Public Participation Must Be Meaningful, Not Merely Procedural

On 17 September 2026, the Constitutional Court handed down judgment in Premier of the Western Cape Government and Another v Speaker of the National Assembly and Others; City of Cape Town and Others v Speaker of the National Assembly and Others [2026] ZACC 37.

The judgment provides an important reminder that meaningful public participation is not satisfied by simply inviting members of the public to submit comments or attend public hearings. It requires a process that affords the public a reasonable opportunity to understand the legislation under consideration, express their views and potentially influence the outcome.

Public participation is a fundamental component of South Africa’s constitutional democracy. Sections 59(1)(a), 72(1)(a) and 118(1)(a) of the Constitution require Parliament and provincial legislatures to facilitate public involvement in their legislative and other processes. These obligations are substantive, rather than merely procedural.

As the Constitutional Court emphasized, once the public and relevant stakeholders have expressed their views, Parliament may not simply disregard them. A process cannot meaningfully engage the public if the submissions received are not properly considered.

This does not mean that Parliament must accept every submission or accommodate every demand. It does, however, mean that public contributions must be considered in good faith and that the process must create a genuine possibility that those contributions may influence the legislative outcome.

Parliament subjected an initial version of the Bill to public comment, then substantially revised Chapter 4 (preferential procurement) without seeking fresh input. The revised version introduced a far more prescriptive framework with mandatory prequalification criteria and specified beneficiary categories. Parliament argued that these concepts had been “foreshadowed” in earlier 2017 Regulations. The Court rejected this reasoning, holding that public participation by the Executive on subordinate regulations cannot substitute for Parliament’s obligation to facilitate meaningful involvement in new primary legislation. The amendments were material and warranted further consultation.

Accordingly, where legislation changes substantially during the legislative process, the relevant question is not simply whether consultation took place at an earlier stage. The question is whether the public was afforded a meaningful opportunity to engage with the legislation in the form on which it was ultimately considered.

The reasonableness of the process was further called into question by Parliament’s departure, without adequate explanation, from relevant public participation frameworks. These frameworks contemplated periods of at least five weeks’ notice under the Public Participation Framework for the South African Legislative Sector and seven working days’ provincial notice under Parliament’s Practical Guide for Members of Parliament and Provincial Legislatures. Four provinces received fewer than seven days’ notice, with some receiving only two to four days.

Although the Court recognized that rigid adherence to guidelines is not required in every circumstance, unexplained deviations place an obligation on Parliament to justify the departure. Where timeframes are substantially reduced without objective justification, the constitutional adequacy of the process becomes questionable.

The judgment therefore confirms that public participation may be present in form but deficient in substance. Being invited to participate is important. Being afforded a real opportunity to influence the outcome is what gives public participation its constitutional substance.

Public participation is not a box to be ticked. It is a constitutional obligation that must be fulfilled meaningfully and in good faith.