Unruly law of creatures of statute, section 81 of the Constitution, and the rule of law

October 27th, 2013

Unruly law?

When law made by the legislature is transformed into something substantively different by creatures of statute, in the exercise of their administrative powers, then that is unruly law. Unruly law is treated as law proper, is implemented as law, but just does not amount to law.

Unruly law can emerge right at the start of an Act’s life when creatures of statute misinterpret what they have to do under section 81 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) in relation to signing assent to Acts, and the publication and commencement of Acts. Equivalent Constitutional provisions for the promulgation and commencement of provincial Acts and local government by-laws also generate unruly law from provincial Acts and municipal By-laws.

Properly interpreted, section 81 of the Constitution does not allow creatures of statute to exercise administrative powers in such a way as to create and implement unruly law. However, often a proper interpretation is not often made. The result? The current corpus of South African legislation is so riddled with unruly law that it’s hard to find a set of related Acts that one cannot, like a rotten piece of cloth, poke holes in.

Misinterpretation and abuse of section 81 of the Constitution a source of unruly law

Section 81 of the Constitution provides that, “A Bill assented to and signed by the President becomes an Act of Parliament, must be published promptly, and takes effect when published or on a date determined in terms of the Act.”

Its broad objective is almost certainly to provide certainty, under the rule of law, about what Acts of Parliament there are, and the particular date or dates from which each of these applies.

However, the misinterpretation and abuse of section 81 administrative powers in assenting to, signing, publishing and commencing Acts has become the vehicle for endless unruly law which differs substantially from relevant original legislation, and which therefore fundamentally undermines the broad objectives of section 81 and the rule of law.

Some examples of how section 81 becomes a vehicle for unruly law?

Just imagine, for a moment, that the President never undertakes the administrative action of signing assent to a Bill, maybe because he forgot it in a bottom draw of his desk. Maybe, because in ignorance he thinks he can sign it whenever he likes. Or because having that law around does not suit him or the coterie of acolytes, or the patron client relationships he’s built up. Or because he decides to just let it sit on the smorgasbord filled with other Bills awaiting his signature until he and the same coterie of people can position themselves to best benefit from or protect themselves against it and a whole tranche of related Acts.

Or imagine that, for the same spread of reasons, that an Act is never published, or published in multiple and different versions, or that an amending Act published wrongly reflects the text of an Act it amends. Imagine that an Act is implemented before it is published or, that an unsigned Bill is treated as an Act.Imagine if an Act provides that a Bill be treated as law.

Imagine again for whatever of the same kind of reasons, that a date of commencement for an Act is never fixed, or that the Act is partly commenced in such a way that it only operates in relation to some of the potential transgressors or some of the potential transgressions that were defined in the original whole Act. Or, imagine that a commencement date is never published, or is published in gibberish, or by the wrong person, or that a second and maybe third commencement notice is published with different dates of commencement to the first and to each other. Imagine if a commencement notice is ignored and the Act it commences is never implemented.

All of these and more, result in what is perceived to be, but not actually, the law. All of these, in other words, result in unruly law that is substantially different in substance, implementation and effect to that law passed by Parliament.

The slip between the practise and compliance in relation to section 81: Ignorance or mala fide?

The frequency with which section 81 of the Constitution is transgressed goes way beyond explanation that such transgressions are just a couple or so of isolated, once-off simple administrative errors and that they should be treated as such by for example the courts.

At best – and there is a worst, see below – the scale of unruly law that has emerged from administrative actions that are a result of misinterpretation of section 81 of the Constitution is phenomenal. The scale of the problem spells a picture of widespread ignorance as to the requirements of section 81 and how in a democratic republic like South Africa these requirements are necessary to satisfying that most fundamental principles of the rule of law, that the law must be made known.

If it is ignorance behind the widespread non-compliance with section 81 that produces unruly law, then, that ignorance must run from the majority party to minority parties who roll legislation out of parliament, to the provincial legislatures and the local Councils (in respect of which equivalent Constitutional requirements are equally transgressed), to the President and other functionaries signing the legislation and issuing commencement instruments, to Department after Department drafting defective commencement provisions, wrongly publishing legislation, and implementing unruly law, to the judiciary, legal professions, academics, NGO’s and so on.

At worst, the scale of unruly law spells not only the above widespread ignorance of the requirements of section 81 of the Constitution and its relationship to the rule of law, but a deliberate misinterpretation of and abuse of section 81 of the Constitution, for whatever of the reason already mentioned and many more.

It is difficult on the face of it to distinguish whether ignorance or intentional misinterpretation and abuse of the integrity of the corpus of legislation and the rule of law has been behind the creation of unruly law by one or other administrative functionaries in particular instances.

However, evidence of deliberate manipulation of processes that affect what we must or must not yet regard as operant law does in fact present itself on careful case by case analysis of such things as inconsistencies and coincidences related to the various administrative actions or omissions concerned. It is this evidence from inconsistencies and coincidences that provides a window into the bigger picture that is probably being taken into account by the various creatures of statute in deliberately creating unruly law, for the benefit of themselves or others, or even to the detriment of others.

An example of the kind of evidence which inconsistencies and contradiction would indicate points to the possibility of deliberate manipulation of the procedural aspects in bringing legislation into being, may well be the President’s recent refusal to sign assent to the Protection of State Information Bill on the grounds of unconstitutionality because some sections lack meaning and coherence, and are consequentially irrational and accordingly unconstitutional – this, after his having signed a multiplicity of other Bills with far more confusing and gibberish use of language into Acts.

Other evidence pointing to a manipulation of procedural aspects in order to deliberately bring unruly law into being, includes evidence of a partial commencements of Acts that, in effect, results in an Act that – interim to its full commencement – is substantively different in purpose, objective and application than that intended by the legislature in the original whole Act, which partial commencement operates to the advantage of some and not others.

Not that the objectives of unruly law matter, because Section 81 provides the slippery slope to the rule of law in South Africa

As said, it is difficult but not impossible in many instances to determine the causes – ignorance or abuse – of administrative actions that result in unruly law.

That said, however, I don’t think in fact that it is necessary to journey into the cause or purpose behind administrative actions that result in unruly law, for the following reasons.

The purpose of section 81 of the Constitution is to ensure, in relation to Acts of Parliament, that that the most fundamental of principles of the rule of law in a democratic republic like South Africa – that we know what the law is and when it applies – is satisfied.

This in turn means that – no matter what misinterpretation or abuse of section 81 of the Constitution has taken place, and no matter the reason – you can be sure the result will inevitably be that the rule of law in South Africa is fundamentally undermined.

Therefore at the end of the day, the question of whether ignorance or deliberate misinterpretation and abuse of section 81 of the Constitution was behind the emergence of one or other instance of unruly law is moot. It is moot because, whatever the reason, the result is the same: That we end up not knowing what the law is or when and how it applies to whom, and how, is as direct and fundamental a threat to the rule of law as can possibly be, and resolving this problem cannot be made to hang off whether the cause was ignorance or deliberate abuse, but must be dealt with in and of itself.

Ipso facto, understanding how that threat came about, therefore, despite being of broad interest and political or other mileage, cannot direct the solution to unruly law. Therefore, for example, responding to and resolving the fact of unruly law by letting the “mistake” and it’s consequences be on, say, policy grounds of transitional justice, does absolutely nothing to clarify what exactly the law is, when it started, and who it applies to, in relation to what.

The real solution is to the problem of unruly law, is proper analysis of section 81 of the Constitution and – because the problem of unruly law at provincial and municipal level is as endemic as at national level – equivalent sections in the Constitution that relate to provincial legislation and municipal by-laws, the development of a common understanding of how it is to be interpreted and the range of administrative actions possible under it, and then, each time legislation is passed there should be rigorous oversight of whether the requirements of the Constitution, such as section 81, are being complied with.

