Tag archives: Legislation

Public participation in South African law-making process is essential

By Patrick Bracher (ZA) on January 13, 2019 Posted in General

South Africa is a participatory democracy and where legislation is passed without facilitating public participation, especially by those members of the public most affected, the law is invalid. The Veterinary Association was successful in having the word ‘veterinarian’ severed from an amendment to the Medicine and Related Substances Act because of lack of consultation regarding … Continue reading

Public participation in the legislative process

By Patrick Bracher (ZA) on January 19, 2017 Posted in General

A law will be set aside if the lawmaker (Parliament or the National Council of Provinces) fails to satisfy its obligation to facilitate public involvement in the process of making law. In Land Access Movement of South Africa v Chairperson of the National Council of Provinces, Parliament passed a law amending the restitution of land … Continue reading

Legislation cannot always be incorporated into an agreement

By Patrick Bracher (ZA) on July 7, 2016 Posted in Drafting tips

You can incorporate legislation into a contract but you cannot attempt to bind non-consenting third parties, like the state or its regulators, by incorporating legislation. Obligations cannot be imposed on private third parties without their consent. For example, the parties in Firstrand Bank v Clear Creek Trading concluded a contract to which the National Credit … Continue reading

Contracting out of legislative protection

By Donald Dinnie on February 4, 2016 Posted in General

The law obliges medical schemes to pay the costs of treating prescribed minimum benefit conditions in full. The Supreme Court of Appeal in The Council for Medical Schemes v Genesis Medical Scheme provides a useful reminder of when a party may waive rights conferred by law for their benefit. The Medical Schemes Act does not … Continue reading

Court review of legislation

By Patrick Bracher (ZA) on November 10, 2015 Posted in General

Our courts are entitled to review all laws, including delegated legislation (regulations, notices, directives, etc), if they are not clear, comprehensible, accessible and predictable in their application. Vague, unclear and incomprehensible legislation may be struck down as contrary to the rule of law. In MEC for Education, Gauteng v Fedsas the court struck some and … Continue reading

Public participation in law making

By Patrick Bracher (ZA) on September 29, 2014 Posted in General

The making of most law requires public participation. The test as to how much public participation is called for is reasonableness in the circumstances of the case. The steps that must be taken by government to get participation depends on the object, language, scope and purpose of the law. The municipality in Kalil v Mangaung … Continue reading