CONFLICT BETWEEN PARTICIPATORY AND REPRESENTATIVE DEMOCRACY: A CALL FOR MODEL LEGISLATION ON PUBLIC PARTICIPATION IN THE LAW-MAKING PROCESS IN SOUTH AFRICA

Abstract

The Constitution of the Republic of South Africa, 19961 mandates legislatures at various levels of government to ensure public participation in the law-making process. The Constitution, however, does not map out the parameters of public participation as far as the law-making process is concerned. Thus, a number of questions remain largely unanswered. For instance, does public participation merely constitute consulting with the people? Does it, perhaps, go as far as to require the legislature to consider the views of the people? Supposing the views of the people are considered, does public participation suggest that the end results of the consultation process should reflect the views of the people? As the answers to the foregoing questions are far from conclusive, the aim of this paper is to critically examine the nature of the relationship between participatory and representative democracy in the law-making process in order to ascertain how the courts have resolved conflicts that involve the previously mentioned forms of democracy. This will be done through examining various court cases in which their own elected representatives disregarded the views of the electorate. The argument presented in this paper is that participatory and representative democracies are in conflict with each other. The paper further advocates for the adoption of model legislation on public participation in the law-making process.