PREPARED FOR VOICES LEARNING EVENT BY IDASA

NOVEMBER 2012

Journey of the greens, whites and bills

Question 1

What is the difference between law and policy?

A policy outlines what a government ministry hopes to achieve and the methods and principles it will use to achieve them. It states the goals of the ministry. A policy document is not a law but it will often identify new laws needed to achieve its goals.

Laws set out standards, procedures and principles that must be followed. If a law is not followed, those responsible for breaking them can be prosecuted in court.

So, policy sets out the goals and planned activities of a ministry and department but it may be necessary to pass a law to enable government to put in place the necessary institutional and legal frameworks to achieve their aims. Laws must be guided by current government policy.

Question 2

Who does what under the separation of powers?

The executive implements policy and (usually) initiates and prepares legislation

The legislature passes legislation, acts as a space for participation, and oversees policy implementation

The judiciary administers justice through the courts

Question 3

What are the components of the legislative sphere in South Africa?

Parliament (National Assembly and the National Council of Provinces)

The 9 Provincial LegislaturesThe Municipal Councils

Question 4

What exactly is the NCOP and why does it matter?

The NCOP represents the interests of the provinces in the national sphere, that is in Parliament

10 delegates from each province, so 9o delegates in total

Question 5

What are green papers and white papers and draft Bills?

The process of making a law sometimes begins with a discussion document, called a Green Paper. This is drafted in the Ministry or department dealing with the particular issue in order to show the way that it is thinking on a particular policy. It is then published so that anyone who is interested can give comments, suggestions and ideas.

The Green Paper is sometimes followed by a more refined discussion document, called a White Paper, which is a broad statement of government policy. The White Paper is a statement of intent and a detailed policy plan which often forms the basis of legislation. It is debated and adopted by Parliament and approved by Cabinet.

A draft Bill is a proposed piece of legislation before it enters Parliament and the legislative process; once this happens it is simply a Bill

The draft bill process in more detail

The draft Bill goes to the relevant Cabinet committee for approval.

Once Cabinet has given its approval it may be released for public comment.

Once comment has been received, the department and ministry will make any changes they think are necessary as a result of public input.

The draft Bill goes to Cabinet to ensure that it has kept to agreed aims and principles and does not contradict any other policies.

The draft Bill is sent to the State legal advisors for legal approval.

The draft Bill is then tabled by the Minister in Parliament.

Question 6

Can only Ministers and / or government officials initiate legislation?

No

Bills can be initiated by Ministers, MECs, as well as individual MPs or MPLs (Private Members Bills)

Legislative Committees can also now initiate a Bill

Question 7

What are the 4 kinds of Bills described in Chapter 4 of the Constitution?

Ordinary Bills that do not affect the provinces (Section 75 bills)

Ordinary Bills that affect the provinces (Section 76 Bills)Money Bills (Section 77 Bills)Constitutional Amendments (Section 74 Bills)

The process of classifying a Bill into one of the four categories above is called "tagging" and will determine the procedures the Bill must follow to become law. Bills are tagged by the Joint Tagging Mechanism (JTM), a Committee consisting of the Speaker and the Deputy Speaker of the National Assembly and the Chairperson and Permanent Deputy Chairperson of the National Council of Provinces.

Question 8

Do all Bills follow the same legislative process to become law?

If only!

Ordinary Bills that do not affect the provinces

Can only be introduced in the National Assembly

First Reading (Minister introduces Bill)

Committee Debate and Submissions Committee Recommendation (Amend, Reject or Pass the Bill)

Second Reading (Debate and Vote)

Bill goes to NCOP whose members vote individually; the NCOP can reject a Bill and / or propose own amendments

Where NCOP rejects or proposed amendment, the National Assembly can but does not have to take this into account and can in effect ignore the NCOP

Ordinary Bills that affect the provinces

Can be introduced in National Assembly or NCOP but must be considered in both houses

Members of NCOP vote as 9 provincial delegations These Bills must be discussed by each provincial legislature so that each

legislature can give its NCOP delegation a voting mandate. This makes it necessary to have six-week legislative cycles so that a number of Bills can go to each province at one time.

Bills are usually considered by a provincial Committee, which may hold public hearings on the Bill to receive comments and suggestions. These Committees make recommendations to their legislatures, which then decide on their position on each Bill and mandate their NCOP delegation accordingly.

The NCOP must pass, amend or reject a section 76 Bill. If the Bill was introduced in the NA, however, the NA can override the NCOP decision with a two thirds majority of its Members

A Mediation Committee can make recommendations where no agreement between the two houses can be obtained

Money Bills

Money Bills allocate public money for a particular purpose or impose taxes, levies or duties.

They can only be introduced by the Minister of Finance and they must be introduced in the National Assembly.

They follow the same procedure as that for Bills that do not affect the provinces (Section 75 Bills).

Since 2009, Parliament can amend Money Bills (‘the budget’) but the Money Bills Amendment Procedure and Related Matters Act sets out a specific sequence of deliberations it must follow in doing so

Constitutional Amendments

A mendingthe Bill of Rights requires a vote of two-thirds of the membership of the National Assembly and the support of six provinces in the NCOP.

All constitutional amendments that affect the provinces must be passed by both Houses. Amendments which affect only certain provinces, must be passed by those provinces. Other amendments do not need to be passed by the NCOP but all amendments, whether or not they must be passed by the NCOP, must be submitted to the NCOP for public debate.

In addition, minimum times are laid down for different stages of the legislative process. All constitutional amendments must be published in the Government Gazette with a call for public comment at least 30 days before being introduced in Parliament. After the Bill which proposes amendments to the Constitution is tabled, 30 days must pass before it can be put to a vote in the National Assembly.

After Parliament…

A Bill that has been passed by both houses is referred to the President for his or her assent and signature at which point it becomes law (an Act of Parliament) and is published in the Government Gazette as well as a copy held by the Constitutional Court

Most Bills come into effect the day they are gazetted

Question 9

What happens if the President doesn’t like the Bill?

Doubts as to a Bill’s Constitutionality is the only valid ‘not liking’ criterium for the President

Can refer it back to Parliament: if his / her concerns are then met the Bill must be signed

If not, the Bill can be referred to the Constitutional Court: if the Court rules that the Bill is Constitutional it must be signed