Joint Subcommittee on Delegated Legislation: Committee Programme

JOINT SUBCOMMITTEE ON DELEGATED LEGISLATION
25 January 2002
COMMITTEE PROGRAMME

Relevant Documents:

Letter from Ms Tsholetsane on delegated legislation (Appendix 1)

Professor H. Corder's report on Methods for Scrutiny of Delegated Legislation by Parliament

Draft Committee Programme for first Quarter of 2002 (Appendix 2)

Chairs: Mr M Masutha and Mr Setona

Summary

The Committee adopted a programme for the first quarter of the year.

The Parliamentary Law Advisor, Ms Tsholetsane presented her discussion document on the concept of delegated legislation to the Committee.  She said the Parliamentary Law Advisors' view is that in determining whether or not instruments constitute subordinate legislation, the enquiry should be whether the instruments are authorised by an Act of Parliament and are of a legislative nature.  The Committee plans to have a workshop in the near future including stakeholders such as the State Law Advisors on delegated legislation.

Minutes

Mr Setona introduced the Committee's proposed program for the first quarter of 2002.  The programme was agreed on.  Members agreed that the meetings be held on either Tuesdays or Wednesdays from 12h00 to 14h00.

He expressed concern that the Committee might not accomplish its task if it continues to function like previous years when members attended only when they did not have commitments in other committees.  He said he and Mr Masutha would take up the matter with the whips to ensure that the Committee is also given priority.

Mr Masutha handed over to Ms Tsholetsane to brief the Committee on the concept of delegated legislation.  He indicated that he had written a letter to the Parliamentary Law Advisors' office regarding this and that before the committee was a response to it (please see Appendix).

Ms Tsholetsane said that in the letter before the Committee she dealt only with one question, namely, what constitutes delegated legislation as she felt that this was not addressed by the report by Professor Corder.

She said delegated legislation is an exception to the doctrine of separation of powers in that a body other than Parliament (usually the executive) legislates in its place.  For the executive to do this it must derive its authority from an Act of Parliament.  She quoted Du Plessis: Interpretation of Statutes, 1986 p13 as saying that subordinate or delegated legislation is enacted by the executive “to regulate in greater detail matters provided for by original enactments in outline form.�

The Constitution requires Parliament to pass legislation on how delegated legislation should be scrutinised.  However, not all delegated legislation needs scrutiny.  In this regard she made an example of a proclamation by the President bringing a law into operation.

She pointed out that there are various forms of delegated legislation, namely: Regulations usually made by Ministers;

Rules e.g. those issued by Courts to guide procedure;

Administrative quasi-legislation such as instruments coming from departments like circulars, internal rules, minutes, etc to guide public officials in the exercise of their discretionary powers.

She said in determining whether an instrument is delegated legislation and thus needs scrutiny by Parliament, the enquiry should be whether they derive from an Act of Parliament and are of a legislative nature.  It would also be useful to look at what the purpose of an instrument is or what it seeks to do.  Section 101(3) of the Constitution gives an indication of what constitutes subordinate or delegated legislation.

She pointed out that there has been very little written on delegated legislation in South African legal writing which leaves it unclear in some instances whether an instrument is delegated legislation or not.

Mr Masutha proposed that since there are still question on the concept of delegated legislation, workshop be held including other stakeholders such as state law advisors.  Members agreed this to the workshop.

The Committee adopted the minutes of the meeting of 10 October 2000 with the correction that Mr Setona was present.

On 13 February 2002 the Committee secretary would give a report on the Commonwealth delegation visit. The meeting was adjourned.


Appendix 1
Letter from Ms Tsholetsane on delegated legislation


PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA

TO:                              SUBCOMMITEE ON DELEGATED LEGISILATION

SUBJECT:                    DELEGATED LEGISLATION

DATE:                          24 JANUARY 2002

1.    Your letter dated 2001424 1 regarding the above raises three questions, namely:

(a)        What constitutes or does not constitute delegated legislation

            (b)         Whether past delegated legislation as well as the legislative provisions authorising the creation of such legislation must also be scrutinised

 (c)  How is the constitutionality or otherwise of delegated legislation going to be determined if the primary legislation in terms of which is promulgated is not scrutinised as well. In other worc the constitutional infringement derives from the primary legislation itself.

