THE REVISED PATH TO
LEGISL ATION
AND LEGISLATIVE
GUIDELINES
IN GAUTENG
GAUTENG
PROVINCIAL GOVERNMENT
REPUBLIC OF SOUTH AFRICA
SEPTEMBER 2014
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GAUTENG PROVINCE
OFFICE OF THE PREMIER
REPUBLIC OF SOUTH AFRICA
path to legislation
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CONTENTS
INTRODUCTION
EXPLANATION OF THE PATH TO LEGISLATION
STEP 1: THE POLICY STAGE
STEP 2: CABINET CLUSTER SYSTEM
STEP 2A: RELEVANT TECHNICAL CLUSTER COMMITTEE
STEP 2B: EXECUTIVE COUNCIL CLUSTER COMMITTEES
STEP 2C: EXECUTIVE COUNCIL MEETINGS
STEP 3: THE DRAFTING STAGE
STEP 3A: PRE-CERTIFICATION
STEP 3B: TECHNICAL CLUSTER COMMITTEE RESPONSIBLE FOR LEGISLATION
STEP 3C: CLUSTER COMMITTEE RESPONSIBLE FOR LEGISLATION
STEP 3D: EXECUTIVE COUNCIL
STEP 3E: FORMAL CERTIFICATION
STEP 4: INTRODUCTION STAGE
STEP 4A: GAZETTING OF THE BILL
STEP 4B: INTRODUCTION OF THE BILL
FLOW CHART ON PATH TO LEGISLATION
LEGISLATIVE GUIDELINES
TECHNICAL CLUSTER COMMITTEES - HEADS OF DEPARTMENT AND TECHNICAL EXPERTS ON
INVITATION
EXECUTIVE COUNCIL CLUSTER COMMITTEES - MEMBERS OF THE EXECUTIVE COUNCIL AND HEADS
OF DEPARTMENT
CONTACT INFORMATION
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INTRODUCTION
I
n parliamentary systems, where Members
of the Executive are drawn from the
majority party in the Legislature, most
legislation is drawn from government
legislation. Private Members’ Bills (i.e. Bills
introduced by members of the Legislature)
are very rare.
The government must therefore take full
responsibility, in every respect, for the
legislation that is introduced in the Legislature.
To facilitate the process for the creation
of Government Bills, a Legislative SubCommittee was established in the Executive
Council System in 2004. This resulted in the
approval of the Path to Legislation by the
Executive Council on 24 January 2005.
In the 5th Administration that commenced
in June 2014, the Executive Council
System was reviewed towards achieving
an integrated and coordinated approach
to planning, coordination, service delivery
and decision-making within the Gauteng
Provincial Government and improving
inter-governmental relations. The review
necessitated that the Path to Legislation
be amended to be in line with the new
Cabinet cluster approach. To further assist
government in the execution of its legislative
function, the Executive Council approved
the development of a Legislative Programme
on 10 September 2014. The Legislative
Programme sets the short to medium
term legislative agenda. The Executive
Council further resolved that the Legislative
programme may be amended after approval
every six months.
The Path to Legislation provides an official
and clear guideline on the process to be
followed when drafting legislation with a
distinction between the policy cycle and the
drafting of Bills. In principle, drafting of Bills
should begin once a policy proposal has
been approved by the Executive.
Failure to distinguish these two distinct
but related processes can result in poorly
conceived legislation and policy failure.
Non-adherence to the Path to Legislation in
the process of political decision making can
result in the introduction of Bills which are
technically deficient, poorly drafted or at
variance with the policy purpose.
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EXPLANATION OF THE
PATH TO LEGISLATION
STEP 1: THE POLICY STAGE
Based on the approved Legislative Programme,
the policy cycle begins with a proposal
approved by a Member of the Executive
Council as political authority of a government
department, which inter alia sets out the need
for legislation.
The depth of the policy formulation phase
which precedes the drafting of legislation,
and which could also include consultation with
stakeholders, should be decided on a case by
case basis. In principle, this process should be
as thorough as possible.
amendments of existing legislation. However,
where Amendment Bills do not have any
policy implication, (for example in instances
were minor technical amendments need to
be made,) a policy development process
does not have to be followed. In this regard,
amendments will not warrant Executive
Council approval. Instead the Department will
send the Amendment Bill directly to the Cluster
Committee responsible for Legislation (the
Governance and Planning Cluster Committee)
for approval to deviate from the normal Path to
Legislation. Once such approval is obtained,
the Path to Legislation from the pre-certification
stage must be followed.
