The Engrosser, the Magician…

What is an engrosser?

An engrosser is one who creates amended versions of legislation, a task that is becoming more and more uncomfortable given the quality of text in South African legislation.

Engrossing used to be a clerk’s job…

The simple fact is that amending an Act should be a matter of carrying out easy to understand instructions in the amending Act. It is a process that should not amount to making law or deciding what the intention of the legislature was. The instructions in the amending legislation should be so easily understood that a clerk with an eye for detail can accurately carry them out. After all, each of us is expected to know the law even as amended, and therefore any reasonable person should be able to put two and two together and come up with an amended version of an Act.

The engrosser should not have to refer to any fact or set of facts outside of the amending Act or the Act to be amended, in order to carry out his or her task. He or she should certainly not be expected to exercise a discretion. And in order to finalise engrossed text, he or she should especially not have to refer to the discretion of a third party who forms an opinion, who exercises a discretion, or worse, is yet to form an opinion or exercise a discretion.

However, engrossers of legislation are continually being put in a position of having to exercise their discretion in order to engross legislation. In exercising discretion they have to guess the intention of the legislature, and where they do so wrongly, they end up making law.

Unfortunately, the consumers of engrossed text assume that engrossed text is the letter of the law. And that this is so is a promise that engrossers are very tempted to make. However, it is a promise that is, more often that people realise, impossible to keep, because with fair regularity, it is impossible to amend the text of legislation.

Engrossing instructions in Section 7 of the Choice on Termination of Pregnancy Amendment Act, 1 of 2008

The text of section 7 of the Choice on Termination of Pregnancy Amendment Act, 1 of 2008 reflects a number of typical problems faced by engrossers when amending text of legislation, and demonstrates the possible substantive issues in defining what the law as amended actually says. It reads as follows:

“7. Substitution of certain expression in Act 92 of 1996

The principal Act is hereby amended by the substitution for the expression “registered midwife”, wherever it appears, of the expression “registered midwife or registered nurse”, except in the circumstances contemplated in section 2(1)(c).”

This is an instruction to amend the text “registered midwife” to read “registered midwife or registered nurse”, unless circumstances contemplated in s2(1)(c) exist. The Choice on Termination of Pregnancy Amendment Act, No. 1 of 2008 thus, seemingly elegantly and simply, amends the Choice on Termination of Pregnancy Act, 92 of 1996 by inter alia allowing registered nurses to perform abortions in some circumstances.

For the engrosser, however, these seemingly elegant and simple instructions are hugely difficulty to carry out, requiring him to exercise discretions and make decisions that result in substantive changes to legislation, without any certainty that the changes made are changes which the legislature intended.

Unpacking engrossing instructions

A certain amount of unpacking of the above instruction is necessary in order to ascertain what is expected of the engrosser in producing a final amended version of Act 92 of 1996. Remember that all of this goes on well behind the scenes and that, unless you are using a website devoted to exposing the machinations of the engrosser and the effect of terrible wording in Acts, you will be presented with clear-cut wording of Act 92 of 1996, as amended by Act 1 of 2008.

Unbundling the amendment instructions of section 7 of Act 1 of 2008, it would appear that the engrosser must first find out what “section 2(1)(c)” states. He or she must then identify the exact facts which define the “circumstances contemplated” in that s2(1)(c). Following which, he or she must in respect of each instance of “registered midwife” in the text of Act 92 of 1996, decide whether those facts apply. If they do not, the engrosser must amend the text “registered midwife” to “registered midwife or registered nurse”.

So, what are the issues here?

Firstly, the instruction in section 7 of Act 1 of 2008 provides that the engrosser exercise a discretion in deciding whether or not particular circumstances apply before amending the text of Act 92 of 1996. The first lesson the legislature should learn is never invoke the engrosser’s discretion in making amendments to legislation. Instead, the amending legislation should always make sure that the instructions are completely clear and unequivocal, and leave no room for discretion at all. If any particular amendment may or may not be made it is the facts, not the exercise of discretion, that should determine whether or not the engrosser makes the amendment.

