Legislative drafting: briefing by Office of the State Law Advisor

Meeting report

Legislative drafting

Ms Bongiwe Lufundo, Principal State Law Advisor, said she had been asked to take Members over the legislative figures and law-making tools. Although initially she had doubted what was expected of her because legislative drafting was a broad topic after deliberations with former legal advisors from the Committee, she had prepared a guiding document for Members to have a summary of how a Bill should be structured. She would use the Protection, Promotion, Development and Managements of Indigenous Knowledge Systems Bill as an example of the different legislative figures to be presented.

She explained that a Bill had a preliminary provision (definitions, application and purpose of Act), main provisions (the substantial matter), miscellaneous provisions (offences, penalties and regulations) and final provisions (saving and transitional provisions, repeals, short title and commencement, and schedules).

Then she proceeded with each section, starting with the long title which included the main objectives of the Act and a general description that guided the reader without requiring further reading. The long title also highlighted the main objectives of the legislation. Members were required to ensure that the content of the Bill was aligned with the objectives specified in the long title, otherwise the Committee would state a series of broad objectives, of which the achievements were not specified in the legislation.

The Chairperson requested that she refer to specific pages when explaining the different figures.

Ms Lufundo indicated the long title was located on page 2 of the Bill.

The objects of the Act could be found in clause 3, clarifying that when dealing with a Bill, Members would use clauses and when drafting a new Act, each part of the document would be classified as a section. Once again, these objectives and the body of the Bill should to be aligned with the purpose of achieving the desired goals.

The next important clause was clause 1, because it dealt with the concepts to be found in the document. The definitions, like the subsections/subclauses for each section/clause, were organized alphabetically. The importance of including a definitions section or clause was to highlight the necessary concepts, and concepts that could be subject to confusion. She stressed the importance of stating clear and simple definitions, reducing vagueness as much as possible, and if the definition was substantial it should rather be a dedicated section. She referred to the long title to exemplify that even when stating “protection, promotion… of indigenous knowledge,” it could be asked what indigenous knowledge was, and therefore it must be properly defined.

Ms Lufundo explained the main objectives of a Bill, in which substantial provisions should be arranged in logical order. It required plain language that was accurate and appropriate, taking into account its audience. A guideline for appropriate language was that it should include short sentences whenever possible, the use of present tense, thoughtful use of passive voice, clear sentence structure and ordinary vocabulary. She also referred to the use of gender, which should be kept neutral when possible (i.e. Chairperson instead of Chairman) and including both genders (she/he) when referring to individuals.

She incorporated in her explanation the use of may and must. The former would be used when giving power to an authority or individual and leaving this power to the discretion of the executor. An example was clause 20 of the Bill, where a user had the power of registering indigenous knowledge, but this was not mandatory. On certain occasions when may was used to give the Minister the power to create regulation, this discretion had been subject of debate. She then referred to clause 31 (b) to provide a clear example. The use of must determined a power that had to be executed when a specific action took place. The use of may, however, implied that regulation for the application of relevant procedures existed and could be implemented.  She recommended that the Committee should divide a Bill’s sections/clauses into two parts -- one for subsections that included mandatory terms, and one for discretionary actions.

The Chairperson asked if the use of may and must was found only during clauses regarding regulation and implementation.

Ms Lufundo answered affirmatively. She continued elaborating on the use of must, which she clarified implied obligation, and used clause 19 (1), where NIKSO’s obligation to keep a register was defined.

She also elaborated on the use of the word shall, which imposed an obligation and a future implication. The use of shall had been substituted for must when there was the intention of creating obligation, and she referred Members to clause 19 (2), where the use of shall needed to be amended. In clause 28 (2), the use of shall served as an example of future implications.

Members were told they would find regulations at the end of the drafted legislation. These provisions gave the Minister certain powers that were elaborated in detail. The legislation mainly delegated powers to the Minister through these provisions, and they must be aligned with the objectives of the legislation. The main purpose of the regulations and given provisions was to narrow and limit the powers of the Minister.

Lastly, once a regulation had been drafted and passed, it would automatically substitute the previous version of the Bill or existing legislation.

Discussion

A Member questioned the use of the words ‘shall’ and ‘must’ and the need for consistency with these words, as he believed they had been used interchangeably throughout the Bill. He then questioned the use of ‘must’ with regard to the payment of penalties. He suggested the use of ‘shall’ rather than ‘must’, as the charged individual would have the right to choose whether to pay or go to court.     

Mr C Mathale (ANC) had the same concerns, and also pointed out the importance of knowing why legislation was drafted in that particular manner. He appreciated the information being provided by the Office of the Chief State Law Advisor.

The Chairperson asked the extent to which a Bill could be amended and the role the Committee had in making these amendments -- whether the Committee had to present their suggested amendments to the Department, which then made the final decision.

Ms Lufundo said that the Bill was currently a Committee bill, and any amendments suggested by the Committee could be added to the A-list. However, the State Law Advisor would need to be present to clarify any misunderstanding and address any questions raised by Members.

Regarding the use of ‘may’ or ‘must’, she suggested the use of ‘must’ to remain consistent and avoid confusion. For example, with regard to Offenses and Penalties, clause 28, the legislation was creating an obligation for compliance, which was why she defended the use of ‘must’. Lastly, with regard to fines, she suggested rephrasing the bill to: ‘is guilty of an offence and shall be liable’.

The Chairperson then clarified that ‘shall’ was, and could be, used but in a limited capacity.

She advised the Committee that they would always consult the Parliamentary Legal Advisor throughout their interaction with the aforementioned bill. She also showed appreciation for the informative nature of the report presented by Ms Lufundo.

The Chairperson then went on to mention that she found it problematic that people referred to ‘The Constitution of the Republic of South Africa - Act 108 of 1996,’ as in her opinion the constitution was the supreme law and should be referred to as ‘The Constitution of the Republic of South Africa, 1996’.

Ms Lufundo clarified the reason for the omission of the Act number when referring to supreme law. She said that initially it was stated in full, but due to vast number of amendments that had been made it had become preferable to omit the Act number. This was the correct way to cite it.

Ms J Terblanche (DA) expressed her agreement with the Chairperson.

Mr Mathale said that the addition of the Act number was not incorrect, because in his opinion the constitution was an act, the supreme act.    

Ms Terblanche suggested the Committee stick to convention as discussed the previous day, and make use of the correct terminology.

Ms Lufundo assured the Chairperson of the correct terminology and offered to find the source of the change in terminology, i.e. the omission of the Act number.

The Chairperson thanked Ms Lufundo on behalf of the Committee for her efforts and contributions and excused her.

She then raised the issue of ‘desirability’.

The Secretary of the Committee said that according to a new rule introduced in May 2016, the issue of desirability must be considered by the Committee, bearing in mind the principle of the legislation. She said that the Committee had to provide an opinion on whether or not they believed it was desirable to explore the bill at the current stage.    

Dr A Lotriet (DA) expressed her support of the consideration of desirability and, in her opinion, thought a motion of desirability could be presented by the Committee, due to the need that had been expressed for the bill.

Mr Mathale seconded Dr Lotriet’s motion. He said that as a Committee, they would like to proceed.

The meeting was adjourned.