Process of drafting legislation

Drafting a piece of legislation is a lengthy process which takes time as it goes through various stages before and after it is submitted to Parliament before it is called an Act. This article sheds some light into the processes followed when drafting new or amending laws in South Africa.

Legislation needs to follow time-consuming processes which are put in place, some of which are determined by the Constitution and others by means of Parliamentary rules and other prescripts. This ensures that the end product is without flaw from a constitutional perspective and from an implementation point of view.

What is a Bill?
A Bill is a draft Act which has not been approved by Parliament. In its early stages, before a new law gets tabled in Parliament and even when it is tabled in Parliament it is called a Bill. The Bill is a proposed law under consideration by the legislature and it does not become an Act of Parliament or a Provincial Act until it is passed by either by Parliament or the Provincial Legislature in question and is signed either by the
President or the Premier of the province. Once a Bill is enacted into law, it is called an Act.

Who initiates the process?
Proposals for new or amending legislation can be initiated by any individual or groups of persons. Usually proposals for legislation come from the courts, the South African Law Reform Commission, government departments, lobby groups and NGO’s to mention a few. These proposals are investigated and drafted by officials in the legislative unit of the Department of Justice and Constitutional Development. This process involves various institutions which are directly impacted by the drafting of such legislation.

Before a Bill is tabled in Parliament, the following steps usually take place:

  • The Bill goes to the relevant Cabinet Committee and thereafter to Cabinet for approval.
  • Once Cabinet has given its approval, it is then released for public comments.
  • Once comments have been received, the department and ministry make the necessary changes as a result of public input.
  • The draft Bill, as amended as a result of the consultation process, then goes back to Cabinet for approval.
  • After Cabinet has approved that the Bill be submitted to Parliament, it is then sent to the State Law Advisers. The State Law Advisers are required to ensure that the Bill is in line with the Constitution, the law in general and the prevailing norms and standards applicable to legislation.

Once the Bill has been tabled in Parliament
Once the Bill has been tabled or “introduced” in Parliament, it will be given a number, for example “B7 of 2011”, and goes through the processes in Parliament until it is approved and becomes law, referred to as an Act. The following is a summary of the steps in the Parliamentary process:

  • The Bill is usually referred to the Speaker of the National Assembly (NA) who will refer it to the relevant Portfolio Committee for consideration.
  • The Portfolio Committee considers the Bill after taking a presentation from a department on the Bill and then asks for public comment. When the Portfolio Committee considers the Bill, it is regarded as the best time to lobby for changes or to protest against the principles contained in the Bill. Once the Committee has made changes and asked for clarity, it will send a report on its findings to the National Assembly, together with the Bill as amended.
  • The National Assembly considers the Bill and then votes on it with the changes made by the Portfolio Committee.
  • The Bill then goes to the National Council of Provinces (NCOP) where the appropriate Select Committee in the NCOP considers the Bill often in the same manner as the NA’s Portfolio Committee.

After the Bill has been approved by both Houses of Parliament
After the Bill has been approved by both Houses of Parliament, it is sent to the President for approval as required by the Constitution. The Bill, as approved by Parliament, is then published in the Government Gazette as a new Act.

In many cases, possibly in all the Bills, there is a need for detailed processes and procedures to be spelt out in subordinate legislation, rather than cluttering the Bill
with such fine detail. The subordinate legislation is also referred to as “secondary legislation” or “delegated legislation”. This category of legislation is usually in the form of rules or regulations.Parliament can and does delegate some of its law-making responsibilities to another functionary or body, usually the Cabinet member responsible for the administration of the legislation in question.

This delegation must, however, be spelt out very clearly in the Bill, providing very specifically what can be dealt with by the minister in rules or regulations. Failure by the minister to stick within the limits or boundaries set out in the Bill could lead to the rules or regulations being declared invalid by a court of law.

Where there is a need for subordinate legislation, the commencement or operationalisation of the legislation is put on hold until the required subordinate legislation is in place and all the required personnel, financial and infrastructural requirements have been taken care of. As a result, some laws only become operational a while after they have been approved by Parliament.

The main reason why legislation takes so long to be enacted into an Act is the procedures and processes to be followed before and after a Bill is submitted to Parliament for consideration. This is due to the fact that legislation has far-reaching implications for the citizens of South Africa, and even beyond its borders, hence it should not and cannot be rushed.

In the interest of all South Africans, departments are required to follow the steps outlined above in preparing their legislation. Failure to do so could result in the legislation being declared invalid by a court of law.

By Adv Lawrence Bassett
Justice Today 2012, Issue 1, p08