A tale of three bills and three lawmaking pitfalls

When the state is focused on executive governance by regulation, the craft of drafting good laws easily falls by the wayside. The making of three bills central to South African life dealing with land reform, police transformation and electoral reform illustrates the snags of lawmaking — from the unprecedented to the pedestrian and the troubled. 

The Unprecedented: Land Court Bill 

Presently before the State Law Advisers for certification, or the official endorsement that the bill indeed meets all criteria of being a bill, this draft law is breaking with 26 years of constitutional democratic practice — ditching departmental public consultations. 

It’s unprecedented to skip this step. 

Since 1994, departments have held public consultations on proposed draft laws to support participatory constitutional democracy, and to produce a better bill for Cabinet approval. Practically, departmental public consultations also test public views and can dodge curveballs in the parliamentary public hearings. 

Lawmaking traditionally is driven by the executive; less than a handful of Private Member’s bills and committee bills have passed. After Cabinet approval, ministers introduce bills to Parliament to pick up the process to adopt legislation that the president signs into law. 

That’s not happening with the Land Court Bill, which was approved by the inter-ministerial committee on land reform in late 2020 and then by Cabinet in late February 2021. 

Justice ministerial spokesperson Chrispin Phiri told Daily Maverick the process was appropriate as “substantially it is not a new bill”, but rather an amendment. 

“The Land Court Bill [overhauls] that land claims legislation. As a result, the consultation process that follows from that is with Parliament.” 

This view may not gain wide traction, given the draft Land Court Bill does more than ramp up the existing land reform and judicial restitution approach. Aside from restitution and reform, the new land court could mediate and arbitrate as does the Commission for Conciliation, Mediation and Arbitration in labour disputes. 

In a briefing on the bill on 1 March, Justice Minister Ronald Lamola said “(The bill) creates a policy frame to ensure that land reform is guided by sound legal and economic principles and contribute[s] to the country’s investment of objectives and job creation initiatives”. 

It is understood this bill would require consequential amendments of at least nine existing laws, including the Ingonyama Trust Act, the Extension of Security of Tenure Act and the Prevention of Illegal Evictions and Unlawful Occupation of Land Act. 

Justice committee chairperson Bulelani Magwanishe said he was unaware of the bill’s unusual process at present. “Once it gets to Parliament, we will deal with it… We will look at interested parties and such,” he told Daily Maverick. 

The Land Court Bill may be in Parliament by the time lawmakers return from the Easter recess in early May. That’s if the State Law Advisers certify the bill by the expected end of March 2021 deadline. And if they do that without the traditional departmental public consultation step, it may open the door to a different way of lawmaking.

The Pedestrian — SAPS Amendment Bill 

The first post-1994 review of policing had the potential of substantial qualitative reform. Instead, the bill deals more with entrenching ministerial powers and details more suited to regulation such as office and transport support to community policing forums. 

Pedestrian also is how this bill was steered by the Civilian Secretariat for Police Service (CSPS) along the usual course — from executive conceptualisation, including the 2016 white papers on policing and safety and security, a departmental public comment period, redrafting, resubmission to Cabinet for final approval and then tabling in Parliament.

Submission to the national legislature is expected on 31 August 2021 — 11 months after the bill was gazetted for public comment on 1 October 2020. Only then will the parliamentary legislative processes kick in, which on average take two years to approve bills. 

According to the ministry’s response to a request for comment, the public comments to the SAPS Amendment Bill would have been processed by the civilian secretariat by the end of February. 

From mid-April ministerial permission would allow a possibly redrafted bill to go through vetting by the directors-general and ministers of the justice, crime prevention and security (JCPS) cluster, effectively the police, soldiers, spooks and Home Affairs. 

The bill is expected to reach the JCPS Cabinet committee by 10 June 2021, and finally Cabinet by 23 June 2021. It is expected the Chief State Law Adviser would have certified it by 31 July 2021, ready for tabling a month later at the end of August 2021. 

“It is prudent to note that there are factors and dependencies on other role-players outside the CSPS which may influence the process, but the timelines indicated hereunder seem realistic at this stage,” said the ministry in written responses to Daily Maverick. 

