Report back: Roundtable on Consultation and the Constitution

On 26 August 2014 the HSF hosted a Roundtable event on Consultation and the Constitution. The event featured Mtende Mhango, Iraj Abedian and John Jeffery. This brief summarises some of the main themes of the evening.

The Roundtable explored whether the existing public consultation mechanisms are adequate, or whether these mechanisms need to be adapted to allow for greater buy-in.

The development and implementation of law via regulation rather than legislation – and whether the requirements/tests are the same – was ventilated in light of more recent initiatives which impact on the process of consultation. The panellists engaged on issues concerning the Private Security Industry Regulatory Amendment Bill, amendments to the Mineral and Petroleum Resources Development Act as well as amendments to the Immigration Act.

The Speakers

The first speaker, Professor Mtende Mhango, reaffirmed the sections in the Constitution mandating public consultation in the creation of legislation. Professor Mhango said that he would seek to address three areas of relevance: firstly, the importance of public participation; secondly, the consequences as a result of a lack of public participation; and lastly, the purpose for public participation. At the onset he stated that what we understand consultation to be is informed by the decisions in the Constitutional Court.

As to the importance of public participation, Professor Mhango noted that the Courts have said that when parliament passes legislation there must be public participation proving that citizens are actively involved in the process. Public participation enhances the civic dignity of those to be governed and increases levels of compliance. In the case of Doctors for Life and Matatiele this was seen as speeding up democratic promotion. Compliance with the e-Toll process has been minimal as in that case public participation was perceived as minimal. The Court mentioned that the open and transparent way in which parliament acts, acts as a counter weight to private lobbying. Thus citizens will know what will be asked before it is passed.

The consequences as a result of a lack of public participation result in the potential invalidity of the legislation enacted. The Court held in Doctors for Life that the obligation to facilitate participation is part of the law making process and not optional. e-Tolls did have public participation although this did not result in the desired outcome.

Professor Mhango enquired as to the purpose of public participation and more to the point what we are trying to achieve through it. In the e-Tolls scenario there is vast unhappiness. In the Merafong case the Court held that the purpose is not to have public dictate it demands but, instead, to enable the Legislature to inform itself of the fears of the people. Parliament is supposed to try and hear what will happen in terms of how it has currently drafted. The decision lies with parliament. Parliament may ignore our views as long as we were consulted. Parliament was given the mandate to pass laws for this country. The mandate is given by us. It may only be withdrawn at the next election.

The second speaker, Dr. Iraj Abedian, approached the issues from a social governance view. Dr Abedian started by noting that many forget about society when arguing their points in creating law and policy. Dr Abedian emphasised that we are involved with a Constitutional democracy and that all the stake holders were still getting use to this regime. This is evident in that we are all quick to revert to autocratic postures as a default position.

Dr Abedian stated that the past twenty years are important to the workings of the Constitution – we are still laying the foundations. South Africa will be affected by the compliance with the spirit of the Constitution and not the letter of the law. Dr Abedian highlighted that we produce social capital through the creation of understanding and trust within society. Consultation creates the social capital as it gets members engaging. If we act in a democratic manner but with majoritarian tendencies then we destroy social capital. We judge an environment, regulated by a specific tendency, and decide our level of participation.

Investment shies away from governance which is erratic, destabilizing and destroys social capital. Societies that use force are subject to self-destruction in the eyes of the public. Consultation becomes the mechanism for editing the ethos of social governance. It either generates confidence across the board or destroys it. It needs to promote and cement the confidence between those who are governed and those in governments. South African success is important to region.

The third speaker, the Honourable Mister John Jeffery – Deputy Minister of Justice, stated that he would approach the discussion, initially, from a practical perspective. He began his address by stating that the South African miracle really was people with different interests being able to get together and discuss and resolve problems in the context of where we came from.

He noted that government has put in place statutory mechanisms to deal with public participation: schools governing bodies; policing forum; and wards. He noted that, regrettably, the extent to which they have worked is another question. People tend to want to get on with their own lives until something goes wrong.

There is the requirement for consultation and this is not always a case of going around and deciding against the majority. In the case of the termination of pregnancy there was consultation and government, made the decision – Doctors for Life. There can never be agreement between all participants. Consultation and public participation is linked to interest shown in a particular matter.

From the Executive side, bills are published for comment. Comments are taken on board. Regulations, however, are delegated legislation and the power is given to the respective Minister. Some departments see public participation as a singular engagement and others do not whilst some continue the engagement right to the end. Deputy Minister Jeffery asked the question concerning who is the making the representations. He noted that this is a difficult task as it requires a certain level of education and access to the forum. He noted that interest groups become so invested that they believe that they are speaking on behalf of all. He asked who is actually affected by the e-Tolls as the facts tend to get distorted. The case of the Legal practice bill is one such example. Entrenched interests and views are hurting the cause. South Africa is behind other countries as the legal practitioners are ossified and frightened of change.

The Deputy Minister said that the process is not sufficiently involving ordinary people. We tend not to want to get involved until it all goes wrong, the human condition is to let it slide.

The Audience

The issues were opened to the floor and the result was a concise and targeted engagement. The concerns raised included the perceived failure or disregard for the substance of public participation to concerns, and, regarding specific industries, the lack of proper impact analysis by those lobbying for the Bills. The Deputy Minister pointed out that some of the concerns raised had never been tested by courts and that public engagement was easier at the level of the NCOP. He added further that the consultation needs to meaningful. Prof Mhango noted that the participation is part of the process and not the outcome. Dr Abedian stressed that we should adhere to the spirit as opposed to the purpose.


The final decision lies with parliament and whether it chooses to ignore the views raised during public consultation is a matter it decides. The only requirement is that South Africa is consulted and what this entails changes from case to case. People tend to want to get on with their own lives and public participation only becomes evident when something goes wrong.

Chris Pieters
Helen Suzman Foundation