South Africa is a participatory democracy and where legislation is passed without facilitating public participation, especially by those members of the public most affected, the law is invalid.
The Veterinary Association was successful in having the word ‘veterinarian’ severed from an amendment to the Medicine and Related Substances Act because of lack of consultation regarding a material amendment that would have adversely affected the entire profession.
Parliament passed the Medicines and Related Substances Amendment Act, including a requirement that veterinarians be licensed to compound and dispense medicines. This addition to the law was included after the draft amendment act had been published twice in the Gazette for comment.
It is a foundational value that government is government by the people and this is enshrined in section 42(3) of our Constitution. All parties interested in legislation should feel they have been given a real opportunity to have their say, that they are taken seriously as citizens, and that their views matter and will receive due consideration at a time when they could possibly influence decisions in a meaningful fashion. The legislation must conform to the Constitution in terms of both content and the manner in which it is adopted.
The obligation to facilitate public participation is a material part of the law-making process. A reasonable opportunity must be offered to the public and all interested parties to know about the proposed issues and to have an adequate say.
The failure to notify the Veterinary Association and other similar organisations undermined the purpose of public participation regarding the amendment. Seeing the profession was identifiable as a potentially affected section of the population there was an even more intense requirement to notify them of the last-minute inclusion of their members in the legislation.