Consultation as the Hallmark of South Africa’s Participatory Democracy: Lessons from the Courts
In the absence of previous usage or precedents, but taking nothing for granted, the founders of the Constitution of the Republic of South Africa, 1996 incorporated in several of its provisions a litany of constitutional values to guide the emerging political leadership at the coming of democratic constitutionalism and the rule of law in the new democratic State. Along with accountability, responsiveness and openness, some of the founding values of section 1 of the 1996 Constitution, there are the value-like imperatives of consultation and participation, in the legislative law-making and the executive decision-making processes, which are given the pride of place in the democratic brand, which the founders of the Constitution sought to promote. The fact that the Constitution is silent on the meaning of these terms means that the responsibility falls on the courts, especially the Constitutional Court, to give meaning to these expressions. In the process, and through the cases that have come before it, the higher courts have, in the last 25 years, delivered abundant lessons to educate the students of democratic constitutionalism, constitutional law and politics. This has helped to enhance the understanding of consultation, participation and public involvement, and to ascertain whether actions carried out are according to the constitutional script. The present discussion concentrates on the constitutional imperative of consultation and the role it has played in the development of South Africa’s participatory democracy.