Must directives be published before it has legal operation?

Covid has brought some fresh legal questions, also with regards to the process of law-making. Covid raises important questions not only about the rules themselves, but about how laws are made during a time of crisis. I am sure this will keep us academics fairly busy for years to come.

This was one of my favourite articles to write for News24 so far during lockdown, and it deals with the question of publication of directives.

The set of facts

It is day 61 of the lockdown. By now some of us are used to the Covid alerts on new regulatory instruments landing with ceremonious pings in our inbox a few times a day. So when journalist Phillip de Wet Tweeted the latest amendment directive from Minister Nxesi, amending the initial 25 March directive, at first I just scrolled past. I blame Covid regulation fatigue for the inertia.

But my interest was sparked when on closer inspection, I read clause 3. It states that “this amendment comes into effect on the date of its publication on the Department’s website or the Gazette, whichever is the earlier”.

A statutory interpretation nerd like me could not pass this temptation. This is the jackpot I was looking for by compulsively scrolling through twitter.

“We may be ruled by decree during a disaster – but at least till now those decrees were published formally, in a central place”, writes de Wet.

We can debate the “rule by decree” another day. The question is: will directives published on the Department’s website have legal effect before it is published in the Government Gazette? In other words, can the Minister actually do that?

Well, the answer to any good legal question is: it depends.

Different forms of legislation

Section 27(2) of the Disaster Management Act (DMA) states that “the Minister may and after consulting the responsible Cabinet member, make regulations or issue directions or authorise the issue of directions”.

To answer the question, it helps to know how legislation works.

The law distinguishes between original legislation and delegated legislation. Original legislation is legislation that is enacted by original legislatures – bodies that get the power to make legislation from the Constitution.

These are, in short, parliament (s 44), provincial legislatures (s 104) and local legislatures (s 156(2)), depending on the subject matter.

The Disaster Management Act is an example of “original legislation”, promulgated (i.e. published in the Government Gazette) after a deliberative process in the national assembly and adoption by parliament.

Delegated legislation derives from original legislation. It must be authorised, and has to be enacted, in terms of original legislation. Delegated legislation provides detail to the matter provided for in the original legislation.

Delegated legislation, like regulation, is helpful when it involves matters of a technical nature, or if legislation has to be made quickly. What is important to note is that the powers to make delegated legislation are delegated (often to the executive) by original legislation, passed by the legislature. Since legislative power is delegated to the executive, the power to make delegated legislation must be exercised strictly in terms of the authorising provision of the original legislation. In this case, the Minister may only issue directions for reasons set out in section 27(2) of the DMA.

So where do directions, or directives, fit in?

Directives aka directions

In the Ahmed case, the Constitutional Court stated that “the nature and status of a directive is unclear”. The court describes it as an official policy document that guides departments on how to apply legislation. It has practical importance, and it guides officials on how to exercise their powers. It is for this reason that it is sometimes referred to as “administrative quasi-legislation”. It is not regulations.

But, warns the court, this “does not necessarily mean that a directive is unenforceable or that it has no legal status”. The court distinguishes between three forms of directives. It states that especially in cases where directives have been anticipated in an Act, the court will be willing to find that it has legal authority and it is enforceable.

So while the nature of directives is unclear, they seem to have legal authority. They are enforceable, especially where they are required by an Act. As in the case of section 27(2) of the DMA.

The Constitutional Court acknowledge to some extent that directives are not promulgated. This leaves us with the question is whether there is a requirement that this “quasi-legislation”, unclear in nature, need to be promulgated (by publication in the Government Gazette)?

Laws must be promulgated to be operational

The Constitution requires that legislation be published before it can come into force. But directives are only quasi-legislation. With legal effect.

The Interpretation Act states that a law is “any law, proclamation, ordinance, Act of Parliament or other enactment having the force of law”. So if we accept that a direction, required by an Act, is enforceable, a directive is a law for purposes of the Interpretation Act, even if it is not legislation.

If this is true, then a such a law will, in terms of section 13, “come into operation the day when the law was first published in the Gazette as a law” (unless the exceptions apply).

If it is not a law, but merely some form of an administrative act, section 15 requires that “any act, matter or thing that is directed or authorised to be done by any Minister the notification that such act, matter or thing has been done may be by notice in the Gazette”. The publication of these actions are, therefore, not a requirement for it to be operational.

If it is more than just an administrative act, then, in terms of section 16, regulations, rules or orders authorised by any law to be made by the executive, shall “subject to the provisions relative to the force and effect thereof in any law, be published in the Gazette”. It seems that this is a requirement for it to “commence”.

The Interpretation Act acknowledges that there might be extraordinary circumstances where this might not be possible. For that, section 16A provides that the President may, by declaration, being “satisfied that the publication of the Gazette cannot be affected or is likely to be seriously delayed as a result of circumstances beyond the control of the Government Printer”, direct for laws to be published differently. I could find no such proclamation.

Ascertaining the nature of these directions is therefore vital to answer the question. “Quasi-legislation” is more than just an administrative act, and might fall short of the requirement of it being legislation. But being explicitly authorised by the DMA, and having legal effect, it is arguably “law”. So it occupies a grey area.

The requirement for publication

When the law and the specifics are unclear, it is helpful to fall back on principles to direct us to solutions for problems.

To promulgate legislation means to make publicly known. This is an important step in the law-making process because, even if the law is enacted, it is important the people who will be affected by the legislation be notified of it.

Of course, ignorance is no excuse in law. And one need not specifically know what the law is, but rather “be able to know of the law, and be able to conform his or her conduct to the law”.

Does it need to be published?

Having set out the law, we can now attempt and answer: is it lawful for a directive to state that “it comes into effect on the date of its publication on the Department’s website or the Gazette, whichever is earlier”?

The answer not obvious. We don’t have clarity on the nature of directives. In the hierarchy of legislation, they are below regulations. They might be laws, but they are not legislation. Since they have legal effect, and in line with the principle that we must be able to know what the law is to be able to conform to it, there is a strong argument to be made that the should be published in the Government Gazette before they come into effect.

If not in law, it would just be the decent thing to do to publish them formally, in a central place. This will help the various databases to collect the relevant information to ensure that our inboxes keep pinging in a steady rhythm with relevant updates during Covid-19.