Police committee chairperson Tina Joemat-Pettersson did not respond to a request for comment. 

At a committee meeting on 24 February, MPs were asked to submit their input to the civilian secretariat with the aim of minimising changes ahead of public hearings, according to the Parliamentary Monitoring Group (PMG) transcripts. 

The Troubled — An MIA electoral reform bill 

Nine months into the 24-month period the Constitutional Court set in June 2020 for a legislative overhaul of South Africa’s electoral system to include independent candidates, Home Affairs has yet to produce anything concrete in public. 

Since July 2020, Home Affairs Minister Aaron Motsoaledi told MPs his department was working on this. 

By November 2020, a policy, not a bill, had been drafted, according to Motsoaledi’s 9 February briefing to MPs, although this policy would come to Parliament only after Cabinet approval. That was expected in mid-March following February’s special meeting of JCPS ministers and the usual Cabinet processes, according to PMG transcripts of the 9 February committee discussions. 

Parliament would have to “make a giant leap” and decide on a new electoral system, said the minister, adding he had established a multi-disciplinary team to look at consequential amendments of other laws. That team would also “implement various proposals that may come along when the policy and a bill are being discussed”, according to the ministerial document to MPs on 9 February. 

On 3 March Motsoaledi announced an eight-strong task team of past and present electoral commissioners, academics and lawyers, with two vacancies to be filled by the finance minister and South African Law Reform Commission. No deadline was given for the work of this team that Motsoaledi said would “advise me as we work towards complying with the Constitutional Court judgment”. 

The Home Affairs ministry was approached on Monday for comment on the ministerial advisory committee and when, if at all, the minister intended tabling an electoral reform bill. 

Some 24 hours after the agreed to deadline for comment, Home Affairs *responded, however, without any clear timeframes.

The ministerial task team advising the minister would “contribute” to a Bill, and “be in place… until the amendment has been completed. The deadline, which was set by the Constitutional Court… is two years from June 2020”.

The Home Affairs written response added, “The minister will table the Bill in Parliament after receiving approval to do so from Cabinet… The minister is well aware of the urgency of this amendment. The task team has been established to work towards meeting this deadline.”

Fifteen months are left before the June 2022 Constitutional Court deadline to allow independent candidates to stand in provincial and national elections. 

But by talking policy, not bill, in the public domain, Motsoaledi seems to leave Parliament’s home affairs committee to pursue its own lawmaking. 

And that is an option Cope leader Mosiuoa Lekota has provided with his Private Member’s bill, the Electoral Laws Second Amendment Bill. It proposes a system based on 52 constituencies — like the District Development Model based on the eight metros and 44 district councils — with a proportional representation element. 

Lekota’s Private Member’s bill is being taken seriously by the committee and is seen as a means to bridge the gap of absent ministerial legislative action. If Parliament’s home affairs committee goes this route, it would be one of the few committee bills going through the legislative pipeline. 

The time pressure remains immense given the June 2022 Constitutional Court deadline. 

Home Affairs committee chairperson Bongani Bongo said the committee had applied to hold a two-day workshop from 16 March to discuss electoral amendment legislation, including financial implications. The reality was that at this point the committee had hoped to have a legislative draft before it. 

“I’ve made them (the ministry) aware we have to move with the speed of a mirage. I don’t want to be part of a process disrespecting the courts,” Bongo told Daily Maverick. “We have to take decisions on timeframes. If we don’t have a submission by the minister within a reasonable time, we have to move.” 

If that happens, it’ll be an assertion of parliamentary lawmaking to trump the traditional, executive-driven process. 

Lawmaking at the best of times is tricky. Lengthy processes at Cabinet with its collective focus put pressure on Parliament. Shortcuts on policy development in the executive also put pressure on the national legislature — and risk laws that come up for judicial review and declaration of invalidity. 

How these three bills on land reform, police transformation and electoral reform unfold will tell the story of South Africa’s constitutional democracy. For better or worse. DM

*  This article was updated at 13.50 pm on 10 March 2021, after Home Affairs submitted a response to queries from Daily Maverick.