It has been a truism in South Africa that poor and marginalised people are excluded and forgotten when important decisions are made that adversely affect the most vulnerable.

The very same issue of exclusion and its departure from our constitutional values, was emphasised in the recent Constitutional Court judgment, pertaining to the Traditional and Khoi-San Leadership Act, where the court reiterated the constitutional imperative for the people who are affected by a certain law to be involved and participate in the legislative processes of that law.

The principles of responsiveness, accountability and openness are some of the values underpinning our constitutional dispensation as enshrined in Section 1 of the 1996 Constitution. Consultation and participation are imperative steps in executive decision-making processes and legislative law-making in South Africa.

However, the 1996 Constitution does not in itself explicitly define what consultation and participation is. As such, we must look at how courts have interpreted these terms. In Electronic Media Network Ltd v e.tv (Pty) Ltd the court held that:

“Consultation, as distinct from negotiations geared at reaching an agreement, is not a consensus-seeking exercise. Within the context of national policy development, it must mean that a genuine effort is being made to obtain views of industry or sector role-players and the public. In other words, a genuine and objectively satisfactory effort must be made to create a platform for the solicitation of views that would enable a policymaker to appreciate what those being consulted think or make of the major and incidental aspects of the issue or policy under consideration. People or entities must be left to express themselves freely on as wide a range of issues, pertinent to a policy proposal, as possible. The standpoints of interested parties, who want to have their views taken into account, must thus be allowed to reach a policymaker.”

Similarly, in Maledu and Others v Itereleng Bakgatla Mineral Resources, the court emphasised the notion of consultation by referring to the Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd, where the court held that consultation becomes imperative when the interests and rights of people are likely to be impacted on by the proposed policy, law or administrative action. 

This means that the views of the affected parties must be heard and considered, and merely informing them cannot be compared to consultation. 

Electricity Regulation Amendment Bill

Mining Affected Communities United in Action (Macua) and Women Affected by Mining United in Action (Wamua), representing thousands of excluded and marginalised community members, have for years now been at loggerheads with the Department of Mineral Resources and Energy (DMRE) regarding the shortcomings of the Minerals Petroleum Resources Development Act (MPDRA). However, their cries continue to fall on deaf ears.

Similarly, other social movements have not been spared from the arrogance and ignorance of the government when it comes to their cries for communities to be listened to and to be involved in key decision-making and policy changes. 

As the government proposes the Electricity Regulation Amendment Bill, the general sentiment from various communities, including the communities of Malamulele, Bela Bela, Ermelo, Giyani and others, is that they have not been sufficiently consulted before the public hearings, and this has resulted in lack of attendance by most people in their communities. 

Additionally, community members expressed their discontent with the Portfolio Committee on Mineral Resources and Energy, saying that the committee failed even to announce the hearings via local radio stations, newspapers or even posters around their communities.

However, when they want votes, they knock door to door in their communities. 

The communities are saying that they feel that they cannot fully participate in these hearings as they are also not well prepared to grapple with the legalese and the big English words used in this Bill. In various instances, community members requested for the hearings to be postponed, but again, their cries fell on deaf ears. 

As these public hearings continue across the country, the overwhelming majority of the community members who reside in close proximity to the venues of the hearings, do not attend, as they are not aware of the hearings. 

These hearings are being deliberately fast-tracked so that Parliament can claim to have complied with the legalities of public consultations, while ramming through a critical piece of legislation that in years to come will further impoverish and exclude the poor and marginalised people of South Africa.

This continues to prove that in this new South Africa, the poor and the marginalised people remain below the human threshold. They remain unwanted, discarded in their squalor and below the law. They remain a subservient species that is not worthy of being listened to. 

The governing party continues to manipulate the system and rent uninformed crowds to attend the hearings, who are essentially paid to blindly agree with the official line, even at the expense of the poor and marginalised.

The truth is, if poor and marginalised South Africans were aware of the impact that this Bill will eventually have on their lives, South Africa would be at a standstill now. Maybe this is the reason why the portfolio committee and the executive does not want the communities to have sufficient time to study and critique this Bill.

Tick-box exercise

The Electricity Regulation Amendment Bill public hearings are proving to be a complete sham. They are a tick-box exercise of going across the country without taking into consideration the inputs made by the communities.

If the portfolio committee actually cared about the inputs of the people of South Africa – if they actually intended to listen to the voices of the people – then they would have made sure that they advertised the hearings well to ensure good attendance and that they provided communities enough time to study the Bill, so that communities could make informed inputs.

If the portfolio committee were truly committed to real democracy, then they would ensure that those who wish to speak are allowed to speak in the hearings, instead of only allowing selected praise singers an opportunity to speak.

The South African Parliament, in yet another example of how those who should be the protectors of democracy have failed to uphold their constitutional duties, has been the handmaiden of a devious plan by the executive to slip through this critical Bill at the last minute, so as to avoid real public consultation.

After the portfolio committee had already indicated it would not be dealing with any further legislative bills during the Sixth Parliament, the executive insisted on putting this Bill on the table.

Like an obedient lapdog, the portfolio committee accordingly published the first advertisement of the Electricity Regulation Amendment Bill for public comment on 16 September 2023, and the first public hearings were scheduled on 26 September 2023, which gave the public less than two weeks to respond. 

Consequently, in terms of clear jurisprudence in South African law, these public hearings must be challenged on the grounds that they did not afford communities enough time to understand the Bill. 

In addition, the portfolio committee through its actions at the hearings has made it very clear that it has no intention to listen to and consider the views of community members as it has quite openly bused in rent-a-crowds while only allowing chosen voices to be heard in the hearings.

This Bill and its impacts on the poor and marginalised are too important to ignore, and it’s high time that the people who are driving inequality and poverty in this country, the politicians and their greed, should stop and listen to the voices of the poor and marginalised or risk going down in history as the destroyers of our hard-won democracy. DM