ACCESS to justice for all is the mantra of the long-term justice transformation project. But access to justice is not the same as access to courts. A crucial part of access to justice is that people should be able easily to ascertain what the law is, and so avoid the necessity of court altogether. In principle, our legislation should be so clear that people would not need to consult lawyers for most things. Legal advice might be necessary occasionally, and only on rare occasions would clarity be sought from a court. Diligent and clever judges should not misinterpret legislation, so appeals should be unusual. Instead, badly drafted legislation seems to be a worsening problem. Too often legislation is such a mess that even those who prepared it have to go to the Constitutional Court to understand it.
Read in full: Poorly drafted laws enough to test anyone’s nerves by Franny Rabkin and first published by Business Day on BDlive today.
Further excerpts
So I went back to the SAPS Act. This is what it says:
“17DA 3
(a) The National Head of the Directorate may be removed from office on the ground of misconduct, incapacity or incompetence on a finding to that effect by a Committee of the National Assembly.
(b) The adoption by the National Assembly of a resolution calling for that person’s removal from office.”
Section 4 then goes on to say the resolution must be approved by two-thirds of MPs. But what does the section even mean? Sub-section (b) doesn’t even have a verb. It could mean what Judge Kathree-Setiloane said. It could mean what I said. This legislation is so badly drafted that it could mean either.
Thankfully, the Constitutional Court actually looked at this section in the Hawks case. It said “a recommendation by a Committee of the National Assembly for the removal of the National Head would have to enjoy the support of at least two-thirds of the members of the National Assembly to be implemented”.