The proliferation of unruly law that puts the rule of law to rest

The most odd thing is, that no-one’s focus appears be on the misinterpretations and abuse of section 81 of the Constitution and equivalent sections that deal with provincial legislation and municipal by-laws which result in unruly law, despite the fact that unruly law typically results in tremendous difficulties in application, and despite that these difficulties are openly admitted to.

I imagine that this is because, typically, unruly law results in huge problems in determining whether the status of a document that purports to be a copy of an Act is as was published in the Gazette, is what it purports to be, in determining whether it was commenced, and – where piecemeal commencements of various sections of an Act has occurred – who the potential transgressors are, and what the potential transgressions are, and which elements that would comprise those transgressions, and so on, and whether it was amended by legislation often equally riddled with imponderables as to their publication, commencement and amendments.

Few being willing to discover the labyrinth of facts necessary to determining the facts themselves, there is a heavy dependence on others for such information, those others being generally long established publishers of legislation and amended legislation who are traditionally the experts in determining the content of Acts and their amended versions, and their commencement dates. However, in the fact of the mountain of unruly law, they have long since stopped recording the commencement dates for Acts by default and – no matter what the ostensible reason they give – this is almost certainly so because it is often just not possible for publishers to work them out with any certainty.

Those who need to find and apply applicable legislation relevant to a particular date in relation to particular facts – failing that information being available from traditional publishers of legislation – nowadays have little alternative but to take the commencement date put in front of them by the government department call centre or clerk at the government counter as gospel, which ensures that they remain ignorant of the proliferate failures in complying with section 81 of the Constitution in publishing, commencing and implementing Acts, and the serious consequences of that to the rule of law in South Africa.

And so the cover-up has continued, resulting in not only such an accumulation of unattended absurdities regarding the assent to, publication and commencement of legislation as to put the fundamental principle of the rule of law – that law be made know – into general and very serious doubt within South Africa, but the development of a smorgasbord of uncommenced Acts and versions of Acts, and uncommenced sections of Acts and versions of sections of Acts that can at the drop of a hat be commenced this way or that, at a time that suits the self-interest of this or that person or group, that can be either dished out as and when by the functionaries empowered by that very legislation, or never commenced, also at the heist of the various creatures of statutes’ own or their patron’s or acolyte’s self-interest.

Unpacking the commencement rule in section 81: the presumption we all know the law

I’ve gone on and on, without more than a sideways glance at what section 81 of the Constitution actually says, about how its misinterpretation and abuse has resulted in extensive unruly law which now threatens the very rule of law in South Africa. The following takes more than a passing glance at that section 81.

To recap, for your convenience, Section 81 of the Constitution states that, “A Bill assented to and signed by the President becomes an Act of Parliament, must be published promptly, and takes effect when published or on a date determined in terms of the Act.”

Let’s start by unpacking one important aspect of the rule of law component of the commencement rule in section 81 of the Constitution in more detail:

A fundamental principle of the rule of law in a democratic republic such as the Republic of South Africa, is that the law must be made known – or at the very least reasonably easily discoverable. Only if this is true will the presumption that we all know the law hold, and only if that presumption holds, we can be held accountable under that law. This same fundamental principle also demands that where an Act commences on a date other than the date of its publication, that its date of commencement must also be made known or reasonably easily discoverable.

Section 81 of the Constitution neatly provides for this fundamental principle of the rule of law by providing firstly that an Act must be published promptly and secondly that it must tell you when it commences or how to determine the date it commence on, failing which it commences on its date of publication.

Do creatures of statute generally comply with section 81 in signing assent to, publishing and commencing Acts? In general and typically, in the majority of cases yes. However, there are enough instances of non-compliance to cause very serious concern, and even where an Act avoids becoming unruly law, that is no guarantee that this will remain so: Initial compliance with section 81 of the Constitution very often only lasts for a little while, before all sorts of unconstitutional or borderline constitutional things happen which affects that compliance, in relation to amending Acts and amended and amending commencement and other notices, that puts throws an Act back into the category of unruly law. In addition, in fact the whole corpus of South African legislation, and whole tranches of Act within that, are so closely related that unruly law of one Act inevitably affects and makes unruly law of other Acts.

One way unruly law, in practice, comes about, is to failure to sign assent to an Act so that it remains in limbo as law, for no reason acceptable under the Constitution.

The making of unruly law: Fudging and manipulating commencement dates

The fudging and manipulation of commencement dates is one typical way in which unruly law is created. Here are some examples of things that can and do often happen after an initial Act is signed, published, and even commenced, in compliance with section 81 of the Constitution:

A commencement notice is issued under an Act B that commence an Act A that has already commenced, or that commences Act A as amended by Act B on a date that precedes Act A’s publication. Or, Act B amends Act A to include a commencement provision where it did not have one,which changes the default date of commencement of Act A from its date of publication to another later date, or that amends the original commencement instructions of Act A even after Act A has commence to a date as yet undefined, or to a date antecedent to Act A’s original publication. Or, Act B commenced commence itself and Act A (as amended by Act B) to an undecipherable date. Or, Act C comes along and adds all these and other additional layers of complexity and unconstitutionality not only to Act B but to Act A (as unamended), or to Act A (as amended by Act B) or to Act A (as amended by Act C) and so on, or which will repeal Act B’s amendment of Act A after Act B has commenced and Act A as amended by Act B has purportedly commenced in terms of that Act B’s amendment.

The making of unruly law: On partial commencements

Another whole other layer of unruly law can be created or even added to what may already be unruly law by partially commencing an Act.

At first glance it would seem that the result of allowing the partial commencement of an Act is merely the complexity of sorting out what part of what version of what Act, as variously amended or not, has to be considered commenced or not, and by when, in relation to which potential transgressors and what potential transgression.

However, the problem with partial commencements of Acts by those empowered to commence them is really this, that very often the “partial Act” that is commenced amounts to very different substantive law than the original Act passed by Parliament, and which therefore must to be regarded as unruly law because the operant law is really not the law that was made known. This is particularly the case when partially commenced Acts are partially amended, and further partially commenced, re-commencing or otherwise mixed-and-matched with other Acts or partial Acts, compounding the problem of what the law actually is and making it so obscure that it could barely be said that the Act has been made known.

In reality, as many variants on the theme of manipulating partial commencement dates exist as exist in manipulating commencement dates for whole Acts, and I could go on and on with a myriad of further examples. But I’ll spare you that.

The real problem of partial commencements of Acts, therefore, relates to its unconstitutionality under section 81 of the Constitution and beyond that, the unconstitutionality of failing, under section 1 of the Constitution, the basic principle embedded in the rule of law, that the law must be made known, where the product of that partial commencement results in unruly law that differs in substance from the law that was made known.

Therefore, a proper reading of section 81 of the Constitution must be one that precludes partial commencements of an Act which result in an operant Act that differs in substance from the Bill as passed by Parliament and the Act as signed assent to by the President.

The making of unruly law: On one Act commencing another Act

In general, if we read section 81 of the Constitution as allowing one Act to commence another then, by all logic and should this arise, one would have to undertake the very unreasonable effort of looking through the whole corpus of Acts and subordinate texts (past amended, present unamended or amended to date, or even awaited in future for retrospective commencements) until we found commencement information on an Act, in order to put ourselves into a position to know whether that Act was commenced or not.

Further, if we read section 81 of the Constitution as allowing an Act’s commencement provisions to be amended by another Act, or as allowing a commencement notice under another Act to commence an Act, or be amended by a creature of statute, a further layer of unreasonableness is added for the public in trying to discover whether an Act has commenced, because then we’d not only have to trawl through the corpus of Acts for an Act’s original commencement date, but we’d have to keep trawling through that whole corpus of Acts and all subordinate texts just in case to find original commencement information about such an Act and possible amendments to those commencement provisions.

