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.