By Yasin Maoni
1 INTRODUCTION
Governance
worldwide is evolving around the best accepted values referred to as principles
of good governance. One amongst those values of good governance is the
requirement that governance must be people oriented and must take into account
the needs of the people. This is couched in used terms of people’s
participation, public participation or community participation as is used in
other circles. South Africa is not an exception in the evolution of the governance
concepts. In that regard, the core values of good governance, including the
principle of people’s participation, have been incorporated in the domestic framework.
In essence, the South African governance model is both representative as well
as participatory system od democracy.
This
paper examines the concept of people’s participation in the South African
framework, particularly with regard to the jurisprudence developing from the
courts in applying the concept, as well as the new related concept of invented
spaces. In that regard, the paper in the first part elaborates on the concept
of people’s participation and explains its significance in governance and its
place in the legal and policy framework. The second part discusses how the
courts have interpreted and applied the provisions of the law dealing with
people’s participation in practice, with special reference to the propounded
reasonableness principle. The last part examines the modern concept of invented
spaces as it relates to the jurisprudence of peoples participation in the South
African context. The paper will wind up with concluding remarks on the general
discourse.
2. PEOPLE’S
PARTICIPATION CONCEPT, SIGNIFICANCE AND ITS LEGAL AND POLICY FRAMEWORK.
2.1 The concept of people’s
participation
Participation
generally means to take part in certain activities. In the context of
development and as a concept of governance, it connotes the direct involvement
of all the people in the decision making process on matters that are likely to
affect their lives. Nonvakaliso Mfenguza states that people’s participation,
also termed as community participation, involves the role played by communities
and stakeholders in policy making and implementation processes.[1] In
essence, it is a practice obtaining in governance that ensures that people of
the community take part in the decision making processes, and, if necessary on
implementation. The participation is in matters or affairs that have an impact
on the people’s life. It is one of the ideals of good governance. There are
different levels or ways in which people’s participation can be achieved. The
court has stated that the foremost is that the processes must include access to
information and the facilitation of learning and understanding in order to
achieve meaningful involvement of ordinary citizens.[2]
Other means or levels of participation include petitioning, consultation and
other means of contribution.[3]
2.2 Significance of people’s
participation
The
practice of involving the people in decision making is emphasized in modern
governance as it as it brings in advantages. The benefits of involving the
people in decision making processes according to Buccus, Henson, Hicks and
Piper, are enumerated.[4]
They include the fact that participatory approach, as opposed to external
expert approach, generates social change through the social learning and
internalisation that is involved. It is also considered to strengthen democracy
and improves governance as decision making is better informed and more
responsive to local needs.[5] In
explaining the significance of people’s participation as it relates to local
government, Mfenguza states the advantage of community participation as being
that it makes people understand how the government works and the constraints
under which it functions.[6]
The constitutional Court outlined the benefits of participatory governance to
include provision of vitality to functioning of representative democracy, it
encourages citizens to be actively involved in public affairs, it makes
citizens identify themselves with government institutions and becomes familiar
with the law and policies as they are being made, it enhances dignity of the
participants as it allows their voice to be heard and taken into account, it
promotes spirit of democratic and pluralistic
which produces laws and policies widely accepted in practice, strengthens
legitimacy of the laws and policies, and, lastly, acts as a counterweight for
secret lobbying and influence peddling which works to the benefit of the
disempowered.[7]
2.3 Peoples participation in South
African legal and policy framework.
The
Constitution and legislation has strictly instructed governance structures in
South Africa to follow participatory approach in decision making processes,
especially in policy and legislative processes. In the context of this
discussion, only the constitution requirements of public participation are
explained. The Constitution has required people’s participation in the
legislative processes. The National Assembly and the National Council of
Provinces (NCOP) have been instructed to facilitate public involvement in
legislative and other processes, including those of committees.[8]
This requirement of public involvement in legislative and other processes is
also instructed at provincial legislature.[9] The Constitution has also emphasized the
participation of the people in decision making process in public
administration. Amongst the constitutional principles laid down to govern
public administration is the principle that people’s needs must be responded to
and the public must be encouraged to participate in policy making.[10]
At local government level people’s participation seem to be considered
fundamental. Amongst the objectives of local government is to encourage the
involvement of the community and community organisations in the matters of
local government.[11]
In addition, the Constitution has strictly provided that no by-laws may be
passed by a municipal council unless the proposed by-law has been published for
public comment.[12]
This underlines the emphasis of people’s participation in decision making at
local level.
