Judgment No. CCZ 10/2018
Const. Application No. CCZ 80/2016
It is common cause that the petition was duly presented to the Speaker and
that Parliament proceeded with the passage of the Bill despite this protest. It is also
common cause that on 28 June 2016 the Speaker declared that “the matter will be tabled
before the appropriate Committee and that investigations will be done”. However, no
such investigations appear to have been undertaken and, even if they had been, the
findings of the appropriate committee have not been availed, either to the National
Assembly or to this Court.
I have already cited s 141 of the Constitution in terms of which Parliament
is enjoined, inter alia, to facilitate public involvement in its legislative and other
processes and in the processes of its committees. The paramount importance of
participatory democracy and public participation in the law-making process was aptly
emphasised in the Doctors for Life case (supra). In the words of Ncgobo J:
“Therefore our democracy includes as one of its basic and fundamental principles,
the principle of participatory democracy. The democratic government that is
contemplated is partly representative and partly participatory, is accountable,
responsive and transparent and makes provision for public participation in the lawmaking processes. Parliament must therefore function in accordance with the
principles of our participatory democracy.” [at para 116]
“It is implicit, if not explicit, from the duty to facilitate public participation in the
law-making process that the Constitution values public participation in the lawmaking process. The duty to facilitate public participation in the law-making
process would be meaningless unless it sought to ensure that the public participates
in that process. The very purpose in facilitating public participation in legislative
and other processes is to ensure that the public participates in the law-making
process consistent with our democracy.” [at para 135]
“In my judgment, public participation in the law-making processes of the NCOP is
the goal of the duty to facilitate public involvement comprehended in section
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