CHIEF DIRECTORATE: STATE LAW ADVISORY SERVICES


The RATIONALISATION of LAWS Project (2004 - 2007)

 

1. BACKGROUND

On the establishment of the new democratic state on 27 April 1994, the Province of KwaZulu-Natal came into being, amalgamating the province of Natal and the self-governing territory of KwaZulu.

 

Natal was established in 1910 as one of South Africa’s four provinces in terms of the 1909 Union of South Africa Constitution. Until 1994 it was administered by the Natal Provincial Administration, headed by an Administrator (who was appointed by the national government). The Natal Provincial Legislature, which was abolished in 1986, was empowered to enact provincial ordinances and subordinate legislation. The Provincial Executive Council consisted of the Administrator and Members of Executive Council (MECs) appointed from the majority party in the Provincial Legislature. From 1986 to 1994 the Administrator issued proclamations as all provincial legislative powers were vested in him.

 

Some of this old legislation is still forms part of the body of law currently applicable in KwaZulu-Natal.

 

In the self-governing territory of KwaZulu, prior to 1972, separate governance structures (Tribal Authorities, Regional Authorities and Territorial Authorities) had been established in terms of the Black Authorities Act of 1951. These institutions were responsible for the day-to-day administration of their jurisdictional areas in terms of principal legislation enacted by the national Parliament, and subordinate legislation issued by the Head of State and the Minister responsible for the administration of affairs pertaining to Black South Africans. In 1972, in terms of the Constitution of the National States Act of 1971, a Legislative Assembly was established for the national state – as it was referred to in 1972 – of KwaZulu. A Cabinet was appointed, consisting of a Chief Minister and members of the majority political party in the KwaZulu Legislative Assembly. Self-governing status was accorded in 1977.

 

This resulted in an increase in the number of functional domains reserved for the exclusive legislative, executive and administrative powers of the KwaZulu Government.

 

Similarly, much of the legislation pertaining to the former KwaZulu, or enacted by the KwaZulu Legislative Assembly, still forms part of the body of law currently applicable in KwaZulu-Natal.

 

The new province of KwaZulu-Natal amalgamated two administrations – the KwaZulu Administration centred in Ulundi and the Natal Administration located in Pietermaritzburg. These two sites were retained as capitals for legislative, executive and administrative purposes. However, in May 2002 the Provincial Legislature resolved that Pietermaritzburg would be its only seat.

 

In terms of the Constitution, 1996, the provinces (including the Province of KwaZulu-Natal) have extensive legislative authority, amongst others, to pass legislation with regard to any matter within a functional area listed in Schedules 4 and 5 to the Constitution. The 1993 Constitution similarly gave provinces the power to legislate on a variety of matters. This legislative competence of the new provinces since 1994 added to the body of law in the province.

 

The plethora of old order and new legislation in provinces create many legal and practical problems and may be solved only by a concerted effort to rationalize the KwaZulu-Natal Statute Book. The provincial Rationalisation of Laws Project aims to address this issue and forms an important part of strengthening governance in the province.

 

Areas requiring attention may be listed as follows (this list should by no means be considered exhaustive):

 

2. PROJECT AIM (Outcomes)

The aim of the Project, as has been stated above, is to establish a Statute Book for the Province –

 

3. PROJECT OBJECTIVES

The objectives of the Project, which translate into activities and tasks to be undertaken to achieve the overall aim or objective, may be listed as follows:

1. The identification, inventorisation, categorisation and review of all laws currently applicable in the Province of KwaZulu-Natal (KZN).

2. The testing all such legislation considered for possible retention, amendment or re-enactment against the Constitution, 1996.

3. The identification of post 1994 laws enacted in other Provinces which may assist the KZN legislative and rationalisation programme.

4. The identification of principles which will underpin the rationalisation programme.

5. Ensuring the alignment of existing KZN legislation earmarked for retention with the Constitution, recent national and provincial legislation and KZN policy initiatives.