Secondly, the engrosser must in this instance exercise that discretion by referring to a “section 2(1)(c)” in order to discover the circumstances where he or she should not amend Act 92 of 1996. However, no “section 2(1)(c)” can be found in the amending Act. It does not contain such a section. So, once again the engrosser must exercise his or discretion in deciding to which Act “section 2(1)(c)” refers. Many South African Acts contain a section 2(1)(c), and many of these contain text which might be considered a reference to “circumstances”. However, making a guess of it, the engrosser will probable decide that the Act to be amended, Act 92 of 1996, has a section 2(1)(c), and additionally that it seems to refer to someone exercising an opinion, and an obvious thought is that perhaps whether or not that person has formed an opinion or not, may be the “circumstances” to which s7 of Act 1 of 2008 refers him and to which he or she must defer in deciding whether or not to which the wording of Act 92 of 1996 should be amended.

Third, and assuming that the engrosser has decided that the Act to which “section 2(1)(c)” relates is probably the Act being amended (Act No. 92 of 1996), the engrosser will read the text of s2(1)(c) of Act 92 of 1996 in order to identify the exact fact or set of facts which would indicate the presence of the “circumstances contemplated” in that s2(1)(c).

Whether that fact or set of facts is present or not will determine whether or not, in each instance of the occurrence of the text “registered midwife”, the engrosser should amend the text “registered midwife” to “registered midwife or registered nurse”.

Section 2(1)(c) of Act 92 of 1996 provides that a pregnancy may be terminated “…after the 20th week of the gestation period if a medical practitioner, after consultation with another medical practitioner or a registered midwife, is of the opinion that the continued pregnancy (i) would endanger the woman’s life; (ii) would result in a severe malformation of the foetus; or (iii) would pose a risk of injury to the foetus.

It is critical that the engrosser identify a fact or set of fact upon which to base his or her decision as to whether or not to amend text.

What fact, or set of facts, can be identified in s2(1)(c) of Act 92 of 1996 that relate to “circumstances contemplated” in that s2(1)(c), and how does the engrosser relate or apply that fact or set of facts to each particular instance of text “registered midwife”, in order to make a proper decision as to whether or not to amend each occurrence of text “registered midwife” to “registered midwife or registered nurse”?

Section 2(1)(c) of Act 92 of 1996 appears to contain a set or facts, rather than a single fact, the presence of which would indicate that the “circumstances contemplated” by that section exist. Although another may reach a different conclusion (and that is part of the problem) the set of facts appears to be:

– a pregnancy the gestation of which is after the 20th week

– a medical practitioner’s opinion properly formed in terms of s2(1)(c) of Act 92 of 1996

– the occurrence of consultation prior to the formation of that opinion between the medical practitioner and either another medical practitioner, or a registered midwife, or (if the amendment contained in s7 of Act 1 of 2008 is effected to s2(1)(c) of Act 92 of 1996) a registered nurse.

Assume for the moment that the above set of facts is identified by a particular engrosser as the facts which would determine whether or not the circumstances contemplated in s2(1)(c) exist, and therefore to determine whether or not in each instance to amend the text “registered midwife” in Act 92 of 1996 to “registered midwife or registered nurse”. Practically, if the set of facts is present in relation to the text to be altered, then the engrosser must not alter the text “registered midwife” to “registered midwife or registered nurse”. If the set of facts is not present, then the engrosser must alter the text “registered midwife” to “registered midwife or registered nurse”.

The crux of the problem is, that although the engrosser can determine the facts upon which to base his decision to amend or not amend the text “registered midwife” in Act 92 of 1996, he cannot determine whether those facts apply to any particular instance in which the words “registered midwife” occurs in Act 92 of 1996. How does the engrosser know if the set of facts is present, or not, in relation to each occurrence of “registered midwife” in the text of Act 92 of 1992?

For example, section 1 of Act 92 of 1996 contains the text “registered midwife” in its definition of registered midwife. Should the engrosser change this to “registered midwife or registered nurse”, or not? If the factual circumstances contemplated in s2(1)(c) as referred to by section 7 of Act 1 of 2008 exist, of a pregnancy the gestation of which is after the 20th week, of a medical practitioner who has formed a proper opinion in terms of s2(1)(c) of Act 92 of 1996, and of the occurrence of consultation prior to the formation of that opinion between the medical practitioner and either another medical practitioner, or a registered midwife, or (if the amendment contained in s7 of Act 1 of 2008 is effected to s2(1)(c) of Act 92 of 1996) a registered nurse, then the engrosser should alter the text of section 1 of Act 92 of 1996, so that the text “registered midwife” read “registered midwife or registered nurse”. In this way the definition of “registered midwife” could become the definition of “registered midwife or registered nurse”.

