Parliament’s legal missteps erode public trust

As MPs continuously disregard public participation, they not only undermine their own credibility, but also risk clogging an overwhelmed judicial system

Original opinion piece: Business Day
Date: 14 September 2023 – 08:36

Parliament has suffered a string of legal setbacks recently, which have not only undermined its legitimacy, but also threaten to call into question its very purpose. If the courts are repeatedly called on to rectify parliament’s missteps and MPs continue to wave through flawed legislation in total disregard for minimum public participation requirements, let alone their own oversight responsibilities, then what is parliament for?

This question has profound implications for a country already battling to uphold basic respect for the rule of law, because laws that lack popular legitimacy invite further lawlessness, which even a well-resourced police service would be unable to control.


Moreover, failure to meet the necessary criteria for public participation starkly contradicts the country’s constitution, which declares that “government is based on the will of the people”. This audacious negligence flies in the face of the lofty standards meticulously etched by the founders of SA’s democracy for future governments and parliaments when drafting the constitution — the supreme law of the land.

Our democracy was forged not just on the right to vote once every five years, but rather on the profound principle that each individual possesses the inherent right to be engaged, heard and involved. Yet parliament continues to behave like a barely functional post office, the role of which is nothing more than to receive legislation proposed by the executive and send it on to the president for assent, and public participation be damned.

This is in spite of numerous judicial rebukes, most notably the Mogale judgment of May 2023, which declared the Traditional & Khoi-San Leadership Act 3 of 2019 invalid after parliament failed to properly facilitate public involvement before passing the legislation. Having solemnly noted the judgment and sworn to do better, parliament has promptly reverted to type.

The impact of neglected public participation

Examples abound, but two stand out: the failure of the basic education committee to consider the bulk of emailed public submissions on the Basic Education Laws Amendment Bill, and the health committee’s holding of public hearings on the Tobacco Products & Electronic Delivery Systems Control Bill in the North West province without properly informing the public in advance.

Not only were the initial hearings not advertised five weeks beforehand, as per the Mogale ruling, nor the bill translated into languages commonly spoken in the region, and seemingly nor the public educated on the contents of the bill in advance of the hearings, but also the venue in Rustenburg was changed at the last minute. With this last oversight, those members of the public who may somehow have come to know about the hearings might have ended up going to the wrong venue.

I only learnt that the hearings were taking place while I was away on holiday with my family and, as this was not advertised with sufficient warning, I could not attend. I know this was the case for many other stakeholders too. The same is now happening with the next round of hearings, which are scheduled to take place in Limpopo from September 15-17. In addition to being added to the committee meeting schedule just two days prior, there is a complete absence of information about the towns or venues where these meetings will occur — leaving the public clueless about where they can go to voice their concerns.

This is sadly par for the course when it comes to public hearings as conducted by our parliament. They are designed to give a platform only to those sympathetic to the governing party’s agenda. This would be bad enough for the reasons outlined above, but there is another pernicious outcome. Much of the legislation passed by this parliament is ripe for legal challenge on purely procedural grounds, let alone substantive ones.

This clogs up an already overburdened judicial and legislative system, resulting in glacial progress at best on the government’s own legislative and reform agenda. Urgent matters like universal health cover, education and energy reform will be snarled up in the system for years to come. MPs must know this — indeed, the chair of the health portfolio committee specifically referenced the Mogale judgment and the need for proper consultation when the committee first began processing the Tobacco Bill.

Even before this, in some of his first remarks after his appointment as committee chair, Kenneth Jacobs said of his role: “the chairperson should be a neutral person … You’re supposed to be fair; you’re supposed to allow different opinions to be raised”. Yet MPs on the committee may have forgotten this inclusive spirit. The problem will be inherited by the next parliament, after all. It is no wonder that a jaded electorate finds little incentive to vote, borne out by a sustained decline in turnout at elections.

Is there any reason my own constituency, vapers, should attend the public hearings, knowing they will be ignored, at best, or silenced at worst? Despite the very real effects the Tobacco Bill will have on their rights, both smokers and vapers are treated like sinners who must be excluded from the process. This is reminiscent of the stigma attached to HIV/Aids sufferers in the early 2000s and shows zero concern with the ostensible purpose of the Bill, which is to encourage smokers to quit and limit initiation.

Rather than supporting smokers with cessation services, better education and information, the Tobacco Bill, with parliament as an accomplice, seeks to marginalise and criminalise them — an approach that failed spectacularly during the 2020 tobacco ban. Of course, smokers and vapers evoke little public sympathy, but that is not the point. Today it is our rights being trampled on by an unaccountable executive and parliament, but when rights are habitually ignored, where does this end?