Legislation

The Legislative Process

1.      General

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. Chapter 4 of the Constitution sets out the national legislative process and determines that Parliament is the national legislature (lawmaking body) of the Republic. Both Houses of Parliament, namely the National Assembly and the National Council of Provinces (NCOP), play a role in this process.

2.       Legislative authority

2.1        Parliament, as the national legislature, has legislative authority (the power to make laws) in the national sphere of government. Consequently, Parliament has the power to pass new laws, to amend existing laws, and to repeal old laws. The same power is exercised by Provincial legislatures in the provincial sphere of government in respect of provincial laws, and by municipal councils in the local sphere of government in respect of municipal by-laws.

2.2        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.

3.       The lawmaking process

3.1        Preparing draft legislation:
Parliament, as the national legislature, considers draft pieces of legislation in order to exercise its power to make laws. A draft piece of legislation (called a Bill) must formally be submitted to Parliament before Parliament can consider making it a law. Most Bills are prepared by government departments under the direction of their Ministers or Deputy Ministers. The preparation of a Bill involves a number of steps, for example the investigation and evaluation of the legislative proposals (which can either be proposed amendments to existing legislation or proposed new legislation) and consultation with interested parties.

3.2        Cabinet approval:
The next step is for the relevant government department to submit a Cabinet memorandum and draft Bill (containing the legislative proposals that are supported) to the Minister in order to obtain Cabinet approval for the introduction of the Bill in Parliament.

3.3        Role of State Law Advisers:
After Cabinet has approved the introduction of a Bill in Parliament the relevant Minister must submit a copy of the draft Bill to the Speaker of the National Assembly and the Chairperson of the National Council of Provinces. However, before a Bill can be formally submitted to Parliament the State Law Advisers must be approached to certify the draft Bill. The role of the State Law Advisers in this regard is to ensure that a draft Bill is in line with the existing law and the provisions of the Constitution. If the State Law Advisers are satisfied that the Bill is technically correct and its provisions are legally sound they approve the Bill (called the certification of a Bill). The relevant Bill is then ready to be formally submitted to Parliament.

3.4        Introduction of Bill in Parliament:

3.4.1    Submitting a Bill to Parliament is better known as the introduction of a Bill in Parliament. Although any Bill may be introduced in the National Assembly, only certain Bills may be introduced in the National Council of Provinces. Only a Cabinet member (Minister), a Deputy Minister, a Committee or an individual Member of the National Assembly may introduce a Bill in the Assembly, and only a Committee or an individual Member of the NCOP may introduce a Bill in the Council.

3.4.2    At least 30 days before a Constitution Amendment Bill is introduced in Parliament, it must be published in the Gazette for public comment and submitted to the Provincial legislatures for their views. Furthermore, a Constitution Amendment Bill must also be submitted to the NCOP for a public debate if the Bill is not a Bill that is required to be passed by the NCOP. Comments from the public and the Provincial legislatures must be tabled together with the Bill. All other Bills may be introduced in Parliament only after prior notice of the introduction of the Bill has been given in the Gazette, which notice must be accompanied by an explanatory summary of the Bill. If the Bill itself (instead of an explanatory summary thereof) is published in the Gazette, the notice must contain an invitation to interested persons to submit written representations on the Bill to the Secretary of Parliament .

3.4.3    The Constitution distinguishes between four categories of Bills, namely—

• section 74 Bills   – Bills amending the Constitution;
• section 75 Bills   – ordinary Bills not affecting the provinces;
• section 76 Bills   – ordinary Bills affecting the provinces; and
• section 77 Bills   – money Bills (that is Bills that deal with appropriations, taxes, levies or duties).

The Constitution also prescribes the Parliamentary processes through which each of these categories of Bills must go before they can be passed by Parliament and become law (an Act of Parliament).

3.4.4    The first important step, after a Bill has been introduced, is for the relevant Bill to be referred to the Joint Tagging Mechanism (“JTM”) for classification into one of the above categories. If a Bill does not clearly fit into one category, or if it fits into more than one category, it is usually redrafted or split into more than one Bill.

3.4.5    The next step in the Parliamentary process is for the Bill to be referred to the relevant Portfolio Committee for consideration. If there is great public interest in a Bill, the Portfolio 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 relevant Portfolio Committee are then tasked with considering and debating the Bill in order to determine whether they are satisfied with the provisions of the Bill. If the Portfolio Committee is not satisfied with the provisions of the Bill, the Bill is amended to reflect the version which the Portfolio Committee prefers. At the conclusion of its work the Portfolio Committee submits the Bill, together with a report, to the National Assembly for debate (called the second reading debate) and a vote. If the National Assembly passes the Bill, it is referred to the NCOP for its consideration.