The policy proposal should include a cost
analysis of the policy, and describe the contents
of the proposed Bill to the extent possible.
If there are significant cost implications,
discussions with Treasury on whether such
costs can be accommodated should take place
at this stage.
STEP 2: CABINET CLUSTER SYSTEM
After the approval of the policy proposal
by the relevant Member of the Executive
Council, the department drafts a Cabinet
Memorandum for consideration and
approval by the Executive Council.
The policy development process is applicable
to new legislation and to repeals and
The submission to the Cabinet System must
include:
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(a)
a Cabinet Memorandum in the
prescribed format;
(b) supporting policy documents as an
attachment to the memorandum; and
(c)a recommendation that the Executive
Council should consider and approve
the policy and authorize the drafting
of the Bill based on the approved
policy.
STEP 2B: EXECUTIVE COUNCIL CLUSTER
COMMITTEES
Following the Technical Cluster Committee, the
memorandum and policy proposal is referred
to the appropriate Executive Council Cluster
Committee for the purpose of policy review
in the light of overall government policy,
programme needs, costs and the legal and
political implications.
The memorandum should be approved
by the relevant Member of the Executive
Council and submitted to the Office of the
Premier, where it will be tabled within the
Executive Council system for consideration
and approval by the relevant Technical
Cluster Committee and thereafter, to one of
the Cluster Committees of Executive Council
for review.
The Committee may refer a proposal back
to the department for refinement, reject it
or approve the proposal for submission to
Executive Council.
Step 2A: RELEVANT TECHNICAL CLUSTER
COMMITTEE
Once submitted to the Executive Council
System, the memorandum and the policy
proposal are tabled for consideration by
the relevant Technical Cluster Committee.
In terms of the revised Executive Council
procedures, all matters that have to be
submitted to Executive Council and its
Cluster Committees must first be submitted
to the relevant Technical Cluster Committee
for consideration.
STEP 2C: EXECUTIVE COUNCIL MEETINGS
The Cabinet Memorandum and policy
proposal, once approved by the appropriate
Cluster Committees, is then referred to the
Executive Council. In considering whether
to approve the policy and authorize
the drafting of a Bill based on the policy
proposal, the Executive Council will be
aided by the comments of the relevant policy
Cluster Committees.
Once the Cabinet Memorandum is approved
by the Executive Council, the drafting stage
begins.
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STEP 3: THE DRAFTING STAGE
Once there is approval for the drafting of
a Bill, the Department prepares drafting
instructions, appoints a Drafter, and
ensures that the Bill and an explanatory
memorandum to the Bill are drafted.
The explanatory memorandum to a Bill must
include the following• Background (explaining the context
of the Bill)
• Purpose of the Bill
• Discussion (of main provisions of the
Bill and why particular policy choices
were made)
• The Constitutional implications
• Legal
implications
(including
relationships with provincial and
national legislation and, where
appropriate,
local
government
regulations)
• Social implications
• Environmental implications
• Financial implications, including a
costing of the implementation of the
legislation
• Organizational
and
Personnel
implications
• Communication implications
• Consultation
• A clause by Clause explanation of
the Bill
The Department could consider setting up
a Drafting Team which could include both
policy and legal experts.
Once a draft Bill has been prepared by the
Department, the Department must publish
the Draft Bill for public comments and
stakeholder engagement. The Department
must give the public at least 30 days to
submit their comments received and amend
the Draft Bill where necessary.
STEP 3A: PRE-CERTIFICATION
After conclusion of the public participation
and stakeholder engagement process, draft
legislation must be referred to the State
Law Advisers in the Office of the Premier
for pre-certification. At this stage, the State
Law Advisers will review issues related to
drafting, language and law.
On completion, the State Law Advisers
will return the pre-certified Bill and the
explanatory memorandum on the Bill to
the relevant Department. From this point
forward the Bill is always accompanied by
an explanatory memorandum.
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STEP 3B: TECHNICAL CLUSTER COMMITTEE
RESPONSIBLE FOR LEGISLATION
After the pre-certification stage, the
Department refers the Bill for tabling in the
Executive Council System. The Governance
& Planning Technical Cluster Committee
responsible for Legislation, reviews the
draft Bill for constitutionality, alignment with
policy imperatives, consistency and quality
of drafting based on the clause by clause
report from the Deputy Chief State Law
Advisor.
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An important role of the Governance &
Planning Technical Cluster Committee
would be to check whether the drafting
instructions were adhered to and whether
the explanatory memorandum is of an
acceptable quality.