In
terms of policy, the principle of people’s participation finds its way in the
Batho Pele White paper on Service Delivery.[13]
The first of the eight principles under the policy is the requirement of
consultation with users of public services. This brings in involvement of the
people in making decisions regarding public services. In the local government
context, people’s participation finds its way in policy through the White paper
on Local Government 1998. The policy hinges on peoples participation which is
emphasized in the definition of developmental local government. In the White
Paper, developmental local government is defined as government committed to
working with the citizens and groups within the community to find sustainable
ways to meet their social, economic and material needs.[14]
People’s participation, therefore, finds its thread in both legal and policy
frameworks of South Africa.
3 JUDICIAL
APPLICATION OF THE CONCEPT OF PEOPLE’S PARTICIPATION
3.1 General application of the
requirement of people’s participation
The
pace setting decisions on people’s participation in the South African
jurisprudence are the Doctors For life
international V speaker of the National Assembly and others,[15]
Matatiele Municipality and others V President of the Republic of South Africa
and others[16],
and Merafong Demarcation Forum and
others v President of the Republic of South Africa and others.[17] In
the Doctors for Life case, the
organisation Doctors for Life International brought an action in the
Constitutional court challenging the manner in which Parliament passed four
health related legislation. The legislation in question are The Choice on Termination
of Pregnancies Amendment Act (CTPA),[18]
the Sterilization Amendment Act (SAA) ,[19]
the Traditional Health Practitioner’s Act (THPA),[20]
and the Dental Technicians Act (DTA).[21]
The contention was that in the process of enacting these statutes the
requirements of public involvement as required by sections 72(1) (a) and 118
(1) (a) of the constitution were not complied with by the National Council of
Provinces (NCOP) and the provincial legislature. As a matter of fact, it was
seen in evidence that public hearings were promised to be be organised in the
provinces in respect of the CTPA and THPA which were not done by NCOP and many
of the provinces as promised. The court held the conduct of NCOP to promise
public hearing and fail to honour the promise to be unreasonable and
consequently not in compliance with the requirement of peoples participation
under section 72 (1) (a) of the constitution.[22] This
was so as the public were denied a chance to better contribution in the
proposed law as the nature of the proposed law demanded. With regard to the
challenge in relation to the Dental technician Amendment Bill, the court said
although NCOP did not do the public hearings as required by the people, the
court did not find the failure unreasonable. The conclusion was that
requirements of section 72(1) (a) on citizens involvement were satisfied. The
court therefore found the passing of the two earlier bills unconstitutional for
failure to provide adequate and reasonable participatory room to the community.
In
the Matatiele case, the Constitutional
challenge was on the Twelfth Amendment and the Repeal Act. The applicants contend,
as one of the grounds, that the Twelfth
Amendment was unconstitutional in that it effectively re-demarcated Matatiele
Municipality and removed it from KwaZulu-Natal into the Eastern Cape without
compliance with section 118(1) (a) of the Constitution which dictates that
people be involved in legislative processes. The court found that the Eastern
Cape Provincial legislature held public hearings while the Kwazulu-Natal
provincial legislature did not hold the public hearing. On the reason of such
failure to hold public hearings, it was found to be a violation of the
constitutional requirement of people’s involvement under section 118(1) (a) .
As such, the Twelfth Amendment and Repeal Act was adjudged invalid.
In
the Merafong Demarcation Forum case, The applicants asked the Court to declare that
the Gauteng Provincial Legislature had failed to comply with its obligation in
terms of section 118 of the Constitution to facilitate public involvement in
its processes leading up to the approval of the Twelfth Amendment Bill by the
NCOP.
