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

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

 

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