STEP 3C: CLUSTER COMMITTEE RESPONSIBLE
FOR LEGISLATION
The
Cluster Committee responsible for
Legislation receives a report from the
Technical Cluster Committee responsible
for Legislation, for discussion. The Cluster
Committee must satisfy itself that the technical
issues have been resolved and that the Bill
reflects government policy as approved by
the Executive Council.
The Cluster Committee may then approve
the Bill or refer it back to the Department for
further work if not satisfied.
For the Cluster Committee to do this, it
would need to ensure that the Bill as a whole
as well as all its clauses are aligned with
government policy and that it is internally
coherent and technically sound.
The Cluster Committee may recommend
changes in the draft as long as the changes
are within the scope of the approved policy.
The Cluster Committee is an Executive
Council Committee. It does not usurp
the work of any of the committees of the
Legislature. The Sub-Committee responsible
for Legislation should be assisted in its
work by the Technical Cluster Committee
responsible for Legislation as well as extensive
documentation from the Department making
a submission, including a clause by clause
explanatory memorandum.
If the Bill is approved, it is returned to the
Department for tabling at a meeting of the
Executive Council.
The Department
then prepares a
memorandum to the Executive Council
requesting approval of the Bill and
approval for the introduction of the Bill in
the Legislature.
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STEP 3D: EXECUTIVE COUNCIL
The Executive Council considers the final
version of the Bill and the explanatory
memorandum on the Bill. If the Executive
Council approves the Bill, the Bill is referred
to the Department to prepare the Bill for
introduction (e.g. translations etc.).
STEP 3E: FORMAL CERTIFICATION
The Department then refers the Bill to the
State Law Advisers for formal certification.
At this stage, the State Law Advisers facilitate
the final editing of the Bill, without making
substantive changes to ensure the quality
of the Bill. On completion, the State Law
Advisers will submit the formally certified Bill
and its explanatory memorandum together
with the certificate of certification, to the
Department.
STEP 4: INTRODUCTION STAGE
The Department then receives the certified
Bill from the State Law Advisers and submits
a copy of the certified Bill to the Leader of
Government Business (LGB), who informs
the Speaker of the approval by the Executive
Council in terms of the Legislature’s Standing
Rules. This sets in motion the process in the
Legislature.
The Speaker then informs the Chairperson of
the relevant Standing Committee to plan for
introduction. Simultaneously the Department
instructs translators to translate the Bill into
three official languages (IsiZulu, Sepedi and
Afrikaans).
STEP 4A: GAZETTING OF THE BILL
The Department submits the original Bill,
its explanatory memorandum, certificate
and translations to the Secretary: House
Proceedings Unit in the Legislature for
publication in the Provincial Gazette. This is
for the account of the relevant Department.
STEP 4B: INTRODUCTION OF THE BILL
At least 14 days after the date of publication
of the Bill in the Provincial Gazette, the
Bill is introduced in the Legislature by the
Member of the Executive Council, either by
making a speech or requesting the Speaker
to introduce it.
The process thereafter is governed by the
Rules of the Gauteng Provincial Legislature.
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CABINET CLUSTER SYSTEM
STEP 2
STEP 1
RELEVANT TECHNICAL CLUSTER COMMITTEE
STEP 2A
Policy proposal setting out the need for legislation.
As thorough as possible. Member of the Executive
Council for approval.
POLICY DEVELOPMENT STAGE
STEP 2B
EXECUTIVE COUNCIL CLUSTER COMMITTEES
Cabinet Memorandum to Executive Council for
approval of policy and authorization to draft
the Bill. The drafting stage begins following
Executive Council approval.
STEP 2C
EXECUTIVE COUNCIL
Department prepares drafting instructions,
appoints a drafter to draft Bill and explanatory
memorandum. Stakeholder engagement and
public participation done.
STEP 3
DRAFTING STAGE
Draft legislation referred to the State Law Advisers to review
questions of drafting, language and law. State Law Advisers
return pre-certified Bill and the explanatory memorandum to
the Department.
STEP 3A
PRE-CERTIFICATION
Department drafts Cabinet Memorandum for Once submitted to the Executive Council system the Following the Technical Cluster Committee the memorandum
memorandum and the policy proposal are tabled and the policy proposal is referred to the appropriate Executive
approval by the Executive Council.
for consideration by the relevant Technical Cluster Council Cluster Committee for purpose of policy review.
Committee.
