The Legislative Journey: Bills To Laws In South Africa

The process of turning a bill into law in South Africa involves several steps and requirements. It begins with a discussion document called a Green Paper, drafted by the relevant ministry or department, which is then published for public comments and suggestions. This is followed by the development of a White Paper, a more refined statement of government policy, which is also open to public input. The bill is then introduced in Parliament, where it is referred to the relevant committee for detailed deliberations and potential amendments. After being accepted by the committee, the bill is debated in the National Assembly, and if passed, it is sent to the National Council of Provinces (NCOP) for further consideration. Depending on the type of bill, it is then either sent to the President for assent or back to the National Assembly. If the bill passes through both houses of Parliament, it is signed into law by the President, becoming an Act of Parliament and a law of the land.

The role of the National Assembly and the National Council of Provinces

The National Assembly and the National Council of Provinces (NCOP) are the two Houses of Parliament in South Africa, and both play a role in the process of making laws. A bill, or draft law, can be introduced in either the National Assembly or the NCOP, depending on its nature.

The National Assembly has the power to consider, pass, amend, or reject any legislation before it, and to initiate or prepare legislation, except Money Bills. It is the entry point for most bills, and once a bill is passed by the National Assembly, it is sent to the NCOP for consideration. The Assembly can also override the NCOP's decision on a bill affecting the provinces with a two-thirds majority vote.

The NCOP, on the other hand, has a more limited role in the legislative process. It can consider, pass, amend, propose amendments, or reject any legislation before the council and initiate or prepare legislation in specific functional areas listed in Schedule 4 of the Constitution or other legislation referred to in Section 76(3), except Money Bills. When dealing with ordinary bills that do not affect the provinces, the NCOP can delay the bill but cannot prevent it from being passed. In the case of bills affecting the provinces, each provincial delegation has one vote, and the NCOP must pass, amend, or reject the bill.

Both Houses of Parliament must consider a bill before it can become a law. Once a bill is passed by both the National Assembly and the NCOP, it is sent to the President for assent and signature, at which point it becomes an Act of Parliament and a law of the land.

How a bill becomes an Act of Parliament

The process of turning a bill into an Act of Parliament in South Africa is a detailed and direct procedure. It involves several stages and processes, including the initiation of the bill, its passage through Parliament, and finally, its enactment as law. Here is a step-by-step guide on how a bill becomes an Act of Parliament in South Africa:

Initiating a Bill

A bill is a draft version of a law or Act. It can propose a new Act, amend an existing one, or repeal an existing Act. A bill can be initiated and written by a Minister, a Deputy Minister, a parliamentary committee, or an individual Member of Parliament (MP). The bill is then formally submitted to Parliament for consideration. Most bills are prepared by government departments under the direction of their Ministers or Deputy Ministers.

Cabinet Approval

Once the relevant government department has drafted the bill, the next step is to obtain Cabinet approval. The department submits a Cabinet memorandum and the draft bill to the Minister to secure the Cabinet's approval for introducing the bill in Parliament.

Role of State Law Advisors

After Cabinet approval, the relevant Minister must submit the draft bill to the Speaker of the National Assembly and the Chairperson of the National Council of Provinces (NCOP). Before formal submission to Parliament, the State Law Advisors must certify that the bill aligns with existing laws and the Constitution. This process is called the certification of a bill.

The introduction of a bill in Parliament is also known as its submission. While any bill may be introduced in the National Assembly, only certain bills can be introduced in the NCOP. These include bills that affect the provinces (Section 76 Bills) and those that fall within functional areas listed in Schedule 4 of the Constitution (as per Section 76(3).

Publication and Public Comment

Before a Constitution Amendment Bill is introduced, it must be published in the Government Gazette for public comment and submitted to the Provincial legislatures for their input. This process should occur at least 30 days before the bill is introduced in Parliament. For other types of bills, prior notice of the bill's introduction must be given in the Gazette, along with an explanatory summary.