3.5        Section 74 Bill:
A Constitution Amendment Bill which aims to affect changes to the basic values of the Constitution requires a supporting vote of at least 75% of the members of the National Assembly and of at least six provinces in the NCOP in order to be passed. Proposed changes to the Bill of Rights require a supporting vote of at least two-thirds of the members of the Assembly and of at least six provinces in the NCOP in order to be passed. If a Constitution Amendment Bill affects the NCOP; or changes the boundaries, powers, functions or institutions of a province; or amends a provision specifically dealing with a provincial matter, such a Bill requires a supporting vote of at least two thirds of the members of the Assembly and of at least six provinces in order to be passed; any other proposed amendment of the Constitution only requires a supporting vote of at least two-thirds of the members of the National Assembly in order to be passed. If a Constitution Amendment Bill affects specific provinces, the NCOP may not pass the Bill unless it has been approved by the relevant Provincial legislatures.

3.6        Section 75 Bill:
Once an ordinary Bill that does not affect the provinces has been passed by the National Assembly, it is referred to the NCOP. The Council must pass the Bill, pass the Bill subject to amendments proposed by the Council or reject the Bill. If the Council passes the Bill without proposed amendments, the Bill must be submitted to the President for assent. If the NCOP passes a Bill subject to proposed amendments or if the NCOP rejects a Bill, it goes back to the National Assembly. The National Assembly must then reconsider the Bill by taking any amendments proposed by the NCOP into account and may pass the Bill again (with or without the NCOP proposed amendments) or may decide not to proceed with the Bill. A Bill that has been passed by the National Assembly must then be submitted to the President for assent.

3.7        Section 76 Bill:
Once an ordinary Bill that affects the provinces has been passed by the National Assembly, it must be referred to the NCOP. The Council must pass the Bill, pass an amended Bill or reject the Bill. A section 76 Bill must, if it was passed by the Council without any amendment, be submitted to the President for assent. If the Council passes an amended Bill it goes back to the National Assembly and if the National Assembly passes the amended Bill, it must then be submitted to the President for assent. If the Council rejects a Bill or if the National Assembly refuses to pass the NCOP amended version of the Bill, the matter must be referred to the Mediation Committee. If the Committee is unable to secure an agreement on a section 76 Bill introduced in the National Assembly within 30 days, the Bill may be passed by the National Assembly with a two-thirds majority. If the Committee is unable to secure an agreement on a Bill that was introduced in the NCOP the Bill lapses.

3.8        Section 77 Bill:
A money Bill (Bills that deal with appropriations, taxes, levies or duties) must be introduced in Parliament by the Minister of Finance. All money Bills must be considered in accordance with the procedure established by section 75 of the Constitution.

4. Signing a Bill into law

4.1        A Bill is referred to the President after it has passed through the National Assembly and NCOP. The Constitution requires that the President must assent to and sign a Bill. However, if the President has reservations about the constitutionality (whether the provisions of a Bill are in line with the Constitution or not) of a Bill, he or she may refer it back to the National Assembly for reconsideration. If the Bill affects the provinces, the NCOP must participate in the reconsideration of the relevant Bill. If a reconsidered Bill accommodates the President’s reservations, the President must assent to and sign the Bill. However, if a reconsidered Bill does not fully accommodate the President’s reservations, the President must either assent to and sign the Bill or refer it to the Constitutional Court for a decision on its constitutionality. If the Constitutional Court decides the Bill is constitutional, the President must sign it.

4.2        A Bill that has been assented to and signed by the President becomes an Act of Parliament and must be published shortly thereafter in the Gazette. An Act takes effect (becomes binding on everyone) when it is published in the Gazette or on a date determined in terms of the Act. Sometimes an Act may require certain actions to be taken by the Department before it can be implemented, for instance subordinate legislation (regulations, determinations, rules etc) may have to be prepared and promulgated to further regulate aspects in terms of an Act. In such instances an Act contains a provision that provides that the Act comes into operation on a date determined by the President by proclamation in the Gazette. Once the necessary actions have been finalised, the President is approached and requested to put the Act into operation on a certain date. After the President has assented to the implementation of the Act, a proclamation is published in the Gazette and the Act comes into operation on a date determined in the proclamation.

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1. This summary provides a brief exposition of the legislative process and should not be regarded as a comprehensive explanation of the relevant process as provided for in sections 73 to 82 of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), and the relevant Rules of Parliament.

Developed by the Branch: Legislative and Constitutional Development, 2004