Bills on the President’s desk

Feb. 28, 2020 (1 month, 1 week ago)

Does the President take too long to sign a bill into law? The ACDP’s Steve Swart seems to think so. In a recent National Assembly Programming Committee (NAPC) meeting he requested a list of legislation not yet signed by the President and pointed out that there were a number of Bills that were passed by Parliament months, and sometimes years, ago, but had still not been signed by the President. Swart said this was in fact a “veto” of this legislation by the President and suggested that Parliament institute some mechanism to intervene where the President does not assent to a Bill within reasonable time

The President takes his cue from Section 84 of the Constitution namely (2) [T]he President is responsible for - (a) assenting to and signing Bills; (b) referring a Bill back to the National Assembly or consideration of the Bill’s constitutionality (c) referring a Bill to the Constitutional Court for a decision on the Bill’s constitutionality. Section 79 of the Constitution states that once a Bill has been passed by Parliament the “President must either assent to or sign a Bill passed” by Parliament or, if the President has reservations about the constitutionality of the Bill, must refer it back to the National Assembly for reconsideration.

In reading of the above, effectively the President may only sign a Bill, return it back to Parliament or send it to the Constitutional Court if he/she is uncertain of the Bill’s constitutionality.

In practice, the President does not automatically sign a bill into law and applies his mind before doing so. When exercising this right, the President seeks counsel and considers submissions and petitions made to him. In some cases, this includes listening to concerns from beyond the country such as foreign governments and international bodies.

The big question though is what is a reasonable time to complete this task and can he simply let legislation gather dust in his in-tray?

In a brief on this matter, the Helen Suzman Foundation highlighted the argument of the Council for the Advancement of the South African Constitution (CASAC) that the President does not have the power to sit on a Bill. He must either sign it or send it back to Parliament if he thinks it is unconstitutional[1].

Constitutional law expert, Pierre de Vos, writes “[I]f, after reconsideration, a Bill fully accommodates the President’s reservations, the President must assent to and sign the Bill. If not, the President must either assent to and sign the Bill, or refer it to the Constitutional Court for a decision on its constitutionality[2]. “What the President cannot do is to refuse to sign the Bill at all. The President may also not unduly delay the signing of a Bill in order to delay the implementation of the Bill. He must either refer it back to the National Assembly because he is of the view that the Bill is unconstitutional, or he must sign it. This is because section 237 states that all “constitutional obligations must be performed diligently and without delay”.

HSF also clarifies that the President may only refuse to sign a Bill based on its constitutionality and not for any other reason. They use the Doctors for Life judgment to argue their case. blogeg Between 2006 – 2017, the President took an average of 59 calendar days to sign a Bill into law. Between 2014 – 2019, the average improved to 42 calendar days to sign a Bill.

What does this all mean and can we draw any conclusions? The numbers do not support the assertion that the President takes an inordinate amount of time to sign a Bill. As stated in the HSF brief, one cannot nail down what a reasonable time in which a Bill should be signed. It is best that the argument be made on a case by case, or Bill by Bill, basis.

With this in mind, the table below shows a worrying picture of Bills that have overlapped various administrations and Parliaments and where the delay is undoubtedly unreasonable.

Bills that the President has not yet signed [ranked in time order]

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