Legislative administrative action and the limited extent of public participation

• Jurisdiction: South Africa
• Published date: 08 July 2020
• Pages: 496-509
• Author: Henrico, R.
• Date: 08 July 2020

TSAR 2020 . 3 [ISSN 0257 – 7747]

496

Legislative administrative action and the

limited extent of public participation

RADLEY HEN RICO*

1 Introduction

The preamble of our constitution acknowledges that government is based on the

will of the people. Section 1(d) of the constitution states that the Republic of South

Africa is one sovereign, democratic state founded on the value of universal adult

suffrage, a national c ommon voters’ roll, regular elections and a multi-part y system

of democratic government, to en sure accountability, responsiveness and openness.

Whilst the constitution recognises a representative, participatory and direct

democracy, the focus of this paper is on the participatory dimension of democracy

as it relates to legislative administrative actions. Par ticipatory democracy is given

due recognition in our constitution through public involvement in parliament’s

law-making process. Parliament is obliged to take adequate steps to ensure public

involvement as a pre-condition to the enactment of its laws. This requirement is

necessary if we are t o maintain (and sustain) the democratic ethos u nderpinning our

constitution. The legislative capacit y of parliament has been extended by perm itting

the executive to make laws in accordance with statutor y provisions or powers

entrusted to them either in t erms of specic acts or the constitution. Laws e nacted

by members of the executive (subordinate or delegated legislation) are referred to as

executive rule-maki ng or legislative administrative action. Such act ions, emanating

from the executive arm of government, take the form of regulat ions, proclamations

and minister ial rules or notices. Subordinate legislation is not only the most

recognisable form of administrative action; it is also the mainstay of the moder n

bureaucratic state. Legislative ad ministrative action may not be in conict with

the constitution. Neither may it be inconsistent with the empowering or enabling

primar y legislation. Whilst having no less force than pr imary legislation – assuming

there is no unavoidable conict arising between original and delegated legislation

in pari materiae – the que stion which arises in respect of legislative administ rative

action is the extent to which the t abling thereof depends on public pa rticipation.

This article will focus rst on the nature of public involvement as it pertains

to the legislature. The purpose of this is to understand the importance of public

participation in the legislative process. It will be argued that public participation in

the law-making process of parliament is necessary because of certain peremptory

provisions in the constitution. More signicantly, the need for public participat ion,

it will be argued, is premised on the underlyi ng constitutional imperatives of

accountability, transparency and tra nsformation. Second, the paper will look at

the limited extent of public par ticipation in respect of legislative administrative

actions. Reasons for the limitation of public participation will be considered in the

context of having regard to the nature of legislative administ rative action. Whilst

there can be no question about the extent of public participation in the tabling of

* Senior lecturer in the Department of Public Law and Jurisprudence, University of the Western Cape.

2020 TSAR 496

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