Title: Revisiting policymaking and lawmaking in South Africa: An agency in the legalcurriculum and practiceBy Jacob Mahlangu (PhD Candidate: Political Sciences)University of PretoriaAbstractThis study aims to broaden legal education and its practice. Policymaking and lawmaking inSouth Africa have been known to be the activity of the legislature. They undergo differentphases and stages before they are sent to the executive to be turned into a bill, act, statuteand precedent and also for their implementation. The judiciary is highly absent in theprocess of policymaking and lawmaking. It only takes part when holding leaders or the publicaccountable for breaking the law. This paper argues that the legal practice should accelerateits pedagogy from not only teaching how to interpret and apply the law but also have lawstudents and law practitioners trained in making and amending the law. Although thelegislature is representative of the population therefore engaging in policymaking andlawmaking under the guise of democracy, they lack the legal skills, experience and merit tocreate sound policies and unbiased, independent and impartial laws. The manner in whichpolicy and law are made needs to be rigorous, robust, researched, studied, credible, solidand intellectually trusted from a team of experts from think tanks and from experienced lawpractitioners. The manner in which laws and policies are made should be technocratic andmeritocratic. The judiciary needs to be present when policies and laws are made to facilitatethe procedure with professionalism. This also introduces a new theme in legal pedagogywhere law students are introduced to new methods and frameworks in their curriculum whichfocus on practising law through creating it. This study utilises a case study methodologyinvestigating South Africa’s policymaking and lawmaking. It makes use of the transformationtheory. It is an extant literature review. It utilises document analysis. It is based on secondarysources, is descriptory and is a desktop study..IntroductionLawmaking is said to be the responsibility of the legislature or parliament in South Africa. South Africa has separation of powers between three branches, namely, the executive, the legislature and the Judiciary. Although it is the courts and judges that are well acquainted with the law, the judiciary’s role in the lawmaking process is not well defined (Ngandwe 2006). The judiciary has the duty to apply and interpret the law;. however, its powers according to many law scholars extend from this point, such as it setting precedents, pronouncements and discretion (Ngandwe 2006). The courts are also set to uphold the law and also develop the rule of law. Furthermore, scholars claim that other than a judicial review where judges can examine a law for its constitutionality and render it invalid they are also faced with dealing with disputes which allow them the opportunity to make the law in such cases (Okpaluba 2015: 185). Besides having a judicial function, courts are not only restricted to playing the role of being a branch in the separation of powers but are also the apparatus of the state. Scholars claim that the power of the courts to make the law is not against the doctrines of the separation of powers but rather serves as its feature (Murcott and Vinti 2024 cited from Botha 2012; Currie and De Waal 2013) . In South Africa law commissions have even been established for the purposes of reforming the law but they however, do not have law making powers themselves (Botha and Bekink 2018) . In order for courts, judges, judiciary and law practitioners to know how to make the law they must understand reality, the interactions of people and why rules are needed, they also need to understand the implications of the laws made (Rautenbach 2020). This means that they need to have expertise, they require training and this calls for a transformation in the law curriculum. Historically, the judiciary in South Africa had no authority to intervene in legislative text. Currently, it has the power to interpret and pass legislation, check for a law’s constitutionality but is restricted from taking part in formulating the law (Singh and Bhero 2016). This paper argues that although the separation of power exists, the judiciary should not be seen as a replacement to the legislature in lawmaking but as a part of it. Therefore the judiciary, law commissions, courts, judges and law practitioners deserve a role in the process of lawmaking, it should not be the duty of the legislature alone. The judiciary cannot replace the legislature because to have an all powerful lawmaking body that has authoritative qualifications to make the law undermines the democratic process of rule making by elected representatives and also undermines the electorate (Plessis 2000: 229). But its involvement in the process of lawmaking ensures that lawmaking is professional and informed, it does away with biases and enhances expertise, problems can be detected earlier during the lawmaking process rather than after the law has been established through a judicial review or evaluation. This will also enhance the respect that politicians have for the role of the judiciary to uphold the law and establish the rule of law. The law made this way is more concrete and has increased enforceable authority (Labuschagne 2013).Literature ReviewAccording to Ngandwe (2006) the role of the judiciary in the process of lawmaking is not defined well; historically, the judiciary has always asserted that its duty was merely to apply and interpret the law and it was not within its boundaries to legislate. It is however misleading to claim that the limitations of the judiciary lie in application and interpretation of the law as they make the law through precedents, the pronouncement of statutes and through discretion (Ngandwe 2006). All courts and tribunals have a function of law-reform that is indirect in which they interpret every law legislation and establish customary law and common law for the purposes of promoting