The test of course, of whether the fundamental principle of the rule of law that the law and its dates of operation be made know, and hence of whether the presumption that we all know the law has been satisfied, is not only whether the law has been made available to us but also, whether the date the law commenced has also been made available to us, and in such a way that we can reasonably avail ourselves of that information.

A proper reading of section 81 of the Constitution must therefore preclude any situation where it is only after extraordinary difficulty and unreasonable effort that we can avail ourselves of commencement information, because the existence of that situation fails a fundamental principle of the rule of law, that the law be made known, which in turn makes the presumption that we all know the law simply rebuttable by proving that difficulty.

Unfortunately, the danger of failing this fundamental principle of the rule of law in this way – by allowing commencement provisions of an Act to be contained in other Acts or their subordinate texts, or by allowing these to be amended along the way – eventuates if even one single incident of an Act commencing another is allowed, because it is the mere possibility of this having been allowed in one instance that would inform the expectation that it could have been allowed in another instance, that would make it necessary to search through the whole corpus of law for commencement dates or amended commencement dates in relation to each and every Act, which would rebut the presumption that this information is reasonably made available to us, and that therefore we should be treated as knowing the law.

The making of unruly law: On amending Acts commencing amended Acts

Let’s work through the situation where an amending Act commencing an Act it amends (“amended Acts”) results in unruly law.

An amended Act is not published, ever, other than in part and to the extent amended, or via amendment instructions, in the relevant amending Act. It is just a document compiled by a publisher of legislation, or someone else following engrossing instructions contained in the amending Act.

Therefore, on a proper reading of section 81 of the Constitution, an amended Act does not fall within the ambit of section 81 and therefore section 81 cannot be seen as providing any powers to commence an amended Act, only original Acts. In the result, an amended Act simply commences by default when the amending Act commences, which in terms of section 81 is either on the date of publication of the amending Act or the date specified in the amending Act for the commencement of that amending Act, as the case may be.

Further, a proper reading of section 81 of the Constitution must also be that if the amending Act were to contain a commencement provision for the amended Act, that provision would make the date of commencement of the amending Act under section 81 of the Constitution nugatory, which would be effectively unconstitutional.

Another circumstance, by the way, which arises to the prejudice of and defeat of the purpose of section 81 of the Constitution and the rule of law, which can be considered to fall under the heading of one Act commencing another Act, is the sleight of hand amendment of the commencement provisions of an amended Act by an amending Act, in circumstances where the amended Act has already commenced. Whether the new commencement date is an earlier, or later date, amounts to a substantive prejudice to the basic principle of rule of law that the law be knowable.

Where an amending Act comes along and amends the amended Act’s commencement date after the amended Act’s commencement date has already come and gone, by putting that date forward to another date, this also create an absurd legal quagmire typical of unruly law. Likewise, if an amending Act were allowed to backdate the commencement date of an Act: Ditto the legal quagmire.

Only where an amended Act’s commencement date has not yet kicked in should an amendment of the amended Act’s commencement provision be allowed, and then only to a date later than its date of publication unless extraordinary circumstances apply, be allowed to have any force and effect.

Itching for some example failures in complying with section 81 of the Constitution?

As mentioned, examples of non-compliance with section 81 of the Constitution and unruly law that emerges from that abound. Lets, for sake of flavour take a look at a couple of illustrative cases, of one Act commencing another, and the unruly law and legal quagmires that emerges from this.

Act 8 of 2007 contains commencement provisions for other Acts

The whole tranche of Tax-related Acts is particularly prone to commencement provisions that are at odds with section 81 of the Constitution. Let’s take one Tax related Act at random, the one I happen to be doing a database audit for at the moment, the Taxation Law Amendment Act, No. 8 of 2007 (“Act 8 of 2007″).

Section 2 of Act 8 of 2007 deems “section 10(1)(cN)(ii)(dd)(ii)” as having come into operation on 1 April 2007. Act 8 of 2007 does not itself contain any text labeled “10(1)(cN)(ii)(dd)(ii)”. However, the Income Tax Act 58 of 1962, which section 2 of Act 8 of 2007 amends, does. Therefore, it would seem that the intention of the legislature was that Act 8 of 2007 commence Act 58 of 1962 (as amended by section 2 of Act 8 of 2007) on 1 April 2007.

It is frequently the case that Acts refer to a section of an Act without indicate that that section is part of another Act, and this occurs not only in Tax related Acts but other Acts too. It occurs within the Act under discussion in a number of other instances – such as in its section 10(4) which refers to a “section 10(1)(i)(iii)”, and its section 51(3) which refers to an “item (c)” which is also not contained in its own set of labels.

Does it really matter that the legislature carried out its intention by commencing section 10(1)(cN)(ii)(dd)(ii) of the amended Act from within the amending Act? Yes, I’m afraid it does matter, because there is no provision in section 81 of the Constitution for one Act to commence another, even if that other Act is an Act being amended, and this is so because to allow that would be such a prejudice to the fundamental principle of the rule of law that the law be made known along with its dates of application as to rebut the presumption that we all know the law and can be held accountable to it. Therefore, whether the consideration here should not be whether or not the intention of the legislature was clear, but whether the legislature used constitutional means to achieve its intentions, or not. It did not.

To my mind, because of this unconstitutionality, such sections in the amended Act should all be treated as commencing on the same date as the sections of the amending Act that amended them (Aside: the exception in section 116 of Act 8 of 2007 allowing, or course).

Amending Act 31 of 2007 commences another Act’s provisions that are already in force

To pick up the story of Act 8 of 2007 again: There is no provision in Act 8 of 2007 for the commencement of its section 3(1)(f) and (g). Therefore, these would by default and in terms of section 81 of the Constitution, commence on the date of publication of Act 8 of 2007 in the Gazette on 2007/08/08.

But hey, along comes section 113 of Act 35 of 2007 (which is equally by the way riddled with commencement and other issues as this Act) which was published on 2008/01/08, ie AFTER the 2007/08/08 date of commencement of section 3(1)(f) and (g) of Act 8 of 2007, but which amended section 3(3) of Act 8 of 2007 such that its section 3(1)(f) and (g) are deemed to commence on 2007/10/01 – that is, a date after those section 3(1)(f) and (g) had already commenced.

(I’d imagine most reading this blog are now casting about through the text trying to work out what Act does what to which Act by when, in relation to what. Please don’t give up, it gets pretty interesting and is worth wading through the learning curve for the insight it gives on how flexible unruly law makes commencement dates.)

In sum, therefore, the commencement date of section 3(1)(f) and (g) was 2007/08/08, but on 2008/01/08 that was amended by section 113 of Act 31 of 2007 to a later date, 2007/10/01. *

The unruly law of it all is, that two substantively different versions of section 3(1)(f) and (g) of Act 8 of 2007, which amends the definitions of “pension fund” and “retirement annuity fund” in section 1 of Act 58 of 1962, being the version as unamended by Act 31 of 2007 and the version as amended by Act 31 of 2007 – were both in force during the same period of time (2007/10/01 t0 2008/01/08).

*See LegalB Commentary on section 3 of the Act for additional comment related to amendments related to “any lump sum benefit accrued on or after that date”.

Towards a proper reading of section 81 of the Constitution that would minimize the emergence of unruly law

Unruly law that emerges from administrative action or omission by creatures of statute under sectoin 81 of the Constitution can, I’d suggest, be circumvented entirely by a proper reading of section 81 of the Constitution, and indeed of predecessor legislation such as section 13 of the Interpretation Act 33 of 1957.

