Many economists forecasted that at a cost of more than R1 trillion, the deal could bankrupt the country, putting SA way over its head in international debt. The timing of the gazetting of this notice meant that the Ministry of Energy surreptitiously slipped under the public participation radar a critical gazette which would have paved the way for building new nuclear plants without proper public scrutiny.
The effects of these decisions had the potential to place a significant financial burden on all South Africans. Fortunately the deal was put on ice, following a challenge by civil society, yet, unfortunately this controversial deal also added to the reason for downgrading the country to junk status.
The nuclear deal and resulting fiasco might have been avoided, had meaningful public participation taken place during the planning process. This process should enable informed decision-making related to economic, social and environmental considerations.
Public participation is considered so important that it is the only requirement for which exemption cannot be given. This is because people have the right to be informed about potential decisions that may affect them and to be afforded the opportunity to influence those decisions.
Public participation is one of the most important aspects of our democracy because it intends to be representative and participatory in its nature. The reason public participation exists is to provide interested and affected parties with the opportunity to raise any concerns, grievances and opinions about any development project, policy formulation or executive decision-making by the State.
Sections 59, 72 and 118 of the Constitution of the Republic of South Africa make it a requirement for both the national, and provincial levels of government to facilitate public participation. Furthermore, section 195 of the Constitution maintains that the public are to be encouraged to participate in policy-making.
Despite the legal commitment toward promoting public participation in governance, effective public participation remains problematic. On many occasions, those who have developmental interests have reduced public participation to a more technical exercise driven to ensure merely compliance with the minimum legal requirements. Limiting consultations in this way can allow illegal activities to flourish and may result in costly court challenges to stop them.
Unfortunately, public participation is not always conducted efficiently and here are a couple of reasons why:
Technocratic decision-making holds that experts are crucial in decision-making structures in the public and private sectors because of their technical skill, to the detriment of others who have the right to be involved. But effective public participation facilitates informed decision-making by the government authority concerned and may result in better decisions as the views of all parties are considered.
Stealth techniques have been used in the past to push through gazettes and regulations between about 15 December and 15 January because of the reduced likelihood of public participation.
This stealth tool is one of the mechanisms driving decision-making that is technically legal but can fuel corruption and needs to be stopped.
For example, on 23 December the Department of Energy gazetted “for public comment” the Draft Post-2015 National Energy Efficiency Strategy (NEES); public comment was given the legal minimum of 30 days and the notice emphasised that “comments received after the closing date may be disregarded”. This is an absurd limitation for such a far-reaching policy proposal with an effect on diverse sectors of the economy including mining and heavy industry, the construction industry, industrial and domestic appliance manufacturers, agriculture and the residential sector. The timing meant this crucial policy, which will feed into decision-making on the nuclear deal, received almost no comments.
Here are some other “stealth tool” specials: the draft White Paper on Fire Services was approved by Cabinet on 1 November but released for public comment only two days before Christmas by Minister of Cooperative Governance and Traditional Affairs Des van Rooyen, allowing comment until 28 February; the document is so long it was only available online. On 21 December the Petroleum Agency South Africa gazetted a notice in the Eastern Cape provincial gazette noting that it had accepted an application for a petroleum exploration right on the Lesotho border submitted by Rhino Oil and Gas Exploration SA Ltd.
South Africans are tired of government’s approach that runs roughshod over the need for meaningful public engagement. This is apparent not only in the nuclear deal — which is just the most glaring example — but in many other important policies, by-laws, regulations, tariff increases and processes.
These processes need to be transparent and must include critical information on feasibility, costs and affordability. It has to consider the cost benefit to the people and affected parties.
General benefits of proper public participation include:
Let’s ensure that the rights of all South Africans, especially those affected by decisions from government, are upheld and that the government is supported by good public participation process from the public.
A lot of these decisions will determine the future of South Africa and it is important that these processes are promoted well and occur within a timeframe that will ensure optimal participation.
Julius Kleynhans is the Portfolio Director for Water and Environment at OUTA