Referral to the Joint Tagging Mechanism (JTM)

Once a bill is introduced in Parliament, the JTM classifies it into one of four categories:

• Section 74 Bills: Bills amending the Constitution
• Section 75 Bills: Ordinary Bills not affecting provinces
• Section 76 Bills: Ordinary Bills affecting provinces
• Section 77 Bills: Money Bills (appropriations, taxes, levies, or duties)

If a bill does not fit clearly into one category or spans multiple categories, it is usually redrafted or split into multiple bills.

Referral to the Relevant Portfolio Committee

After classification, the bill is referred to the relevant Portfolio Committee for consideration. If the bill generates significant public interest, the Portfolio Committee may organise public hearings to allow interested parties to submit written comments and, in some cases, make oral representations.

Debate and Vote in the National Assembly

The Portfolio Committee considers and debates the bill, making amendments if necessary. The bill is then submitted to the National Assembly for a second reading debate and a vote. If the National Assembly passes the bill, it moves on to the NCOP for further consideration.

Consideration by the National Council of Provinces (NCOP)

The role of the NCOP depends on the type of bill:

• For Section 75 Bills (not affecting provinces), the NCOP can pass the bill, pass it with proposed amendments, or reject it.
• For Section 76 Bills (affecting provinces), the NCOP must pass, amend, or reject the bill.

Referral to the President for Assent

If a bill passes through both the National Assembly and the NCOP, it is sent to the President for assent. The President must sign the bill for it to become an Act of Parliament. However, if the President has reservations about the bill's constitutionality, they may refer it back to the National Assembly for reconsideration.

Enactment as an Act of Parliament

Once a bill is assented to and signed by the President, it becomes an Act of Parliament. It must be published in the Government Gazette and comes into effect on a date determined by the President.

This detailed process ensures that any proposed legislation undergoes rigorous scrutiny and debate before becoming an Act of Parliament in South Africa.

The four types of Bills

Ordinary Bills that do not affect the provinces (Section 75 Bills)

These Bills can only be introduced in the National Assembly (NA) and once passed, they are sent to the National Council of Provinces (NCOP) for concurrence. The NCOP's role in these Bills is limited as it can only delay them, but not prevent them from being passed. A Bill is passed when there is a majority vote by delegates present, in favour of the Bill.

Ordinary Bills that affect the provinces (Section 76 Bills)

These Bills can be introduced in either the NA or the NCOP but must be considered by both Houses. In the NCOP, votes are cast by provincial delegations, with each delegation having one vote. Bills are usually considered by a provincial committee, which may hold public hearings to receive comments and suggestions. The NCOP must pass, amend or reject a Section 76 Bill. If the Bill was introduced in the NA, the NA can override the NCOP decision with a two-thirds majority of its members.

Money Bills (Section 77 Bills)

Money Bills allocate public money for a specific purpose or impose taxes, levies or duties. They can only be introduced by the Minister of Finance in the NA and follow the same procedure as Section 75 Bills.

Constitutional Amendments (Section 74 Bills)

The Constitution is the highest law in the land and there are special requirements and procedures for amending it. For example, amending the Bill of Rights requires a two-thirds majority vote in the NA and the support of six provinces in the NCOP. All amendments affecting the provinces must be passed by both Houses. Amendments that only affect certain provinces, must be passed by those provinces.

The role of the President

The President plays a crucial role in the process of a bill becoming a law in South Africa. Once a bill has passed through both Houses of Parliament (the National Assembly and the National Council of Provinces), it is sent to the President for assent. The President is required to sign the bill into law, a step that officially makes it an Act of Parliament.

However, the President also has the power to ensure that the bill aligns with the Constitution. If the President has reservations about the constitutionality of a bill, they may refer it back to the National Assembly for reconsideration. If the bill affects the provinces, the National Council of Provinces must also participate in the reconsideration process. If the revised bill addresses the President's concerns, they must assent to and sign the bill.

