Meaningful public participation and parliamentary oversight are the cornerstones of democratic governance in South Africa. When Parliament fails in these duties, the judiciary often intervenes, sometimes with significant consequences for legislation, governance, and the separation of powers. From the Nkandla saga, State Capture and several bills, the judiciary has also found itself encroaching into the work of parliament, undermining the separation of powers between the two institutions. The make-up of the 7th parliament, where the African National Congress (ANC) no longer enjoys outright majority to make decisions on its own, has somewhat made oversight stronger with increased the level of scrutiny and demands for accountability from the executive.
Constitutional Court judgements against Parliament
On 1 August 2025, the Constitutional Court (concourt) handed down a unanimous judgment on the failure of the National Assembly to comply with its constitutional obligation to facilitate a reasonable public participation process in the appointment of new members for the Commission for Gender Equality (CGE).
The Court held that the mechanisms adopted by the Portfolio Committee on Women, Youth and Persons with Disabilities to facilitate public involvement in the appointment of Commissioners to the CGE failed to allow for effective public participation. Amongst the reasons for the verdict, the Court found the short period allowed for public comments and the restriction on such comments, materially affected the appointment process. Though this ruling was in relation to the appointment of CGE commissioners, it further exposed the pattern of how Parliament has been approaching public participation over the years.
One may also recall the May 2023 Constitutional Court judgement that found that Parliament and provincial legislatures failed to comply with their constitutional obligation to facilitate public participation in the processing of the Traditional and Khoi-San Leadership Bill (TKLB), thus rendering the Act unconstitutional and invalid. One would have thought that this judgement would have been a wake-up call for Parliament to start conducting its work diligently. However, that seems to not have been the case.
The same issues raised by the concourt on the TKLB judgement reared their heads again when the Portfolio Committee on Health conducted provincial public hearings on the Tobacco Products and Electronic Delivery Systems Control Bill from 2023. Some stakeholders have already raised issues on the process or lack thereof, including lack of pre-hearings workshops; inadequate notice on the actual hearings; confirmation of venues beforehand; and lack of publicity of the hearings. These issues, they have argued, undermined the integrity of the hearings and deprived communities from making informed submissions on the bill. It will come as no surprise if some affected stakeholders head to court to challenge the process followed in passing the bill, upon its completion.
The importance of meaningful public participation
Public participation is one of the cornerstones of decision making in South Africa. The right to “meaningful public participation” sits at the heart of South African law. Section 59(1)(a) of the Constitution makes it clear: Parliament must involve the public in its work. It is for that reason that Parliament developed a Public Participation Framework rooted in the Constitution, which mandates that government bodies facilitate public involvement in their processes.
Key aspects of the framework include public education, hearings, petitions, and collaboration with various organisations. Yet, history shows this has often been poorly handled. In past cases, rushed timelines shut out those without easy access to government information. Meetings were held during working hours or in distant towns, keeping ordinary people away. These bad habits still persist with the ANC still grappling with the fact that it no longer has the sole power to make decisions and railroad processes without going unchecked.
The dominance of the ANC as an impediment
The ANC’s enduring dominance of Parliament until the 29 May 2024 elections, presented a unique dynamic for the country’s system of governance and impacted the crucial function of parliamentary oversight.
With its most senior leaders deployed to government, Members of Parliament (MPs) from the ruling party in some cases found themselves torn between holding their own government accountable and showing loyalty to their party. This led to MPs not thoroughly scrutinising legislative proposals from government, leading to a diluted oversight culture where the executive operated with too little scrutiny, undermining public confidence and weakening governance.
The Nkandla saga, involving upgrades to former president Jacob Zuma’s home, showed how Parliament largely failed to play its role. Reports from the Public Protector and findings from the Zondo Commission highlighted a major breakdown in parliamentary oversight.
The lack of proper scrutiny and oversight also stems from party members, opposition parties included, being expected to vote along party lines or face the consequences, such as a loss of a parliamentary seat or demotion. Parliamentary committees which are responsible for processing legislative proposals from the executive and expected to be the sharpest tools for oversight, at times passed over serious issues without deep investigation. This is due in most cases to ruling party members dominating these committees.
Consequences of not doing things by the book
It goes without saying that not doing things strictly by the book can lead to delays in the implementation of decisions and ultimately lead to governance issues. An example is the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA), which was passed on 6 December 2023 by Parliament and forwarded to the President for signature and promulgation. On advice from his legal advisors, the President referred the Bill back to Parliament over concerns that it did not adequately address the constitutional deficiencies identified by the Constitutional Court in the AmaBhungane judgement.
With Parliament still working on the bill, some aspects of it had become inoperable after the concourt handed down a unanimous judgment in July 2022 and held that it would not allow RICA to continue being in force until the issues it raised are addressed. That of course had implications for law enforcement and crime fighting. While the parliament is addressing issues raised by the President, the court in July 2025, authorised the Chief Justice to nominate three Judges to be appointed as designated Judges, mandated the Minister of Justice and Constitutional Development to make RICA operable.
Towards a More Effective Parliament
There are green shoots of the 7th Parliament through various committees, playing an effective role in holding the executive to account. Committees have been swift in acting on governance issues in various state entities and departments. The actions of the committees have led to consequence management from the executive, including the President.
The persistence of the Portfolio Committee on Higher Education and Training to get Minister Nobuhle Nkabane to account for the irregular appointment of chairs of Sector Education and Training Authorities (SETAs) and her ultimate axing as Minister, is a worthy example of how Parliament can be when it decides to hold the executive to account. The same Portfolio Committee acted swiftly to demand accountability from the new Higher Education Minister Buti Manamela, for his controversial appointment of administrators to oversee three SETAs amid concerns over procedural irregularities. Due to pressure from the committee, Manamela has now requested the Public Service Commission (PSC) to conduct fit-and-proper assessments and conflict-of-interest vetting of three appointed administrators.
We also saw persistent demands for accountability from the Portfolio Committee on Transport and the Standing Committee on Public Accounts (SCOPA) from the Road Accident Fund (RAF) leading to the suspension of its CEO and ultimately the dissolution of the board by the Minister of Transport, Ms Barbara Creecy, due to “persistent governance and operational challenges that have beset the RAF and significantly undermined its ability to discharge its statutory mandate”.
In September, the Portfolio Committee on Tourism summoned the Minister of Tourism, Ms Patricia de Lille, to brief it on the reasons for the resignation of the Chairperson of the South African Tourism (SAT) Board, and her reasons for dissolving the SAT Board. The committee’s primary concern was whether the Minister ignored governance and public finance management policies in her actions. In the end, the committee resolved to seek legal opinion from Legal Services of Parliament on the dissolution of the board and urged the Minister to reconsider her decision and consider reinstating the board
Conclusion
Having the Judiciary constantly step into law-making processes presents some risks. It has the potential to create tensions in the balance between Parliament’s independence to make laws and Judicial oversight. This can be avoided by government and Parliament by not taking shortcuts to law making. There already exist guidelines for government and Parliament on how to ensure meaningful participation of the public in developing legislation and following them closely will not only ensure that there is less judicial adjudication on legislation, especially on processes and not contents. At the same time, it will also assist in avoiding delays in the implementation of laws.
