Busi Mavuso, CEO of Business Leadership SA. Picture: supplied
Government really does not care what citizens think about new proposed laws. Although the Constitution provides for public consultation, government often ignores this and either push through laws without taking stakeholders’ submission into consideration or simply not even bothering to have a consultation process.
Busiswe Mavuso, CEO of Business Leadership South Africa (BLSA), says in her weekly newsletter three issues stand out in this regard: the withdrawal of the proposed new visa regulations last week, the Companies Act Amendment Bill and the National Health Insurance (NHI) Bill.
“The withdrawal last week of proposed new visa regulations that would have eased the way for skilled workers to come to South Africa was an inadvertent illustration of how little public consultations matter in many parts of government.”
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The regulations were withdrawn because the minister of Home Affairs inadvertently published them a day before the period for public comment on the draft was meant to expire. Mavuso says this might seem like merely an administrative error, but she thinks it reveals how little attention policy makers pay to public comment.
“Clearly, from the minister down, the public commentary simply did not feature in the minds of those in the department.”
She says BLSA puts considerable effort into providing public comment on proposed legislation. “We sometimes commission expert research to enable us to provide informed input. We also often call on our members to provide views, particularly when they have inhouse expertise on some or other matter. This takes resources and I like to believe it is a worthwhile investment, leading ultimately to better laws. But when I see events like last week’s reversal, my confidence wanes.”
BLSA welcomed the visa regulations, but Mavuso says poorly conceived legislation often works its way into the lawbooks without any apparent notice of the public comments received.
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“A clear example is the latest Companies Act Amendment Bill where BLSA and Business Unity South Africa (BUSA) provided significant input. There are positives to the amendments, such as embracing technology to improve the efficiency of businesses, but there are some significant negatives that will have unintended consequences, increasing the compliance costs, particularly for small businesses and in some cases, making it impossible for companies to operate.”
She says the “one strike rule”, for example, requires that non-executive directors serving on a remuneration committee must step down if shareholders do not approve the implementation report of a remuneration policy.
This will make it very difficult for all but the biggest companies to retain competent non-executives and make their remuneration committees effective, Mavuso warns. “There are also several parts of the Bill that are simply ambiguous and will create unnecessary litigation as stakeholders turn to the courts to get clarity.”
She says despite their detailed submissions on all of these issues, parliament simply approved the draft bill without change and submitted it for the president’s signature where it now sits.
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However, she says the NHI Bill was even worse. “This Bill is simply unimplementable and there is no way it can be funded. It risks doing serious damage to the private healthcare sector and triggering an exodus of staff from the medical system. Business put considerable work into tabling alternatives that are viable and would support improvements in access to healthcare, requiring minimal amendment to the draft bill.
“The Covid period showed how effectively government and business can work together to provide access to healthcare. Yet our proposals were roundly ignored and parliament forged ahead with putting the totally unworkable legislation on the books.”
Mavuso says this is another law sitting on the president’s desk and should he sign it into law there will be a rash of litigation on many grounds, from the constitutionality of the law to the administrative fairness in how it was developed.
She points out that our constitutional framework makes consultation a key part of the development of laws and that the Constitutional Court in the past struck down legislation due to the state’s failure to comply with its constitutional obligations to include the public in development of legislation.
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“Public consultation cannot just be a matter of procedure, but must include proper consideration of the input received, as spelled out in the Promotion of Administrative Justice Act. It is hard to believe that there has been proper consideration when draft legislation is finalised without change after a comment period.”
Mavuso says it does not only cost those who spend time and money on providing comment, but also government. “When laws are ambiguous or unconstitutional, they will inevitably end up being challenged in court, requiring government to pay for legal processes. Many of these lead to amendments. It could all be avoided by properly engaging with public input and getting the legislation right in the first place.”
Our country needs good laws that benefit from the input of those affected by them, she says. “Laws should also be subject to a socioeconomic impact assessment, in line with the socioeconomic impact assessment system managed by the presidency. But these assessments, when undertaken, are often perfunctory and a missed opportunity to improve laws and regulations to maximise the public benefit.”
She says this illustrates the same malaise in a lack of focus on delivering laws that really will work and benefit the country.
“My call is to our counterparts in government who are working on laws and regulations. We have resources that we put into helping the process. We need engaged counterparts who can genuinely consider the inputs we provide and act where there is an opportunity to improve legislation. That is what the Constitution envisages because it is how we get to become a country that realises its potential.”
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