Van der Westhuizen J (writing for a majority
of nine justices) found that the Legislature had fulfilled its duty to
facilitate public involvement as required by section 118(1)(a) of the Constitution. The Legislature took reasonable measures to
solicit public comment. The submissions
made by the public were taken into account.
Though the Portfolio Committee failed to report to the community when it
changed its position, this possibly disrespectful conduct did not equal
unconstitutional conduct.
All
these decisions show how the Constitutional court has considered the provisions
of public participation as available in the Constitution. Judicial
interpretation clearly indicates that no legislation will be valid unless
reasonable steps are taken by the legislative authority to facilitate public
involvement in the legislative process.
In explaining the obligation to facilitate public involvement the court recognises
the fact that the legislative bodies have broad discretion on how best to
fulfill it so long as they act reasonably.[23]
This brings in the idea of reasonableness.
3.2 Reasonableness test in
determining compliance with requirements of people’s participation.
In
deciding whether people’s involvement requirements as set out by law and policy
have been met, the court indicated that it will have to be decided on a case by
case basis. For instance, the court specifically stated that to determine
whether parliament ( which also applies to any organ to which duty of
facilitating public involvement is imposed) has complied with the duty to
facilitate public involvement in a particular case, the court will consider
what parliament has done in that particular case.[24]
The court went o to say that the main
question will be whether what parliament has done is reasonable in all
circumstances.[25]
Whether the efforts taken by the legislative body or any organ to facilitate
citizens’ involvement is reasonable is the yardstick of determining whether the
legal requirements of people’s participation have been complied with. The
corollary is that if the efforts or conduct are found to be unreasonable, the
policy, decision or legislation thereof is declared invalid for failure to
facilitate people’s involvement as demanded by law. This is the test set by judicial decisions in
application of the requirement to facilitate people’s participation. The court
has not left the requirement of reasonableness open ended, but has gone further
to clarify what factors are to be considered in determining the reasonableness
of the action or efforts to facilitate public involvement. In the scenario of the obligation of
parliament to facilitate public involvement in legislative process, which was
the case in the Doctors for Life
decision, the court propose consideration of factors such as the rules, if any,
that have been adopted by parliament to facilitate public participation, the
nature of the legislation under consideration, and whether the legislation
needed to be enacted urgently. In essence all measures and efforts put in place
must be appropriate to the circumstances of each case. The true position of the
court on the test of reasonableness and appropriateness of action in respect of
people’s participation is in the statement of Ngcobo J who stated;
“In determining whether what
Parliament has done is reasonable, this court will pay respect to what
Parliament has assessed as being the appropriate
method. In determining the appropriate level of scrutiny of Parliament’s
duty to facilitate public involvement, the Court must balance, on the one hand,
the need to respect parliamentary institutional autonomy, and on the other, the
right of the public to participate in public affairs.”[26]
(Emphasis
added)
Propriety
of efforts or action in facilitating people’s participation is one important
factor which involves balancing the need of parliamentary processes and the
need of people’s involvement. A good example of this balancing is in the case
of Beja[27]
where the need to provide toilets by the municipality was balanced with the
need for reasonable engagement with due consideration of the people’s right to
dignity. The court specifically stated that the legal obligation to reasonably
engage the local community in matter relating to the provision of access to
adequate housing which includes reasonable access to toilet facilities in order
to treat residents “with respect and care for their dignity “was not taken into
account when the city decided to install the unenclosed toilets.[28]
The relevant policy was held invalid as a result. Reasonableness has therefore
been the guiding test in the jurisprudence of accessing whether the dictates of
the law with regard to people’s participation have been met.
