OP-ED: Public participation is not a courtesy: it is a constitutional obligation
Public participation is not a courtesy: it is a constitutional obligation
“We consulted the public.” This sentence is widely used in South African public life, and it is not always reliable. It can describe a genuine, good-faith process in which a proposal was put to the people it affects while it could still be changed. It can just as easily describe a notice published, a meeting held, and a decision that was never really open to debate. Both processes can be called consultation. Only one of them amounts to meaningful public participation, in the sense the Constitution requires.
This distinction matters more than it is usually given credit for. In a democracy, the right to participate in the decisions that govern your life is not a courtesy extended by the state, nor a box to be ticked before proceeding with a predetermined plan. It is a constitutional obligation, with content that can be tested, and a purpose that goes well beyond procedure.
A duty the Constitution places on the state, not a favour it grants
The Constitution requires Parliament and the provincial legislatures to facilitate public involvement in their legislative and other processes. This is not incidental language. In Doctors for Life International v Speaker of the National Assembly and Others, the Constitutional Court confirmed that this duty is substantive and justiciable: a legislature cannot simply assert that it consulted and expect that assertion to be accepted. Courts will ask whether the process actually adopted was reasonable in giving the public a genuine opportunity to be heard, given the nature and importance of the legislation and the people affected by it.
Comparable principles of procedural fairness apply to other public bodies whose decisions affect the public, even where the specific constitutional provisions considered in Doctors for Life do not apply directly. The CRL Rights Commission is a Chapter 9 institution. Like all organs of state, its exercise of public power is subject to the constitutional principle of legality: it must be rational and lawful, and exercised for the purpose for which the power was conferred. Section 195 of the Constitution, which sets out the values governing public administration, applies to organs of state generally and reinforces this. Where a public body has publicly represented that a process will be voluntary and genuinely open, the doctrine of legitimate expectation may also give rise to a right to a fair process, whatever the technical classification of the process itself. The label attached to a process, whether it is called a hearing, a workshop, or a consultation, does not settle the constitutional question. What matters is whether the process meets the standard the Constitution actually sets.
What meaningful participation requires
A participation process that meets the constitutional standard tends to share several features. Notice of the proposal must be given early enough, and clearly enough, for people to actually engage with it. The information provided must be sufficient for a person to understand what is being proposed and what its consequences would be for them. Critically, the proposal must be put to the public while it is still genuinely open to change; a process run after the substantive decisions have already been taken is not participation, whatever it is called. The process must be reasonably accessible to the people actually affected, not only to those with the resources or connections to engage easily. And finally, there must be some demonstrable, honest consideration of what the public said, visible in the outcome or in the reasons given for departing from it.
None of this guarantees that the public simply gets its way. Participation, in this sense, is neither a referendum nor a veto. But it does mean that people are entitled to a real opportunity to influence an outcome, not merely the experience of having spoken into a process that was never truly listening.
Why this matters beyond procedure
The value of proper participation is not only procedural. Laws and policies developed with genuine public input tend to be better informed, because the people who will live under them often understand their practical effects better than the officials who draft them. Such processes also carry greater legitimacy, which matters for buy-in, compliance and social cohesion once a law takes effect. And constitutionally, meaningful participation is one of the safeguards against the state simply imposing outcomes on communities that were never truly given the chance to shape them, a risk that grows wherever power is concentrated and oversight is weak.
What this looks like in practice: two contrasting examples
The General Intelligence Laws Amendment Bill, popularly known as the “Spy Bill”, offers an example of participation doing real work, and one FOR SA was directly involved in. The Bill, as introduced, would have allowed sweeping state security vetting of private individuals, non-profit organisations and religious institutions and their personnel, with far-reaching implications for freedom of religion, association and expression. When the Bill was opened for public comment, over 23,000 written submissions were made through the DearSouthAfrica.co.za platform alone, alongside oral hearings held in multiple provinces. FOR SA made a substantive written submission and appeared before the parliamentary Ad Hoc Committee to raise these concerns directly. When the National Assembly adopted its revised version of the Bill in March 2024, the Bill had essentially been defanged. It was widely reported as a direct win for the civil society coalition that had opposed it and showed the constitutional model working as intended: information was provided, the Bill’s proposals were genuinely still open to amendment, and the volume and substance of public input visibly and specifically changed the outcome.
By contrast, consider how the CRL's Section 22 process for the Christian sector has unfolded so far. To be fair, it is still ongoing, and it is not a parliamentary process – but we may still ask to what extent it has met a comparable standard. The Section 22 Committee, established by the Commission to run this process, has publicly described it as a voluntary, sector-led consultation focused on listening to the church. Yet the Commission's own statement establishing the Committee in April 2025 already listed, as one of its objectives, making "recommendations for a legal and/or legislated framework" for the sector; the Committee's Terms of Reference, signed in June 2025, expressly call for a "legislative framework"; and its own Draft Self-Regulatory Framework, published in December 2025, describes its task as conducting consultations "about the development of the legislative framework" for the sector, not about whether such a framework should exist at all. That same objective recurs consistently across all three documents, from the Committee's establishment to its most recent published draft. This is difficult to reconcile with a process framed as voluntary self-regulation still open to a different outcome.
The lawfulness of the Committee itself is the subject of pending High Court litigation, and that question should be resolved by the courts. But the general point stands regardless of how that dispute is resolved: consultation about how to implement a legislative framework is not the same as a voluntary conversation about whether to have one at all, whatever label is attached to it.
If the Section 22 Committee gives genuine weight to the 22,782 submissions already made through the DearSouthAfrica.co.za platform, of which almost 96 per cent do not support its proposals, and remains truly open to changing the proposed framework, including abandoning the development of a legislative framework altogether, that would go a long way towards showing that its public consultation process was meaningful.
A right people are entitled to insist on
The test set out above belongs to anyone affected by a law, policy or framework being developed by an organ of state, and it can be applied to any such process, present or future, regardless of the subject matter. Was notice given early enough to matter? Was there enough information to engage substantively? Was the proposal still genuinely open? Could the people affected reasonably reach the process? And is there real evidence that what was said was actually considered?
Where a process fails that test, the appropriate response is not simply to disengage in frustration, but to say so on the record, in writing, at the time. A right that is not asserted is difficult to vindicate later. Public participation is not a favour the state extends when convenient. It is an obligation the Constitution imposes, and one that people are entitled to insist upon being honoured, in substance and not only in name.