It would seem self-evident that on a proper reading of section 81 of the Constitution, the phrase “takes effect” should be read as “it takes effect” where “it” refers to the specific Act brought into being by the President’s signature of the Bill; and that “it” and “the Act” must be read as “the Act itself” and not some other Tom Dick or Harry of an Act.

This is the only interpretation I can think of which would avoid the misinterpretation and abuse of section 81 of the Constitution that has allowed for the emergence of a large body of unruly law, which has self-evident potential for abuse.

In addition, I think section 81 of the Constitution should be read heavily in the light of the reference to the rule of law in section 1 of the Constitution, and section 237 of the Constitution which requires that diligence on the part of functionaries in performing their duties to lessen the likelihood of abuse of administrative powers under section 81 of the Constitution.

Finally

Former Chief Justice of the Constitutional Court Arthur Chaskalson once indicated that the battle against apartheid was a battle that had to be fought at the level of procedure. That is unfortunately the battle that must be fought in relation to unruly law, which is the stuff of which dictatorships, mafia and failed States are made.

© Copyright Rita Felgate, 2013

 

Commencement conundrums of Act 29 of 1999

October 16th, 2013

TL;DR: The failure to understand the commencement rule in section 81 of the Constitution of the Republic of South Africa, 1996, puts the rule of law at risk at its most fundamental level, is demonstrated by teasing apart the fantastical commencement provisions in section 49 of Act 29 of 1999.

Unpacking the fantastical commencement provisions in section 49 of Act 29 of 1999

I can only guess that the drafters of the commencement section 49 of the Public Finance Management Amendment Act 29 of 1999 – and indeed probably all who followed them through the drafting, promulgation and implementation processes related to the Act and Act 1 of 1999 which it amends – found the commencement rule in section 81 of the Constitution of the Republic of South Africa Act, 1996 (“the Constitution”) extremely difficult to understand.

Here’s what section 49 of Act 29 of 1999 says: “This Act is called the Public Finance Management Amendment Act, 1999, and its Provisions take effect on the date on which the provisions of the principal Act amended by the provisions of this Act, take effect.”.

Unpacked, what section 49 of Act 29 of 1999 actually says is, that as the amending Act it commences on the date on which the provisions it amends in the amended Act  of 1999 take effect, which was as you will see is a complicated way of saying nothing at all.

Given that the commencement rule regarding Acts, which is contained in section 81 of the Constitution, states that an Act “…takes effect when published or on a date determined in terms of the Act.”, it is possible that section 49 does nothing more that restate the commencement rule (with some extrapolation), rather than apply the rule.

Is section 49 of Act 29 of 1999 even a commencement provision under rule in section 81 of the Constitution?

From section 49 of Act 29 of 1999, as unpacked, it is clear that it in fact offers no information at all that would allow us to identify a commencement date.

As a commencement provision, therefore, it certainly does not measure up to the requirement in the commencement rule, that it provide us with either the date or way to determine the date of commencement of Act 29 of 1999.

If section 49 of Act 29 of 1999 fails to measure up section 81 of the Constitution, is it unconstitutional?

In my opinion, section 49 skirts unconstitutionality because, although its commencement provision has nugatory effect, the rule in section 81 of the Constitution steps in anyway and saves the day by stating that, absent a valid commencement provision, Act 29 of 1999 commences on its date of publication.

Others may well hold a different opinion, such as that it was clearly the intention of the legislature to provide a commencement provision for Act 29 of 1999 and therefore we must thumb-suck the date of commencement which the legislature had in mind and use that as the date of commencement. Or, that given the apparent failure of the legislature to appreciate the rule in section 81 of the Constitution, section 49 must be regarded as unconstitutional and sent back for amendment.

Misconceptions the source of such commencement conundrums

Over the last decade of researching the rule in section 81 of the Constitution and its application and misapplication in relation to commencing Acts, I’ve come across every conceivable kind of muddled thinking and misconception possible.

A common misconception is that if an amending Act amends an amended Act in a section that has not yet commenced, then commencing that amending Act somehow commences the uncommenced section of the amended Act. Another is that an amending Act is somehow perceived to be part of the amended Act rather than an Act in its own right and that, therefore, it is the amended Act that must be commenced under the rule in section 81. Yet another misconceptions revolve around the failure to understand that when an amended Act commences in terms of its own rather than the amending Act’s commencement provisions, it does not in the same breath commence the amending Act, but only itself as it stands in its amended version.

Where these misconceptions exist – as I suspect was the case in relation to section 49 of Act 29 of 1999 – fantastically structured commencement provisions are necessary to getting around the impasse they create in complying with the rule in section 81 of the Constitution.

Prejudice to the rule of law

Section 49 of Act 29 of 1999 is just one example of  a widespread failure to either understand and apply the commencement rule of section 81 of the Constitution, or to to be bothered with its requirements.

This has resulted in numerous unconstitutional commencement provisions, and unconstitutional commencement proclamation and notices, that affect the status of South African legislation as applicable law.

There appears to be little recognition of this problem and, in practice, much of South African legislation exists in the unconstitutional limbo of either being effectively uncommenced but implemented, or implemented but effectively uncommenced, and the resultant legal quagmire that emerges from this has largely goes unnoticed.

Even where the widespread failure to properly commence Act is recognized, it seems to be there is a real lack of analytical skills necessary to properly dissecting the problem, to argue such matters on a legal basis, and to place the problem within the context of a failing rule of law in South Africa.

As a result there are very few clear legal precedents to guide the legislature, administrative functionaries, legal and other sectors and the public on the commencement of legislation.

That this situation has arisen paints a dismal picture of incompetence and ignorance (deliberate or otherwise) of the commencement rule in section 81 of the Constitution on the part not only of the drafters of legislation, but of everyone in the chain of a Bill becoming an Act and everyone in the chain of administrations and functionaries, legal practitioners and judges, academics and the public who are involved in implementing the Act, which has tremendous bearing on the crumbling state of the rule of law in South Africa, now and into the future, and all that brings.

This makes teasing out commencement conundrums like those in section 49 of Act 29 of 1999 an important part of the process of developing a understanding of the commencement rule in section 81 of the Constitution, and the import of that to the rule of law in South Africa.

 

Drafting breakable law

October 15th, 2013

The art of drafting the impossible

Section 8 of the National Health Amendment Act 12 of 2013 requires that the words “Office of Health Standards Compliance” be inserted after the words “Nelson Mandela Museum, Umtata” in Part A of Schedule 3 of the Public Finance Management Act 1 of 1999. (For your information, just for orientation purposes, Schedule 3 of Act 1 of 1999 is entitled “National Public Entities” and its Part A is entitled “Other public entities”.)

Trouble is, the Public Finance Management Act 1 of 1999 has nary a mention of the “Nelson Mandela Museum, Umtata”, let alone in Part A of it’s Schedule 3.

So, how are we to insert the words “Office of Health Standards Compliance” after the words “Nelson Mandela Museum, Umtata”, when those locator words do not exist?

Do we just push the words “Office of Health Standards Compliance” in anywhere under Part A? Do we pretend that section 8 of Act 12 of 2013 instructs us to insert not only the words “Office of Health Standards Compliance” but the words “Nelson Mandela Museum, Umtata” too? Do we just refuse to include “Office of Health Standards Compliance” at all and say the instructions just could not be followed?

Drafting substantive confusion

Unfortunately, whether we just insert the words “Office of Health Standards Compliance”, or whether we insert the words “Nelson Mandela Museum, Umtata” too so that we can insert the words “Office of Health Standards Compliance” under them, or whether we refuse to follow the instructions at all – has dramatic effect on the substantive import of Act 1 of 1999 on those entites and whoever does business with them.

