The constitutional imperative of consultation in South Africa: Examining the executive\u27s role in policy formulation and the challenge of "stealth taxation"

Abstract

This study considers the constitutional requirement of public consultation in South Africa in light of the role of the executive in policy-making as well as the emerging trend of "stealth taxation." This work critically evaluates how the executive, availing itself of the cover of budget-making and regulatory power, has a tendency to introduce fiscal devices with minimal public or parliamentary engagement. This conduct raises alarming questions of constitutional compliance, transparency, and abnegation of democratic accountability. The research employs a doctrinal legal approach to examining pertinent constitutional provisions, leading cases, and administrative law principles. Comparative analysis is employed by resorting to similar practice and judicial standards applicable in other Commonwealth jurisdictions. Parliament records and fiscal policy papers from 2010 to 2023 are consulted to recognize and assess examples of indirect taxation evading substantive public participation. The findings exhibit a growing pattern of executive overreach through fiscal means that are neither transparent during deliberation nor scrutinized by the National Assembly. All these actions go against constitutional mandates, particularly those listed in sections 59 and 195, aimed at participatory democracy as well as good governance. The study indicates that consultation is not procedural courtesy but substantive constitutional imperative at the heart of democratic rule. This study significantly adds to demystifying the legal boundaries of executive discretion in fiscal matters. It calls for a normative approach to deliver stronger judicial control and procedural safeguards. The research highlights that the strengthening of public procedure for participation is crucial to safeguard parliamentary predominance as well as to advance credibility of tax policy within South Africa\u27s constitutional framework