A guide to the law-making process in Parliament
The Constitution dictates, among other things, how the legislatures (Parliament, provincial legislatures and municipal councils) should conduct their legislative processes. In addition there are the relevant Rules of Parliament and the conventions of the other legislatures that have a bearing on lawmaking.
2 Legislative authority
Parliament has the power to pass new laws, amend existing laws and repeal old laws in the “national sphere” of government. The same power is exercised by provincial legislatures in the“provincial sphere”and by municipal councils in the “local sphere”.
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 areas in which the two bodies jointly have powers to make laws (for example 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 make laws (e.g. libraries, liquor licences and veterinary services) and Part B of Schedule 4 and Part B of Schedule 5 the areas of municipal councils (e.g. markets, noise pollution, traffic and water and sanitation services).
3 Lawmaking process
3.1 Preparing legislation
Parliament considers draft pieces of legislation in order to exercise its power to make laws. The draft legislation, first called a Draft Bill and later a Bill, must formally be submitted to Parliament before it can consider making it a law. Most Bills are prepared by government departments under the direction of their minister.
The preparation of a Bill involves a number of steps, for example the investigation and evaluation of the legislative proposals and consultation with interested parties.
3.1.1 Green and White Papers
Often the government puts forward its proposals in a Green Paper, which is a discussion document on policy options. It is published for comment and ideas. A submission date is usually given for input from civil society. This document forms the basis for a Draft Bill or, if the government feels its necessary, for a White Paper which is a broad statement of government policy. Comment may again be invited from interested parties.
3.1.2 Cabinet approval
Once all relevant inputs have been taken into account, the minister and departmental officials draft the legislative proposals. These are usually in the form of a Draft Bill and an explanatory memorandum. The minister will submit these documents to Cabinet in order to obtain approval for the introduction of the Bill in Parliament.
3.1.3 State law advisers
After Cabinet approval a copy of the Draft Bill is sent to Parliament. However, before the submission is formal, the state law advisers must be approached to certify the Draft Bill. The role of the advisers is to ensure that the proposed legislation is in line with existing law and the provisions of the Constitution. If they are satisfied that the Bill is technically correct and the provisions are legally sound they approve the Bill (called the “certification” of the Bill). The Bill is then ready to be formally submitted to Parliament.
In Parliamentary language the introduction is called“tabling”. Once the legislation becomes a document of Parliament the appendage “Draft” falls away.
Although any Bill may be introduced in the NA, only Bills that affect provinces may be introduced in the National Council of Provinces (NCOP). Only a cabinet minister, a deputy minister, a committee or an individual member of the National Assembly (NA) may introduce a Bill in the NA and only a committee of the NCOP or an individual member of the NCOP may introduce a Bill in that Council.
All Bills may be introduced only after prior notice of the tabling has been given in the Government Gazette. This notice must be accompanied by an explanatory summary of the Bill. If the Bill itself (instead of a summary) is published, the notice must contain an invitation to interested persons to submit written representations to the secretary of Parliament.
The Constitution distinguishes between four categories of Bills –
- Section 75 Bills are ordinary Bills not affecting the provinces;
- Section 76 Bills are ordinary Bills affecting the provinces;
- Section 77 Bills are money Bills that deal with appropriations, taxes, levies and duties; and
- Section 74 Bills that amend the Constitution.
The Constitution also prescribes the parliamentary process through which each of these categories of Bills must go before they can be passed by Parliament and become law.
The first important step, after a Bill has been introduced, is for it to be referred to the Joint Tagging Mechanism (JTM) for classification into one of the four categories.
3.5 National Assembly
3.5.1 First reading
A Bill becomes part of the NA programme (Order Paper) when it is “read for the first time”. (This term comes from the early days of the English Parliament when members could not read and had to hear about legislation.)
In September 2006 the NA introduced first reading debates for legislation that enjoys great public interest. The sponser and a maximum of 15 other members are allowed to speak in a debate lasting not longer than 60 minutes.
3.5.2 Portfolio committees
After the first reading stage the Bill is referred to a committee of the NA for consideration. In the NA these committees are called portfolio committees.
If there is public interest in a Bill, the 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 committee are then tasked with considering and debating the Bill in order to determine whether they are satisfied. If they are not, they amend the Bill.
3.5.3 Second reading
At the conclusion of its work the committee submits the Bill, together with a report, to the NA for debate (called the second reading debate) and a vote. If the NA passes the Bill, it is referred to the NCOP for its consideration.
3.6 National Council of Provinces
The NCOP is made up of representatives of the nine provinces whose role is to look after their province’s interest.
The procedure followed will now depend on the tagging. With Bills that follow Section 75 procedure (not affecting provinces), the Council members vote as parties and when there has to be a Section 76 procedure (provinces affected), the members vote as provinces, each province having one vote.The NCOP’s committees are called select committees.
These committees function in the same way as those of the NA. Once a Bill has been debated by a committee, it is submitted to the Council for a vote.
When a Section 76 Bill is referred to the NCOP committee, the committee may be briefed by the relevant government department before it is sent to the provinces and discussed in each provincial legislature, first in committee and then in a plenary. The legislature votes to determine the province’s mandate on the Bill. It then goes back to the NCOP for the second reading and vote.
If the NCOP committee amends the Bill, it is referred back to the NA for agreement.
If the versions still differ, there are mediation mechanisms. However, should these mechanisms fail, the NA can send a Section 76 Bill to the President if it obtained a two-thirds majority. If it does not get two-thirds of the vote, it falls away.
If the versions on a Bill that follows Section 75 differ, the NA can discuss it once more and send it to the President.
3.7 Money Bills (Section 77)
Money Bills must be introduced in the NA by the minister of finance and there are special considerations laid down by the Constitution.
3.8 Amendments to the Constitution (Section 74)
The Constitution can only be changed by a two-thirds majority of the NA. If the amendments affect the provinces or amend the bill of rights, then the Bill must also get a two-thirds majority in the NCOP.
3.9 Signing the Bill into law
A Bill is referred to the President after it has passed through the NA and the NCOP. The Constitution requires that the President must assent and sign a Bill. (There are various options, including a referral to the Constitutional Court, if the President has reservations about the legislation.)
A Bill that has been assented to and signed becomes an Act of Parliament and must be shortly thereafter published in the Gazette. An Act becomes binding on everyone when it is published or on a date determined in the legislation.
4 Provincial legislatures
The provincial governments draw up most provincial bills. They have to be approved by the executive councils before they are published in the Provincial Gazettes for public comment.
Bills introduced in a provincial legislature by the Speaker, are referred to a standing committee of the council. Public hearings and written submissions may or may not be invited by the committee who, after consultation, reports to the provincial legislature. In the legislature there is a vote after debate. The legislation is passed by majority vote.
The premier of a province has to sign a Bill into law. The provincial Act also has to be published and takes effect either then or on a date determined in terms of the new law.
5 Local government
The executive committees of local councils are responsible for introducing by-laws.
By-laws are approved by a majority of the votes cast in a municipal council. It may not be passed unless all members of the council were given reasonable notice and the proposed by-law had been published for public comment.
A by-law may be enforced only after it has been published in the official gazette of the relevant province. The by-laws must be made accessible to the public.