In fact, on reading Act 1 of 1999′s requirements regarding national public entities, I can just imagine the opportunities for fraud and corruption that would arise if we suddenly started portraying “Nelson Mandela Museum, Umtata” as having been included in Act 1 of 1999 all along, or even if we start portraying those words as having been contained in Act 1 of 1999 from its date of amendment by section 8 of Act 12 of 2013. And, ditto, whether the words “Office of Health Standards Compliance” are or are not included in Act 1 of 1999.

Analysis of the substantive import of Act 1 of 1999 to the Nelson Mandela Museum, Umtata, and the Office of Health Standards Compliance should these entities be potential transgressors of that Act, or not, is well beyond the ambit of this blog, but would be readily apparent to anyone who knows anything about Act 1 of 1999.

Given that, I for one will certainly not be carrying out any amendments to Act 1 of 1999 by Act 12 of 2013. Instead I’ll just place a note in the relevant texts as about the problem, requesting that people read my Commentary on the matter.

I see that Sabinet has gone the whole hog the other way, and inserted the words “Nelson Mandela Museum, Umtata” under Part A of Schedule 3 of Act 1 of 1999, and then has hung the words “Office of Health Standards Compliance” off that.

Simply, its about undermining the rule of law

Wading through conundrums about exactly what the letter of the law is, when it started and ended, who it applies to, and for what – always seems to generate a massive impatience and boredom.

If this is how you are feeling right now but are still here, there’s a summary of the import of the current conundrum:

A basic principle under the rule of law, is that the law must be made known before we can be assumed to know the law, and all the corollaries that flow from that.

If the law is not properly made known, then the law as improperly made known can be taken variously as either this, or that, or neither version and – the principle that the law must be made known having been failed – the presumption that we all know the law becomes rebuttable.

What is done in terms of such “law” become either this activity, or that activity, or neither activity, as the case may be depending on ones interpretation of the law, and nothing can be done about it at all.

And so it is now – in relation to the Nelson Mandela Museum, Umtata and the Office of Health Standards Compliance, anything goes in under the now blurry Public Finance Management Act 1 of 1999.

The consequence?

While I say pity that the art of legislation drafting becomes more and more the drafting of grey law, others rub their palms together in expectation of what grey law brings.

 

Disappearing Acts, and the rule of law

October 1st, 2013

Unpublished amending Acts and amended Acts

In general, publishers of legislation list amending Acts amongst their lists of Acts, but don’t publish their texts, or their Gazette publication details. Nor do they publish amended versions of Acts amended by amending Acts, until the amending Act is commenced.

By “amending Act”, I refer to Acts that satisfy all the requirements of an Act under the Constitution of the Republic of South Africa, 1996 (or a previous constitution, as the case may be) but which do nothing other than effect the publication of an amended Act by way of  an engrossing key and engrossing instructions in the amending Act, as to where and how the amended Act must be amended.

Burying amending Acts and their amendments alive

In general, it is the publishers’ versions of an Act, rather than its original Gazetted version, that is in daily use by the public, legal profession and otherwise. Likewise, it is the publishers’ versions of amended Acts that is taken as the gospel of the law.

Therefore, albeit it is an ideal that everyone should and must make sure they know the law, the effect of the publishers’ failure to make amending Acts accessible, and their failure to published amended versions of Acts until the amending Act is commenced is, in practice, this: That amending and amended law remain unknown and unknowable to the vast majority of South Africans, even specialists within the field of law itself, because they just do not go scrabbling around the indexes and innards of a year or two’s worth of Government Gazettes to find the amending Acts that are necessary to establishing what the text is for mended Acts, and so this dissipate from public perceptions and disappears from public view.

A case in point

The Immigration Amendment Act 3 of 2007 (which I bet you’ve never heard of) is a case in point. It amends the Immigration Act 13 of 2002 by making a number of very substantive amendments to that Act’s s1, s10, s10B, s11, s15, s19, s27, s28 and the headings of Schedule 1 and 2.

But, it has never been commenced.

Therefore, as of today Sabinet’s website lists Act 3 of 2007 as an Act under its list of 2007 Acts, but it does not provide us with the text of the Act, or any of its publication details, or even to the conglomerate of raw Gazette items amongst which, if we went hunting for the Act, we’d find it.

The Sabinet website also does not indicate that Act 13 of 2002 has been amended by Act 3 of 2007, whether at the top of its text for Act 13 of 2002 where it lists other amending Acts to Act 13 of 2002, or whether on its separate list of Acts that have amended Act 13 of 2002. Nor does is the text that it provides for Act 13 of 2002, amended by Act 3 of 2007, although it is amended by later Acts.

Wallah the disappearing Acts

As it stands, therefore, Act 3 of 2007 only exists on the Sabinet website somewhere in the jumble of raw Gazette items, and Act 13 of 2002 (as amended by Act 3 of 2007) along with all the changes it contains has, for all intents and purposes, gone from the law books.

The amendments by Act 3 of 2007 to Act 13 of 2002 are substantive and relate variously to definitions of “affiliate”, of “branch”, “subsidiary”; to an amendment of the definition of “depart or departure”; to provisions that an application for a temporary residence permit under s23 (Asylum transit permit) can be made and issued; that transit areas of South African ports of entry are excluded from places that non-citizens and non-residents may not travel through without a transit visa; that the Director-general may reduce of waive not only capitalisation requirements, but financial requirements too; that a foreigner can get an intra-company transfer work permit to work in SA for up to 4 years, instead of 2 years; that the spouse and dependent children of a person holding a retired person permit can also be issued with an appropriate permit under Act 13 of 2002; and what offenses convictions can be made in terms of, and more.

Absurd as it would see that such substantive changes in the law on such hot topics in South Africa as refugees and asylum seekers can somehow exit from not only the public eye, but from the legislature’s and other interested parties’ eyes too, there it is.

The modus operandi of publishers in relation to publishing of amending Acts and amended Acts

It is an oddity that, despite professing to be publishers of Acts, all major publishers of legislation in South Africa fail to publish amending Acts even although amending Acts are no less Acts than any other Act. It is another oddity that they all fail to publish Gazette publication details of amending Acts, despite the fact that they publish such details for non-amending Acts. Yet another oddity in the way publishers of legislation treat amending Acts, is that while they publish new unamended Act that are yet to commence, they do not publish new unamended Acts where those Acts are amending Acts.

At the heart of all these oddities in the way publishers of legislation treat amending Act, as opposed to other Acts, lies the question of whether an amending Act is an Act just like any other Act, in that it satisfies the Constitutional requirements of Acts, and contains instruction that must be obeyed.

Should we regard an amending Act as just another Act that one would expect publishers of legislation to treat in the same way as any other Act? Or, do amending Acts differ from other Acts, that require publishers of legislation to not publish them until they commence?

The only thing peculiar about amending Acts, that I can see, is that the instructions they contain are not as most believe instructions to anyone to amend an Act and how to do that, but are rather instructions as to what amendments it – the amending Act – makes to Acts it amends, and what the text of those amendments are.

In other words, it is the amending Act itself that creates and publishes the amended version of the amended Act. It is not publishers of legislation that, in following engrossing instructions contained in amending Acts, create amended Acts. All the amending Act does, is to lay down the letter of the law, as amended. All the publisher does, is make a composite whole of the amended Act, and not on the instruction of the amending Act.

Behind the modus operandi: self-serving interests of publishers of legislation

The reason for these oddities clearly lie in their effects which – given our de facto reliance on publishers of legislation to tell us what legislated law is, to the exclusion of just about every other source of legislation -  are this: We are left oblivious to or unable to easily obtain the content of amending Acts and confirmation that they have been signed into law, and in addition, therefore, we are left oblivious to or unable to easily obtain the contend of amended Acts.

