Legislative administrative action and the limited extent of public participation
Abstract
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 common voters’ roll, regular elections and a multi-party system
of democratic government, to ensure 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. Participatory 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 to maintain (and sustain) the democratic ethos underpinning our
constitution. The legislative capacity of parliament has been extended by permitting
the executive to make laws in accordance with statutory provisions or powers
entrusted to them either in terms of specific acts or the constitution. Laws enacted
by members of the executive (subordinate or delegated legislation) are referred to as
executive rule-making or legislative administrative action. Such actions, emanating
from the executive arm of government, take the form of regulations, proclamations
and ministerial rules or notices.