A law will be set aside if the lawmaker (Parliament or the National Council of Provinces) fails to satisfy its obligation to facilitate public involvement in the process of making law.
In Land Access Movement of South Africa v Chairperson of the National Council of Provinces, Parliament passed a law amending the restitution of land right claims to open up further claims made after 31 December 1998 and possibly affecting any of the 80 000 claims already filed under the previous Act.
The Amendment Act was passed hurriedly.
The Constitution demands that the public must be afforded a meaningful chance to participate in the legislative process. The standard is one of reasonableness and the peculiar circumstances and facts must be looked at, including time constraints and potential expense.
This amendment was not objectively urgent and, despite this, a very truncated timeline was used for public participation and proper notice was not given to the public of their right to participate. Interested parties are entitled to a reasonable opportunity to participate in a manner which may influence legislative decisions. This failure was unreasonable and the public participation process was constitutionally invalid. The Constitutional Court declared the Restitution of Land Rights Amendment Act 2014 invalid.
