MAKING STATUTORY LAW IN SOUTH AFRICA - THE LEGISLATIVE PROCESS

MAKING STATUTORY LAW IN SOUTH AFRICA

THE LEGISLATIVE PROCESS

Stes de Necker

1. The Constitution

The Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) (“the Constitution”), is the supreme law of the Republic of South Africa and provides, among others, how the three branches of Government, namely the Legislature (Parliament, provincial legislatures and municipal councils), the Executive Authority and the Judicial Authority should conduct their business. Both Houses of Parliament, namely the National Assembly and the National Council of Provinces (NCOP), play a role in this process.

Schedules 4 and 5 to the Constitution provide a list of functional areas in which Parliament and the Provincial legislatures are competent to make laws.

Schedule 4 lists those functional areas in which Parliament and the Provincial legislatures jointly have the power to make laws (for example matters relating to agriculture, consumer protection, health, housing, public transport and regional planning and development).

Schedule 5 lists the functional areas in which the Provincial legislatures may make laws (for example matters relating to provincial planning, liquor licensing, provincial roads and traffic and provincial sport).

Municipal Councils may make and administer by-laws for the administration of local government matters listed in Part B of Schedule 4 (for example building regulations, municipal health services and trading regulations) and Part B of Schedule 5 (for example control of public nuisances, fencing and fences, local amenities and street trading) to the Constitution.

The Constitution dictates, among other things, how the legislatures (Parliament, provincial legislatures and municipal councils) should conduct their legislative processes. In addition there are the relevant Rules of Parliament and the conventions of the other legislatures that have a bearing on lawmaking.

2. What is a Law 

The Law is a system of rules, usually enforced through a set of institutions to regulate human conduct.

It shapes politics, economics and society in many ways. There are different types of laws namely, contract law, property law, trust law, criminal law, constitutional law and administrative law.

Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Law also raises important issues concerning equality, fairness and justice

3. Legislative Authority

Parliament is the national legislature (law-making body) of South Africa. As such, one of its major functions is to pass new laws, to amend existing laws, and to repeal or abolish (cancel) old laws. This function is guided by the Constitution of South Africa, which governs and applies to all law and conduct within South Africa.

 The same power is exercised by provincial legislatures in the “provincial sphere” and by municipal councils in the “local sphere”.

4. Preparing legislation

Parliament considers draft pieces of legislation in order to exercise its power to make laws. The draft legislation, first called a Draft Bill and later a Bill, must formally be submitted to Parliament before it can consider making it a law. Most Bills are prepared by government departments under the direction of their minister.

The preparation of a Bill involves a number of steps, for example the investigation and evaluation of the legislative proposals and consultation with interested parties.

5. Green and White Papers

The process of making a law may start with a discussion document called a Green Paper that is drafted in the Ministry or department dealing with a particular issue.

This discussion document gives an idea of the general thinking that informs a particular policy. It is then published for comment, suggestions or ideas.

This leads to the development of a more refined discussion document, a White Paper, which is a broad statement of government policy. It is drafted by the relevant department or task team and the relevant parliamentary committees may propose amendments or other proposals.

After this, it is sent back to the Ministry for further discussion, input and final decisions.

6. Tagging

As soon as a Bill is introduced in Parliament it needs to be classified into one of the 4 categories mentioned above by the Joint Tagging Mechanism (JTM). This is called “tagging” and will determine the procedures the Bill must follow to become law.

The JTM consists of the Speaker and Deputy Speaker, and the Chairperson and permanent Deputy Chairperson of the Council. These office-bearers are assisted by the parliamentary legal advisors.

7. Cabinet approval

A Bill or draft law can only be introduced in Parliament by a Minister, a Deputy Minister, a parliamentary committee, or an individual Member of Parliament (MP). About 90% of Bills are initiated by the Executive.

Once all relevant inputs have been taken into account, the minister and departmental officials draft the legislative proposals. These are usually in the form of a Draft Bill and an explanatory memorandum. The minister will submit these documents to Cabinet in order to obtain approval for the introduction of the Bill in Parliament.

8. State law advisers

After Cabinet approval a copy of the Draft Bill is sent to Parliament.

However, before the submission is formal, the state law advisers must be approached to certify the Draft Bill. The role of the advisers is to ensure that the proposed legislation is in line with existing law and the provisions of the Constitution.

If they are satisfied that the Bill is technically correct and the provisions are legally sound they approve the Bill (called the “certification” of the Bill).

The Bill is then ready to be formally submitted to Parliament.

9. Introducing or Tabling a Law

In Parliamentary language the introduction is called “tabling”. Once the legislation becomes a document of Parliament the appendage “Draft” falls away.

Although any Bill may be introduced in the NA, only Bills that affect provinces may be introduced in the National Council of Provinces (NCOP). Only a cabinet minister, a deputy minister, a committee or an individual member of the National Assembly (NA) may introduce a Bill in the NA and only a committee of the NCOP or an individual member of the NCOP may introduce a Bill in that Council.

All Bills may be introduced only after prior notice of the tabling has been given in the Government Gazette. This notice must be accompanied by an explanatory summary of the Bill. If the Bill itself (instead of a summary) is published, the notice must contain an invitation to interested persons to submit written representations to the secretary of Parliament.