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TECHNICAL CLUSTER COMMITTEE
STEP 3B
PROVINCIAL GOVERNMENT
REPUBLIC OF SOUTH AFRICA
GAUTENG
STEP 3C
The Department submits the original Bill
Explanatory memorandum certificate and
translations to the Secretary: House Proceedings Unit for publication in the Provincial
Gazette on the account of the Department.
STEP 4A
GAZETTING OF THE BILL
Cabinet Secretariat: Office of the Premier
Tel: (011) 355-6859 • Fax: (011) 355-6862
State Law Advisers
Tel: (011) 355-6107/8 • Fax: (011) 833-2950
At least 14 days after the date of publication of Bill in the Provincial Gazette, the Bill is introduced in
the Legislature by the Member of the Executive Council, either by making a speech or requesting the
Speaker to introduce it. The process thereafter is governed by the Rules of the Gauteng Legislature.
INTRODUCTION OF THE BILL
STEP 4B
STEP 3D
EXECUTIVE COUNCIL
Executive Council considers the final version of the Bill and the
explanatory memorandum on the Bill. If Executive
Council approves the Bill; the Department prepares the
Bill for introduction (e.g. translations etc.).
Department receives the certified Bill from the
State Law Advisers and submits a copy to the
Leader of Government Business (LGB), who
informs the Speaker of approval by Executive
Council in terms of the Standing Rules.
STEP 4
INTRODUCTION STAGE
The Cluster Committee responsible for Legislation
receives a report from the Technical Cluster Committee responsible for Legislation and discusses it.
CLUSTER COMMITTEE RESPONSIBLE
FOR LEGISLATION
The Department then refers the Bill to the State Law Advisers for
formal certification. At this stage the State Law Advisers do final
editing of the Bill, without making substantive changes to ensure the
quality of the Bill. On completion the State Law Advisers submit the
formally certified Bill and its explanatory memorandum together with
the certificate of the certification to the Department.
FORMAL CERTIFICATION
STEP 3E
After pre-certification, the Department refers the Bill
for tabling in the Executive Council System to the
Governance & Planning Technical Cluster Committee responsible for Legislation the Technical Cluster
Commttee reviews the draft Bill.
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LEGISLATIVE GUIDELINES
To enhance the standard of legislation in the Gauteng Province and to ensure
uniformity throughout the Gauteng Provincial Government, the State Law Advisers
issue the Legislative Guidelines setting the minimum drafting standards. Strict
adherence to these guidelines will ensure that there are no unnecessary delays
in the certification process.
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A.BILLS
Bills must be accompanied by an
Explanatory Memorandum (Refer to Step
3: Drafting Stage for details)
1. Use a logical lay-out, starting with the
long title and ending with the short title,
followed by schedules and annexures.
2. Include enactment clause as follows:
“BE IT ENACTED by the Provincial
Legislature of Gauteng as follows:-“.
3. Memorandum on the objects of the
Bill, incorporating clause-by-clause
explanation, must accompany all Bills.
4. The contents of the Bill must be consistent
with the Constitution, i.e. rights may not
be infringed, unless it is a justifiable
limitation contemplated in section 36.
5. Subject matter of the Bill must fall
within the legislative competence
of the Province as derived from the
Constitution.
6. The provisions must harmonise with the
common law and other Acts – which
need not be repeated.
7. Eliminate
inconsistencies
between
different provisions in the Bill.
8. The contents must be logical, effective
and workable in practice, e.g. penalties
must be prescribed for offences.
9. Every section must have a heading.
Place numbers opposite the provisions
and not opposite headings.
10. Number sections (1, 2, 3); subsections
((1), (2), (3)); and paragraphs
((a), (b), (c)).
11.Follow accepted amendment formulas
for substitutions, deletions, insertions
and additions.
12. The language must be plain and clear to
everybody. Draft in plain language, use
present indefinite tense, active voice,
positive and singular. Avoid: passive
voice, provisos, legalese (“mutatis
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mutandis”), vagueness and ambiguity.
13.
Use “must” to denote obligatory
provisions and “may” for discretion.
14. Use one sentence per provision and one
idea per sentence – no long sentences.
15. The printing, format, contents and
wording must be accurate to ensure
implementation of the policy of
Government.
16. Use 12 point font size, one and a half
paragraph spacing and “Verdana”
letter type.
17. Limit cross referencing as far as possible
and ensure accuracy of cross referencing
when used.
18. Remember to include transitional
provisions and savings where required.
19. Ensure that definitions are used and
used as defined.
