How a Law is Made
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.
Who Makes the Laws?
Both Houses of Parliament, the National Assembly (NA) and the National Council of Provinces (NCOP), play a role in the process of making laws. 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.
What is a Law?
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.
Did You Know?
The Apartheid legislation in South Africa was a chain of different laws and Acts which helped the Apartheid-government to enforce the separation of different races and consequently cement power. With the enactment of Apartheid laws in 1948, racial discrimination was legalised. One such example of discriminatory legislation was the Prohibition of Mixed Marriages Act, Act No 55 of 1949, an apartheid law which banned marriages between people of different races. This law was enforced for thirty six years and only repealed in 1985.
The Process of Making a Law
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.
Did You Know?
When a lawmaking matter is national and when it is provincial?
- Schedule 4 of the Constitution lists the functional areas in which Parliament and the provincial legislatures jointly have the right to make laws. This includes things like agriculture, health, housing, the environment and education (but not tertiary or higher education).
- Schedule 5 of the Constitution lists the functional areas in which only the provincial legislatures may make laws. This includes things like provincial roads and traffic, liquor licensing, provincial planning and provincial sport.
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.
What is a Bill?
It is a draft version of a law. Most Bills are drawn up by a government department under direction of the relevant minister or deputy minister. This kind of Bill must be approved by the Cabinet before being submitted to Parliament. Bills introduced by individual Members are called Private Members’ Legislative Proposals.
Did You Know?
- The State Law Advisors certify a Bill as being consistent with the Constitution and properly drafted.
- Before a Bill can become a law, it must be considered by both Houses of Parliament (National Assembly and National Council of Provinces). It is published in the Government Gazette for public comment and then referred to the relevant committee. It is debated in the relevant committees of Parliament and amended if necessary. If the Bill passes through both the NA and the NCOP, it goes to the President for assent (signed into law). Once it is signed by the President, it becomes an Act of Parliament and a law of the land.
Types of Bills
Section 74 Bills deal with Constitutional Amendments (Bills amending the Constitution)
- Amending the Bill of Rights requires a vote of two-thirds of the NA and the support of six provinces in the NCOP. Amendments must be passed by the NCOP. All amendments affecting the provinces must be passed by both Houses.
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.
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.
Section 77 Bills are money Bills (i.e. appropriations, taxes, levies or duties)
- 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. 4 Act Goes to President for assent Transmitted to the other House for concurrence Submitted to a sitting of the House for further debate before a vote is taken Debated in the Committee and amended if necessary Referred to relevant committee and published in Government Gazette for public comment A Bill is introduced in the National Assembly (NA) or the National Council of Provinces (NCOP) Each type of Bill has a different passage to becoming a law and usually fits into only one category. If a Bill does not clearly fit onto one category, it is usually redrafted or split into more than one Bill.
So What is 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.