the objects of the bill of rights (Botha and Bekink 2018). Law reform is not only restricted to intervention and changes by subordinate law making bodies, the legislature and the judiciary, the South African Law Commission was particularly formed for the facilitation of law in the Republic of South Africa which is an advisory body whose objective is aimed at improvement and renewal of the law of South Africa on a continuous basis but has no powers of lawmaking itself (Botha and Bekink 2018). The judicial branch is vested with the power to declare any conduct or law that is found to be inconsistent with the constitution invalid; but why do they restrict themselves where the constitution does not expressively impose barriers to their exercise of power? It is the court’s duty to have the rule of law enforced and to ensure that state organs function within the framework of the constitution (Okpaluba 2015: 185). Where does the power of the judiciary to review legislation end and where does judicial restraint begin? (Okpaluba 2015: 185). Without understanding and basic respect for the judicial role politicians in government can easily complicate the judiciary’s primary function to establish the rule of law and uphold the law in a country (Labuschagne 2013). According to Parliament (n.d) a law is a system of rules, mostly enforced through institutions as a set to have human conduct regulated. Law influences economics, politics and society in a lot of ways (Parliament n.d). The lawmaking body of South Africa is Parliament which is the national legislature. Its notable functions are to create new laws, change laws already in existence and have old laws repealed (Parliament n.d). The houses of Parliament which are the National Assembly and the National Council of Provinces play a part in this process (Parliament n.d). A draft law, also known as a bill can only be introduced by a minister, a parliamentary committee, an individual MP or a Deputy Minister in Parliament (Parliament n.d). Most bills are written up by the government department under the command of the relevant minister or deputy minister (Parliament n.d). Such a bill has to have itself approved by the cabinet before it is transferred to parliament. Individual MP introduced bills are called private members’ bills (Parliament n.d). The manner in which a law is made in South Africa follows this particular step: the national assembly or the National Council of Provinces are introduced to a bill, it is then referred for public comment through first being sent to a relevant committee then published in Government Gazette, discussed in the committee and if necessary- amended, sent for further debate to a sitting house before having a vote taken, transferred for concurrence to the other house, goes to the president for assent, then becomes an act (Parliament n.d). According to Majuta et al. (2015: 1) there is a very minimal role played by the judiciary in the process of legislative lawmaking; its role is only limited to the review of government policies and judicial interpretation. In fact in the steps of lawmaking the judiciary, courts and judges are not referred to although the issue being about law, their input is not required. Courts are entitled on procedural grounds to comment on parliamentary actions, they however do not have the power to pronounce on the wisdom or content of legislation executed by the legislature (PLessis 2000: 228). The reason behind judges not being given the power to formulate the law which they apply and enforce is that the exclusive views of these judges replaces the role of democracy, and they as a body that is all powerful may directly disregard the will of an elected legislature, and the will of the electorate indirectly (Plessis 2000: 229). The principles that guide these functions in the separation of power and in the checks and balances amongst the executive, the judiciary and the legislature are noted as the most defining characteristics of a constitutional democracy (Majuta et al. 2015: 1). Mojapelo (2013: 37) asserts that judicial authority is the power to determine what the law is if there is a dispute, and how it should be applied in the said disputes. Most authors are silent about the role of judges, courts and the judiciary in rule making, as O’regan (2005) attests that the role of legislation making demonstrates the interconnected relationship between the legislature and executive. However, Botha (2012) by having the review function exercised and having legislation interpreted with reference to the constitutional underpinning values, sometimes courts may make law; and once a law has been made by a court non-compliance has consequences and therefore a responsibility to comply is in existence (Murcott and Vinti 2024). Although with their powers separated this paper advocates for a collaboration between the three branches in the making of law, this strengthens the law being made and makes it more trusted, legitimate and easy to adhere to. The paper also argues that for this role courts, judges and law practitioners need to be well prepared since this role is directly related to their profession, therefore requiring training to perform such a procedure from as early as in the academy. A curriculum transformation is needed to cater for the knowledge of the technical know how of such a procedure, the role given should have been well studied in order for them to be considered suitable for occupying such a role or position As the definition of democracy states that it is the “rule of the people, for the people and by the people” by Abraham Lincoln.According to the Cambridge Dictionary (2024) it is a government system based on the belief in which power is possessed by elected representatives. People in a South African political system elect their leaders in the form of political parties, who then win and occupy seats in Parliament forming the legislature; to fulfil the tenets of democracy, the elected representatives become the ones who then create, change or repeal laws