Parliament, Tuesday, 30 May 2023 – Parliament of the Republic of South Africa notes and accepts the judgement of the Constitutional Court in the matter between Constance Mogale & Others versus the National Assembly (NA) & Others, relating to how the NA and nine provincial legislatures carried out public participation during the processing of the Traditional and Khoisan Leadership Act of 2019.
The bill, which was passed by the Assembly in 2019 and signed into law the same year by the President, was subjected to public participation by Parliament and the provincial legislatures since 2015, when it was introduced.
In its unanimous judgement, the Constitutional Court held that the process followed by Parliament and the provincial legislatures in the processing of the Traditional and Khoisan Leadership Bill was deficient, failed to attain meaningful public participation, and therefore rendered the Act unconstitutional and invalid. The declaration of invalidity is suspended for a period of 24 months to allow Parliament to re-enact the legislation in a manner that is consistent with the Constitution.
Public participation is a cornerstone and an indispensable feature of a democratic parliament. In this regard, Parliament developed the public participation model with a view to strengthen public involvement in its decision-making processes. The model, amongst others, provides for the appropriate procedure to be followed to obtain the views of the public on policy, legislation, and other matters before Parliament in order to enrich the decision-making processes and to determine the timelines within which this could be achieved. It also provides for ways and means of imparting knowledge and information to communities or the public about matters before Parliament so as to enable them to participate in the decision-making processes on matters affecting them.
The model has guided Parliament’s public participation approach and has vastly reduced the number of laws found by the courts to be unconstitutional in terms of the requirements of meaningful public participation. Parliament is also in the process of creating an enhanced and better public participation capacity in order to deepen this important constitutional function.
We therefore view today’s judgement as an important enrichment to Parliament’s endeavor to continually improve its public participation function to ensure that the decisions the institution takes fully reflect the views, aspirations, and hopes of South Africans.
ISSUED BY THE PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA
Enquiries: Parliament Spokesperson, Moloto Mothapo
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