Democracy has its genesis in the ancient Athens in late 5th century BCE, where for the first time direct democracy was conceived and practised by allowing all male citizens of the city state to be directly involved in its government. Parliamentary democracy developed in the United Kingdom in the 19th and twentieth centuries. In the wake of the American and French Revolutions democracy was spawned, took root and developed respectively in the United States and ultimately in European continental countries.
The Interim Constitution of 1994 and the election of in the same year changed South Africa from a discredited apartheid state, based on institutionalised discrimination, to an authentic and fledgling democracy. The South African Constitution makes provision for a sophisticated system of constitutional democracy which has different aspects to it. This involves, inter alia, as set out in section 1 of the Constitution, dealing with foundational values, firstly, a ‘multi-party system of democratic government to ensure accountability, responsiveness and openness’. It also involves, secondly, representative democracy mandated by ‘universal adult suffrage, a national common voters’ roll, [and] regular elections’. Thirdly, provision is made direct democracy in section 84(1) (g) which authorises the President to call a national referendum and section 17 allowing freedom of Assembly, demonstration, picket and petition. Fourthly, and lastly in this regard, provision is made for participatory democracy which is primarily concerned with ensuring that citizens are allowed a fair opportunity to participate or otherwise be involved in decision making on matters that affect their lives.
Participatory democracy complements representative democracy by augmenting and enhancing it, but obviously does not supplant it. Therefore as a supplementary aspect of our constitutional democracy it is aimed at ensuring that while citizens by using representative democracy confer a general mandate on elected representatives, they as citizens, are not excluded from the actual process of decision making in matters that concern them very intimately. This give them an ongoing opportunity to participate the process of democracy.
This sophisticated concept and practice of the democratic ideal has been articulated and insisted on by the highest judicial authority in the land, the Constitutional Court, in inter alia, Doctors for Life International versus Speaker of the National Assembly by Judge Ncobo who held that ‘[i]n the overall scheme of our Constitution, the representative and participatory elements of our democracy should not be seen as being in tension with each other. They must be seen as mutually supportive’. Viewed holistically the Constitution places both the national and provincial legislatures under an obligation to facilitate public involvement in their legislative and other processes, including committee work.
The exact nature or whether indeed, it constitutes a justiciable constitutional duty was determined in the Doctors for life case, referred to above, where it was held that there had been insufficient public participation and therefore Parliament was actually in default. It is for this reason that both the Free Market Foundation (FMF) and Afriforum have voiced their disapproval in relation to the procedure that was used by the Constitutional Review Committee (CRC) of Parliament in relation the amendment of section 25 for the purpose of explicitly bringing about expropriation of land without compensation.
The former has threatened a Court challenge, accusing Parliament of merely studying 0.01% of the submissions received relating to the crucial of expropriation of land without compensation and the vexed question of amending section 25 of the Constitution dealing with property rights. For the same reason Afriforum has gone further and actually filed a bid to halt the amendment of section 25.has been reported in the press (The Mercury 23 November 2019) that the matter will be heard on Monday 26 November in the Western Cape High Court. It wants the report of the CRC to be set aside and for it not to be presented to both houses of Parliament. It alleges, like the FMF that the report is fatally flawed because it had failed to take into account hundreds of thousands of written submissions on this controversial issue. The organisation alleges that about 180 000 of the 630000 written submissions received by Parliament were excluded from the final analysis which formed the main basis of the report used to justify a recommendation of the amendment of the Constitution in this regard.
Parliament has indicated that it would oppose the application and proceed with the process, and a spokesperson for it, Moloto Mothapo explained that ‘Thousands of South Africans came to these hearings in several localities in each of the nine provinces’ (Daily News, 22 November, 2018). Mothapo indicated that CRC will present its report, which favours an amendment to section 25 of the Constitution to both Houses of Parliament in further debate in these sessions in which the report is considered.
The view of the FMF (The Star 21 November 2019) is that the CRC has as indicated above, been selective in merely studying .01% of the submissions it received before deciding to recommend an amendment of section 25. It alleges that the process was such has given rise to the suspicion that ‘there was a predetermined outcome’. The view of Afriforum is that it alleges that the CRC ‘abdicated its powers by allowing a third party to assess the written submissions’.
This in its view did not accord with parliamentary mandate to ‘gauge public sentiment’ through a ‘public participation process’ (The Mercury 22 November 2 018). What is clear from the Doctors for Life case is that there has to be ‘sufficient public participation’ and therefore the extent and nature of participation is justiciable. As a result judicial review is able to take place in relation to this controversial issue concerning which there appears prima facie to be a profound difference of opinion as far as the citizens and the public of South Africa are concerned. Whether such judicial review should take place now or at some later stage, i.e. whether the application to the court is at this particular juncture is premature, in a process which has started is one of the vexed questions that the High Court will have to deliberate on and give an answer to in relation to relating to the procedure in order to facilitate or bring about expropriation of land without compensation.
George Devenish is an emeritus professor at UKZN and one of the scholars that assisted in drafting the Interim Constitution of 1993.