6. Resolving the problem of duplication of functions in different provincial Departments.

7. Ensuring the compatibility of KZN provincial legislation with national framework legislation.

8. Ensuring the compatibility of KZN subordinate legislation with the enabling legislation

9. Making recommendations on the amendment and re-enactment of existing legislation earmarked for retention.

10. Making recommendations on the repeal of all obsolete KZN legislation.

11. Making recommendations on the drafting of new KZN provincial legislation.

12. Formulating draft legislation to give effect to the objectives listed above.

13. Investigating the feasibility of the codification of all legislation applicable in KZN and the establishment of a KZN Code of Law.

14. Facilitating building of capacity in, and transfer of skills to, officers in the respective provincial Departments.

 

4. PRINCIPLES PERTAINING TO ROLEPLAYERS AND RESOURCES

It must be understood that rationalisation of laws is not an event or a once-off exercise, but must be seen as a continuous and ongoing process.

 

To ensure the long-term sustainability of this process, all legal administration officers in Departments (KZN Public Sector Lawyers) must participate in, and contribute to, the process to ensure that the necessary capacity is built and that skills are transferred.

 

MEXCO has approved the Project in principle and all Heads of Department should be aware of, and committed to, the process.

 

The full co-operation and commitment of all KZN Public Sector Lawyers is required.

 

The Monthly Meetings and end-of-phase 5-day Workshops in respect of the Project must be prioritised and attended by all KZN Public Sector Lawyers. Draft calendars have been distributed. At these meetings it is envisaged that the head of the legal component of each Department will make (and present) a detailed progress report in relation to the implementation of the Rationalisation process in the Department, as well as any provincial public entity or parastatal body for which the Department or MEC concerned may be responsible.

 

After completion of this Project, the process of rationalisation of laws must be pursued by individual Departments on a continuous and ongoing basis. Heads of Department are directly responsible and accountable for the ongoing rationalisation process in their respective Departments. Constant evaluation and revision of the legal framework within which a Department functions is imperative in the light of changed circumstances and new policies.

 

We cannot allow ourselves to again slip into the legal quagmire in which we currently find ourselves.

 

The Project will, from a supervision and control perspective, be administered centrally by –

The performance of the actual work (that is the legal, technical and administrative work involved) will be done in individual provincial Departments with the heads of Departmental legal components assuming primary responsibility. Where individual Departments lack capacity, they are free to appoint consultants to assist them under the control and direction of the head of the legal services component in the Provincial Department. Such consultants must work with public service lawyers attached to the respective provincial Departments to ensure building of capacity and transfer of skills.

 

A key objective of the Project is skills transfer to public sector lawyers and line function officials on the establishment of Provincial Departments in KZN.  

 

The Project, in its broad and overarching sense, will be co-ordinated by the Chief Directorate: State Law Advisory Services (CD: SLAS) in the Department of the Premier using the mechanism of Monthly Meetings and end of phase 5-day Workshops of the KZN Public Sector Lawyers’ Forum. It is also important to confirm that any other process of rationalisation of laws which may have commenced in individual Departments is to be welcomed and will feed into, and be integrated with, this Project. The responsibility to effect this integration naturally lies with the line function Department.

 

All costs pertaining to the rationalisation process in individual Departments will be carried by individual Departments.

 

Each provincial Department will budget for, and administer, the attendant financial and administrative aspects pertaining to the process in that particular Department, including subsistence and traveling expenses of Departmental staff and consultants appointed by the Department concerned.

 

Equipment, stationery, secretarial services and all other resources, facilities and infrastructure will be provided by the provincial Department concerned.

 

Proposed new legislation emanating from the process of the Rationalisation of Laws, as well as any proposed amendment or repeal of existing legislation forming the currently applicable body of law in the province will be referred to the Provincial Chief State Law Advisor for legal editing and certification before introduction into the Provincial Legislature.

 

As part of the initiative of MEXCO (the meeting of the Director-General and Heads of Department) and the Department of the Premier to co-operate with private sector lawyers in promoting the broad objectives of Black economic empowerment, the 2005 Certificate Course in Legislative Drafting (which has been completed) was also extended to members of the Black Lawyers Association (BLA) and the National Association of Democratic Lawyers (NADEL) who wished to attend.

