Mind the gap

by Adv. Rita Felgate

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frequently, and is little acknowledged, and through this gap squeeze such things as the application and enforcement of unpublished by-laws, controversial applications, and secret law no-one knows about.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

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