While I’m absolutely sure that the objective of publishing houses in not publishing amending Acts, or amended Acts before the amending Act is has commenced, is not to make Acts inaccessible, the objective is probably the self-serving one of ensuring their hegemony over providing amended Acts by precluding access to amending Acts that would allow the content of amended Acts to be engrossed by every Tom, Dick or Harry.

The consequence of this is, that amending Acts and the amended version of the Acts they amend do, for all practical purposes – given our almost exclusive reliance on publishers of legislation for that content – disappear until the amending Act is commenced. Another consequence is that should an amending Act never commence, it and the amended version of Acts it amends disappear, ipso facto, for good, forever.

The smorgasbord effect

So, what is the fate of amending Acts that remain uncommenced year upon year, hidden from view like Act 3 of 2007? And, what is the fate of amended Acts lie Act 13 of 2002 (as amended by Act 3 of 2007)? What is the point being made here?

This is what happens to them: They all find their way onto a vast smorgasbord of likewise uncommenced legislation that the ruling party accumulates year after year, and from which it can pick and choose to commence or not commence, at its own convenience, for its own ends.

It is from this smorgasbord of uncommenced legislation, that the ruling party can, for example, at the drop of a hat (but in fact as and when the long rope given to the administration allows, or when most convenient to the ruling party’s own interests, or when most appose the interests of its acolytes, or patrons) commence Act 3 of 2007 (and hence Act 13 of 2002) at its own convenience and for its own ends.

It is from the same smorgasbord that that the ruling party can baulk the intentions of the legislature by never commencing amending Acts – and therefore any related amended Act – that, for whatever reason, the ruling party never want to see the light of day. Legislation in this category would include legislation that, despite not fit into the ruling party’s scheme of things at all, just had to be passed by the ruling-party dominated legislature as part of the smoke and mirrors game of international pressure, opposition party pressure, public expectations, and so on.

All that the ruling party has to do, to achieve that smorgasbord of uncommenced legislation from which it can circumvent the legislature and pick and choose for its own ends is – in circumstances where publishing houses do not publish uncommenced amending Acts and the amended Acts published by those amending Act – to keep silent on or balk at commencing the legislation, year after year, on any one or other of numerous always available excuses, for that legislation to fall away into the distant past, long forgotten.

Should pressure mount to drive the legislation into force, all it has to do is increase the smorgasbord by ensuring a further amending Act is passed which ignores the existence of the previous amending Act along with any amended Act it amends, leaving a real quagmire for publishing houses and others as to what the text of the law is or was intended to be. And then to fail to commenced that further amending Act, or to again amend the first amending Act and commence it in its second or so version. Or to produce a new Act which covers some of the same things as the original amending Act, and then partially commence that. And so on.

Lost? Unfortunately, so is the fabric of legislation in South Africa.

And behind it all, the self-serving interests of the ruling party

That this is and continues happening – that amending legislation and amended legislation is being buried alive by a compound of rather simple self-interests being played out in various power games between the legislature, the administration and the public, publishers of legislation and all the rest of us, is currently the rocky shore upon which the rule of law in South Africa is being dashed, and in respect of which the judiciary is also completely blinded by its failure to look beyond the four corners of the law as espoused by the main publishers of legislation in the country.

As one senior attorney from some famous law firm once said to me in this regard, “If I walk into court with a Butterworth under my arm, the judge will believe that is the law. Why should I  argue differently? It would just take my time!”

So, there you have it – the strange case of the disappearing Act 3 of 2007, and the disappearing Act 13 of 2002, and the interesting smorgasbord on the table of the ruling party, on which they along with numerous other uncommenced amending Acts and amended Acts have ended up.

 

Remember the rule of law, Pravin, the rule of law

July 23rd, 2013

I see the South African Minister of Finance, Pravin Gordhan, is putting together a tax review committee, ostensibly to tackle things like tax evasion through “profit shifting”, by looking at ways to overhauling the tax policy framework so that modern revenue streams generated by new types of economic activity can be caught in the tax dragnet.

Now, I’m pretty sure that “tax evasion” is not the correct term to have used because examples that were given of the kind of problems to be tackled seem to me to relate to tax avoidance, which is legal, rather than to tax evasion, which is illegal.

The erroneous thinking this seems to encapsulates is that, if the intention is to make what is currently legal tax avoidance illegal, then it is OK in the mean time to treat it as illegal and call it tax evasion rather than tax avoidance.

Pity the rule of law.

To my mind therefore, the primary and fundamental challenge to the committee’s success will, above all else, lie in whether it is able to redraw the line in the sand between tax evasion and tax avoidance that has become blurred, in a way that will allow that distinction to be made clearly and crisply.

Will the committee be able to achieve this?

A first glance at the who’s who of the committee members, and to my mind, I doubt it:

I see there’s someone who will just not be able to sort the wheat from the chaff because they don’t have the tools of logic, reason and rationality at their disposal. Then, there’s someone who can apparently use these tools but who is so academic as to make the result impractically and useless. Then, there’s someone really focused on growing what’s healthy on the theory that osmosis will do its work who will be accused of putting a nail in the coffin of every currently popular development model, whose starting points are where the most unhealthiness can be found. Then, there’s someone so confused as to the nature of the commercial beast that they happily pull the old mantra of “anti-avoidance is unethical therefore should be illegal therefore should be treated as illegal, no legislation required” hat on. Then there’s the someone with that other popular hat on, the morality one, who cannot get up from the on the floor position that government is for and by the people and therefore anyone who tries to interpret tax legislation at more than its (far from obvious) intended face value is immoral therefore must be treated as illegal, again no legislation required to deal with them. Then, there’s that inevitable someone whose audience is politicians, always politicians, who will be trimming the spare fat off every single idea and policy that committee members put forward, in order to carry out the balancing act politicians require before getting on board. Then lastly, there’s also that someone so firm in a “we can DO it” mode that they would be happy to try and sell any mugglewump package the tax review committee ends up with, to anyone. Oh, and then there’s Dennis Davis, who has to take all this by the throat and try and make something of nothing.

Sorry, I just don’t see anyone in this clump of people, who has or will be able to embrace the new and international world of finance and currency that has already taken firm root around the globe, and use the absolutely incredible opportunities these offer to South Africa to drive Africa into the future, from the front, by assisting in the development of the tax regime we need to do so.

In fact, I see in this sort of member mix (OK, maybe excluding the one that will focus on growing what is healthy, but then this attitude is wonderful for self-serving activity, so who knows what will transpire) all the fundamentals necessary for the basic principles of the rule of law in South Africa to be further seriously undermined, even at the starting blocks.

So, I’d imagine that killing the “it should be illegal, therefore it is illegal” mantra is the fundamental challenge to Davis in chairing this committee, and to do that, he’ll have to make sense of the muddied ideas in s1(c) of the SA Constitution. It should be interesting. If we ever get to see it.

 

Rambling on about retrospective legislation…

March 19th, 2013

New legislation and subordinate legislation that is made enforceable retrospectively was, I thought, an oddity – something that was really only permissible, in the exception, to cure such noble things as an unfair and unintended consequence of legislation that really could not have been foreseen.

I thought this, until I started to focus my research on outcomes of retrospective South African legislation at the national, provincial and local government level, and its subordinate texts (yes, a big job!).

One of the first things that struck me, on initial analysis, was how retrospective legislation was being used to cure stupid drafting mistakes that made a pig’s ass of the legislation and befouled a lot of the administrative action based on an interpretation of its gibberish.

Lets put that more politely, with the wisdom and hindsight that years of research into this has provided me: Retrospective legislation was being used to cure mistakes caused by a growing incompetency to properly drafting legislation, that frequently made it impossible to carry out administrative duties and function in terms of legislation.

