Zuma's bad dose of 'premature proclamation' causes legislative impotence

It’s not often that a country’s leader goes to court to nullify laws that his own government drafted and he earlier happily signed. But hey, this is South Africa where the left hand often is at odds with its right-hand partner.

Here, trade unions regularly demonstrate against the very government that they are part of. And last week scores were injured when member of committed alliance partners the South African Communist Party and the ANC, bludgeoned one another with fists, stones, iron rods and knobkerries.

So it’s no surprise that the president brought a Constitutional Court application to invalidate National Health Act regulations he had activated not even a year ago. These regulations had made it retrospectively obligatory for every health practitioner to have health department approval to practice at a specific geographical location.

Such permission would depend on whether the bureaucrats believed there was a justifiable need for such a service, be it a physician, dentist, physiotherapist, dietician or whatever. The lack of such a “certificate of need” automatically criminalised the practitioner.

The problem – aside from the fact this attempt to force health professionals to work in under-served areas is excessively heavy-handed – is that the rules on how these decisions would be made were not yet in place, so no one could get such a certificate.

As the court noted, this “undesirable” situation meant that “health service providers may be inhibited or discouraged from providing an essential service at the risk of criminal sanction for doing so”. It is this Kafkaesque absurdity that belatedly but now urgently forced the government to go to court to have invalidated the proclamation “made in error”.

There were other options. The best one would have been that President Jacob Zuma had never hurried these laws into operation in the first place.

But as his lawyers told the court, these laws were promulgated “in error”. Our trusting president had “acted in good faith … but was led astray by his advisors’ mistaken counsel”.

Alternatively, Zuma could simply have withdrawn the promulgation when its likely effects were pointed out to him, as various health organisations had immediately and vociferously done. But our procrastinating president did not act timeously and the withdrawal period lapsed.

Another option would have been to go back to Parliament to retract the regulations. But, as the judgment observed, this could be “lengthy and burdensome and may fail to expeditiously address the precarious position that the health services industry finds itself in”.

So the president of the Republic of South Africa had to bring an action against, um, the president of the Republic of South Africa. This is legally not possible, not even in politically schizophrenic SA.

Consequently, the application was brought in the name of the Presidency, his health ministry, and the directors-general of both. By mutual agreement, the respondents were the South African Dental Association and the Hospital Association of South Africa, both of which in reality supported the relief sought and indeed, the judgment observes, “brought the alarming situation … to the attention of the Presidency”.

Such legal comedy – in the judgment the august Bench of 11 judges describes this, presumably straight-faced, as being a case as “premature proclamation” – is good for a chuckle. Unfortunately, South Africa subsiding into a state of legislative impotence is anything but funny.

Since 1994 numerous laws have at the last moment had to be referred back to Parliament because eventually it dawned that they were fatally flawed in concept, or that the drafting was so cack-handed that they were likely to succumb to legal challenge. Just last week the Presidency sent the Mineral and Petroleum Resources Development Amendment Bill back to the National Assembly for review because it realised that the Bill would not pass constitutional muster.

Some of the problem is a State Attorney’s office staffed with young, inexperienced lawyers who can’t write law for toffee. Some of the draft legislation released for public comment is so illiterate and ungrammatical that it looks like it has been cobbled together by primary school kids using cut-and-paste and Google.

Another aspect is a supine Parliament, crammed with government stooges who uncritically vote through whatever they are told to. Attempts to clarify and temper legislation at the committee stage are ignored by gung-ho ANC MPs determined to get laws passed as quickly as possible, no matter the consequences.

But the worst part of the problem is a government so zealous for social engineering that it ignores the lessons of history. Law passed “in error”, no matter how much “good faith” is involved, can be ruinous.

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