Policy Making and Law Making Process

The Policy and law making process
What is in this guide

This guide looks at the processes of making laws and policies in the different
spheres of government. Opportunities for the public to participate in these
processes are also identified.
Making new laws and policies is usually a very slow process involving a
number of stages during which key issues are debated and negotiated before
being finalised as official government policy or before being passed as a law.
It can take a few years before a proposed law or policy is implemented and
before its impact is felt on the ground.
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.
Example:
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.
Example
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:
 The draft Bill goes to the relevant Cabinet committee for approval.
 Once Cabinet has given its approval it may be released for public
comment.
 Once comment has been received, the department and ministry will
make any changes they think are necessary as a result of public input.
 The draft Bill goes to Cabinet to ensure that it has kept to agreed aims
and principles and does not contradict any other policies.
 The draft Bill is sent to the State legal advisors for legal approval.
 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:
 The Bill is sent to the National Assembly (NA) who will refer it to the
relevant Portfolio Committee.
 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.
 The NA considers the Bill and then votes on it with the changes the
Portfolio Committee may have made.
 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
If the Bill contains issues that affect the If the Bill contains issues that do not
provinces (s76 Bill) affect the provinces (S 75 Bill)
Members of the Select Committee go to their The NCOP considers the Bill and can
own provinces to review the Bill. either reject or propose changes that
are recommended by the Select
Each Provincial legislature gives a provincial
Committee.
mandate that recommends changes or leaves
it as it stands. Each member of the NCOP votes
according to their party.
Provincial representatives report back to the If the NCOP makes changes to the Bill,
NCOP Select Committee on their provincial it will need to go back to the NA for
decisions. approval.
The Select Committee then negotiates a final
version of the Bill and sends a report of their
decision and any suggested changes to the
NCOP.
The NCOP considers the report and then
votes on the Bill. Each province gets one
vote.
If the NCOP makes changes to the Bill, it
will need to go back to the NA for approval.
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:
 Proclamations issued by the President

 Regulations for acts made by ministers
 Regulations of local authorities
 Provincial proclamations
 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.
Government and the Constitution | The three spheres

of government | Elections in South Africa | Local
government elections | Party agent’s guide for
national elections | Intergovernmental relations and
planning | Policy and law making process | Vision and
Index key programmes of government | Government
spending and Income | Economic development and
AsgiSA | The developmental state | Government
accountability and public participation | SA and the
world | The Public Service | Batho Pele | Combating
corruption in government
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The Policy and law making process

What is in this guide

What is the difference between a law and a policy?

Table showing how NCOP works when it receives a Bill

 Proclamations issued by the President

Government and the Constitution | The three spheres

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