10. Categories

The Constitution distinguishes between four categories of Bills :

     Section 75 Bills are ordinary Bills not affecting the provinces;

    Section 76 Bills are ordinary Bills affecting the provinces;

   Section 77 Bills are money Bills that deal with appropriations, taxes, levies and duties; and

   Section 74 Bills that amend the Constitution.

The Constitution also prescribes the parliamentary process through which each of these categories of Bills must go before they can be passed by Parliament and become law.

11. National Assembly

11.1 First reading

A Bill becomes part of the National Assembly (NA) programme (Order Paper) when it is “read for the first time”. (This term comes from the early days of the English Parliament when members could not read and had to hear about legislation.)

11.2 Portfolio committees

After the first reading stage the Bill is referred to a committee of the NA for consideration. In the NA these committees are called portfolio committees.

If there is public interest in a Bill, the committee may organise public hearings to allow interested parties to submit written comments and sometimes make oral representations on the provisions of the Bill. 

The members of the committee are then tasked with considering and debating the Bill in order to determine whether they are satisfied. If they are not, they amend the Bill.

11.3 Second reading

At the conclusion of its work the committee submits the Bill, together with a report, to the NA for debate (called the second reading debate) and a vote.

If the NA passes the Bill, it is referred to the NCOP for its consideration. 

11.4 National Council of Provinces

The NCOP is made up of representatives of the nine provinces whose role is to look after their province’s interest.

The procedure followed will now depend on the tagging.

With Bills that follow Section 75 procedure (not affecting provinces), the Council members vote as parties and when there has to be a Section 76 procedure (provinces affected), the members vote as provinces, each province having one vote.

The NCOP’s committees are called select committees.

These committees function in the same way as those of the NA. Once a Bill has been debated by a committee, it is submitted to the Council for a vote.

When a Section 76 Bill is referred to the NCOP committee, the committee may be briefed by the relevant government department before it is sent to the provinces and discussed in each provincial legislature, first in committee and then in a plenary. The legislature votes to determine the province’s mandate on the Bill. It then goes back to the NCOP for the second reading and vote.

If the NCOP committee amends the Bill, it is referred back to the NA for agreement.

If the versions still differ, there are mediation mechanisms. However, should these mechanisms fail, the NA can send a Section 76 Bill to the President if it obtained a two-thirds majority. If it does not get two-thirds of the vote, it falls away.

If the versions on a Bill that follows Section 75 differ, the NA can discuss it once more and send it to the President. 

12. Types of Bills

12.1 Section 77 Bills - Money Bills must be introduced in the NA by the minister of finance and there are special considerations laid down by the Constitution.

Money Bills allocate public money for a particular purpose or imposes taxes, levies and duties. They can only be introduced by the Minister of Finance in the National Assembly.

In terms of the Money Bills Amendment Procedure and Related Matters Act, 2009 (Act No 9 of 2009), Parliament may amend money bills.

12.2 Section 74 Bills deal with Constitutional Amendments (Bills amending the Constitution) 

The Constitution can only be changed by a two-thirds majority of the NA. If the amendments affect the provinces or amend the bill of rights, then the Bill must also get a two-thirds majority in the NCOP.

All amendments affecting the provinces must be passed by both Houses. 

12.3 Section 75 Bills are ordinary Bills not affecting provinces 

These Bills can only be introduced in the NA and once it is passed it is sent to the NCOP for concurrence. A Bill is passed when there is a majority vote by delegates present, in favour of the Bill. 

12.5 Section 76 Bills are ordinary Bills that affect provinces 

The Bills are introduced in either the NA or NCOP and must be considered by both Houses. In the NCOP, votes are by provincial delegations and at least five provinces should vote in favour of a Bill before it is agreed to. Bills are usually considered by a provincial committee, which may hold public hearings on the Bill for comments and suggestions.

13. Signing the Bill into law

13.1 National Assembly

A Bill is referred to the President after it has passed through the NA and the NCOP. The Constitution requires that the President must assent and sign a Bill. (There are various options, including a referral to the Constitutional Court, if the President has reservations about the legislation.)

Once it is signed by the President, it becomes an Act of Parliament and a law of the land and must shortly thereafter be published in the Gazette.

An Act becomes binding on everyone when it is published in the Government Gazette or on a date determined in the legislation.

13.2 Provincial legislatures

The provincial governments draw up most provincial bills. They have to be approved by the executive councils before they are published in the Provincial Gazettes for public comment.

In exceptional circumstances Parliament may make provincial laws to maintain national security, maintain economic unity, establish minimum standards for service delivery, or to prevent unreasonable action by a province which affects the interests of another province or the country.

Bills introduced in a provincial legislature by the Speaker, are referred to a standing committee of the council. Public hearings and written submissions may or may not be invited by the committee who, after consultation, reports to the provincial legislature. 

In the legislature there is a vote after debate. The legislation is passed by majority vote.

The premier of a province has to sign a Bill into law. The provincial Act also has to be published and takes effect either then or on a date determined in terms of the new law.

13.3Local government

The executive committees of local councils are responsible for introducing by-laws.

By-laws are approved by a majority of the votes cast in a municipal council. It may not be passed unless all members of the council were given reasonable notice and the proposed by-law had been published for public comment.

A by-law may be enforced only after it has been published in the official gazette of the relevant province.

The by-laws must be made accessible to the public.