In cases where the reconsidered bill does not fully meet the President's reservations, they are faced with a critical decision. The President must either assent to and sign the bill or refer it to the Constitutional Court for a ruling on its constitutionality. If the Constitutional Court decides that the bill is indeed constitutional, the President is obligated to sign it.

This process underscores the President's role in ensuring that new laws adhere to the principles and provisions outlined in the Constitution of South Africa.

Public participation in the legislative process

South Africa is a participatory democracy, and public participation in the legislative process is essential. The Constitution requires that Parliament and the Legislatures provide a forum for the public consideration of issues and facilitate public involvement in their legislative and other processes.

Parliament is the legislative authority of South Africa and has the power to make laws for the country, in accordance with the Constitution. It consists of the National Assembly (NA) and the National Council of Provinces (NCOP). Both Houses of Parliament 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).

The process of making a law typically involves the following steps:

• A discussion document called a Green Paper is drafted in the Ministry or department dealing with a particular issue. This 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.
• The relevant government department then submits a Cabinet memorandum and draft Bill (including the legislative proposals that are supported) to the Minister to obtain Cabinet approval for the introduction of the Bill in Parliament.
• After Cabinet approval, 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.
• Before a Bill can be formally submitted to Parliament, it must be reviewed by State Law Advisors, who certify that it is consistent with the Constitution and properly drafted.
• 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. All other Bills must also be published in the Gazette, along with an explanatory summary, and prior notice of the introduction of the Bill.
• Once introduced in Parliament, the Bill is referred to the Joint Tagging Mechanism (JTM) for classification into one of four categories: Section 74 Bills (Constitutional Amendments), Section 75 Bills (ordinary Bills not affecting provinces), Section 76 Bills (ordinary Bills affecting provinces), or Section 77 Bills (money Bills).
• The Bill is then referred to the relevant Portfolio Committee for consideration. If there is significant public interest, the Portfolio Committee may organise public hearings to allow interested parties to submit written comments and, in some cases, make oral representations.
• If the Portfolio Committee is satisfied with the Bill, it is submitted to the National Assembly for a second reading debate and a vote. If the National Assembly passes the Bill, it moves on to the next stage.
• The subsequent steps vary depending on the type of Bill. For Section 75 Bills (ordinary Bills not affecting provinces), the National Council of Provinces (NCOP) must pass the Bill, pass it with amendments, or reject it. If passed without amendments, it is submitted to the President for assent. If passed with amendments or rejected, it goes back to the National Assembly for reconsideration.
• For Section 76 Bills (ordinary Bills affecting provinces), the process is similar, but the NCOP must be involved, and votes are cast by provincial delegations.
• Section 77 Bills (money Bills) must be introduced by the Minister of Finance and are considered in accordance with the procedure established by Section 75 of the Constitution.
• Once a Bill has passed through the National Assembly and NCOP, it is referred to the President for assent and signing. If the President has reservations about the Bill's constitutionality, he or she may refer it back to the National Assembly for reconsideration.
• A Bill that has been assented to and signed by the President becomes an Act of Parliament and must be published in the Gazette. It takes effect when published or on a date determined in the Act.

Public participation is a critical aspect of this legislative process. The public has multiple opportunities to engage and influence decision-making, from the initial publication of the Green Paper to the public hearings organised by the Portfolio Committee and the opportunity to provide written comments and representations. Additionally, the Legislative Sector has developed a Public Participation Framework to guide public participation activities and ensure minimum norms and standards are met. This framework includes mechanisms such as the People's Assembly, the NCOP's Taking Parliament to the People Programme, oversight visits by parliamentary committees, and sectoral engagements.

The South African government recognises the importance of involving the public in the legislative process to ensure that laws are passed with the input and consideration of those who will be affected by them. This commitment to participatory democracy strengthens the country's institutions and actively involves citizens in decision-making processes.

Frequently asked questions