 

It is the intention of the KZN Provincial Government that members of NADEL and the BLA who successfully complete the Legislative Drafting Certificate Course should receive preference when Provincial Departments outsource and allocate legal work to be done in relation to the provincial Rationalisation of Laws Project.

 

The Project may therefore be seen as a flagship project in respect of public service transformation and empowerment in KZN.

 

 

5. SCOPE OF PROJECT AND FUNDING

It was originally envisaged that the Project would be funded jointly by Province and IPSP/ DfID. It was therefore decided that certain outputs relating to the Project will be funded by IPSP/ DfID and the remaining outputs by Province. The prescribed tender processes for both the IPSP and Provincial portions of the Project have been followed.

 

In relation to the IPSP/ DfID portion of the Project (covering Phases 1 – 3) for R750 000-00 donor funding, the contract with the successful tenderer (Business Enterprises at the University of Pretoria) was concluded on 17 August 20045. This contract has been successfully completed and ran from 30 August 2004 to the end of May 2005.

 

In relation to the Provincial portion of the Project (covering Phases 4 - 11) for an approximate R2,2M Provincial funding, which commenced in the 2005/ 2006 financial year and runs until mid 2007, a separate contact has been entered into with the successful tenderer (Business Enterprises at the University of Pretoria). R1,1M Provincial funding has been allocated for the 2005/ 2006 financial year and a further R1,1M Provincial funding was requested for the 2006/ 2007 financial year.

 

 

6. CONCLUSION

It is important to note that the Project may be seen as a pilot project in the sense that the other provinces in South Africa (facing a similar legacy of legal issues and problems) have not yet embarked on an extensive Rationalisation of Laws Project or exercise.

 

The KZN Rationalisation of Laws Project may, therefore, be able to provide lessons for other provinces and could set the benchmark for best practice in this regard for other provinces to emulate.

 

Whether or not we achieve this is up to us all – it’s a team effort!

 

Click here for a Presentation on this Project.

 

 

7. PROGRESS WITH PROJECT

Since the launch of the Project on 30 August 2004, good progress has been made in accordance with the Project Plan.

 

The first Interim Workshop was held at Didima from 4 - 7 October 2004.

 

The next Workshop was held at the Drakensberg Sun from 1 - 4 November 2004.

 

The 3 December 2004 Meeting took place in Pietermaritzburg.

 

The Calendar of Meetings for 2005 was as follows:

 

February

Friday 4

1 Day Meeting

Pietermaritzburg

March

Monday 14 - Friday 18

Phase 2: 5 Day Workshop

The Nest, Drakensberg

April

Tuesday 26

1 Day Meeting

Ascot Inn, Pietermaritzburg

May

Monday 23 - Thursday 26

Phase 3: 4 Day Workshop

Drakensberg Sun

July

Monday 11

1 Day Meeting

Assagay Hotel and Conference Centre, Hillcrest

August/ September

Monday 29 August - Thursday 1 September

Phase 4: 4 Day Workshop

Granny Mouse Country House, near Nottingham Road

October

Thursday 6

1 Day Meeting

Rob Roy Hotel, Botha's Hill

November

Monday 21 - Thursday 24

Phase 5: 4 Day Workshop

Granny Mouse Country House, near Nottingham Road

 

 

The Calendar of Meetings for 2006 was as follows:

 

February 2006

Wednesday 1

1 Day Meeting

Granny Mouse Country House, near Nottingham Road

March 2006

Monday 13 - Thursday 16

4 Day Workshop

Granny Mouse Country House, near Nottingham Road

May 2006

Tuesday 16 - Wednesday 17

2 Day Workshop

Granny Mouse Country House, near Nottingham Road

June 2006

Monday 12 - Thursday 15

4 Day Workshop

Didima, Drakensberg

July 2006

Tuesday 25

1 Day Meeting

Granny Mouse Country House, near Nottingham Road

August 2006

Thursday 17

1 Day Meeting

Granny Mouse Country House, near Nottingham Road

September 2006

Monday 18 - Tuesday 19

2 Day Workshop

Granny Mouse Country House, near Nottingham Road

November 2006

Tuesday 21 - Thursday 23

3 Day Workshop

 Didima, Drakensberg

 

