Overview of the Law-making Process in South Africa Pippa Reyburn
Framework of Discussion: Constitutional framework Public participation in the law-making process Institutions involved in law-making National law-making process Concluding Remarks
Constitutional framework for law-making Supremacy of the Constitution Section 1 of the Constitution entrenches the supremacy of the Constitution Any law or conduct that is inconsistent with the Constitution is invalid Law-makers are constrained by the Constitution Rule of Law An entrenched constitutional value (section 1) Protects citizens from arbitrary use of power by government. All government conduct must be authorised by law
Requirements of the Constitution Separation of Powers Not expressly stated in the Constitution; but has been recognised by the Courts as inherent to the constitutional text Reinforces the distinction between the executive, legislature and judiciary Not a strict separation of powers a system of checks and balances between the different branches of government is embedded into the principle
Public Participation in law-making The National Assembly must facilitate public involvement in the legislative and other processes of the Assembly and its committees Provincial legislatures and municipal councils have a similar duty
Public Participation in law-making 2 aspects of the duty: Provide opportunities for meaningful engagement Legislature must ensure that people have the ability to take advantage of the opportunity through the provision of information, educational programmes and other initiatives Parliament has the discretion to determine how best to facilitate public participation The courts can review the steps Parliament has taken to facilitate public participation according to the standard of reasonableness (i.e. assessment of proportionality and rationality)
Law-making bodies Parliament: National Assembly ( NA ): Section 55 of the Constitution National Council of Provinces ( NCOP ) Section 68 of the Constitution The NA and NCOP have general powers to: consider, pass, amend or reject any legislation before the NA / NCOP initiate and prepare legislation falling within their areas of competency (NA = residual; NCOP = functional areas of concurrent national and provincial competence) but not money bills
Law-making bodies Provincial and Municipal Legislative bodies Provincial: Section 114 of the Constitution: Municipal: the power to consider, pass, amend or reject any legislation before the legislature the power to initiate and prepare legislation within its areas of legislative authority, but not money bills Section 156(2) of the Constitution: the power to make and administer by-laws for the effective administration of the matters which it has the right to administer
Law-making bodies and officials Role of the Speaker of the NA Speaker must be elected, along with the Deputy Speaker, by the NA, from amongst its members may be removed by the NA, by resolution. A majority of the members of the NA must be present at voting must act fairly and impartially, and apply the rules of Parliament with due regard to ensuring the participation of members of all parties, in a manner consistent with democracy must maintain and preserve order and proper decorum in the NA, and uphold the dignity and good name of the NA is responsible for the strict observance of the rules of the NA
Law-making process: Step 1 - Initiating & Tabling Bodies who initiate the law-making process: section 85 of the Constitution empowers the executive to initiate and prepare legislation the executive authority in SA is vested in the President, who must exercise this authority together with the rest of the Cabinet section 91 of the Constitution states that the Cabinet is made up of the President, a Deputy President and the Ministers Deputy Ministers assist the Cabinet
Law-making process: Step 1 - Initiating & Tabling Initiating process: ruling / majority party decides which policies are to be followed Green Papers and White Papers may be circulated and Parliamentary Committee hearings may be held policy is reflected in a draft Bill initiated by the relevant Minister (where appropriate) draft Bill is submitted to and accepted by Cabinet thereafter tabled for introduction in Parliament
Law-making process: Step 2 - Passing into Law Parliament is responsible for the passing of Bills into law Parliament is comprised of both the NA and the NCOP
Law-making process: Step 2-Passing into Law Different types of Bills: Ordinary Bills not affecting the provinces (section 75) Bills affecting the provinces (section 76) Money Bills (section 77) Bills amending the Constitution (section 74) Each Bill must be tagged properly to ensure that the correct procedure for passing the Bill is followed
Law-making process: Step 2-Passing into Law Ordinary Bills not affecting the provinces: these Bills deal with matters that fall outside the concurrent or exclusive competence of the provincial legislature Step 1: Introduced into the NA and published in the Government Gazette Step 2: The Bill is considered by the appropriate Parliamentary Committee Step 3: The Bill is referred back to the NA for a second reading Step 4: If the majority of the NA favour the Bill, then it is passed by the NA and referred to the NCOP
