in South Africa Pippa Reyburn Framework of Discussion: - - PowerPoint PPT Presentation

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

• f 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

• f competency (NA = residual; NCOP = functional areas
• f concurrent national and provincial competence) –

but not money bills

Law-making bodies

Provincial and Municipal Legislative bodies

Provincial:

• Section 114 of the Constitution:

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 Municipal:

• 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

• f 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

• ut 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