Not only that, but what also struck me, was that legislation with such stupid mistakes and gibberish text was being pushed out with increasing frequency, and retrospective legislation was being increasingly regarded as the go-to cure for this. And along with this, a common opinion that the law was just a guide in the interim between the mistake and the correction.

My modus operandi was and is, that when I come across such issues (to use a word which a very senior judge once told me should not be in the vocabulary of an Advocate of the High Court of South Africa, and which I therefore always use very judiciously), I call and chat to the legal resources for the relevant department and its legal resources people, so I can check on what went wrong.

It was about this time that, during such conversation, I started to hear senior management’s view that the law was just a guide, when I began noticing floods of stupid mistakes and gibberish text being churned out as legislation, and when I began to see evidence in Gazette notices that administrative action was with increasing frequency not based on requirements of legislation – that I was told again and again that old apartheid-schooled legislation drafter had turned to Consultancy work rather than the coal face of drafting.

Then, over the next couple of years I noticed, increasingly, that the drafters of retrospective legislation seemed to be attempting to provide legislation that would, ex post facto, provide a secure legal footing to administrative action taken in the wild, as it were, outside of the four corners of any legislation, or despite legislation, or on a thumb-suck of what their functions and duties were under legislation.

This pointed to another whole realm of troubles which could be laid at the feet of officials who did not do what was required by legislation for whatever reason, whether it was because they did not do what they knew had to be done, were blissfully unaware of what legislation demanded of them, or just could not care two hoots about it all, anyway.

Retrospective legislation as a cure to administrative incompetency and failure to act as required under legislation, is the perfect tool for politicians who do not want to get egg on their faces, and for officials trying to escape the long drop: By making what one has failed to do a retrospective fait accompli, or it allows the pretence that one has done it all along.  Or, by making what one has not done retrospectively unnecessary to do, retrospective legislation can make it OK that one has not done it. Or, further (and worse in fact), it allows for the pretence that what was done illegally, was in retrospect, legally.

In sum, the use of retrospective legislation has increasingly become a tool of choice to hid incompetent drafting of legislation, an incompetent administration, and facilitated a disregard for the law, and in fact, provided a tool to legitimise illegal activity.

However, that is not the end of the problems caused by retrospective legislation. There is a whole realm more.

This being a ramble, an eye opener, about the issues raised by retrospective legislation, rather than a flogging of South Africa and South Africans, lets turn to a couple of examples from the international sphere to avoid the blinkers which our insight into the human level of our South African history brings us, which in a way makes all these things explicable, almost excusable.

There’s a classic case on retrospective legislation brewing in the UK at the moment. It revolves around the policy and administrative practice of putting job seekers to work at no pay, which a court has now declared illegal.

The risk to the fiscus, following the judgement, of multi-million pound claims for payment by many unpaid workers has triggering the urgent drafting of legislation that is to have retrospective effect, which is being rushed through specifically to prevent such claims.  See here.

This scenario, where policy and or practice on the part of the legislature or administration results in an illegality, is often resolved by pushing legislation through that has retrospective effect, designed to negate the consequences of that illegality. That’s what’s happening occurring currently in the UK in respect of unpaid workers.

In South Africa, a good example of this is the common tactic municipalities use to cure non-publication of their by-laws: If a by-law is not published, it is, under the Constitution, unenforceable. So, municipalities (and there are many of them) rush out and belatedly publish by-laws they neglected to publish, but make sure they have retrospective commencement dates.

Another example is one that has just played itself out in Israel. There, Asher Grunis was prohibited from being appointed President of the Supreme Court of Israel because he had less that 3 years left before mandatory retirement. The cure was to pass a law that removed that bar to appointment.  In this case, what the authorities wanted to do was illegal. Therefore, they just changed the law. Now, that’s OK as long as its to the good of the people as a whole. Its not a tool to be used to push through the will of a bevy of politicians when they realise their favourite candidate does not qualify.  See here.

What is common in such instances of retrospective legislation, is that the power to make or amend the rules by which we live, or the power to implement those rules or not, is turned not to the best good, but to protecting the interests of those who have or want to behave illegally, to the detriment of those suffer the consequence of the illegality, and to the detriment of the general good.

Retrospective legislation is but one of a myriad of tools that allow the legislature, or the administration, to act in their own interests either to shrug off the consequences of their illegal actions. Promulgation of legislation is another tool of the trade, prospectively making what is now illegal, legal in future, so that self-interested politician or administrative fat cat can realise their well-laid plans.

The wielding of legislative power to make or amend rules, or administrative power to impement the rules or not, all in ones own interest, rather than in the interest of those who would be subject to those rules and the common good, goes absolutely against the grain of the rule of law, and is in fact antithetical to it.

Oddly, however, there’s very little analysis of how this is, in practice achieved. Using the medium of this blog, I will, where I can contextualise this rambling about retrospective legislation with concrete examples and discussion of the details.

So, until then, over and out.

On finding jewels in rarified atmospheres…

March 12th, 2013

Its strange how it is only when one looks back that we realise a  journey we have taken has taken us into rarified atmospheres which very few others have experienced and can relate to.

Such a journey I have taken, in law, has been into the empirical analysis of legislative texts in order to identify the set of logical and rational principles underpinning the rule of law, and their measurements within a politico-legal jurisdiction.

However, early on in this journey I realised that I had begun to utilise concepts and a language that, although consisting of commonly used words in the field, were given a deeper meaning and complexity of relationship one to the other that derived from and was inherent in my subject matter, and that the import of what I’d come up with was difficult for others to grasp.

The result was, that the more I progressed along this journey into the rule of law as it relates to legislation, the more people I spoke to about my research looked exasperated, told me to stop banging on about this, or changed the subject.

Say, I told you that the new Tax Laws Amendment Act 22 of 2012 (aside from other things) commences legislation which is already commenced, un-lapses legislation that does not exist, and amends legislation already identically amended? You would, I’m pretty sure, understand the absurdities that I was banging on about. If you were legally trained, you may even try to remember that the Act may well have problems, in case a client walks through your door to whom it might matter.

However, what if  I told you that the Act also (amongst other things) provides us with two new versions of a particular section of an Act that it amends; that it provides us with different commencement dates for those different versions and parts of those versions; that it provides us with different factual tests of the circumstances in which and to whom those different versions must differentially be apply; and that its engrossing instructions result in the first amended version created being superceded immediately by the second amended version?

All simple words and concepts but, what of their import? To you, this is probably an exasperating mull of words in a blog about issues with some Act or the other. To me, it is a breathtakingly new jewel of an error in making legislation, that goes a fundamental step further in undermining the rule of law and the separation of powers, that has sent me scurrying through jurisprudence and case law so that I can explore whether my analysis is correct, how a court would likely treat it, what commentary to create on this issue and how to get the information to others for whom it has practical import.

The last is the focus of this blog: How to cross the divide and put what I’ve found on the table without loosing the audience? That’s what’s puzzling me right now. Any suggestions?

Developing a legal register without legal experts?

February 23rd, 2013

The other day, as a legal expert, I offered to take a technical expert in the environmental field through one or other of the posse of South African environmental Acts to demonstrate the difference in a legal register based on legal expertise, and one based on non-legal but technical and other expertise. Knowing the hegemony technical expertise have, over legal experts, in the field of legal registers (yes, it is a contradiction isn’t it), I did so hesitantly.

The response was as expected – that they knew the relevant legislation inside out because they’d read it and read it, again and again, and knew every word and part of it inside out and knew and understood what it said, and had no problem with it and how to apply it.  It was the same response I get from most non-legal professionals and practical experts.

Of course, this reflects things exactly as they should be: Everyone is presumption to know the law, from the non-legal technical experts to the car-guard, so all you have to do is read the law thoroughly to know it, and Bob’s your Uncle, no legal expert is required.