How can the engrosser possibly know whether the above set of facts exist, or not. Whether or not the pregnancy is over the 20th week gestation, whether or not a medical practitioner forms a proper opinion, and whether or not the medical practitioner has properly consulted are future facts of which the engrosser cannot be aware unless he is a magician. In short, it is impossible for the engrosser to amend the text of Act 92 of 1996 as per the instructions contained in section 7 of Act 1 of 2008.

Imagine that the engrosser does decide to amend a specific instance of text “registered midwife” to “registered midwife or registered nurse” in Act 92 of 1996.

The first instance in Act 92 of 1996 of “registered midwife” is to be found in the famously anonymous “section 2(1)(c)”. There is nothing in the instructing section 7 of Act 1 of 2008 to say that this section, even although it is the one which “contemplates circumstances”, is excluded from the application of its amendment instruction. The question of whether this text should be changed from “registered midwife” to “registered midwife or registered nurse” is a difficult one for the engrosser. Substantively it would seem not, but again, it is not the role of the engrosser to guess at substantive issues, and it is factual analysis not substantive considerations which must be considered in making the relevant engrossing decision. However, those facts upon which the engrosser must depend in deciding whether he or she is required to amend the text cannot be identified by the engrosser because they will only occur in the future. At the time of engrossing, the facts do not exist. Therefore, given that the instruction in section 7 of Act 1 of 2008 is cast in the negative, in that it requires that the amendment must be effected “except in the circumstances contemplated in section 2(1)(c)…”, the text of section 2(1)(c) of Act 92 of 1996 cannot be amended.

The next concrete example of the occurrence of the text “registered midwife” occurs in section 2(2) of Act 92 of 1996. Again, the question is simply one of whether or not a particular set of facts exists that precludes the engrosser from amending the text to “registered midwife or registered nurse”. Clearly, at the time of engrossing, the facts do not exist. That they may have existed in a particular instant in the past is neither here nor there. Therefore, given that the instruction in section 7 of Act 1 of 2008, cast in the negative, requires that the amendment must be effected “except in the circumstances contemplated in section 2(1)(c)…”, and given that the facts to be used in determining whether the circumstances exists can only occur iun the future, the text of section 2(1)(c) of Act 92 of 1996 cannot be amended.

At the time of engrossing, the facts which would preclude an amendment being made by the engrosser do not exist because they can only exist in the future. This can only result in a decision not to amend the text of Act 92 of 1996.

In the end, not one amendment to Act 92 of 1996 can logically be made, and although that is clearly not the intention of the legislature, the engrosser will search high and low but still not find a basis for amending even one instance of text reading “registered midwife” to text reading “registered midwife or registered nurse”.

The engrosser is left pondering whether he or she is right in assuming that the intention of the legislature was to not allow registered nurse to perform abortions in cases where gestation is over 20 weeks, and how he or she can possibly reflect that intention by making amendments to Act 92 of 1996, on the basis of the wording of s7 of Act No 1 of 2008.

Where to now?
For decades, engrossed legislation is as is found in the books of certain publishers, and armed with these tomes and the certainty that they reflect the law, we head to court to apply our gladiatorial skills, or we set out government policies, devise modus operandi for our businesses, and more. However, we need to think twice about our presumptions that the “law” on the page is the law.

Our research shows that although many amending Acts contain text which places too onerous a burden on the engrosser, there is a general lack of comprehension of both the problems faced by the engrosser, and the substantive problems that could well arise as a result of the engrosser’s exercise of discretion.

Different engrossers respond in different ways to these issues. LegalB‘s policy is first and foremost to follow engrossment instructions to the letter, comma and full stop. It has developed a unique system of reflecting engrossment issues, such as unmarked insertions and omissions. In addition, where there is doubt as to how to carry out an engrossment instruction, engrossed text is referenced to commentary on engrossing difficulties, substantive issues arising, and the response by relevant organs of state as to how they intend in practice to implement the legislation as amended.

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