Let the people speak! Resisting the erosion of the right to public participation in the wake of The Federation of Fly Fishers v The Minister of Environmental Affairs

Abstract

The need for public participation in environmental decisions is accepted in both international and South African law. In the run up to, and just after, the transition to democracy, South Africa was exemplary in many instances in ensuring that participation occurred in a meaningful and broad-based way. In recent years, however, some may question whether the underlying rationale for public participation is still as valued by government, or whether it is being diluted to a mechanistic procedural requirement reminiscent of the past. Disputes about the way in which requirements to give effect to public participation are being implemented have recently surfaced in the courts in respect of several environmental issues. There has been strong public opposition to municipal service delivery regarding waste and water, seismic testing off the South African coast, and law-making activities regarding trout. This article considers the court’s oversight of public participation processes in respect of one of those issues — recent decisions on the introduction of executive regulations. It does so by tracing the particular dynamics regarding the need for public participation in South Africa and assessing the way in which the court has adjudicated public participation disputes in the law-making context. It finds that the court appears to be willing to play its oversight role in a way which is true to the underlying ethos of democratic decision-making in the environmental context, albeit that further opportunities for the court to consider the full range of matters involving participation should be welcomed.