This section outlines the stages and processes involved in the creation or amendment of laws.
Green and White Papers
The legislative process often begins with a discussion document known as a Green Paper. This is prepared by the Ministry or department responsible for the specific issue to present its views on a particular policy. The Green Paper is then published, allowing the public to submit comments, suggestions, and ideas.
Following the Green Paper, there may be a more refined discussion document known as a White Paper. This is a broad statement of government policy, typically drafted by the relevant department or a task team appointed by the Minister of the department. Interested parties are again invited to provide feedback. Parliamentary Committees may propose amendments or other changes and send the policy paper back to the Ministry for further discussion and final decisions.
Bills
A Bill is a proposed law or Act, and it may propose a completely new law, amend an existing law, or repeal an existing law.
This section outlines the processes and requirements that a Bill must undergo before it becomes law, covering the different types of Bills and who may initiate them. The Constitution provides full details on the process, though they are not included here.
Types of Bills in Parliament
There are four main categories of Bills that can be introduced in Parliament:
Ordinary Bills that do not affect the provinces (Section 75 of the Constitution)
Ordinary Bills that affect the provinces (Section 76 of the Constitution)
Money Bills (Section 77 of the Constitution)
Constitutional Amendment Bills (Section 74 of the Constitution)
Bills are often referred to by the section of the Constitution that governs their procedure (e.g., “Section 75 Bills” for ordinary Bills that do not affect the provinces). The process of categorizing a Bill is called “tagging,” which determines the procedures the Bill must follow to become law. The Joint Tagging Mechanism (JTM), a Committee consisting of the Speaker and Deputy Speaker of the National Assembly, and the Chairperson and Permanent Deputy Chairperson of the National Council of Provinces, decides on the classification by consensus, with advice from the Parliamentary Law Adviser. For further details on the JTM’s functions and procedures, refer to the Joint Rules of Parliament, amended on 24 March 1999.
1. Ordinary Bills that Do Not Affect the Provinces (Section 75 Bills)
An ordinary Bill that does not affect the provinces can only be introduced in the National Assembly (NA). Once it is passed by the NA, it must be sent to the National Council of Provinces (NCOP).
Delegates in the NCOP vote individually, and the Bill must be passed by a majority of delegates present. If the NCOP rejects the Bill or proposes amendments, the Bill returns to the NA, which can accept or reject the amendments or decide not to proceed with the Bill. The NCOP can delay, but not prevent, a Section 75 Bill from passing.
2. Ordinary Bills that Affect the Provinces (Section 76 Bills)
A Bill that affects the provinces can be introduced in either the NA or the NCOP but must be considered by both Houses.
NCOP members vote as provincial delegations, with each delegation casting one vote, representing nine possible votes. Provincial legislatures must consider the Bill and give their NCOP delegation a voting mandate, which involves a six-week legislative cycle.
Provincial Committees may hold public hearings and recommend actions to their legislatures. The four special delegates to the NCOP, selected for their expertise, join the six permanent delegates to debate the Bill and cast the province’s vote.
If a Section 76 Bill is introduced in the NA and passed, the NA can override NCOP’s rejection or amendments with a two-thirds majority.
3. Money Bills (Section 77 Bills)
Money Bills deal with public funds, taxes, levies, or duties and can only be introduced by the Minister of Finance in the NA. These Bills follow the same process as Section 75 Bills.
The 2008 Money Bills Amendment Procedure and Related Matters Act allows Parliament to not only debate but also amend Money Bills.
4. Constitutional Amendments (Section 74 Bills)
Amendments to the Constitution require special procedures, as it is the supreme law of the country, safeguarding the rights of citizens. Changes can only be made by a special majority to ensure that a minority cannot make alterations. For example, amendments to the Bill of Rights require a two-thirds majority in the NA and support from six provinces in the NCOP.
All constitutional amendments affecting provinces must be passed by both Houses. Amendments affecting only certain provinces must be passed by those provinces. Amendments must be debated by the NCOP, and a minimum time frame exists for different stages of the legislative process. All amendments must be published for public comment at least 30 days before being introduced, and there must be a 30-day waiting period before the National Assembly can vote.
Bills Before the Provincial Legislature
There are two types of Bills that may come before a provincial legislature:
Bills Other Than Money Bills An ordinary Bill is introduced in the provincial legislature and referred to the relevant Standing Committee. Public hearings may be held, or written submissions may be invited. The Committee considers the Bill, proposes amendments, and submits a report to the House. A debate is held, and MPLs vote. If the majority votes in favor, the Bill is passed; otherwise, it is rejected.
Money Bills Only the MEC for Finance can introduce a Money Bill, which is referred to the Committee of Finance for discussion, typically for a maximum of seven working days. No amendments are allowed at this stage.
How a Bill Becomes Law
Initiation of Bills A Bill may be initiated by various entities:
By a Minister or MEC: Most national and provincial Bills are drafted by a Minister or MEC.
By an MP or MPL: Private Members’ Bills are drafted by individual Members.
By a Committee: Committees can now draft Bills, as per new rules and procedures.
Bills Tabled in Parliament
Most Bills are introduced by the Executive and typically fall under the categories of ordinary Bills, either Section 75 or Section 76.
1. Bills that Do Not Affect the Provinces (Section 75 Bills)
A Bill drafted by a government department is submitted to Cabinet for approval. After the state law advisers refine the draft, the Bill is introduced in the NA for the First Reading and published in the Government Gazette. It is then referred to the relevant Committee for consideration. If the Committee agrees to the Bill or proposes amendments, a Second Reading follows, where the Bill is debated and voted on. If approved, the Bill is sent to the NCOP.
The NCOP can accept or reject the Bill, propose amendments, or send it back to the NA for reconsideration. The NA may override the NCOP’s decision and pass the Bill with or without amendments.
2. Bills that Affect the Provinces (Section 76 Bills)
Section 4 of the Constitution lists matters that affect the provinces and require Section 76 Bills. These include cultural matters, health services, education, and public transport. Bills that affect the provinces can be introduced in either House but must be considered by both.
If a Bill is introduced in the NA, it is sent to a Committee and may involve public hearings. The Bill is debated, and the NA may pass, amend, or reject it. If passed, the Bill is sent to the NCOP for consideration. If the Bill is introduced in the NCOP, it is debated by provincial legislatures before returning to the NCOP for a vote. If the NCOP passes the Bill, it is sent to the President for assent. If the NCOP rejects the Bill or amends it, the Bill returns to the NA. If the NA rejects the NCOP’s amendments, a Mediation Committee is convened.
If no agreement is reached, the Bill lapses.
Provincial Legislative Process
In provinces, Schedule 5 of the Constitution lists matters over which provinces have exclusive legislative control, including ambulance services and libraries. A Bill may be drafted by an MEC, MPL, or a Committee, and after approval by the Executive Council, it is published for public comment. Afterward, the Bill is introduced to the provincial legislature for debate and a vote. If passed, it is signed by the Premier, becoming provincial law. If rejected, the Bill fails.
Sources
IDASA’s Political Information & Monitoring Service (1998), Down Government Avenue
Gauteng Legislature (1996), A People’s Guide to the Gauteng Legislature
Constitution of South Africa, Annotated Version
Taylor, Mandy (1998), How a Bill Becomes Law (paper presented at Parliamentary Monitoring Group training workshop, 1998)
Public Education Department, Parliament of RSA, Parliament, Making Democracy Work
Legislative Training Programme, School of Government, University of the Western Cape Draft Information Handbook for Members of Legislatures
