Public Participation: What has the Constitutional Court given the public?

Abstract

Linda Nyati explores the duty to facilitate public participation in legislative processes in terms of sections 59(1) (a), 72(1) (a) and 118(1) (a) of the Constitution. This issue, the article demonstrates, is highly pertinent to citizens in grappling with the inner working of a democratic dispensation.

The author delves into it by way of a critical analysis of the Constitutional Court judgment in Merafong Demarcation Forum & Others v The President of the Republic of South Africa 2008 (10) BCLR 968 (2008 (5) SA 171) CC.) After considering the representative and participatory aspects of our constitutional democracy, the article considers whether the standards set by the courts are effective in ensuring that legislative bodies fully discharge their duty to facilitate meaningful participation by all citizens. The “minimalist approach to public participation” adopted by the court in this matter, it concludes, “has created a gap wide enough to let an important piece of legislation which has significant implications on the public to be passed as reasonable. Setting such low standards means that judicial review of the other branches of government is ineffective.”