4 THE
CONCEPT OF INVENTED SPACES IN PEOPLES PARTICIPATION
4.1 The concept
As
people’s participation is being encouraged in governance cycles worldwide,
studies and other initiative are being taken in an effort to improve
participatory governance. One issue which has been under systematic study is
that of platforms or media of people’s participation. In ordinary and most of
the cases these platforms of people’s participation are created by state or
state structures to involve the people in decision making processes. In the South
African local government context, for instance, the Systems Act provides that
community participation must take place through political structures
established in terms of the structures Act.[29]
These are structures either established by statute or are to be established by
the municipalities. They are thus classified as state provided spaces or
platforms and in some cases they prove ineffective. Studies done in Cacada
district and Mpumalanga’s Ehlanzeni District indicate that state provided
spaces for people’s participation have not worked effectively as envisaged.[30]
This creates the need for forums created by the people themselves. The forums
created by the people themselves are referred to as invented spaces as they are
innovative result of the community practice. These are in contrast with forums
and mechanisms created by the state which are referred to as invited spaces as
the communities are just invited to participate. The concept of invented spaces
has been lately put forward as a better and effective tool in entrenching
people’s participation. Literature on the subject, and in support of use of
invented spaces, argue that participation ought to extend beyond making active
use of invitations to participate, to autonomous forms of action through which
citizens create their own opportunities and terms.[31]
Invented
spaces in the sense of platforms of community participation are those platforms
created outside of the state, sometimes by groups of citizens, social movements
or other civil-society formations, with the intention of enabling people to
come together to discuss, debate, and resist plans and decisions emerging from
the government or, alternatively, from segment of the community.[32]
4.2 Invented spaces in the
jurisprudence of people’s participation.
The
concept of people’s participation is aimed at ensuring effective peoples
participation. It therefore fits within the jurisprudence of people’s
participation as is obtaining in the South African jurisdiction. In the Matatiele
decision, the court outlined the significance of people’s participation.[33]
Amongst the listed factors were that it encourages citizens to be actively
involved in public affairs, it enhances the civic dignity of those who
participate by enabling their voice to be heard and taken into account, and
that it acts as a counter weight to secret lobbying. It has been seen above
that at times the forums created by legislation and state actors prove to be
ineffective. In such cases these three mentioned benefits of peoples
participation cannot be realisd, Firstly, if the mechanisms of community
participation are ineffective, it means the community will feel that their
voice and their concerns are not being heard or taken into account as envisaged
by the listed advantage. This in turn may lead to apathy from the mechanisms
established by state and in the long run poor participation. With such
ineffectiveness, the state forums can no longer be used as a substitute for
secret lobbying as they would no longer be considered as meaningful avenues of
engagement. The use of invited spaces therefore strengthens these three
benefits of people’s participation within the jurisprudence as it vitalizes the
people desire, satisfaction and meaningful impact. It is this relationship that
links the jurisprudence of participatory governance with the concept of
invented spaces. The use of invented spaces entrenches the practice of
participatory governance on effective and acceptable levels to both the
governing and the governed. This relates well with the emphasis placed on
people’s participation by the Constitution, legislation and judicial decision.
5 CONCLUSION
It
has been seen in the paper that people’s participation is a governance concept
of wider significance which is one of the qualities of good governance. The
concept of people’s participation has not only been adopted in the South
African framework, but it has highly been emphasised as a precondition,
especially in legislative processes. The courts have unequivocally applied this
requirement and have developed a reasonableness test in the process which is
used to determine whether the requirements of people’s participation are duly
complied with. New concept of invented spaces has been developed and is
encouraged in the people’s participation jurisprudence as it entrenches the
participatory tenets of government.
BIBLIOGRAPHY
Legal Instruments and regulations
Constitution
of the Republic of South Africa Act No 108 of 1996
Choice on Termination of Pregnancies Amendment
Act No 34 of 2004.
Dental
Technicians Act No 24 of 2004
Local
Government: Municipal Systems Act No 32 of 2000.
Sterilization
Amendment Act No 3 0f 2005
Traditional
Health Practitioner’s Act No 35 of 2004.
Case Law
Beja and Other v Premier of the
Western Cape and Others [2011]3 All SA 401(WCC); 2011(10)
BCLR 1077 (WCC)
Doctors For life International V
speaker of the National Assembly and others 2006 (12)
BCLR 1399(CC).
Matatiele Municipality and others V
President of the Republic of South Africa and others 2007
(1) BCLR 47(CC).
Merafong Demarcation Forum and
others v President of the Republic of South Africa and others CCT41/07
[2008] ZACC 10.
