The art of drafting the impossible
Section 8 of the National Health Amendment Act 12 of 2013 requires that the words “Office of Health Standards Compliance” be inserted after the words “Nelson Mandela Museum, Umtata” in Part A of Schedule 3 of the Public Finance Management Act 1 of 1999. (For your information, just for orientation purposes, Schedule 3 of Act 1 of 1999 is entitled “National Public Entities” and its Part A is entitled “Other public entities”.)
Trouble is, the Public Finance Management Act 1 of 1999 has nary a mention of the “Nelson Mandela Museum, Umtata”, let alone in Part A of it’s Schedule 3.
So, how are we to insert the words “Office of Health Standards Compliance” after the words “Nelson Mandela Museum, Umtata”, when those locator words do not exist?
Do we just push the words “Office of Health Standards Compliance” in anywhere under Part A? Do we pretend that section 8 of Act 12 of 2013 instructs us to insert not only the words “Office of Health Standards Compliance” but the words “Nelson Mandela Museum, Umtata” too? Do we just refuse to include “Office of Health Standards Compliance” at all and say the instructions just could not be followed?
Drafting substantive confusion
Unfortunately, whether we just insert the words “Office of Health Standards Compliance”, or whether we insert the words “Nelson Mandela Museum, Umtata” too so that we can insert the words “Office of Health Standards Compliance” under them, or whether we refuse to follow the instructions at all – has dramatic effect on the substantive import of Act 1 of 1999 on those entites and whoever does business with them.
In fact, on reading Act 1 of 1999’s requirements regarding national public entities, I can just imagine the opportunities for fraud and corruption that would arise if we suddenly started portraying “Nelson Mandela Museum, Umtata” as having been included in Act 1 of 1999 all along, or even if we start portraying those words as having been contained in Act 1 of 1999 from its date of amendment by section 8 of Act 12 of 2013. And, ditto, whether the words “Office of Health Standards Compliance” are or are not included in Act 1 of 1999.
Analysis of the substantive import of Act 1 of 1999 to the Nelson Mandela Museum, Umtata, and the Office of Health Standards Compliance should these entities be potential transgressors of that Act, or not, is well beyond the ambit of this blog, but would be readily apparent to anyone who knows anything about Act 1 of 1999.
Given that, I for one will certainly not be carrying out any amendments to Act 1 of 1999 by Act 12 of 2013. Instead I’ll just place a note in the relevant texts as about the problem, requesting that people read my Commentary on the matter.
I see that Sabinet has gone the whole hog the other way, and inserted the words “Nelson Mandela Museum, Umtata” under Part A of Schedule 3 of Act 1 of 1999, and then has hung the words “Office of Health Standards Compliance” off that.
Simply, its about undermining the rule of law
Wading through conundrums about exactly what the letter of the law is, when it started and ended, who it applies to, and for what – always seems to generate a massive impatience and boredom.
If this is how you are feeling right now but are still here, there’s a summary of the import of the current conundrum:
A basic principle under the rule of law, is that the law must be made known before we can be assumed to know the law, and all the corollaries that flow from that.
If the law is not properly made known, then the law as improperly made known can be taken variously as either this, or that, or neither version and – the principle that the law must be made known having been failed – the presumption that we all know the law becomes rebuttable.
What is done in terms of such “law” become either this activity, or that activity, or neither activity, as the case may be depending on ones interpretation of the law, and nothing can be done about it at all.
And so it is now – in relation to the Nelson Mandela Museum, Umtata and the Office of Health Standards Compliance, anything goes in under the now blurry Public Finance Management Act 1 of 1999.
The consequence?
While I say pity that the art of legislation drafting becomes more and more the drafting of grey law, others rub their palms together in expectation of what grey law brings.