On 22 October 2019, public interest legal organisations SECTION27 and the Equal Education Law Centre (EELC) appeared before the Basic Education Portfolio Committee in Parliament to present our research reports relating to various issues affecting the delivery of the right to basic education.

The audience that the two organisations received before the committee was antithetical to the notion of participative democracy. The organisations faced a barrage of hostile comments and interrogative questions from members of the ruling party, most of which were unrelated to the substance of their research reports being presented before the committee.

From the perspective of SECTION27, our organisation was keen for the opportunity to meet the new committee members for the first time. We also looked forward to the opportunity for a substantive engagement on our report titled “Towards safe and decent school sanitation in Limpopo: The most fundamental of dignities.”

SECTION27 has been working with schools, parents and learners in Limpopo over the last seven years on issues relating to school sanitation. Most notably, SECTION27 provided legal representation to the Komape family after their five-year-old son and brother, Michael, drowned in a pit toilet at his school in Limpopo.

The sanitation report is an attempt to grapple with the many systemic concerns about school sanitation in the province. The report sets out the findings of our research and provides recommendations to address these systemic concerns.

At its worst, therefore, SECTION27 anticipated that we may have had to be prepared to defend the report before the committee interrogating the accuracy of the report, the methodology employed or even some of the report’s findings. At best, we hoped to engage the committee on how the government can embrace some of the recommendations in the report to address systemic concerns about poor and unsafe school sanitation.

What we did not expect were the kinds of questions and comments we faced from certain members of the committee.

We were grilled by more than one member as to who funds our respective organisations. Another honourable member appeared to insinuate that the two organisations were motivated by sinister agendas driven by “faceless people who want to abuse the democratic process to advance a narrative that has nothing to do with bringing solutions”.

The almost all-female civil society presence appearing before the committee also had to endure an insufferable mansplanation from another honourable member. According to this member:

“If a man married a woman, and every day he looked at her he saw everything bad and never appreciated the good parts of the woman, from a black spot analysis, this marriage is doomed and would end in divorce.” The suggestion being, civil society should guard against being too critical.

Yet another honourable member wanted to know why SECTION27 sought to prioritise school sanitation. In 2013, the school infrastructure regulations were passed. These regulations state unequivocally that pit toilets are unlawful. Despite and since the promulgation of the regulations, two five-year-olds have drowned in pit toilets and SECTION27 is aware of at least two more learners who have been injured from falling into pit toilets and had to be rescued. More generally, many learners are missing school because of the lack of decent toilets or suffering the indignity of using unusable toilets.

Both organisations placed on record their disquiet with the tone of the questions and comments. Each organisation reiterated that it took its mandate from the Constitution and Bill of Rights. Each organisation also noted its transparency in respect of donor funding. This information is available in our annual reports and online.

By contrast, the same cannot be said of political party funding where there has been historic resistance to such disclosure prior to the passing of the Political Party Funding Act of 2018. This legislation followed years of litigation and advocacy from civil society groups demanding more transparency in political party funding.

Noteworthy is a comment by Chief Justice Mogoeng Mogoeng in the Constitutional Court case of MY Vote Counts NPC v Minister of Correctional Services and Democratic Alliance. He emphasised the importance of transparency in party political funding to prevent corruption and the buying of influence:

“For, stealthily [it will] creep into our political and governance space, toxify it and fossilise it to our detriment, if it has not done so already.”

At the end of the hearing of the portfolio committee, the chair of the committee apologised to the organisations, to the extent that offence was taken. The experience, however, raises serious questions about the nature of public hearings in various legislative bodies and the extent to which it is embraced by members of these bodies.

The Constitutional Court has repeatedly and consistently affirmed – in cases on school governance and in cases dealing with public participation in Parliament – that integral to South Africa’s constitutional democracy is the notion of “participative democracy”.

Thus, civic and political participation constitutes more than voting in periodic elections – it includes participation in deliberative forums at all levels of governance, from grassroots organisations such as school governing bodies through to regular engagements with our elected representatives in Parliament.

The Constitution specifically mandates the various legislative bodies to facilitate public involvement in their legislative processes and committees. Moreover, section195 of the Constitution requires that “[p]eople’s needs must be responded to, and the public must be encouraged to participate in policy-making.”

The Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act of 2004 further provides a complaints mechanism for individuals aggrieved by a statement made during a public participation process during a sitting of a House or a committee.

In the case of Doctors for Life International v Speaker of the National Parliament, the Constitutional Court held that Parliament had failed in its obligation to facilitate public participation when it passed various health bills. Justice Sandile Ngcobo, writing the majority judgment, discussed the function of a participatory democracy:

“In the overall scheme of our Constitution, the representative and participatory elements of our democracy should not be seen as being in tension with each other. They must be seen as mutually supportive. General elections, the foundation of representative democracy, would be meaningless without massive participation by the voters.

“The participation by the public on a continuous basis provides vitality to the functioning of representative democracy. It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character, it acts as a counterweight to secret lobbying and influence peddling.

“Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist.” (Own emphasis)

In his concurring judgment, Justice Albie Sachs noted that South Africa has an “ethos” of public involvement not just during the Constitution-making process but through a rich and long developed tradition of imbizos, lekgotlas, bosberaads and indabas.

It is therefore disappointing and disheartening to have to remind parliamentarians of this ethos as well as their duties in facilitating a participative democracy as mandated by the Constitution.

Coincidentally, while seething in disappointment last week with the experience before the committee, I happened to listen to Barack Obama’s eulogy of the respected civil rights leader and member of the House of Representatives, Elijah Cummings, which resonated in the context of the experience before the committee.

Obama said: “We’re supposed to introduce them as honourable. But Elijah Cummings was honourable before he was elected to office. There’s a difference. There is a difference if you are honourable and treated others honourably outside the limelight.” MC

Dr Faranaaz Veriava is an advocate and the head of education at SECTION27.