Lessons from the Mogale Case: The Necessity of Public Participation in the Legislative Process

Jun 20, 2024 | , , , , | News

The recent case of Mogale and Others v Speaker of the National Assembly and Others 2023 (9) BCLR 1099 (CC) sparked conversations about the importance of public participation and involvement when making laws.

As we look closely at this case, we see why it’s crucial for everyone to have a say in how laws are made.

Public Participation in Legislative Process

Uncovering the Shortcomings:

Mogale shed light on the various deficiencies that tainted the legislative journey of the Traditional Khoi-San Leadership Bill (TKLA). From the absence of adequate translators to the exclusion of certain community voices, the Court’s scrutiny unveiled the concerning reality – that the requirement to uphold the constitutional mandate for healthy public engagement was not met.


Constitutional Necessities:

Our Constitution mandates the active participation of citizens in the legislative process. However, Mogale drew our attention to the growing divide between constitutional ideals and legislative practice. The disregard for inclusive participation not only undermines the legitimacy of laws but also erodes the trust between the governed and the governing.  


Lessons To Be Learned:

There are invaluable lessons for lawmakers to learn from the legal intricacies of this case. It emphasizes the need for lawmakers to prioritize the facilitation of meaningful public engagement at every stage of the legislative journey. Equally, imposing responsibilities on the civil society to vigilantly safeguard the principles of democracy and inclusivity.


The Way Forward:

It has become imperative to reaffirm our commitment to the core principles of democracy. Lawmakers must embrace a more inclusive approach, ensuring that every citizen’s voice resonates throughout the legislative process. Simultaneously, it falls upon us, to uphold accountability and demand transparency from our elected legislatures. 

By adhering to the fundamental principles of democracy (equitable representation, active participation, and transparent decision-making) we can build a path towards a more just and equitable society.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.

Zahnri Griebenow

Zahnri Griebenow

Zahnri joined CK as an associate in April 2023.

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