20. Ensure compliance to Rule 238(2) of the
Rules of the Gauteng Legislature that
requires that Bills that grant the power
to adopt subordinate legislation to the
Executive or another body:
(a)has clear parameters and is not unduly
general or without clear directions to
the subordinate lawmaking authority;
and
(b) does not authorise the Executive or
another body to make subordinate
legislation which would not comply
with the Constitution.
B.PROCLAMATIONS, REGULATIONS,
NOTICES & RULES
1. Follow the same format as for Bills, with
the necessary changes as required by
the context.
2. Each provision must be authorized
by the enabling Act, AND must be
consistent with the enabling Act AND
the Constitution.
3. Provisions must harmonise with the
enabling Act-follow the same style as
the enabling Act.
4.Ensure that subordinate legislation
complies with Rule 241(5) of the Rules
of the Gauteng Legislature in that it:
(a) is authorised by the terms of the
enabling Act and complies
with any condition set out in
the Act;
(b)is in conformity with the Bill of
Rights;
(c) has no retrospective effect without
express authority having been
provided for in the enabling
legislation;
(d)imposes a tax, levy or duty or
requires
spending
by
the
Province
without
express
authority
having
been
provided
for
this
in
the
enabling Act;
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(e) imposes a fine, imprisonment or
other penalty without express
authority having been provided for
this in the enabling Act;
(f)tends directly or indirectly to
exclude the jurisdiction of the
courts;
(g) appears for any reason to infringe
the rule of law;
(h)makes the rights of the person
unduly dependent on administrative
discretion or is not consistent with
the rules of natural justice;
(i) contains matter more appropriate
for enactment by the Legislature;
and
(j) is not defective in it’s drafting or
requires explanation as to its form
or purport.
5. In term of section 4 read with section
2(2) of the Gauteng Scrutiny of
Subordinate Legislation Act, 2008
(Act no. 5 of 2008) draft regulations
must be submitted to the Committee
for the Scrutiny
of Subordinate
Legislation (CSSL) after certification by
the State Law Advisers for approval
by the Committee for the Scrutiny of
Subordinate Legislation.
Finally, check and re-check everything to
ensure accuracy.
NOTES
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TECHNICAL CLUSTER COMMITTEES –
HEADS OF DEPARTMENT AND
TECHNICAL EXPERTS ON INVITATION
Social Cluster Technical Committee
Made up of Heads of Department of the
following departments:
-Education
-Health
- Social Development
- Human Settlements
- Community Safety
- Treasury
- Office of the Premier
- Sports, Arts, Culture and Recreation
Governance and Planning Cluster Technical
Committee
- Treasury
-Finance
- Office of the Premier
- Cooperative Governance and Traditional
Affairs
Economic Cluster Technical Committee
Made up of Heads of Department of the
following departments:
- Economic Development
- Agriculture and Rural Development
- Infrastructure Development
- Human Settlements
- Treasury
- Roads and Transport
- Office of the Premier
-Finance
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EXECUTIVE COUNCIL CLUSTER
COMMITTEES - MEMBERS OF THE EXECUTIVE
COUNCIL AND HEADS OF DEPARTMENT
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Economic Cluster Committee
- Agriculture and Rural Development
- Infrastructure Development
- Economic Development
- Human Settlements
- Roads and Transport
-Finance
- Treasury
- Office of the Premier
Governance and Planning Cluster
Committee
- Treasury
-Finance
- Office of the Premier
- Cooperative Governance and Traditional
Affairs
Social Cluster Committee
-Education
-Health
- Social Development
- Human Settlements
- Community Safety
- Sports, Arts, Culture and Recreation
- Treasury
- Office of the Premier
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CONTACT INFORMATION
Office of the Director-General: Office of the Premier
Tele: (011) 355 6200
Fax: (011) 834 9177
Leader of Government Business:
Tele: (011) 227 9226
Fax: 086 420 6576
House Proceedings Manager: Gauteng Provincial Legislature
Tele: (011) 498 5973
Fax: (011) 498 5580
State Law Advisers: Office of the Premier
Tele: (011) 355 6107/8
Fax: (011) 833 2950
Cabinet Services: Office of the Premier
Tele: (011) 355 6307
Fax: (011) 834 9177
Leader of Government Business Support:
Tele: (011) 227 9203
Fax: (011) 355 6869
You can use the following website to access more information:
Gauteng Provincial Legislature at www.gautengleg.gov.za
Gauteng Office of the Premier at www.gautengonline.gov.za
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GAUTENG
PROVINCIAL GOVERNMENT
REPUBLIC OF SOUTH AFRICA
www.gautengonline.gov.za
or call 0860 42 88 364 (0860 GAUTENG)
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