2.  In this paper, we will deal with the first question, namely, what subordinate legislation.

3. Subordinate or delegated legislation is legislation enacted by the executive, “to regulate in greater detail matters provided for by original enactments in outline form� Interpretation of Statutes. 1986 p13. The executive derives the power to make such  legislation from an Act of Parliament. Therefore, subordinate legislations has two basic ingredients, namely - Parliament itself must have authorised some other body to legislate. in its place and, secondly, that body must be a branch of the executive.

4. The Constitution does not state what constitutes delegated legislation.   However section 101(3) provides that proclamations, regulations and other instruments of subordinate legislation must be accessible to the public. Subsection (4) requires Parliament to pass national legislation, which will specify the manner and extent to which these insturments must be tabled and approved by Parliament. Similar powers are legislatures in respect of subordinate legislation of a province.

5. In our view not all "instruments of subordinate legislation" require Parliamentary scrutiny. Therefore, in order to determine whether an instrument is an instrument of  subordinate legislation" which requires Parliamentary scrutiny (tabling and approval) one needs to establish whether that particular instrument is authorized by Parliament whether it is of a legislative nature and sometimes even the purpose which that particular instrument serves. For example, although proclamations are an important type of subordinate legislation, not all "proclamations" are of a legislative nature nor do they all serve the same purpose. As a result, not all proclamations would in our opinion, warrant parliamentary scrutiny.

Below is a list of common instruments used in South Africa and the purposes for which they are used:

-Proclamations - normally issued by the President and Premiers to put Acts into operation, appoint commissions etc.

-Regulations  used by Ministers (and sometimes other classes of administrative authorities) to complete the details of the parent legislatiori to be followed by persons to whom the parent legislation applies.  Other examples are university regulations issued by the councils accordance with the particular university's Act.

-Rules - eg rules issued in terms of the Supreme Court Act Act for purposes of governing the detailed procedures to be followed by litigants (and practitioners); the rules made by the councils of the law societies regulating certain matters regarding the profession.

6. Whether or not the other instruments mentioned in your memo such codes of practice, directives made or issued by various authorit constitute subordinate legislation is not entirely clear. Our view is I be whether these instruments are authorised by an Act of Par legislative nature.

7.However, Baxter: Administrative Law. 1984 states that there are other instruments such as departmental circulars and instructions, guides, directives, minutes and rules which are necessary to guide the conduct of officials in the exercise of discretionary administrative powers or to inform members of the public as to the general policies that are likely to be followed when such administrative powers are exercised. Example by the Chief Registrar of Deeds to the various deeds registries and conveyancers, and the Legal Aid Guide issued to legal aid officer and made available to members of the public by the Director of Legal Aid. Baxter states that these are often issued without clear statutory authority and that their validity may be questioned.  He refers to them as 'administrative quasi-legislation". According to him, such instruments have varying legal status, but where an Act of Parliament anticipates (though not necessarily requires) their creation, the courts incline towards affording them legal recognition and enforceability. In our view, provided that such a body or person is “legislative� in nature (in the sense of being generally binding in the national sphere), then such an instrument may be scrutinised by Parliament.

M M TSHOLETSANE/D M RAMURUNZI

Parliamentary Law Advisors

Appendix 2

PROPOSED WORK PROGRAMME FOR JOINT SUBCOMMITTEE ON DELEGATED LEGISLATION 2002

First Meeting is on 25 January 2002

Thereafter there will be 6 weeks remaining until the nextconstituency period which runs from 21 March - 19 April

Possible to have at least 5 meetings focussing on


·           Constitutional Mandate and Definition of Delegated Legislation

·          Scrutiny criteria for delegated legislation and Scrutiny Mechanisms

·          Procedure for Scrutiny

·          Scrutiny of Provincial and municipal by-laws

·          Finalising report of Joint Subcommittee

Proposed schedule of meetings

First Meeting                                                      25 Jan

Constitutional Mandate &                                     12/ 13 Feb

Definition of Delegated

Legislation

Scrutiny criteria &                                               19/20 Feb

Scrutiny mechanisms

Procedures for scrutiny                                       27/28 Feb

Scrutiny of provincial legislation                            6/7 March

and municipal by-laws

Finalising report of Joint                                       12/13 March

Committee