Disappearing Acts, and the rule of law

Unpublished amending Acts and amended Acts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.


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