of electricity was the exercise of public power, which attracted the requirements of procedural fairness under PAJA. And thus, the tenants were entitled to pre-termination notice and may challenge the City’s decision.
Facilitating continuous dialogue between the various parties and framing that dialogue so that each party’s input is considered allows for better decision-making in Government and more reflective laws in Parliament. Further, it encourages the citizens to be active in the decisions that affect them and actively participate in policy, law-making and governing processes involving their lives. This also enhances transparency and accountability. If Government is aware that it must account for every decision it makes and provide valid reasons, they are less likely to make irrational decisions, waste resources and engage in corruption because it will be rooted out immediately.
Going back to the Doctors for Life case. In his dissenting judgment, Justice Yacoob stated that the Constitution does not make provision for ‘public involvement’ in the legislative process, and Parliament need not hold public hearings regarding legislation it intends on passing. Yacoob argued that the public participates by electing their leaders and their leaders act on their behalf when enacting legislation. While Yacoob certainly had the upper hand on a black letter law approach, one can quickly see how the system he envisages does not fit well in our democratic scheme. In any event, the court’s judgment went the other way, so it is a moot point.
You may now be wondering how and where you could get involved. DearSA runs legally recognized public participation processes that allow citizens to participate in policy formulation at all levels of governance. For example, in 2020, an Electoral Laws Amendment Bill was introduced in the National Assembly, which sought to, amongst others, empower the Electoral Commission of South Africa to prescribe a different voting method such as a switch from paper ballots to electronic voting. DearSA received more than 12 000 submissions expressing grave concern about the safety of such electronic voting methods, which were submitted to Parliament. Parliament adopted the Bill without the offending clauses following the campaign and various other key stakeholders expressing concern. Thereby ensuring another remarkable victory for participative democracy in South Africa.
While the opportunity to hold the Government accountable at the polls comes every 3-4 years; the buck does not stop there. The Constitution mandates that we, as citizens, play an active role in the governance of our country at every level. Constructive dialogue between all the relevant parties is vital in developing and creating a society where every voice is heard, and every opinion is considered. This strengthens our democracy, ensures that we maintain an informed citizenry and that the Government remains accountable to the people whom it must lead. And I implore every single individual reading this to go that extra mile and to meaningfully participate in the crucial matters that affect you.