Its rare that South African legislation is commenced by the Minister rather than by the President.
Some statistics
Of the approximately 978 Acts promulgated 1994 to date, we identify only seven which allow the Minister, rather than the President, to wield the power of commencing the Act. A similar situation exists in respect of Provincial legislation, with only the KwaZulu-Natal legislature sometimes allowing the relevant portfolio member to wield the power of commencing legislation. (Of approximately 100 pieces of KwaZulu-Natal Provincial legislation published since 1994 , approximately 13 provide that they be commenced by the relevant portfolio member)
These facts are interesting in themselves. However, examining our LegalB database further indicates that although there are only 7 of 978 national Acts published since 1994 in which the Minister wields the power of commencement, four of these seven were published in the last two months alone.
Reading between the lines
These figures strike one as impressive, and whether they are of statistical significance, they set one’s mind to thinking about the meaning of a possible shift in the power of commencement from the President to a Minister.
There are numerous sources of power in the arena of pending legislation. A shift in the power of commencement from the President to his Minister’s is just one expression of such power. However, little if no research into pending legislation as a source of power has been done.
A first obvious thought is that it is he or she who is entitled to wield the pen which signs commencement proclamations or notices, who also wields the power to implement legislation. Not only that, it is that person who also the power not to implement legislation.
A smorgasbord of legislation to pick and choose from
The failure to wield the pen bringing legislation into force has, over the years, provided our Presidents (first Mandela and then Mbeki) with a huge smorgasbord feast of uncommenced Acts from which they can pick and choose to bring into force.
The fact that this huge smorgasbord of as yet un-commenced legislation exists, despite the South African Constitution’s requirement that legislation be brought into force promptly, is a grave indictment of the capacity of civil society, political parties and others to ensure the formal, procedural and administrative processes upon which the rule of law is premised.
It is said that the real expression of power lies not in the exercise of power, but in the capacity to not exercise power. The cumulative power residing in currently uncommenced legislation, from which the President can pick and choose to suit the power plays and interests of the day, without any further reference to Parliament or anyone else, is a most effective restrain in the exercise in power which accumulates more and more power.
If there is indeed an embryonic shift in power to commence Acts, from the President’s to the Minister’s pen, then we must ask the following question in order to determine the move that is being made on the political chessboard: Does this change reflect a shift of power away from a President about to lose his position and/or independence? Is that shift forced by the new Polokwane brigade? Or is it a pre-emptive shift to rapidly protect and secure the President’s power base in the hands of faithful lieutenant Ministers?
Logically, it would make pre-eminent sense for a President under threat of removal, or a party under threat of being unseated, to ensure that the power to commence or not commence legislation is placed in the hands of Ministers, of whom some at least are likely to remain faithful.
Predicting the future
If the tremendous power of the stroke of the President’s pen to bring a kaleidoscope of bits and pieces of legislation into force is shifting to the stroke of a Minister’s pen, then this could indicate the start of a serious shift of power worthy of exploration.