The Law Of The Land: New Legislation For SA
Amid the flurry of new gazetted regulations and interim legislation introduced under the global pandemic and our local lockdown, it’s easy to lose sight of those bills and regulations which are ‘business-as-usual’, or which one would expect to see during the course of any other year.
Rand Rescue takes a look at new legislation in the pipeline, those bills and acts which had already been ratified and legislation which is requested or opposed by various South African factions.
Two new pieces of legislation or court rulings will have a significant impact on the political playing field of South Africa’s future.
The first of these is the Promotion of Access to Information Amendment Act which will henceforth require political parties to record and disclose information related to private funding of political parties and independent candidates. The Bill is an extension of the Constitutional Court judgment in My Vote Counts NPC v Minister of Justice and Correctional Services and Another  ZACC 18 which stipulated that parliament should make the necessary changes to PAIA which would demand disclosure of political funding which exceeds the current R100 000 donation threshold.
In addition to the amounts, parties will also be required to record the identity of the donors, make quarterly donation records available and retain records for a minimum period of 5 years. The amendment underscores the state’s constitutional obligation to ensure that meaningful expression is given to the right of access to information.
The second pivotal change relates to a recent Concourt ruling which found that the current Electoral Act was unconstitutional and that it needs to make allowances for independent candidates to stand for national and provincial elections without requiring affiliation with political parties.
The ruling was made after an application by the New Nation Movement which argued that current legislation does not uphold South Africans’ constitutional rights and is undemocratic.
While the move was applauded by former DA head, Mmusi Maimane, and former mayor of the City of Johannesburg, Herman Mashaba. But not all political parties are keen on the ruling. The ANC is currently scrutinising the court findings and there is every likelihood that the ruling will be challenged by those who wish to maintain the current political structures in place.
Enforcing transparency and limiting political interference
It seems the presidency is taking great strides in following through on initiatives addressed during SONA and the Budget Speech earlier this year – especially the eradication of corruption and clarifying the scope of political interference on independent bodies.
One such initiative is the Independent Police Investigative Directorate Amendment Bill which was signed into law in May 2020. But while certain parties are lauding the president for his progressive stance, others have pointed out that ratifying legislation which was deemed necessary by the South African courts is an integral part of the president’s executive function and not an optional or a decision which the president has sole autonomy over. Indeed, he can certainly advise on legislation, refer it back to the National Assembly or the Constitutional Court, but the president – just like all other South African citizens – is required to uphold the South African constitution and legislation determined by the courts.
Bearing this in mind, there are many who feel that the PIDA Bill misses the mark on the determinations of the High Court and Constitutional Court handed down in the matter of McBride v Minister of Police and Another . The case dealt with the powers granted to the minister of police (at the time, Nathi Nhleko) over the executive director of IPID (Robert McBride at the time) and the court determined that the independence of IPID is a constitutional requirement and not something which is open to interpretation or subservient to the mandate of the SAPS or other public bodies.
The PIDA bill therefore falls short of the declarations and advisory of the courts. The courts had, at the time, required legislative amendments to be implemented within 24-months – a deadline missed by two years. Concerned parties therefore feel that the Amendment does not fully clarify IPID’s independence and that the delay in ratifying crucial legislation only points towards further misinterpretation or opens doors for future misconduct by the Police Ministry.
Nevertheless, it is a step forward in separating the powers of ministries and political parties from independent investigative bodies.
Securing our oceanic borders
Another Act which many South Africans may not be aware of yet has a crucial role to play in South Africa’s international trade relations is the granting of legislative status to the Office of the Hydrographer.
Although the Office has been in existence since 21 July 1954 and yet its legislative powers had never been officially acknowledged or defined until now. The Hydrographic Act 35 of 2019 which was ratified in May 2020 sets out the international hydrographic and nautical charting obligations, responsibilities and liabilities of the Office. The legislation aligns with the 2014 Defense Review and defines the role and responsibility of the Hydrographer in the economic management of South Africa’s marine resources along the 3 000km of coastline.
Though this legislation may seem somewhat insignificant to South Africans, it is a crucial addition which will ensure that the marine life and interference of foreign vessels is managed and monitored more efficiently. The Act is therefore not only a step forward in the conservation and responsible economic management of our coastlines and their natural resources.
Foreign Service amendments
Another major legislative update is the Foreign Service Act which stipulates the administration, function and accountability of South Africa’s Foreign Service.
It would seem almost impossible, yet the mandate and control of SA’s foreign service delegates has never been fully defined or centrally controlled. The new legislation will sets down a legislative and administrative framework which determines how foreign service will be managed by the Department of International Relations and Cooperation. As it stands the management of officials on foreign assignments is fragmented and inconsistent. The FSA stipulates minimum requirements for persons who are to represent South Africa on foreign missions and legal obligations for such missions – including the recall and prosecution for offences committed as official representatives of the government abroad.
In line with Governmental spending regulation introduced by Minister of Finance, Tito Mboweni, the FSA will make the management and oversight of our foreign delegates easier and offer guidelines for intervention.
Covid-19 has turned many things on its head, and the total ban on the sale of tobacco products and alcohol under Level 4 cast an unusual spotlight on home-brewed beer, or umgombothi as it’s known locally.
The proposed Liquor Products Amendment Bill is aimed at setting down minimum regulations for the production, packaging, transport and sale of beer. As mentioned earlier, the president has the power to ask for additional consultation or discussion around legislation, which is exactly what President Ramaphosa is doing in regards to the LPAB. The president’s concern relates to the nature and purpose of traditionally brewed beer in cultural practices of many South Africans.
Part of the amendments is the reconstitution of the Wine and Spirit Board to include beer. The concern is that a central control by the Board and the regulations on the board may place severe limitations on legal home-brewing and impede on South Africans’ human rights relative to the freedom to participate in cultural practices.
More in the pipeline
More legislative intervention is waiting for South Africans in our near future, including the implementation of new road traffic rules, the Child Justice Amendment Act, stricter regulation of public transportation such as Uber, Bolt and other transportation services.
We’re also awaiting clarification on tax legislation and how such legislation will affect South African expats.
Keep an eye on Rand Rescue’s social media and website for more news and updates on South Africa’s politics, economy, trade and expat matters.
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