The Eastern Cape High Court recently heard a matter in which the Attorneys Fidelity Fund and the minister of justice and constitutional development were sued by more than 100 clients for alleged theft.
The fund won, because a clause in the recently amended Attorney’s Act determines that the fund cannot be held responsible for theft of money intended for investment by attorneys on behalf of clients.
The clients argued that the amendment was invalid, because the public had not sufficiently participated in its drafting. Section 59(1) of our Constitution requires the National Assembly to “facilitate involvement of the public in the legislative and other processes of the Assembly and the committees”, and the clients took the view that the steps taken by the Assembly fell short of this requirement.
The court had to decide whether the National Assembly violated the Constitution when drafting the amendments to the Attorneys Act.
While eight specialist law bodies participated in the drafting, the clients argued that ordinary South Africans who were, or could have been, exposed to attorneys’ malfeasance, were not involved in the legislative process. Furthermore, those who were involved in the drafting held a direct interest in reducing the fund’s financial liability.
The clients provided statistics to the court to illustrate that the majority of South Africans did not have the opportunity to receive notice of the amendment. Those who did were mostly white and living in metropolitan areas. Their statistics were based on information relating to the readership demographics of newspapers in which notice of the amendment was published.
After considering the arguments, the court concluded that the National Assembly had satisfied the public involvement requirement of Section 59. Acknowledging the possibility that only a small percentage of the population might have been aware of the proposed amendment, the court nevertheless felt that the steps taken by the Assembly in the course of passing the Bill were sufficient.
Although the clients lost, the case is significant for illustrating that, while our court will not meddle too much in the National Assembly’s processes, it does expect the Assembly to create and abide by a set of standards and principles that provide guidance on public participation in law-making.
Yet, despite the existence of a framework for participation, a recent study by the Institute for Democracy in South Africa revealed that public participation in law-making in the Assembly is low. A Human Sciences Research Council (HSRC) study found that most people feel inadequately equipped with knowledge of the various stages of the legislative process or the role of legal and political mechanisms for participation.
As the work of the third democratic Parliament forges ahead, promoting public participation should be seen as a priority issue. The National Assembly and its committees are a crucial point of entry for public participation, strengthening existing practices for public participation, as well as encouraging new ones. While significant progress has been made, barriers to participation, such as language differences and location in rural areas, need to be tackled directly.
In addition to ensuring that more people are alerted to proposed Bills, information on Bills should be easily available. The HSRC study recommended that the public be “provided with executive summaries of each Bill and policy paper in easily accessible … format to enable them to grasp the content and practical implications of the proposed legislation”.
Although the government’s website does include a list of all published Bills, the Internet is inaccessible to most South Africans.
In South Africa there is no requirement, as in some other countries, that Bills be sent to organisations or groupings falling in the main area of interest touched by a Bill. Perhaps this should be considered where it is reasonably practical and the proposed law is significant. The ministries or the portfolio committees might even consider establishing a list of NGOs or other parties in a particular area of interest, and notify them about legislative plans.
The benefits of Parliament main taining good practice in involving NGOs and interested parties, and taking their views into account, are clear: better laws, wider ownership of the process, and greater public compliance. However, the government and parliamentarians need to have the will to facilitate public participation in order for our constitutional rights to have a real effect.
Shameela Seedat is the legislation monitor at the Political Information and Monitoring Service at Idasa