Right to Public Participation Requires Reasonable Opportunity to be Heard
Poverty Alleviation Network & Ors v President of the Republic of South Africa & Ors [2010] ZACC 5 (24 February 2010)
In Poverty Alleviation Network (‘Matatiele 3’) the Constitutional Court of South Africa effectively held that constitutional obligations owed by South African legislatures to facilitate public involvement are obligations of process rather than outcome. Thus, so long as the public has been given a reasonable opportunity to give its views or opinions to the legislature in relation to its legislative or other processes, and the legislature has given them due consideration, there is no requirement that the legislature follows or gives effect to such views in performing its functions.
Facts
Matatiele 3 is the final part of a series of South African cases in relation to the transfer of the Matatiele Municipality from the KwaZulu-Natal Province to the Eastern Cape Province. In brief, the establishment of the post-Apartheid Republic of South Africa involved the establishment of provinces (as principal sub-federal units) and municipalities (local government). The boundaries of provinces were drawn up on a different basis to those of municipalities, leading to certain cross-boundary jurisdictional issues. The Matatiele Municipality was not strictly a cross-boundary municipality but suffered similar issues as what the South African government termed a 'cross-boundary jurisdictional enclave'.
In 2005, the Twelfth Amendment Act was passed to amend the South African Constitution, altering provincial boundaries so as to rectify the issues that had arisen in relation to cross-boundary municipalities and the Matatiele Municipality. Under the South African Constitution, such a constitutional amendment requires a special majority vote in each of the National Assembly (the lower house) and National Council of Provinces (‘NCOP’ – the upper house) and, where the amendment only concerns certain provinces, the Legislatures of those provinces must each approve the amendment. The required votes in favour of the amendment were obtained including the approval of the KwaZulu-Natal and Eastern Cape Legislatures.
In Matatiele Municipality & Ors v President of the Republic of South Africa & Ors [2006] ZACC 2 and Matatiele & Ors v President of the Republic of South Africa & Ors (No 2) [2006] ZACC 12 the Matatiele Municipality and other organisations and groups contested the validity of the constitutional amendment (insofar as it applied to the Matatiele Municipality). It was contended that the KwaZulu-Natal Legislature, prior to its approval of the Twelfth Amendment Bill, had not facilitated adequate public involvement in the legislative process in accordance with the South African Constitution. It was common ground that the KwaZulu-Natal Legislature had not held any public hearings in relation to the Twelfth Amendment Act. Therefore, the Constitutional Court held in 2006 that the Twelfth Amendment Act, insofar as it applied to the Matatiele Municipality, was invalid.
In mid-May 2007, the federal government announced that it intended to bring a constitutional amendment in order to effect the alterations to provincial boundaries which had been struck down in 2006. At the federal level, the Minister for Justice and the relevant parliamentary committees each separately invited written submissions in relation to the proposed amendment. At the provincial level, a number of town-hall meetings and hearings at the KwaZulu-Natal Legislature were held in October 2007. The Thirteenth Amendment Bill was subsequently passed in December 2007. In 2008, Matatiele 3 (the present case) was brought, to contest the validity of the Thirteenth Amendment Act.
Decision
Sections 59(1)(a), 72(1)(a) and 118(1)(a) of the South African Constitution require the National Assembly, the NCOP and each Provincial Legislature, respectively, to 'facilitate public involvement in the legislative and other processes of the legislature and its committees'.
The applicants' principal contention was that, whilst the Parliament and the KwaZulu-Natal Legislature had ostensibly facilitated public involvement in relation to the Thirteenth Amendment Bill, they did not properly consider the submissions made by residents of the Matatiele Municipality and their representatives 'but merely went through the motions in inviting submissions and arranging public meetings so as to secure constitutional compliance of the outcome of the process'.
Nakbinde J, with whom the other Justices concurred, noted that in determining whether the facilitation of public involvement was adequate for the purposes of the South African Constitution:
[T]his court's role is to embark on a reasonableness enquiry so as to determine whether ‘there has been the degree of public participation required by the Constitution.’ Striking a balance between the need to respect parliamentary autonomy on one hand, and the right of the public to participate in the legislative process on the other, is crucial.
Nakbinde J then quoted Doctors for Life International v Speaker of the National Assembly & Ors [2006] ZACC 11 where it was held that 'in determining whether what Parliament has done is reasonable, this Court will pay respect to what Parliament has assessed as being … appropriate...'
Nkabinde J, held, as a matter of fact, that representations made in relation to the proposed constitutional amendments by residents of the Matatiele Municipality were duly considered by the relevant legislatures and did not comment further as to the lack of good faith that the applicants had alleged. Having made this finding, she continued:
[T]he applicants' argument suggests that compliance with the Constitution depends on the outcome of the participation, which must have an impact on the final decision. Although due cognisance should be taken of the views of the populace, it does not mean that Parliament should necessarily be swayed by public opinion in its ultimate decision. Differently put, public involvement and what it advocates do not necessarily have to determine the ultimate legislation itself.
The fact that the process of engagement is not reflected in a change to the legislation, or in the accommodation of the representations submitted to Parliament, does not necessarily mean that reasonable public participation did not take place or that the views of the public were not considered.
For these reasons, Nkabinde J held that the Thirteenth Amendment Act had been passed in accordance with the Constitution.
Relevance to the Victorian Charter
This decision provides useful guidance for the interpretation of s 18 of the Victorian Charter – the right to take part in public life.
Section 18 of the Charter is itself modelled on art 25 of the ICCPR, which enshrines the right of persons to participate in public affairs, including in decision making processes that affect them. In a General Comment on art 25, the Human Rights Committee has highlighted that special strategies and measures may need to be developed to facilitate the meaningful participation of people who are disadvantaged or have special needs (such as people who are homeless or people with disability): General Comment No 25, [9]-[21].
The present decision highlights the difficulty for courts in enforcing the right to public participation in terms of substantive legislative outcomes rather than in terms of due process and procedure. It must be noted that the South African Constitution enshrines this concept as a positive obligation upon the legislature to facilitate public involvement in the legislative process rather than a general right of the individual to take part in public life.
The decision is available at www.constitutionalcourt.org.za/site/PovertAlleviation.htm.
John Leung is a lawyer with Allens Arthur Robinson