It is important to know how laws and policies are made as these processes provide opportunities for public participation.

WHAT IS THE DIFFERENCE BETWEEN A LAW AND A POLICY?

A law is a set of legally binding rules passed by parliament and sets out standards, procedures and principles which must be followed. If a law is not followed, those responsible for breaking them can be taken to court.

A policy outlines a ministry’s goals and the methods and principles it will use to achieve them. It is not a law, but it will often identify the need for new laws to achieve its goals.

So, policy sets out the goals and planned activities of government but it needs laws to implement the policy. Laws, on the other hand, will be guided by the current policy when they are drafted.

All laws and policies are made according to the Constitution and may not contradict the rights embedded in it.

EXAMPLE: The difference between law and policy

A policy statement says: “All citizens should have access to 15 litres of water a day”. The law says: “The national government has the power to regulate the amount of free basic water a municipality must supply.”

MAKING NEW POLICY

This is a basic format to show the process of making a new policy:

1. The government identifies the need and drafts a new policy.
2. Government identifies key issues. The appropriate department will identify key issues that are relevant to the problem. This is done through research and consultation with people in the field.
3. Government explores policy options. Once the department has explored the key issues, it will draw up a document outlining the key issues and give suggestions for solving the issues. This document is called a green paper or discussion document and is open to the public for comment (typically for a few months)
4. Government finalises the policy. The Department and Ministry look at all the issues and options and decide which issues are important and how they intend to address these. They also take into account public comment on the green paper or discussion document. Cabinet will have to approve the government’s final policy positions. The policy is then published as a white paper and adopted by parliament as the official policy of government. The white paper often forms the basis of laws that have to be passed to give effect to the policy.

NOTE: The ruling party in government will base their approach on the manifesto and policies of their party. Often new policies are first discussed in party congresses and the party’s public representatives use these as a basis for the work they do in government. It is also important to try and influence political parties and to participate in their policy-making process whenever you have the opportunity. You can do this as a party member or as a participant in any public policy discussions held by the party. You can also lobby senior leaders in the party.

WHEN CAN YOU PARTICIPATE DURING THE POLICY-MAKING PROCESSES?

There are critical key moments in the policy and law-making process when it is best to lobby. These are linked to:

• the stage in the process of developing policy or law
• knowing the institution and person involved who has the power to make changes

MAKING NEW LAWS

The job of drafting new laws is most often done by government departments. The government may decide it needs new laws to achieve their objectives or to carry out policies that have been drawn up. A draft bill is a draft law that has not been passed by parliament. ‘Passed’ means approved. An act is a law that has been passed by parliament.

This is a summary of the basic steps for making or passing a new law:

1. A draft bill is drawn up. A bill can be introduced in the National Assembly by a cabinet minister or deputy minister, a parliamentary committee, or a member of the National Assembly. If the bill comes from a department, the minister will first take it to Cabinet for discussion to make sure it does not clash with any other laws or policies. Once Cabinet approves it, it is tabled in the National Assembly. The draft bill can be made available for comment to the public. Once the public has commented the department will make any changes that they think are necessary.
2. The minister tables the bill in parliament. The Bill is given a number, for example, Bill 25 of 2025.
3. Parliament looks at the contents of the Bill and sends it to a Parliamentary Portfolio Committee for consideration.
4. The Parliamentary Committee debates the Bill. The Parliamentary Committee may ask the public for comment on the Bill. They will then usually hold hearings for anyone to attend where they debate the Bill. Once they have made any changes they must send their report back to Parliament.
5. Parliament votes on the Bill. At least half the members of the National Assembly must vote in favour of the Bill for it to be approved. If there is no majority, the Bill is rejected.
6. If the National Assembly has approved the Bill it gets sent to the National Council of Provinces (NCOP). The NCOP considers the Bill. It can approve, suggest changes or reject the Bill. If it approves the Bill, it refers it back to the National Assembly to be passed.

If the Bill is about something that only the National Assembly can make law on (a Section 75 Bill):

The NCOP can approve the Bill or suggest changes but the National Assembly decides what the Bill finally says. Each member of the NCOP has one vote, and a simple majority of members is needed to approve the Bill. (A simple majority means half the votes plus at least one vote must be in favour of the Bill.) Examples of Section 75 Bills are defence and international relations bills.

If the matter is one that provinces can make law on (a Section 76 Bill):

The NCOP can approve, suggest changes or reject the Bill. To approve the Bill, each province has one vote and at least five of the nine provinces must vote in favour of it. If the NCOP suggests changes or rejects the bill and the National Assembly doesn’t agree, the NCOP can refer the Bill to a mediation committee to resolve any differences. Examples of Section 76 Bills are Bills on environmental affairs, cultural issues, etc.

• The mediation committee consists of 9 members of the NCOP and 9 members of the National Assembly.
• If the mediation committee resolves the differences, it refers the Bill to the National Assembly to be passed.
• If the National Assembly and NCOP still can’t agree, then the National Assembly has to have a special vote to make the Bill law. It will only become an Act if it gets a two-thirds (66%) majority in the National Assembly.

7. The NCOP may advertise public hearings on Bills where they ask for public comment. People can also send their written submissions to the NCOP.
8. The National Assembly passes the Bill.
9. The President signs the Bill and it gets published in the Government Gazette. When this has happened, the Bill becomes law and is called an Act.

WHEN CAN YOU PARTICIPATE DURING THE LAW-MAKING PROCESS?

There are critical key moments in the law-making process when it is best to lobby. These are linked to:

• the stage in the process of developing law
• knowing the institution and person involved (who has the power to make changes)

DUTIES OF GOVERNMENT TO FACILITATE PUBLIC PARTICIPATION DURING THE LAW-MAKING PROCESS

The National Assembly, National Council of Provinces and provincial legislatures all have a duty to facilitate public participation in terms of the Constitution. Parliament can choose whatever method it believes will be best for public participation but it must make sure that members of the public and all interested parties are given a ‘reasonable opportunity’ to know about the issues and to have a proper say. A ‘reasonable opportunity’ means a meaningful opportunity that has the potential to influence a lawmaker’s decision and Parliament must take account of the public’s views. If there is insufficient public participation in a specific law, then it can be made invalid.

In the Constitutional Court case Mogale and Others v the Speaker of the National Assembly and others (2023), the question was whether the National Assembly, the National Council of Provinces and the Provincial legislatures fulfilled their constitutional duty to allow ‘reasonable’ public participation when they passed the Traditional Khoi-San Leadership Act 3 of 2019 (TKLA). The Court found there was insufficient public participation and the TKLA was declared unconstitutional and invalid.

There are three factors that the Constitutional Court said must be considered to decide whether public participation has been ‘reasonable’:

• What does Parliament itself determine is reasonable
• How important the legislation is and its impact on the public
• Whether there are time constraints with passing a particular law