06 July 2020

Bill Returned to Parliament by the President

None

President Ramaphosa recently returned four Bills to Parliament for reconsideration, namely: Performers’ Protection Amendment Bill (2016); Copyright Amendment Bill (2017); Protection of State Information Bill (2010); Liquor Products Amendment Bill (2016).

In his letters to the Speaker, the President expressed his misgivings about the constitutionality of the Bills and several other reservations. Notably, the Protection of State Information Bill was sent back after having laid on the President’s desk for seven years, following concerted pushbacks from various civil society organisations opposed to its signing.

Having a President withholding assent and remitting Bills back to Parliament is not a new occurrence. During the Zuma years, six Bills were also sent back for reconsideration. The table below shows the full record of Bills returned to Parliament since the advent of the democratic dispensation.

 

Bill

Bill No.

Returned

New Act No./ Note

Broadcasting Bill

[B94F-1998]

2 Feb 1999

Act 4 of 1999

Tobacco Products Control Amendment Bill

[B117H-1998]

2 Feb 1999

Act 12 of 1999

Liquor Bill

[B 131B-1998]

2 Feb 1999

President referred Bill to Constitutional Court on

9 March 1999 / Not proceeded with

Independent Communications Authority of South Africa Amendment Bill

[B32F-2005]

26 Apr 2006

Act 3 of 2006

Human Sciences Research Council Bill

[B16D-2007]

8 May 2008

Act 17 of 2008

Films and Publications Amendment Bill

[B27F-2006]

30 Jan 2009

Act 3 of 2009

Competition Amendment Bill

[B31D-2008]

30 Jan 2009

Act 1 of 2009

Broadcasting Amendment Bill

[B72B-2008]

10 Feb 2009

Act 4 of 2009

Intellectual Property Laws Amendment Bill

[B8B-2010]

26 Sept 2012

Act 28 of 2013

Protection of State Information Bill

[B6D-2010]

12 Sept 2013

 

Performing Animals Protection Amendment Bill

[B9B-2015]

16 Aug 2016

Passed again 22 Nov 2016

(assented to 18 Jan 2017)

Financial Intelligence Centre Amendment Bill

[B33B-2015]

30 Nov 2016

Act 1 of 2017

(assented to 26 April 2017)

Expropriation Bill

[B4-2015]

20 Feb 2017

NA rejected Bill - 4 Sept 2018

Mineral and Petroleum Resources Development Amendment Bill

[B15B-2013]

23 Jan 2015

Lapsed 7 May 2019

Protection of State Information Bill

[B6H-2010]

12 June 2020

 

Liquor Products A/B

[B10B-2016]

12 June 2020

 

Copyright Amendment Bill

[B13B-2017]

22 June 2020

 

Performers’ Protection Amendment Bill

[B24B-2016]

22 June 2020

 

 

Constitutional and legislative scheme

The Constitution confers the legislative power at the national sphere upon Parliament. In the exercise of this power, Parliament passes legislation which is introduced to it in the form of Bills. The Bill does not assume the status of a law until it has been assented to and signed by the President.

Section 79 of the Constitution introduces the President as a role player in the process of making legislation. The President’s role is activated only after Parliament has completed its functions and has presented the Bill to the President. Upon receipt of a Bill, there are two options open to him. He may assent to and sign the Bill, in which case a further step would follow. This is the prompt publication of a Bill which has been converted into an Act of Parliament following the assent to and signing by the President.

If the President has reservations about the constitutionality of the Bill, he may decline to assent to and sign it. In that event, the President must refer the Bill back to Parliament for reconsideration. To facilitate a proper reconsideration of the Bill, the President must specify the grounds on which his reservations are based. If, following reconsideration, the Bill addresses the President’s reservations he must assent to and sign it. The President is not precluded from signing a Bill even if his reservations were not all accommodated.

In addition, the President is empowered to refer a matter to the Constitutional Court for a final decision- in terms of section 79- if his reservations concerning the constitutionality of the Bill are not fully accommodated by Parliament. 

In South Africa, the President does not have the power to veto legislation that has been passed by Parliament and cannot indefinitely delay the signing of such legislation. One can make a compelling case that this latter principle has been breached in respect of Protection of State Information Bill (2010) and the Private Security Industry Regulation Amendment Bill (2012).

When considering legislation, the President seeks counsel and considers submissions and petitions made. In some cases, this includes listening to concerns from beyond the country such as foreign governments and international bodies.

In the US, a proposed law passed by Congress must be presented to the President, who then has 10 days to approve or disapprove it. The president signs bills he supports, making them law. He ‘vetoes’ a bill by returning it to the House in which it began, usually with a written note listing his reasons. Normally, Bills he neither signs nor vetoes within 10 days become law without his signature. A veto can be overridden by a two thirds majority in the Senate.

These mechanisms, to a larger extent, ensure that the executive, represented by the President, acts as a constitutional check on the legislative arm, represented by Parliament.

Reconsideration of Bills by Parliament: Step-By-Step Procedure

Parliament’s Joint Rules outline the procedures to be followed in reconsidering a Bill by the National Assembly and the participation of the National Council of Provinces in the process.

Joint Rule (203) stipulates that on receipt of a ‘remitted Bill’, the Speaker must refer the Bill and the President’s reservations to an NA committee. The committee must consider, and confine itself to the President’s reservations, and must confer with the corresponding NCOP committee if the reservations relate to a procedural matter that involves the NCOP.

Having considered the President’s reservations, the committee would then be expected to recommend in its report how any procedural defect can be corrected, if the reservations relate to a procedural matter; and present with its report an amended Bill correcting any constitutional defect in the substance of the Bill.

Notably, if the President’s reservations relate to substantive defects, the National Assembly could rescind its decision to pass the Bill and reject the piece of legislation, if it regards the Bill as being procedurally or substantively so defective that it cannot be corrected.

Following corrections of such defects in committees, the Bill would then be debated and a decision taken in plenary. If the National Assembly accommodates the President’s reservations and passes an amended Bill, the amended Bill is then be resubmitted to the President for assent.

After all of this, legislation (in part or fully) can be challenged in court and declared unconstitutional.

None

About this blog

People's Assembly

"That week in Parliament" is a series of blog posts in which the important Parliamentary events of the week are discussed.

We host the latest posts of this blog, written by People's Assembly. You can find more on PA's blog.

Share this page: