The Policy and law-making process

What is the difference between a law and a policy?

It is important to understand the difference between a policy and a law.

A policy outlines what a government ministry hopes to achieve and the methods and principles it will use to achieve them.  It states the goals of the ministry. A policy document is not a law but it will often identify new laws needed to achieve its goals.

Laws set out standards, procedures and principles that must be followed. If a law is not followed, those responsible for breaking them can be prosecuted in court.

So, policy sets out the goals and planned activities of a ministry and department but it may be necessary to pass a law to enable government to put in place the necessary institutional and legal frameworks to achieve their aims. Laws must be guided by current government policy.

Stages of policy and law making

Government and parliamentary structures as well as the different branches of government all play very important roles in the making of laws and policies. Below is an explanation of the stages of making policies and laws, using a specific example of compulsory education.

Stage one – Ruling party conference gives vision, goals and direction

Stage one in the process takes place at the major conferences of the ruling party where policies are made. At these conferences particular issues are debated and discussed and the ruling party decides its overall vision, goals and direction on specific issues.

For example, the ruling party may decide at their national conference that the policy regarding access to education should be that all children under the age of 17 must be in school – compulsory education. It is now the role of the party’s members in the executive and legislative arms of government at national and provincial levels to initiate the processes that will lead to the implementation of this policy.

Stage two – Executive (Ministry) draws up policy on an issue

Stage two of the process takes place at national level where the ruling party attempts to convert its party policy into official government policy or law following the procedures prescribed by the Constitution. It is clear therefore that there is a strong political link between key legislative and executive structures and the majority party.

It is the responsibility of the executive branch of government to develop new policies and laws. It is the responsibility of the legislative branch (Parliament) to approve policies and pass new laws to give legal effect to the policies. But this is a long and slow process during which the policy or law proposed by the ruling party is debated and negotiated with various stakeholders, such as opposition parties, the public, non-government organisations, etc.  This can take many years to complete.

During this time, the government ministries will draft discussion documents, called Green Papers and White Papers on the policy or law to allow for debate and comment. Public service Senior Management Service members are often used as resource people for this process. Various parliamentary and select committees in national Parliament and in the National Council of Provinces, as well as portfolio committees in Provincial Legislatures provide opportunities for public participation in debating the proposed policy or law.

Stakeholders can use different opportunities for input, such as attending parliamentary committee hearings, setting up meetings with department heads or the minister, using the media to put pressure, etc.

The ruling party has stated its policy of compulsory education for all children under the age of 17. The national Minister of Education now informs his/her department of the need for a policy document to be produced on this issue. The first discussion document to be published will be a Green paper. This will be drawn up by the Ministry and the Education Department with the help of advisors, experts in education, advisory committees, etc. The Green paper identifies the key issues and suggests alternatives. It is then made public and invites comment from all stakeholders and the public.

Stage three - Finalising a policy

Stage three of the process is when the policy is finalised by the relevant Department and Ministry. Once a policy has been properly debated the Department and Ministry look at the issues and options and draw up a final policy which is published as a White Paper. The White Paper is a statement of intent and a detailed policy plan which often forms the basis of legislation. It is debated and adopted by Parliament and approved by Cabinet.

The Education Department looks at all the options and comments from stakeholders and the public regarding the policy of compulsory education for all children under the age of 17 years. For example, there may be input from Treasury saying that the government cannot afford to provide compulsory education immediately for all children under 17 years, so the policy should be phased in over 5 years. If agreed to by the Portfolio Committee these changes will be included in the revised document which is called a White Paper. Cabinet then has to approve the final policy.

Stage four - Passing a law

A White Paper often forms the basis of legislation. If the Minister or the Department decides that a new law is necessary to achieve its objectives and implement its policy, the Department will begin the job of drafting the new law. In its early stages before a new law has been tabled in Parliament it is called a draft Bill. Once it has been tabled in Parliament it is called a Bill.

Before the draft Bill is tabled in parliament the following takes place:

  1. The draft Bill goes to the relevant Cabinet committee for approval.
  2. Once Cabinet has given its approval it may be released for public comment.
  3. Once comment has been received, the department and ministry will make any changes they think are necessary as a result of public input.
  4. The draft Bill goes to Cabinet to ensure that it has kept to agreed aims and principles and does not contradict any other policies.
  5. The draft Bill is sent to the State legal advisors for legal approval.
  6. The draft Bill is then tabled by the Minister in Parliament.

Once a Bill has been tabled, it will be given a number and then released as a Bill, for example, B6 of 2004 and go through the process of becoming a law. This is a summary of the steps:

  1. The Bill is sent to the National Assembly (NA) who will refer it to the relevant Portfolio Committee.
  2. The Portfolio Committee reviews the Bill and asks for public comment.  When the Portfolio Committee considers the Bill it is regarded as the best time to lobby for changes or to protest the principle of the Bill.  Once the committee has made changes and asked for clarity, they will send a report on their findings to the NA.
  3. The NA considers the Bill and then votes on it with the changes the Portfolio Committee may have made.
  4. The Bill then goes to the National Council of Provinces (NCOP) where the appropriate Select Committee in the NCOP considers the Bill. The Bill goes through a different process depending on whether it contains issues that affect the provinces or not.

Table showing how NCOP works when it receives a Bill

Once both houses of Parliament have agreed to a final version of a Bill, it will be sent to the President. The President then signs the Bill and it becomes an Act and law in South Africa.

Stage five - Subordinate legislation and implementing the law and policy

Once National Parliament has passed a law, or a policy has been published, it is up to national and provincial ministries and departments to implement the law and/or policy.

If it is necessary national and provincial legislatures and local authorities can pass subordinate legislation that gives more detail on matters contained in the original law. Examples of subordinated legislation are:

  1. Proclamations issued by the President
  2. Regulations for acts made by ministers
  3. Regulations of local authorities
  4. Provincial proclamations
  5. Municipal by-laws

A provincial legislature can also make its own laws on areas that are defined in the Constitution. These laws will only apply to the province which has made the law.

Local governments can also pass ordinances that have the same legal force as national and provincial parliaments.