for the South African society. This form of a system does not take into account the qualifications of the rulemakers, policymakers and lawmakers and their ability to make sound laws based on the level of their skill and education. This raises the inquiry whether it would not be wise to include the judiciary, courts and judges in the process of lawmaking, and not only in the outcome of such a process in terms of reviews, interpretation and application, such ensures that the law being made is well rounded, examined and contributed to by appropriate authorities, experts and knowledgeable participants who can analyse and apply corrective behaviour to a certain law’s implication in every societal aspect, sphere and dimension before it is enacted and evaluated.The power of the courts to make the law is not an infringement of the doctrine of separation of powers but a feature of it rather (Murcott and Vinti 2024 cited from Botha 2012; Currie and De Waal 2013). According to Rautenbach (2020) the courts of post-apartheid South Africa have wide powers of lawmaking when interpreting customary law, common law and legislation; a progressive constitution has empowered them which embodies a new understanding of the law that is judge-made and which is more faithful to reality. In fact in terms of rendering public service, the public sector has been branded as: having low professionalism, low levels of qualifications and skills, corruption and incompetence (Felix 2021). The public has aspects of low capacity to have its pronouncements translated into actionable policy (Felix 2021). This means that the policies and laws made fail to be successfully practised, come to realisation and be implemented effectively. This is because of the absence of the judiciary or courts in law making, as implementation failure is by the executive from the legislation taken from the legislature therefore the failure being due to how the law was made instead of how it was implemented, and also who was involved in its making as they may have lacked the necessary skills and expertise to formulate the law. Although some MPs have education and some even studied and practised law prior to their positions, this is not a requirement in order to serve, they serve along with uneducated people and their input is weighted equally with them as they possess the same parliamentary voting power, time and opportunity to comment on a particular law being made.Since the law curriculum has always neglected lawmaking, leaving it in the practicalities of politics, those well versed in law do not possess a framework, mechanism or the technical know how of how to make a law, they also do not have a setting, arena, or position in society that enables them to be considered the ones making the law. According to Singh and Bhero (2016) the role of judges in lawmaking has always been a controversial subject; for many years and most notably during the apartheid regime the position adopted was that the interpretation of legislation was to be within the framework of words in usage by the legislature. The courts had no power to make modification, alteration or addition to text that was legislative, as the function was entirely the legislature’s responsibility, however, since 1994 the position has changed significantly (Singh and Bhero 2016). The prevailing view has been that the judiciary has been able to have its influence asserted on the development of the law and the prevailing jurisprudence, as a result of the constitutional derived powers and in particular section 39(2) (Singh and Bhero 2016). The law curriculum should be transformed so that law students learn about societal organisation and how to go about making and enforcing laws that are binding and which improve societal conduct. To support this, Botha (n.d) argues that it has become evident that individuals need certain rules to regulate and guide their interactions, therefore rules are needed to structure and order societies to establish what conduct and actions are acceptable and what are not. If the entrustment of the powers of policymaking is rested on the judiciary, then it should be made aware of the political realities of the society and that their judgements will affect the new society (Motala 1991). Currently this is left to the representatives of the country but even they claim ignorance as they consult with think tanks and experts who supply them with knowledge, research, intelligence and information regarding certain topics discussed on the agenda during law making, they also provide recommendations and opinion pieces to lawmakers and policymakers based on their policy and law expertise. In fact Barkow (2021: 1029) had this to say about experts in the United States’ Congress: the disrespect for experts is increasing in society, but the decrease in their usage is troubling particularly in congress as it worsens the inherent deficiencies to the legislative process. Sometimes though rarely, congress has relevant facts and arguments gathered about various factors of an issue before acting; and if there exists little expert fact-finding in place to have a proposal studied cognitive biases may go without being dealt with (Barkow 2021: 1029). This indicates that a forum is needed in a real world setting where a group of policy and law experts come together to investigate laws, collaborate, discuss and deliberate on certain issues that require the creation of new policies and laws. This ensures that the proposed law is studied in all angles and is informed. Rulemaking should not only consider a democratic process but also technocracy and meritocracy. This problem does not only reside in South Africa only but also in a lot of developed countries. Although in the United States of America laws are made by Congress and passed to the President for vetoing purposes, the courts play a major role as ordinary people challenge these laws and appeal to courts for reconsideration, with courts having the power to rule against these laws if found unconstitutional, discriminative