Books and Journal Articles
Buccus
I, Hemson D, Hicks J, and Piper L Public
Participation and Local Governance Research Report by the Centre for Public
Participation (CPP) 2007 University of KwaZulu-Natal.
Kambala
PM, Gorgens T, Van Donk M Advancing Networking Spaces: Making a Case for
Communities of Practice to Deepen Public Participation in Putting
Participation At the Heart of development//Putting development at the heart of Participation:
A Civil Society Perspective On Local Governance in South Africa 2012 Good
Governance Learning network Cape Town.
Ngamlana N and Mathoho M Citizen
Led Spaces For Participation in Local Governance: Lessons from the Good
Governance Surveys in Putting Participation At the Heart of
development//Putting development at the heart of Participation: A Civil Society
Perspective On Local Governance in South Africa 2012
Good Governance Learning network Cape Town.
Steytler
N and De Visser J Local Government Law of
South Africa 2011 LexisNexis Durban
Theses
Mfenguza
N Analysis of Community Participation in
Local Government Development Planning with Reference to King Sabata Dalindyebo
Local Municipality Thesis 2007 Nelson Mandela Metropolitan Municipality
University.
Policy Documents
Batho
Pele “People First” White Paper on transforming Public Service Delivery 1999
White Paper o
[1]
Mfenguza N Analysis of Community
Participation in Local Government Development Planning with Reference to King
Sabata Dalindyebo Local Municipality Thesis 2007 22.
[2]
Ngcobo J in Doctors For life
International V speaker of the National Assembly and others 2006 (12) BCLR
1399(CC) Para 131.
[3] Steytler N and De Visser J Local Government
Law of South Africa 2011 6-9.
[4]
Buccus, Hemson, Hicks and Piper Public participation
and Local Governance Research Report by the Centre for Public Participation
(CPP) 2007 6.
[5]
Buccus, Hemson, Hicks and Piper 7
[6] Mfenguza
2007 23.
[7] Matatiele Municipality and others V
President of the Republic of South Africa and others 2007 4 Para 59. See
also Steytler and De Visser 2011 6-
[8]
Section 59 (1) (a) and section 72 (1) (a) of the Constitution of the Republic
of South Africa 1996.
[9]
Section 118 (1) (a) of the Constitution.
[10]
Section 195 (1) (e) of the Constitution.
[11]
Section 152 (1) (e) of the Constitution.
[12]
Section 160 (4) (b) of the constitution.
[13]
Batho Pele “People First” White Paper on Transforming Public Service Delivery
1997.
[14] Section B1 of the White Paper of
Local Government 1998.
[15] Doctors For life International V speaker of the National Assembly and
others 2006 (12) BCLR 1399(CC).
[16] Matatiele
Municipality and others V President of the Republic of South Africa and others
2007 (1) BCLR 47(CC).
[17] Merafong Demarcation Forum and others v President of the Republic of
South Africa and others CCT41/07 [2008] ZACC 10.
[18]
Act no 34 of 2004.
[19]
Act No 3 0f 2005.
[20]
Act No 35 of 2004.
[21]
Act No 24 of 2004.
[22] Doctors for Life Para 195.
[23] Doctors for Life Para 145.
[24] Doctors forLife Para 146.
[25]
Para 146.
[26] Doctors for Life Para 146.
[27] Beja and Other v Premier of the Western Cape
and Others [2011]3 All SA 401(WCC); 2011(10) BCLR 1077 (WCC).
[28] Beja Case Para 146
[29]
Section 17 of the Local Government: Municipal Systems Act No 32 of 2000.
[30]
Ngamlana and Mathoho Citizen Led Spaces
for Participation in Local Governance: Lessons from Good Governance Surveys 33.
[31]
Ngamlana and Mathoho 33.
[32]
Kambala, Gorgens and Van Donk Advancing Networked spaces: making a case for
communities of Practice to Deepen Public Participation in Putting participation at the Heart of development //Putting development
at the Heart of Participation: A Civil Society Perspective on Local Governance
in South Africa 2012 73.
[33] Matatiele Judgment Para 59.
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