 

The Calendar of Meetings for 2007 is as follows:

 

February 2007

Thursday 8

1 Day Meeting

Granny Mouse Country House, near Nottingham Road

March 2007

Tuesday 27

1 Day Final Close-out Meeting

Granny Mouse Country House, near Nottingham Road

 

 

 

8. PROJECT CLOSE-OUT REPORT

The Project Close-out Report was released on 8 May 2007.

 

 

9. Specific concerns impacting on the Rationalisation of Laws Project and drafting of legislation:

In the light of the fact that most Departments are, for various reasons, not yet ready to proceed with draft legislation, the perception may be that the Public Sector Lawyers attached to various Departments are in some way responsible for the delay. It also now seems  apparent that there will not be a completely rationalised KZN Statute Book by the end of the Project term (31 March 2007) as originally envisaged which may lead to questions about the ultimate worth and success of the Project as a whole.

 

We wish to place on record the constraints experienced by Public Sector Lawyers due to a lack of settled policy within the respective Provincial Departments (including the Office of the Premier) in terms of which the legislation is to be drafted. It is not possible for lawyers to draft Bills in a policy vacuum. If there is no settled policy, the lawyers will then be forced to make and formulate policy as they draft. This may serve to fast track the process initially, but only if the policymakers and line functionaries comment on the draft and make their consolidated and agreed upon inputs in respect of the approval, rejection or amendment of the draft proposed by the lawyers. Where no comment or input is received or agreement cannot be reached, the draft formulated by the lawyers cannot be taken further.

 

The following excerpt from the Policy Guidelines for briefing the CD: State Law Advisory Services is important in this respect and reads as follows:

5. Each line function Department is primarily responsible for the planning and detail of proposed legislation (Bills, Acts, regulations, proclamations and government notices) within its sphere of responsibility. The CD: SLAS should, ideally, only be involved in the legal editing and certification of final drafts, but is prepared to get involved at earlier stages provided that the necessary information and meaningful inputs are forthcoming from the line function Departments. The line function Departments should always bear in mind that they will have to implement and administer any new law or any new amendment to existing laws they administer so that their considered inputs are vital and imperative to future smooth administration and enhanced delivery.

 

Councils, boards, parastatals and other bodies or institutions (public entities) under the political control or supervision of the Premier or an MEC must submit proposals for legislation through the Department of the Premier or the relevant Provincial Department, as the case may be. The relevant line function Department must then handle the draft legislation as envisaged in the preceding paragraph.

 

In order to allow the CD: SLAS, which is responsible for legal editing and certification of legislation before introduction in the Provincial Legislature, to plan its work programme, and to allow the Provincial Legislature to plan its programme, it would be helpful for Provincial Departments to submit details of their proposed Legislative Programme for any given year, to the CD: SLAS by 31 January. This proposed Legislative Programme should contain a list of draft Bills which the responsible MEC intends introducing in the Provincial Legislature in the session of the Legislature commencing in February of any given year. The list should also contain details of the dates on which Provincial Departments intend formally referring the Bills listed to the CD: SLAS for legal editing.

 

The legal editing process may, depending upon the length and complexity of a Bill, take from 21 - 30 days before certification.

 

After certification, the Bill must be translated into isiZulu and Afrikaans. Departments should budget 21 - 30 days for translation.

 

After certification and translation, Bills must be submitted by the line function Department/ MEC to the Speaker of the Provincial Legislature. The Bill must then be published for comment for 30 days before referral to the relevant Portfolio Committee of the Provincial Legislature.

