TL;DR: The failure to understand the commencement rule in section 81 of the Constitution of the Republic of South Africa, 1996, puts the rule of law at risk at its most fundamental level, is demonstrated by teasing apart the fantastical commencement provisions in section 49 of Act 29 of 1999.
Unpacking the fantastical commencement provisions in section 49 of Act 29 of 1999
I can only guess that the drafters of the commencement section 49 of the Public Finance Management Amendment Act 29 of 1999 – and indeed probably all who followed them through the drafting, promulgation and implementation processes related to the Act and Act 1 of 1999 which it amends – found the commencement rule in section 81 of the Constitution of the Republic of South Africa Act, 1996 (“the Constitution”) extremely difficult to understand.
Here’s what section 49 of Act 29 of 1999 says: “This Act is called the Public Finance Management Amendment Act, 1999, and its Provisions take effect on the date on which the provisions of the principal Act amended by the provisions of this Act, take effect.”.
Unpacked, what section 49 of Act 29 of 1999 actually says is, that as the amending Act it commences on the date on which the provisions it amends in the amended Act of 1999 take effect, which was as you will see is a complicated way of saying nothing at all.
Given that the commencement rule regarding Acts, which is contained in section 81 of the Constitution, states that an Act “…takes effect when published or on a date determined in terms of the Act.”, it is possible that section 49 does nothing more that restate the commencement rule (with some extrapolation), rather than apply the rule.
Is section 49 of Act 29 of 1999 even a commencement provision under rule in section 81 of the Constitution?
From section 49 of Act 29 of 1999, as unpacked, it is clear that it in fact offers no information at all that would allow us to identify a commencement date.
As a commencement provision, therefore, it certainly does not measure up to the requirement in the commencement rule, that it provide us with either the date or way to determine the date of commencement of Act 29 of 1999.
If section 49 of Act 29 of 1999 fails to measure up section 81 of the Constitution, is it unconstitutional?
In my opinion, section 49 skirts unconstitutionality because, although its commencement provision has nugatory effect, the rule in section 81 of the Constitution steps in anyway and saves the day by stating that, absent a valid commencement provision, Act 29 of 1999 commences on its date of publication.
Others may well hold a different opinion, such as that it was clearly the intention of the legislature to provide a commencement provision for Act 29 of 1999 and therefore we must thumb-suck the date of commencement which the legislature had in mind and use that as the date of commencement. Or, that given the apparent failure of the legislature to appreciate the rule in section 81 of the Constitution, section 49 must be regarded as unconstitutional and sent back for amendment.
Misconceptions the source of such commencement conundrums
Over the last decade of researching the rule in section 81 of the Constitution and its application and misapplication in relation to commencing Acts, I’ve come across every conceivable kind of muddled thinking and misconception possible.
A common misconception is that if an amending Act amends an amended Act in a section that has not yet commenced, then commencing that amending Act somehow commences the uncommenced section of the amended Act. Another is that an amending Act is somehow perceived to be part of the amended Act rather than an Act in its own right and that, therefore, it is the amended Act that must be commenced under the rule in section 81. Yet another misconceptions revolve around the failure to understand that when an amended Act commences in terms of its own rather than the amending Act’s commencement provisions, it does not in the same breath commence the amending Act, but only itself as it stands in its amended version.
Where these misconceptions exist – as I suspect was the case in relation to section 49 of Act 29 of 1999 – fantastically structured commencement provisions are necessary to getting around the impasse they create in complying with the rule in section 81 of the Constitution.
Prejudice to the rule of law
Section 49 of Act 29 of 1999 is just one example of a widespread failure to either understand and apply the commencement rule of section 81 of the Constitution, or to to be bothered with its requirements.
This has resulted in numerous unconstitutional commencement provisions, and unconstitutional commencement proclamation and notices, that affect the status of South African legislation as applicable law.
There appears to be little recognition of this problem and, in practice, much of South African legislation exists in the unconstitutional limbo of either being effectively uncommenced but implemented, or implemented but effectively uncommenced, and the resultant legal quagmire that emerges from this has largely goes unnoticed.
Even where the widespread failure to properly commence Act is recognized, it seems to be there is a real lack of analytical skills necessary to properly dissecting the problem, to argue such matters on a legal basis, and to place the problem within the context of a failing rule of law in South Africa.
As a result there are very few clear legal precedents to guide the legislature, administrative functionaries, legal and other sectors and the public on the commencement of legislation.
That this situation has arisen paints a dismal picture of incompetence and ignorance (deliberate or otherwise) of the commencement rule in section 81 of the Constitution on the part not only of the drafters of legislation, but of everyone in the chain of a Bill becoming an Act and everyone in the chain of administrations and functionaries, legal practitioners and judges, academics and the public who are involved in implementing the Act, which has tremendous bearing on the crumbling state of the rule of law in South Africa, now and into the future, and all that brings.
This makes teasing out commencement conundrums like those in section 49 of Act 29 of 1999 an important part of the process of developing a understanding of the commencement rule in section 81 of the Constitution, and the import of that to the rule of law in South Africa.