Law-making process: Step 2-Passing into Law Step 5: The NCOP must either accept, amend or reject the Bill Step 6: If accepted by the NCOP, the Bill is sent to the President for assent. If amended or rejected, it is sent back to the NA for reconsideration Step 7: The NA can choose to pass the Bill with or without the proposed amendments
Law-making process: Step 2-Passing into Law Ordinary Bills that affect the provinces: These are Bills on issues which fall within the concurrent competence of the NA and the NCOP Can first be introduced into the NA or the NCOP, but both bodies must consider the Bill If first introduced into the NA: Step 1: Introduced into and accepted by a majority of the NA Step 2: The Bill is then sent to the NCOP, which can amend, reject or accept the Bill
Law-making process: Step 2 - Passing into Law Step 3: Provincial committees typically hold public hearings to get public feedback on the Bill Step 4: Provincial committees give feedback to the provincial legislatures based on the public feedback Step 5: Each provincial delegation will vote in the NCOP based on the stance of their provincial legislature Step 6: If the Bill is accepted by the majority of the NCOP it is then sent to the President for assent Step 7: If the NCOP amends the Bill it must be sent back to the NA. If the amendments are accepted by the NA, the Bill must be passed and sent to the President for assent Step 8: If the NCOP rejects the Bill or if the amended Bill is rejected by the NA, it must be sent to the Mediation Committee ( committee )
Law-making process: Step 2 - Passing into Law Step 9: The committee must decide if the original Bill, the amended Bill or an alternative version of the Bill should be passed Step 10: If the decision isn t made by the committee within 30 days, the Bill will lapse unless re-passed by the NA Step 11: If the committee decides to pass the original Bill, it must be sent to the NCOP, and then the President if accepted by the NCOP Step 12: If the committee decides to pass the amended Bill, it must be sent to the NA, and then the President if accepted by the NA
Law-making process: Step 2 - Passing into Law Step 13: If the committee decides to pass an alternative version of the Bill, it must be sent to both the NA and NCOP. If accepted by both, it must be sent to the President for assent Step 14: Any Bill sent to the NCOP and rejected will lapse until re-introduced by the NA
Law-making process: Step 2 - Passing into Law If first introduced into the NCOP: Step 1: If accepted and passed by the NCOP, it must be sent to the NA Step 2: If accepted by the NA, it must be sent to the President for assent Step 3: If amended by the NA, it must be sent back to the NCOP Step 4: If the NA rejects the Bill or the NCOP refuses to pass the amended Bill, it must be sent to the Mediation Committee ( committee ) Step 5: If the committee decides to pass the original Bill, it must be sent to the NA, and then the President for assent if accepted by the NA
Law-making process: Step 2 - Passing into Law Step 6: If the committee decides to pass the amended Bill, it must be sent to the NCOP, and then the President if accepted by the NCOP Step 7: If the committee decides to pass an alternate version of the Bill, it must be sent to both the NA and NCOP, and only to the President if accepted by both Step 8: If the Bills are referred to the NA and not passed, they will lapse
Law-making process: Step 2 - Passing into Law Money Bills: are Bills which (only) appropriate money, or which impose, abolish, reduce or grant exemptions from national taxes, levies, surcharges or duties, or which authorise direct charges against the National Revenue Fund can only be introduced into Parliament by the Minister of Finance follow the same process as Ordinary Bills not affecting the provinces
Law-making process: Step 2 - Passing into Law Amendments to the Constitution: Amending the founding values: 75% of the NA and 6 provinces from the NCOP need to vote in support of the amendment Amending the Bill of Rights: two-thirds supporting vote from the NA and 6 out of 9 provinces need to vote in support of the amendment Any other amendment to the Constitution: two-thirds supporting vote of the NA if the amendment affects the provinces, an additional 6 out of 9 provinces need to vote in support of the amendment
Law-making process: Step 3 - Assent & Commence President: Section 84(2)(a) & (b) of the Constitution assents to Bills can refer a Bill back to Parliament if concerned about its constitutionality Commencement of new legislation: Generally: date of publication in Government Gazette Exceptions: date set in the Act date set in a Proclamation
Law-making process: Step 4 - Constitutionality Judiciary: Section 172 of the Constitution: a court must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency
Concluding Remarks: It is important to play our part as active citizens by participating in law-making, to ensure that the constitutional promises are more than rhetoric Images obtained from the following sources: Findlay (2009) Google images Shutterstock Zapiro