 

It could, therefore, in any given case take up to 3 months for a Bill to be referred to the Portfolio Committee of the Legislature after formal referral to the CD: SLAS for legal editing and certification. Provincial Departments should be aware of this and plan their Legislative Programmes accordingly, bearing in mind recesses and adjournments of the Provincial Legislature.

 

Departments should please refrain from submitting Bills which have not yet been certified to the Executive Council (Cabinet) even for so-called "in principle approval". Only certified legislation should be submitted to the Executive Council.

 

The Rationalisation of Laws Project will also, of necessity, impact on the Legislative Programmes of Provincial Departments.”.

 

The ultimate production of a rationalised Statute Book for the Province is subject to settled policy formulated in Departments by line functionaries to underpin the legislation to be drafted; subject to approval of that legislation by the relevant HoD and MEC; subject to approval of the draft legislation by the Executive Council (Cabinet); and subject to the legislative processes in the Portfolio Committees of the Provincial Legislature and in the Provincial Legislature itself over which the Public Sector Lawyers have no direct control or influence.

 

The Project has, however, facilitated the required skills transfer to Public Sector Lawyers – it has been a worthwhile learning process in respect of the process and methodology of the rationalisation exercise which will assist the Public Sector Lawyers in the continued processes rationalisation and harmonisation of provincial legislation to be undertaken by Provincial Departments on a sustained and continuous basis to be co-ordinated by the KZN Public Sector Lawyers' Forum even after the end of the formal Project.

 

 

 

10. FURTHER DEVELOPMENTS IN RELATION TO THE RATIONALISATION OF LAWS AS AN ONGOING EXERCISE

The national Cabinet has instructed the South African Law Reform Commission (SALRC) to embark on a national Rationalisation of Laws Project encompassing all national legislation and to co-ordinate the rationalisation process in respect of provincial legislation in the respective Provinces.

 

A delegation from the SALRC (the Acting Head: Adv Michael Palumbo and colleagues Adv Fanyana Mdumbe and Adv Pierre van Wyk) attended the Workshop of the KZN Rationalisation of Laws Project held from 21 - 23 November 2006 at Didima to share experiences. The SALRC noted the progress made in KZN with the rationalisation of laws and confirmed that no other province had yet undertaken the rationalisation process on the scale, magnitude and intensity displayed by KZN. The SALRC were considering using a similar methodology to KZN and were impressed at the level, substance and content of the open and frank discussion by KZN Public Sector Lawyers attending the Workshop.

 

The KZN Public Sector Lawyers' Forum and individual Public Sector Lawyers attached to Provincial Departments in KZN will in future co-operate more closely with the SALRC in relation to the Rationalisation of Laws as an ongoing exercise even after the formal close-out of the KZN Rationalisation of Laws Project at the end of the 2006/ 2007 financial year.

 

  South African Law Reform Commission

 

The South African Law Reform Commission is a member of the Association of Law Reform Agencies of Eastern and Southern Africa (ALRAESA).

 

  Association of Law Reform Agencies of Eastern and Southern Africa

 

The KZN Public Sector Lawyers' Forum has been included on ALRAESA's mailing list and will be invited to future Law Reform workshops and conferences.

 


As stated at the Launch of the Rationalisation of Laws Project on 30 August 2004, KZN Public Sector Lawyers are encouraged to use the KwaZulu-Natal Law Society Library as  a resource for the Project.

 

Contact Mary Bruce at the KwaZulu-Natal Law Society Library for information;

 

click on the "mouse"

 to request information (such as legislation) in electronic format; or

 

visit their Pietermaritzburg Library at 200 Berg Street, Pietermaritzburg; or

their Durban Library at 1100 Salmon Grove Chambers, 407 Smith Street, Durban.

 


 

A former Premier, Mr Sibusiso Ndebele, reaffirmed -

(a) the importance of the Rationalisation of Laws Project; and

(b) the responsibilities of Provincial Departments in relation to the Rationalisation of Laws Project,

in a Circular Letter to MECs and HoDs dated 23 September 2005.

 


 

Click on the link to access a document setting out details of all Laws Assigned to KZN.