“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.

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.

The NATIONAL GAZETTES contain three notices of presidential assent to three new national amending Acts (Nos 12, 13 and 14 of 2011 which amend respectively refugee, immigration and state liability legislation). So, we know what the President has been doing. The week’s Gazettes also contain new CCMA guidelines for misconduct arbitrations, effective 2012/01/01. And regulations about the accreditation of the Second-hand Goods Dealers’ Association, and Microbial Standards in Foodstuffs (Note: the capitalisation is a thumb-suck on my part because all title are capitalised). And here’s an interesting notice: Declaration of traffic officers appointed in terms of s3A(1)(a) of the National Road Traffic Act 93 of 1996 as peace officers under the Criminal Procedure Act 51 of 1977 – seemingly indefinitely so, and for no specific purpose. More of the inevitable weekly notices about alterations of surnames and forenames – some done under the wrong section of the Births and Deaths Registration Act 51 of 1992 again (an ever-recurring problem).  Oh, and a notice of the change of name of “Caylon Corporate and Investment Bank” to the name “Credit Agricole Corporate and Investment Bank” wef 2011/04/20 (who was to know that, for the last almost 5 months?).  In addition, a couple of notices to do with the National Council of Societies for the Prevention of Cruelty to Animals, and on levies  on lucerne seed and lucerne hay. And (yes!) a notice introducing amendments to the National Building Regulations that introduce requirements for energy usage in buildings, effective 2 months from publication. Some further notices from ICASA on extensions to do with a seemingly endless list of acronyms. Also, new maximum national retail prices for illuminating paraffin, petroleum products and liquefied petroleum gas, which unusually just may not have been issued well after the date of commencement of those prices. And last (though only by way of press copy, not actually published Gazette) notice of a withdrawal of a notice about HIV & Aids Code of Good Practice and its replacement. And, yes, its all as vague as that.

What about all the government departments, institutions, and municipalities in our nine Provinces? What have they been up to?

Well, EASTERN CAPE missed publication of its Gazette containing liquor related notices – they only managed to publish a press copy of a liquor-related Gazette yet to be (not quite sure how that works in relation to deadlines set to comment, legally speaking). Oh, and another press copy of a Gazette to be was issued – stating that a supplementary valuation roll is ready for inspection, no municipality name provided in relation to the valuation roll, but I’d suggest assume its for Queenstown because it seems to have been issued by the Municipal Manager of Queenstown (although, given the number of officials acting outside their capacity, one can never be sure its not, say, a valuation roll for Timbuktu). There’s a deadline for comment on this notice, and whether you act on the press copy published of the Gazette to be, or wait for the official Gazette and maybe miss the deadline, is obviously your choice.

FREE STATE’s gazettes contain the usual gambling, transport and land related notices. And a notice on Nketoana Local Municipality’s tariffs on property rates (lets see, published 2011/09/09, but implemented when?), and draft road route regulations, 2010. Not sure whether to capitalise that as a title or not as,again, everything is always in capitals, so who’s to say?

GAUTENG has the usually land, land, land and more, land related notices. Usually there is some fun in finding and exclaiming on press copies of Gazettes still to be published that contain notices already over comment deadline, or on Gazettes published and distributed after comment period deadlines have expired. However, no time to chortle over these this week, so really boring achievement, Gauteng!

KWAZULU-NATAL reflects the ongoing obsession in municipalities around SA with juggling the number of full-time councillors or exco members (this time, for AbaQulusi and Umvoti Municipalities, and KwaDukuza). And hey there’s a notice with no title, apparently on Endumeni’s Council making By-laws related to offences, penalties and appeals effective from date of publication (which is vicariously interpreted not as the date on the cover of the Gazette, or the date the Gazette became available, or even the date the press copy of Gazette was issued, but as some wayback date of resolution by council or date starting the financial year).

LIMPOPO’s Polokwane seems to have done a very, very strange timing and amending thing with their tariffs for 2011/2012 which I’ll look at with interest if requested. Its only a press copy of a Gazette to be, so, murky waters all the way. Other than that? Only a notice (also in press copy form) of one road closure over a farm… Busy BUSY Limpopo this week.

Has MPUMALANGA done more than Limpopo? No, not really: It’s managed various land related notices in one Gazette, and various gambling related notices in a press copy of another (which are, believe it or not, haha, in terms of something called the Mpumalanga Gambling Board Act).

NORTHERN CAPE managed a press copy of a Gazette still to be published that will, it seems (when it is eventually published) contain already belated notices about a fait accompli merger between two schools, and tariffs for Thembelihle and Gamagara Municipalities which must have been in force for a while. Me thinks: Are those enforceable?

Lastly, NORTH WEST PROVINCE’s achievements for the week are summarised in two press copies of Gazettes yet to be published, containing land related notices, and draft regulations under their schools-related Act and the SA Schools Act 84 of 1996.

The week that was, as a local comedian puts it: Very little work done, and lots of loose ends.

Carl Sagan, The Demon-Haunted World, page 25

The Local Government: Municipal Systems Act, No. 32 of 2000 (as amended by the new Act 7 of 2011) has secret aspect to its life, stretching from 5th July 2011  until around the week ending Friday 26th July 2011.

Why?

In terms of Section 81 of The Constitution of the Republic of South Africa Act, 1996, 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.

