Sham public consultation

State faces yet another court challenge

WHEN the authors of our Constitution were designing our founding law one of the principal aims was to create a participatory democracy. In other words, those who earn through the ballot box the right to exercise executive authority should take the people with them when making decisions.

On many occasions over the first 20 years of our democracy, the courts have struck down legislation, or sent laws back to Parliament to be rectified, because appropriate public consultation had not been done.

The latest of these is the Supreme Court of Appeal’s rejection of the South African National Roads Agency Limited’s (Sanral’s) declared intention to apply tolls to the N1 and N2 highways in the Western Cape.

Since 2012, the Sanral case has been the subject of prolonged legal action because the City of Cape Town objected to both the plan and the way in which it had been developed.

The appeal court agreed with the City that a decision to toll had massive economic and social consequences, and that the level of public participation in the decision did not reflect the seriousness of the matter. Sanral will have to pay costs and the estimates are that Cape Town’s legal bills amount to about R20m.

This followed an earlier decision by the High Court in Cape Town that if Sanral wanted to proceed with the project it had to start again from the beginning and conduct a process supported by proper public participation.

It is not the first time that an arrogant Sanral has attempted to bully the public. There was a lack of genuine public participation of the plan to introduce e-tolling in Gauteng. Only after decisions had long been made and the infrastructure erected did the cost become public knowledge.

The civil disobedience that has followed what was a sham consultation has had serious consequences for Sanral’s sustainability.

The government’s newest plan to build nuclear plants is so far, another case of sham public consultation. It insists that the public has already been consulted. That is because back in 2010, when it drew up the now outdated integrated resource plan, public hearings were held.

Energy Minister Tina Joemat-Pettersson has refused to provide Business Day with any of the studies done to inform the procurement and has also refused the DA access to the proposal for the rollout of the nuclear build and other documents. All parties in Parliament’s energy committee have resolved to use the committee’s constitutional powers to compel the minister to produce the documents.

But predictably, the government faces another court challenge, with two civil society organisations arguing that the process is faulty. Among the grounds they are asking the court to use to set aside the procurement is the absence of public consultation.

The parties have finally, after a year of attempting to extract responses and

The government’s newest plan to build nuclear plants is so far, another case of sham public consultation

documents out of the department, been given a court date.

For much of 2016, the government has not taken the legal challenge seriously. Last December, the Cabinet said it had decided to issue a request for proposals despite not having an updated integrated resource plan in place.

Two weeks ago, JoematPettersson said the first round of tender documents would be issued on September 30. On Tuesday, for the first time, there were rumblings from within the Cabinet that perhaps not all the procedural ducks for the nuclear build are in a row.

Naledi Pandor, the minister of science and technology, said she believed an integrated resource plan had to be done before the proposal was issued.

She is right and part of that should include genuine public consultation about nuclear energy. Without it, the government will surely have another protracted legal fight on its hands.