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JOINT SUBCOMMITTEE ON DELEGATED LEGISLATION
10 October 2000
Final Report on Methods for Scrutiny of Delegated Legislation by Parliament (submitted by Professor Hugh Corder, Dean of University of Cape Town's Law School)
The Subcommittee's two legal advisers noted the current lack of uniformity in delegated legislation. The Subcommittee decided to make a registry of delegated legislation since this information is currently inaccessible. The Corder report was considered and some felt that the report would have been better had it looked at South Africa before and after 1994 and made a pre- and post-constitutional comparison. Some committee members recommended that Prof Corder be re-engaged with more precise instructions.
The legal advisers present at the meeting reported that, according to their research, there were in inconsistencies in the scrutiny of legislation in South Africa. For example, not all legislation is required to be tabled or published in the Gazette and there is a lack of uniformity as each province makes its own regulations.
The Chairperson said it was urgent there be uniform principles around delegated legislation. It is now being done on an ad hoc basis. She also said they need a researcher to look into this matter and are hoping to get one soon.
The Subcommittee considered the report of Prof Hugh Corder, focusing on the recommendations in the report's conclusion at Section F, and particularly recommendation (a):
"A joint committee (somewhat like the Committee on Members' Interests), on which all parties in Parliament have some representation, is charged with scrutinising all legislation against constitutional and administrative law standards."
Mr Ackermann (NNP) suggested this could be done by a joint committee.
Mr Surty (ANC) could not see the advantage of having a joint committee since most of what is passed in Parliament is Section 75 legislation, a national competency. The NCOP will not look at delegated legislation that is outside its competency.
The Committee agreed to explore and consider its various options before accepting Professor Corder's recommendation. Chairperson Jana reminded the Subcommittee that South Africa is the only nation to have socio-economic rights entrenched in the Constitution. This puts a unique responsibility on this country's legislators.
Mr Mathee (NNP, KwaZulu-Natal) suggested the Subcommittee needs legal advisers who are not from the government. He asserted they need full-time legal expertise, as well as specialists in specific areas. He suggested they make a registry of delegated legislation.
The Chairperson agreed to the making of a registry, noting that this information was inaccessible at present.
The Subcommittee also considered the role of the committee they may form to look into delegated legislation. It would have a monitoring function, to ensure legislation's compliance with the Constitution, as well as having an advisory and scrutinising function.
Mr Surty recommended a third additional function of making recommendations. Mr Surty also criticised Prof Corder's report and its summary of how delegated legislation is approached in other countries. The report would have been better, he asserted, had it looked at South Africa before and after 1994 and made a pre- and post-constitutional comparison. He said they have to look at the South African situation in practical terms. He suggested they re-engage Prof Corder and give him more specific instructions as to what they are looking for.
The Chairperson agreed that the Corder document does not capture the present constitutional democracy and its ideals of openness and transparency.
The meeting was adjourned.
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