The departments of labour and telecommunications and postal services together published four bills on 17 November 2017 with hopelessly inadequate periods for public comment. The three labour bills – the National Minimum Wage Bill, the Basic Conditions of Employment Amendment Bill, and the Labour Relations Amendment Bill – introduce significant changes to South Africa’s labour regime, which will have consequences for every sector and industry in the country. The labour department, however, only gave the public 13 days to provide commentary, between 17 November and 30 November.
The fourth bill, the Electronic Communications Amendment Bill, introduces the telecommunications department’s unconstitutional Information and Communication Technologies (ICT) Policy White Paper into law, and was made available for comment until 17 December. While a month is the standard period for public comment, the fact that the holiday period is currently starting cannot be disregarded. Businesses in the telecommunications industry (and all businesses, as far as the labour bills relate) are currently having year-end functions and are getting ready to close down for Christmas and New Year. By 17 December many would already have taken leave.
Furthermore, the departments of trade and industry and justice also published two new bills, on 24 November. One of these proposes an amendment to the Constitution, and it is open to comment until 28 February 2018 – an inadequate amount of time, factoring in the holiday period, to comment on changes to our highest law. The other bill, the National Credit Amendment Bill, is only open to comment until 15 January 2018, corresponding almost entirely to the holiday period.
This is not a new trend. Last year, the justice department published the Prevention and Combating of Hate Crimes and Hate Speech Bill in late October 2016, seeking comment by 31 January 2017. That bill has been vigorously interrogated, with most concluding that it is a patently unconstitutional anti-free speech intervention which would have made the airing of ordinary opinions potentially punishable by 3 to 10 years in prison. For such a bill, government only allowed three months for comment, with a significant period of that time being the holiday season.
Public participation in policy- and law-making is mandated by the Constitution. Section 195(1)(e) requires that “the public must be encouraged to participate in policy-making”, and subsection (1)(g) requires that “transparency must be fostered by providing the public with timely, accessible and accurate information”. This latter provision applies to laws and regulations, as well as policy. Section 59(1)(a) and section 72(1)(a), respectively, require that Parliament must facilitate public involvement in the legislative process.
The recently-published Report of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change problematised public participation in South Africa, stating that, “[T]here is a need to rethink the role of active citizens as co-drivers of change. The existing framework for public participation often only enables the public to participate as invited guests in processes as opposed to partners and co-creators”.
In 2010, the Public Service Commission reported that “the nature and extent of public participation is generally inadequate”, recommending that every government department introduce guidelines for staff to follow in fostering public participation.
Furthermore, in 2016, Professor Mokoko Sebola of the University of Limpopo eloquently wrote that “mere passive involvement of the people” does not amount to substantive public participation. The High Level Panel report echoed this by recommending that Parliament review all legislation that provides for public participation and ensure that those provisions are appropriately implemented, and, crucially, “where provision is made for the public to be consulted this consultation is meaningful and effective”.
Thus, if government did not consider with an open mind the comments of the public, “no public participation can be claimed to have taken place”. Public participation, in other words, must be in good faith, and not merely a mechanical check-marked procedure.
In light thereof, the undersigned request that the period for public comment on the aforementioned bills – the National Minimum Wage Bill, the Basic Conditions of Employment Amendment Bill, the Labour Relations Amendment Bill, the Electronic Communications Amendment Bill, the National Credit Amendment Bill, and crucially, the Constitution Amendment Bill – be significantly extended so as to allow for thoughtful and good faith participation from the public and interest stakeholders.
Research that has been done on public participation in policy-making is also hereto attached (http://bit.ly/2AiYBis). It includes a detailed discussion of the principles underlying public participation, and can be extrapolated to apply to regulation- and law-making, as well as policy-making.