or with other discrepancies. In fact sometimes courts make the law in the United States of America through their court judgements setting new standards and precedents. However, the practice of law by lawyers has always utilised this feature in South Africa. In fact Davies (2019: 3) argues that South African law has numerous sources such as: legislation or statutes, common law, court decisions (Judicial precedent), indigenous law, legal academic writings and custom, is of practical essentiality for lawyers to be aware of these various sources, which supply the key to the content of the law. This provides lawyers with authority for their arguments as they have to have an ability to have their assertions justified of their certain viewpoints (Davies 2019: 3). To be able to do this, lawyers depend on the provisions of a court decision or a statute (Davies 2019: 3). If courts, judges, law practitioners and experts play a role in the process of lawmaking it should ideally and academically follow a system that is similar to the process of policy making such as:(i) Studying and researching about the law introduced, (ii) state out how the law will impact society and how it will affect its recipients (iii) Find and cover all discrepancies, omissions and gaps recognised through examining the law (iv) develop alternatives as to how the law can be applied and interpreted to better suit the whole population (v) choose an alternative that makes the law impartial, unbiased and independent of any societal influence (vi) Implement and enforce the law (vii) evaluate how the law has worked, dealt with and handled by society at large comparing its actual results with its set objectives and amending it in accordance with the principles of fairness. Such a model is not exhaustive, but it at least lays the groundwork, a foundation or a starting point as to how law students, practitioners, the judiciary, court and judges can be provided with workable tools to go about analysing and taking part in the process of law creation. This does not divert the duty of lawmaking from the hands of the legislature to the judiciary, commissions and committees but rather is a collaborative process where all the parties concerned have a space to have their input counted.DiscussionAlthough the legislature makes the law in South Africa other sources of the law exists which are not particularly from the legislature such as statutes, common law, court decisions (Judicial precedent), indigenous law, legal academic writings and custom (Davies 2019: 3). The current view posited by scholars about the law-making process is that the judiciary has been given power to influence the establishment of a law by the constitution section 39(2) (Singh and Bhero 2016). The function of review given to the judiciary allows it to make the law and once that law is made compliance is required with disobedience accompanied by consequences (Botha 2012). Judicial authority enables it to make or determine the law and such an opportunity produces itself in terms of disputes (Mojapelo 2013: 37). The judiciary is argued to be restricted in the lawmaking process such as it having the function of review, application and interpretation of the law while it is the legislature that makes the law. The paper has gone through various literature to ascertain if there are any instances where courts, judges and the judiciary makes the law and it discovered that these instances do exist through court decisions, precedents, pronouncements of statutes and discretion (Ngandwe 2006). The courts, judges and the judiciary are the most suitable to make the law as they have legal expertise and authority. What prevents them from this practice when it comes to legislation is the aspect of democracy, that people rule themselves, so they have elected representatives who are given the legitimacy of rulemaking and the judiciary should not undermine this fact (Plessis 2000: 229). When there is an involvement of the judiciary, courts and judges in the process of law making the process is improved and laws are renewed (Botha and Bekink 2018). For courts to make the law is not a violation of the doctrine of the separation of powers but rather serves as its feature (Botha 2012). This role is only expected to increase and it is therefore important that law experts are prepared for it, this means ensuring that law practitioners are skilled in their profession to make the law. This not only requires a platform and a new mechanism or process of making the law but also a new curriculum that trains law students for this function so that they are well equipped to perform this function. The paper argues that lawmaking should include technocracy and meritocracy. Just as politicians and policymakers consult experts regarding certain issues that are on their agenda in policy making, the lawmaking process requires intelligence, research, an evidence-based approach, expertise, knowledge and the involvement of law experts to make the process more enhanced, reliable and trusted.ConclusionThe paper first delved into how the role of the judiciary was limited in the lawmaking process such as it being restricted to the application and interpretation of the law. However, the paper discovered that there are some cases where law experts such as the courts get to make the law, such as when there is a dispute, or through precedents, discretion and pronouncements. This feature was said not to be in violation of the separation of powers. To improve or renew the law there is an establishment of law commissions in South Africa. The law made by courts is binding and its disregard or disobedience has consequences. Authors argue that politicians need to respect the judiciary as it upholds the law and establishes the rule of law. The role of the judiciary is estimated to increase in its functions to include the power to make the law. This then requires that law experts are prepared for this function in their profession. 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