LEGAL OPINION 
[Confidential]

TO 				: Mr V Smith, MP and MS M Boroto, MP        
			 	  Co-chairpersons of the Interim Joint Committee on 				  Scrutiny and Delegated Legislation      

COPY 			: Secretary to Parliament 

Legal Adviser		: P Ngema 

DATE 			: 16 May 2013  

REFERENCE 		: 134 / 2013 

SUBJECT 		: Legal and constitutional scrutiny of Regulations, 				  Directives and Instructions in terms of the Protection		  	  From Harassment Act    

Background 

1.	Our Office was requested by the Co-chairpersons of the Interim Joint Committee on Scrutiny and Delegated Legislation (Committee) to scrutinise the Regulations and Directives for Clerks and Prosecutors made in terms of the Protection from Harassment Act, 2011 (Act No. 17 of 2011) (the Act). 

2.	On 9 April 2013 the Minister of Justice and Constitutional Development (Minister) submitted the following documents to Parliament:  

	2.1 Regulations made in terms of section 19 of the Act (Regulations); 
	2.2 Policy Directives for prosecutors in terms of section 20(1)(a) of the Act 	made by the National Director of Public Prosecutions (Prosecutors’ Directives); 	and 
	2.3 Policy Directives for Clerks of Court made in terms of section 20(3)(a) of 	the Act made by the Director-General: Justice and Constitutional Development 	(Directives for clerk of courts).  

3.	The Minister submitted the above mentioned documents as required by section 19(2)(a) in respect of the Regulations, Prosecutors’ Directives are submitted in accordance with section 20(1)(b) of the Act and for Directives for clerks of court in terms of section 20(3)(b) of the Act. 

4.	The Committee is advised that the submitted Regulations and Directives came into operation on 27 April 2013. 

Legal framework 
5.	Section 19(1) of the Act, empowers the Minister with the discretion to make regulations regarding─
(a)	any form required to be prescribed in terms of the Act; 
(b)	financial assistance to be provided by the State─ 
(i)	to a complainant who does not have the means to pay the fees of any service in terms of the Act; or 
(ii)	to a witness who attends any proceedings in terms of the Act; 
(c)	any matter required to be prescribed in terms of the Act; and 
(d)	any other matter which the Minister deems necessary or expedient to be prescribed in order to achieve the objects of the Act. 

6.	In terms of section 19(2) the regulations made pursuant to section 19(1) may provide that a person who contravenes a provision thereof or fails to comply therewith is guilty of an offence and on conviction be liable to a fine or to imprisonment for a period not exceeding one year. [Underline emphasise the use of “may” which grants discretionary but not compulsory use of the power and the open ended phrase enabling Minister to regulate on anything necessary to achieve the objects of the Act.] 

Advice 

7.	Sections 19(2)(a), 20(1)(b) and 20(3)(b) of the Act enjoins the Minister to submit the Regulations, Prosecutors’ Directives and Directives for clerks of courts to Parliament. 

8.	The national legislation, the Protection of Harassment Act did not specify that the Regulations and Directives must be submitted to Parliament for approval. Therefore the submission in this regard is for purposes of tabling to Parliament so that Parliament may have a record for such subordinate instruments consistently with section 101(4)(a) of the Constitution stipulating for tabling in Parliament and to enable Parliament to conduct oversight.  

9.	The Department of Justice and Constitutional Development published the Regulations and Directives for public comment on 2 February 2012 with the deadline for comments set as 29 February 2012. On 12 April 2013 in Government Gazette No 36357, the Minister published the promulgation of the Regulations and Directives made in terms of the Act. 

10.	The Regulations and Directives made in terms of the Act were submitted to Parliament and have been made public through the Government Gazette publication. The two procedural steps have been complied with and render the Regulations and Directives to be consistent with section 101 of the Constitution.	
 
11.	The Regulations informs the clerks of courts about how to place the applications in terms of the Act before courts, how to assist the applicants that wish to be protected by this Act and provide template of forms to complete during the protection order application stages. 

12.	The Prosecutors’ Directives is an internal instrument which provides a direct guide or summary of the requirements for properly implementing the provisions of the Act by the prosecutors when dealing with the application for a protection order in terms of this Act. They are purported to provide a precise easy road map to the prosecutor in understanding and achieving proper implementation of the Act. They also warn the users of the Act for possible offences and alert prosecutors of those statutory offences. The Prosecutors’ Directives stipulate further that failure to comply with these directives will be addressed according to the disciplinary codes of the National Prosecuting Authority.

13.	The Directives for clerk of courts is also an instruction manual to clerks of courts that they must obtain a working knowledge of and be in a position to properly apply the Act, Regulations and these Directives. The Directives also guide the clerks with regard to the relevant forms to use at different stages of the protection order application process consistently with the Regulations. It also sets out the implications for failing to comply with the Directives. 

14.	The Regulations, Prosecutors’ Directives and Directives for clerk of courts do not impose levies, taxes or duties. 

15.	The Regulations, Prosecutors’ Directives and Directives for clerks of courts do not in any manner impinge on the jurisdiction of courts.  

16.	In my view the making of the Regulations and Directives process has complied with procedural aspects for delegated legislation. 

17.	The Regulations and Directives have been published to take effect from 27 April 2013 after publication for public comments was done in February 2012 and a date after submission to Parliament as required by sections 19 and 20 of the Act. The Regulations and Directives will not apply from a date before they were published. Therefore, the Regulations and Directives are not retrospective in nature.  

18.	The Minister, National Director of Public Prosecutions and the Director-General: Justice and Constitutional Development have acted within the lawful ambit of sections 19 and 20 of the Act. Therefore, the Regulations, Prosecutors’ Directives by the National Director of Public Prosecutions and Directives for the clerks of courts made by the Director-General: Justice and Constitutional Development do not appear to make unusual use of powers conferred by the Act. All three instruments are in conformity with the objects of the Act. 

19.	The scope of the Regulations and Directives only covers what is empowered and does not provide for any new substantive legislation. 

20.	Since the Regulations and Directives promote and protect the rights to dignity and freedom of personal security, without arbitrarily infringing on other constitutionally protected rights and its making is done in terms of the Constitution and the enabling legislation (Protection from Harassment Act), I am of the opinion that the Regulations and Directives are consistent with the Bill of Rights and have been drafted appropriately. 

Conclusion 

21.	I am of the view that the Regulations and both Directives are drafted in accordance with the scrutiny criteria. 

Ms Phumelele Ngema 
Parliamentary Legal Adviser