As Act 7 of 2011 does not determine a date of its commencement, its date of commencement, and ipso facto the date of c0mmencement Act 32 of 2000 (as amended by Act 7 of 2011), is the date of publication of Act 7 of 2011.

The presumption is, that the date of publication of an Act is the date on the face of the Gazette within which the Act was published. Act 7 of 2011 was published in Gazette No. 34433 dated 5th July 2011. Therefore, the presumption is that Act 7 of 2011, and hence Act 32 of 2000 as amended by Act 7 of 2011,  commenced on 5th July 2011.

However, here’s a conundrum: Although Gazette No. 34433 was dated 5th July 2011, it was not made available until sometime during the week ending Friday 26th July 2011, around two or three weeks later. Mr and Mrs Ordinary would not have known of its existence until then.

We can draw one of two, tenable, conclusions: Either that Act 7 of 2011 (and hence Act 32 of 2000 as amended by it) must be regarded as having been commenced but secret between 5th July 2011 and the week ending 26th July 2011, or they were only commenced when published during the week ending Friday 26th July 2011 and all actions taken between 5th July 2011 and that date by anyone believing them to be commenced, were invalid.

Which option would you choose? Secret law? Or uncommenced law presumed commenced, making actions taken in terms of the law by those in “the know” of it invalid.

Frequently, a gap exists between the date printed on a Gazette and its date of publication, and/or its date of distribution.

That gap is a dangerous gap because, often, into this gap fall such things as the period provided for public participation and comment, or the commencement of legislation, or the supposed and timeous public knowledge of states of affairs that may affect them.

That gap occurs frequently, and is little acknowledged, and through this gap squeeze such things as the application and enforcement of unpublished by-laws, controversial applications, and secret law no-one knows about.

In the past, that gap was closed by the embargo of a Gazette’s availability until Friday of the week within which the Gazette was dated, on which Friday and weekend it was distributed to the Government counters and all over the country by postal services, so it could reach everyone on or around the very next business Monday. This ensured that we all received a chance to participate and respond timeously to the contents of the Gazettes, and had a proper chance to gain knowledge of affairs that related to us, on more or less the same day.

This “embargo until Friday” rule no longer exists. Gazettes are published on or sometime after the date reflected on their covers, if (in some cases) at all.

The fact that there is frequently a dangerous gap between the date printed on the Gazette, the date the Gazette is published, and/or the date it is distributed, is not common knowledge.

The existence of the gap is perhaps disguised by the issue of “press copies” of yet to be published Gazettes to a limited number of media outlets (such as the mainstream press, publishers, and some government departments) who then portray them as finally publish and distributed fait acompli’s, which they are not. The gap is further disguised by the continued presumption that the date published on the Gazette is the actual publication date, which ensures that the first thing anyone realising they missed a chance to respond to a Gazette’s content does is look at the date on Gazette 34444 (which is 2011/07/08) and then lament that it is they (or the post office, the courier) who must have erred – they will not see the structural gap which has systematically excluded their own and other public comment.

Take for instance Notice 458 in Gazette No. 34444 dated on its face 7 July 2011, which is entitled “Publication of Explanatory Summary of the Judges’ Remuneration and Conditions of Employment Amendment Bill, 2011″:

A press copy of the Gazette was issued by the Government Printer during the week ending Friday 2011/07/08. This press copy was published almost immediately by limited media outlets such as Sabinet, the www.gov.za website, and PMG, as if it was fait acompli published and distributed. However, Gazette No. 34444 with its Notice 458 was only distributed by the Government Printer to its subscribers during the week ending Friday 2011/07/22.

This left a two calendar week, or ten working day, gap between the date printed on Gazette No. 34444 (2011/07/07) and its date of publication (2011/07/22) – a period usually taken as an acceptable time period to allow someone issuing a notice to provide for public comment.

If I comment on the Bill today (Monday 2011/07/25) would anyone feel any obligation to take any account of my input at all? I doubt it. Do I feel my input would be taken account of? No. The effect of this delay in publication and distribution? The public may as well not have been given any time at all to respond to Notice 458.

So, what lies in the Gap 458, which we may well have missed?

Notice 458 advises us that the Minister of Justice and Constitutional Development intends “shortly” to introduce the Bill in the National Assembly (where our public representatives sit, who we could have consulted on the Bill) and carries a one paragraph explanatory summary that the Bill provides for the minimum period of active service as Chief Justice of South Africa and President of the Supreme Court of Appeal, and for matters connected therewith, and that we can find a copy of the Bill at some website or from Parliament after its introduction.

Now, the subject matter of the Bill is quite a hot topic at the moment, given the challenged (in more than one way) announcement of 3rd of June 2011 by President Zuma that he extended the term of Chief Justice Sandile Ngcobo by five years until August 2016, and (what I think is) the even more controversial acceptance by Chief Justice Sandile Ngcobo of that extension.

The newly published North West Animal Pound Act, No. 7 of 2010 refers in its section 6 to “an animal found trespassing on land”.

Can an animal trespass? I have to think about that! I thought it was only the owner of the animal that would be considered to be trespassing, and where there was no owner, there could be no trespass. Maybe animal rights and liabilities are further along that I thought

The wording, in context, is “Where an animal found trespassing on land or to be straying unattended on a public road or public place”, which makes everything even a little more confusing: Is an animal unattended on a public road or public place not capable of trespass? What? Re-read… Re-read. Legal quagmire ahead.