GERRIT SANDROCK: SA urgently needs a Law Review Commission

Ignorantia legis neminem excusat is a widely accepted legal principle, meaning “ignorance of the law excuses no-one”. Notwithstanding the State vs De Blom case of 1977, everyone is subject to the law and is therefore expected to know it.

How daunting is that! Yet today one can also say omnes ignari iuris — no-one knows the law — simply because it is no longer knowable. This applies as much to lawmakers (MPs), regulators and other lawyers as it does to the lay person.

SA has various different types of legislation: 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 or "subordinate” legislation or regulation (which in essence is law by decree — ministerial or otherwise).
• Regional and local legislation (law by regional and local/municipal government structures).
• Legislative instruments.

Since the formation of the Union of SA in 1910 there have been 7,397 Acts passed by the SA parliament. Of those, only about 294 have ever been repealed. Many have fallen into disuse, though 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 dramatic decline in the number of Acts processed since 2000 reflects in part the vast switch to “secondary” or “subordinate” legislation now made possible through the practice of passing “enabling” legislation.

Laws are no longer required to pass through parliament to become the law. Acts of parliament now tend to enable the government and its agencies to make their own law by decree. Moreover, 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 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”. 

Parallel structures

With each of these agencies now autonomously and vigorously generating laws, it is well-nigh impossible to know how much, or what, law is on the statute book. While the number of laws passed by parliament has fallen, the overall body of lawmaking has simply shifted to an almost shadowy parallel structure making additions to the existing legislation. Clearly, it is no longer possible for the average person 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 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 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 the lay person to stay fully informed of their obligation not to be ignorant of the law in all its wondrous detail.

All of this means that the costs of the person in the street engaging in any legal action is considerable and 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 ordinary people’s access to a legal system that was supposedly designed for their benefit. It also makes the enforcement of the law far more difficult — to which anyone who has had to prosecute commercial or criminal offences will attest.

Inscrutable complexity

Notwithstanding the argument that the world is now a complicated place, it is hard to escape the conclusion that there is simply far too much law to with which to contend. Moreover, the law is in general inscrutably complex. Numerous laws enacted more than half a century ago are now clearly in need of revision or outright abolition. We live in a different world now than in most of the 20th century.

There is of course the additional problem of weak or nonexisting 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 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, 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 a law is not having the intended effect it must be reviewed, and if the cause is weak enforcement or lack of prosecution then those 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.

Need and effect

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 10 years after promulgation, is clearly necessary. Indeed, a permanent and independent Law Review Commission is called for.

There are a few general principles that should be incorporated into the legislative process:

• It may not be necessary to legislate at all if there are other options;
• reducing complexity should be a core consideration;
• those affected by laws should be enabled to understand how it applies to them; and
• the clarity of a law should be continually assessed.

A standard review period should 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 be shown to have been cured. If not, it must be removed from the statute book or amended to focus on the problem at hand. That also means every law must spell out its intended effect in manifestly measurable terms; in particular there must be a set period within which the law is expected to meet its objectives. If it has not reached those objectives by then 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 lawmaking is brought back within the direct supervision of parliament. This does not mean 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 it should be peer reviewed before advising parliament on required actions. Many 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 ongoing task. However, the cost of continuing with a legal system that is increasingly inaccessible and inscrutable to the citizens of SA, that is such an overburden to business and the economy, is so high that the investment in such a review commission is priceless.

• Dr Sandrock, a chartered insurance practitioner, is financial management consultant to the global short-term insurance industry. He writes for the Free Market Foundation in his personal capacity.