South Africa urgently needs a Law Review Commission

This article was first published in Business Day on 24 February 2023 

South Africa urgently needs a Law Review Commission
An independent Law Review Commission will be the gift that goes on giving for generations to come.

“Ignorantia legis neminem excusat” is a widely accepted legal principle meaning “ignorance of the Law excuses no one”. Notwithstanding S v De Blom 1977 AD, everyone is subject to the law and is therefore expected to know it.
 
How daunting is that! 
 
Yet today one can say omnes ignari iuris: No one knows the law, simply because it is no longer knowable. This applies as much to law makers (members of parliament), regulators and other lawyers as it does to the lay person.
 
South Africa has various different types of laws: Contract law, property law, trust law, criminal law, constitutional law and administrative law.  Statute laws can be characterised as:

• Primary Legislation (which these days enables others such as cabinet ministers themselves to make their own laws in the form of so called secondary or “Subordinate” legislation).
• Secondary [“Subordinate”] Legislation or Regulation (which in essence is law by decree - Ministerial or otherwise).
• Regional and Local Legislation (Law by Regional and Local [Municipal, etc] government structures).
• Legislative instruments. 
  

Since the formation of the Union in 1910 there have been 7,397 Acts passed by the South African Parliament. Of those only approximately 294 have ever been repealed. Many of these statutes have fallen into disuse, although they are still on the statute book due to a largely dilatory Parliament. (MPs seem not to know that their role is not merely to pass news laws, but also to amend and repeal old ones.)
 
The average number of Acts passed by the SA Parliament during each period since Union in 1910 are shown below:
 

The dramatic fall in the number of Acts processed since the year 2000 reflects in part the vast switch to “Secondary” or “Subordinate” legislation now made possible through the practice of passing “enabling” legislation.
 
Law is no longer required to pass through Parliament to become law. Acts of Parliament tend now to enable Government and its agencies to make their own law by decree. Not only that, they can also impose administrative penalties and have systems to administer their own justice, well beyond the realms of Parliament and the judiciary. This is of course a blatant violation of our constitutional imperative of the proper separation of legislative, executive and judicial powers. In some cases, these agencies have now become so powerful that they have been dubbed “autonomous states-within-the-state”.
 
With each of these agencies now autonomously and vigorously generating laws through their own processes, it is well-nigh impossible to know how much or what law is on the statute book. While on the face of it the number of laws passed by Parliament has reduced, the overall body of law-making has simply shifted to an almost shadowy parallel structure making their own additions to the existing laws. It is obviously no longer possible for the average person in the street (“APITS”) to know the law or the intricacies of how it affects them on a daily basis.
 
In addition, legal practitioners point out that the law is now increasingly seen as a “living” thing. It is not constant and is continuously changing as judges test it daily in the practice of jurisprudence.  Thus, aspects of established law may be challenged and, through judgments that may clarify or amend the application of the law, changed in often small but significant ways. Case law and the principle of precedence is essential to prevent continuous reversion of laws, obviating the need to go back to the original lawmakers in Parliament.
 
Continual amendment of laws passed and challenged in the courts by many, many creators of precedence is termed in the American sense to be “judicial review”. Unfortunately, this adds a further layer of complexity to the already difficult task for APITS to stay fully informed of their obligation not to be ignorant of the law in all its wonderous detail. 
 
All of this means that the costs of APITS engaging in any legal action is considerable and is ever increasing. It is therefore true to say that the depth of one’s pockets determines the justice one gets. We are now faced with a body of laws too dense to negotiate without specialised and expensive legal assistance. This greatly constricts the access of APITS to a legal system that was supposedly designed for their benefit. It also makes the enforcement of the law much more difficult, to which anyone who has had to prosecute commercial or criminal offences will attest.
 
Notwithstanding the argument that the world in now a complicated place, it is hard to escape the conclusion that there is simply far too much law to contend with it.  Moreover, the law is in general inscrutably complex. In addition, numerous laws made more than half a century ago are now clearly in need of revision or outright abolition. We live in a very different world today than in most of the 20^th century.
 
There is of course the additional problem of weak or non-existing enforcement of the law. In recent years, we have seen flagrant disregard for laws with almost no chance of perpetrators being held accountable. That also dilutes the effectiveness of the made law. For instance, if no-one stops at a traffic light that is out of order, and there is no prosecution of those who don’t stop, then what is the use of the law that requires one to stop? If it then also can’t be proven that the incidence of accidents at non-functioning traffic lights is significantly increased, why have the law in the first place? 
 
If the law against murder on the other hand does not prevent murders, it must be reviewed and if the cause is weak enforcement or non-existing prosecution, then those are the things that need to be improved. The outcome envisaged by the lawmaker must primarily determine how the making of the law and its enforcement is to function as a unit.
 
An independent Law Review Commission
Our laws have been made without the provision for some form of regular review of their continued desirability and efficacy, whether primary, subordinate or regional. A formal system of regularly testing whether every law and regulation is having its intended effect, perhaps every five or ten years after promulgation, is clearly necessary. Indeed, a permanent and independent Law Review Commission is what is called for. 
 
There are some general principles that should be incorporated into the legislative process:[i]

• It may not be necessary to legislate at all if there are other options;
• reducing complexity should be a core consideration;
• laws should be no more complex than is necessary;
• those affected by laws should be enabled to understand how it applies to them;
• the clarity of a proposed law should be continually assessed. 

A standard review period requires to be built into every law and regulation, after which it must be tested again and again against its originally stated purpose, aims and justifications. The “mischief” that it was intended to cure must have been cured. If not, it must be removed from the statute book, or amended to focus on the problem at hand. This also means that every law must spell out its intended effect in manifestly measurable terms; in particular there must be a set time period within which the law is expected to meet its objectives. If it has not reached those objectives within the stated period, it must be repealed forthwith. 
 
As indicated, the same review regimen must be applied to secondary and regional legislation, including all legislative instruments issued outside of the parliamentary process. As far as possible secondary and regional legislation should be incorporated into primary legislation, so that duplication is eliminated and law-making brought back within the direct supervision of Parliament. This does not mean that the review process aims to eliminate all legislation. On the contrary it is intended to eliminate law that is outdated, overly complex, irrational, ineffective, duplicated, unconstitutional or unenforceable.
 
Essential for any proper Law Review process, its work must be regular, it must publish both lay and academic legal writing, it must be managed by a qualified, legally experienced and fully independent board, it must be qualitatively cohesive and should be peer reviewed before advising Parliament on required actions. Many existing legal practitioners may give time and expertise by joining working groups focusing on specific laws and working under the direction of the Law Review Commission.
 
This is a mammoth and on-going task. However, the cost of continuing with a legal system that is increasingly inaccessible and inscrutable to the citizens of South Africa, that is such an overburden to business and the economy, is so high that the investment in such a review Commission will be the gift that keeps on giving for generations to come.