However, here’s the basic and fundamental truth about South Africa today that time and again works against the presumption that we all know the law: Much of what we think of as South African law just does not, for one or other of a myriad of reasons, amount to law. Much of South African law is, again for a myriad of reasons, it is just not knowable law. And much of it is not capable of being applied, again for a myriad of reasond.

These all operate against the presumption that we all know the law and must bear the consequences should we not obey the law. I mean, what value the presumption when what you know as law is not law at all? And, how can you enforce law that is un-knowable because it was pushed in some official’s bottom draw instead of being published, or is just so much gibberish that no-one can understand it? How can you be presumed to know the law when to whom it applies is not made clear? How can you act in compliance of it when elements of its potential transgressions are not properly stated? And, why should anyone act in terms of a law with no consequences to disobeying it?

Unfortunately non-legal experts, acting on the presumption that everyone is expected to know the law, imagine that reading and rereading the law until they know it inside out and upside down, is enough. Well and good. However, they are absolutely unable to discern whether what is put before them is the law, or not. They are equally unable to evaluate whether or not it meets the standard of being knowable law, or not.  They are unable to develop and apply basic tests of whether or not they (or their clients) are potential transgressors of that law. Ditto in relation to developing potential transgression tests.  They have sparse regard to whether those laying down the law to them or their clients have the powers to do so, mainly because they have a fundamental lack of understanding of even the most basic legal concepts of administrative power, let alone the difference between assigned or delegated administrative powers, or duties, and instead depend on symbols of power such as a uniform, a badge, an official looking piece of paper, to decide whether someone has any power under law to enforce the law. They equally struggle terribly with the procedural and substantive content of the law  and in particular with how to deal with gibberish law, or missing content to the law (“Where’s the procedure to get a licence?” is a common refrain).

The real danger in avoiding legal experts, within a scenario where what purports to be the law is often not the law, and where what is the law is often so much gibberish that it is not what it seems to be, is this: “The law” becomes what everyone thinks it is. Or what they think it should be. Or what they think it is likely to be. It even becomes what the clerk at the government counter in Durban says it is. Or what the non-legal compliance expert says it is. Or the police at the road-block say it is.

It would seem too obvious for words to point to the gravity of a situation where the law is whatever Tom, Dick or Harry says it is.

Is there anyone out there who really needs an explanation of the problems that will inherently emerge from a situation in which companies can and must decide for themselves what the law is? Which allows powerful government officials to decide what the law is on a day to day basis? Whic allows counter workers at government departments to stand, hands deep in pockets, doing nothing other than laying down impossible requirements for fulfilling the requirements of the law (like “Fill in Form XXX but sorry I cannot give it to you because they have not been designed or printed yet)? Which allows very expensive technical expert to lay down the law and how to comply with the law, who insist the expenditure just must be made, and that her/his expensive involvement just must be ongoing?

OK OK now, I hear the screams of integrity coming from various companies, from powerful government officials, from government counter hacks and from technical experts but, really, aside from you out there who mean it, what of the rest? I even hear hurumphs of legal experts out there saying, “What rubbish, I’ve never come across this problem with the law! What is she going on about?”. To you, I say give me a call. No charge.  Strangely, recently, I’ve also begun to hear the screams of “Shut up, don’t let everyone know!” when I go on about this, from the set of people who have realised the gap between the law and reality and who have begun a feeding frenzy.

But sum, and at end, I have to point out that it is precisely this scenario wherein we all fail the rule of law, and the rule of law fails us.

Where does this all leave us? It leaves me with a hobby-horse I ride whenever I can. It leaves those with legal registers drawn up by non-legal experts at risk of transgressing legislation they don’t know exists, or at risk of expenditure against the risk of legislation that they need not worry about at all. It leaves all those with vested interests in being able to decide what the law is, and what powers they have, stone cold. Strange. That suddenly reminded me of what B.J. Voster said on Steve Biko’s death: “It leaves me cold”.

 

 

 

 

 

 

 

 

 

China: Compulsory loyalty oath by lawyers to the Party versus the Rule of Law?

April 8th, 2012

In China, a loyalty oath to The Party must now be taken by all new lawyers entering practice, and by lawyers renewing their licence to practice. Here’s one transation of the oath:

“I volunteer to become a practicing lawyer of the People’s Republic of China and promise to faithfully perform the sacred duties of a socialist-with-Chinese-characteristics legal worker (中国特色社会主义法律工作者); to be faithful to the motherland and the people; to uphold the leadership of the Chinese Communist Party and the socialist system; to safeguard the dignity of the constitution and the law; to practice on behalf of the people; to be diligent, professional honest, and corruption-free; to protect the legitimate rights and interests of clients, the correct implementation of the law, and social fairness and justice; and diligently strive for the cause of socialism with Chinese characteristics!”

The need to juxtape this with China having just completed the task of reducing its laws to a compendium, with the stated intention of instituting “the rule of law”, will be obvious to those who are concerned with either the rule of law or the position of the legal profession in the scheme of things.

Yet, how do we even begin to juxtapose what is clearly the subjugation of the legal fraternity in China to the State, with China’s stated intention to institute the rule of law, in a day and age where, although the importance and the perview of “the rule of law” is recognised across the board, there is no proper definitions of the concept or its subject matter, and where every Tom, Dick and Harry of a philosopher, politician and other, utilizes the concept differently, so that anyone entering the debate cannot be sure they are on the same page, let alone even on facing pages, as anyone else.

As long as there is no agreement about fundamental questions about the rule of law, consideration of anything – such as the import of the above loyalty pledge lawyers are now required to make in China to the rule of law – can only become more grist for casuistic pontification that will lead us tangentally away from each other.

It is nigh time that the concept of the rule of law be given heuristic value by its proper definition. Things are going down in the modern world, not only China, that makes this endeavour well overdue.

Education laws amendments by Act 15 of 2011

September 25th, 2011

What’s changed with Act 15 of 2011?

A tranche of education-related Acts (the National Education Policy Act 27 of 1996, SA Schools Act 84 of 1996, Employment of Educators Act 76 of 1998, SA Council for Educators Act 31 of 2000 and General and Further Education and Training Quality Assurance Act 58 of 2001) amended are now more focused on school education and are more in the hands of the Department of Basic Education.

Under various amendments the Minister and the Department become those of Basic Education, and students become learners.

Under Act 27 of 1996, the definition of parent is now extended, and the Minister has to consult the Minister of Finance in prescribing minimum uniform norms and standards.

Under Act 84 of 1996, there’s a new definition of loan which a school is liabile to pay unless the payment is to staff appointed by the governing body ito s20(4) and (4);  the Minister must consult the Minister of Finance in prescribing minimum uniform norms and standards; the governing body must ensure no unfair discrimination in offering any of the official language as a subject or in the level offered; a provision for determining sanctions imposed on an expelled learner after an appeal by that learner is upheld (pretty peculiar provision, if you ask me, but maybe I’m missing something), there is an extended definition of public school to include those that that focus on talent (ala ye old USA sports academies?), the principal must be much more involved in finances of the school and issues of maladministration and mismanagement; norms and standards regarding norms and standards for school funding (aha!), governing body training, prohibition of political activities during school-time, governing body powers regarding school immovable property, the identification of further public schools and fee and funding provisions regarding these, a limitation for State liability to “delictual or contractual damage” rather than “damage”.

Under Act 76 of 1998, the Minister and Department become those of Basic Education, and focus is on public schools.

Under Act 31 of 2000, provision is made for continuing professional development of educators and for money appropriations from Parliament

Under Act 58 of 2001 the Department of Basic Education and the Department of Higher Education and Training is defined and their Directors-generals and Ministers are distinguished.