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SOUTH AFRICA’S LAWMAKING PROCESS
Issued by Daniela Ellerbeck on behalf of the FW de Klerk Foundation on 21/10/2025
Introduction
The most frequent question I get asked by the public is about the lawmaking process. It is generally something along the lines of “Is this going to be law tomorrow?” or “But, haven’t we commented on this already?”. The process of how our laws are made is not something that we learn in school (although it should be). This article aims to clarify what can oftentimes feel like a confusing process. The goal is to empower each South African to be an active citizen.
In a nutshell, the process is as follows:
Who Makes the Law?
Only legislative authorities can make laws. The Constitution clearly states that national laws, which apply throughout South Africa, are made by the elected Parliament (section 43(a)). Provincial laws, which apply only to that specific province, are made by that province’s provincial parliament (section 43(b)). Municipal by-laws (which only apply in a specific municipality) are made by that municipality’s municipal councils (section 43(c)).
Houses of Parliament
Our national Parliament has two houses – the National Assembly and the National Council of Provinces (section 42(1) of the Constitution).
The National Assembly, Parliament’s first house, consists of our elected representatives (section 46 of the Constitution). Its goal is to ensure government by the people under the Constitution by, amongst other things, making national laws (section 42(3) of the Constitution).
The National Council of Provinces, Parliament’s second house, represents provincial interests and consists of a 10-member delegation from each province (section 60 of the Constitution). Its goal is to make sure that the provinces’ interests are considered when, amongst other things, national laws are made (section 42(4) of the Constitution).
What Is Law and What Is Not Law?
Policies
Policies guide government decisions but are not law: They are the positions that government departments are taking on specific issues. However, because they are not made by a legislative authority, they are not law.
A green paper is an initial government document to start a discussion with the public on a specific issue that the government wants to have a policy on. People then get a chance to tell the government what policy positions they think should be taken on the issue. For example, the Green Paper on Policing, 2013, by the Civilian Secretariat for Police.
After looking at all the public comments on the green paper, the government may release a draft white paper for further public comment. This draft white paper sets out the different options for policy positions the government is proposing taking on the issue raised in the green paper. For example, the Draft White Paper on Audio and Audio Visual Media Services and Online Safety, 2025.
Only after considering the public comments on the draft white paper, can a final white paper, which is the final policy position adopted by the government, follow. This white paper is then the policy document. For example, the White Paper on Education and Training, 1995.
Acts & Bills
A bill is a proposed law. An act is a law.
The Different Role Players
Bills may be introduced by Cabinet ministers, members of Parliament (“MPs”), or by parliamentary committees (section 73(2) of the Constitution). However, these are not the only role players.
The SALRC – Keeping the Law Updated
The South African Law Reform Commission (“SALRC”) is created by law (specifically, the South African Law Reform Commission Act, 1973). In a nutshell, the SALRC’s job is to make sure the law stays up-to-date. It is tasked with researching and recommending how South Africa’s laws should be developed, improved, modernised or reformed (section 4 of the Act).
The SALRC, will ask for public comments on an Issue Paper. See for example, Issue Paper 35 on South Africa’s marriage laws, that looked at if and how South Africa’s numerous marriage laws should be changed. The issue paper did not contain any proposals for how the law should be changed, but rather sought to stimulate debate and elicit the public’s proposals for how the law should be changed.
Following its consideration of the public’s comments on the Issue Paper, the SALRC will publish a Discussion Paper for further public comment. See, for example, Discussion Paper 152 on South Africa’s marriage laws. The discussion paper contained the SALRC’s preliminary proposals following what the public had said in response to the Issue Paper. The discussion paper is published to elicit the public’s views on these initial proposals.
Following both these papers, the SALRC submits a report setting out the SALRC’s final recommendations and its draft bill (a bill is a proposed law) to the Justice Minister. The Minister must then decide how he wishes to proceed.
Bills Tabled by Ministers
Most bills start their lives off in government departments. A department will draft a bill. It will then be tabled in Cabinet.
Once the Cabinet has approved the bill to be opened for public comment, the department will publish it in the Government Gazette and ask the public what they think about it.
After considering the public’s comments on the proposed law, the department changes the bill as it deems fit. (This does not mean that every change requested by the public is made to the bill by the department, but it does mean that the department must be able to show that it meaningfully considered and engaged with the comment and that there is a good reason that it did not make the requested change, for example, that it is unconstitutional etc.).
The bill will then undergo various internal government processes.
After all the internal government processes are completed, the revised bill is tabled in Cabinet.
If Cabinet approves, the Minister of the relevant department can then table the bill in Parliament for Parliament to consider making it into a law.
Bill Tabled by a MP
When an MP tables a bill, it is called a Private Member’s Bill (“PMB”). A PMB skips the Cabinet and internal government processes. For example, let’s say that a MP wants to table a bill, s/he will publish a notice of intention to do so and ask for the public to comment on it. After evaluating the public comments, s/he will table the bill in Parliament. For example, see Adv Glynnis Breytenbach’s Constitution Twenty-First Amendment Bill (PMB), which she tabled following the Notice of Intention.
Bill Tabled by a Parliamentary Committee
If a Committee wishes to table a Bill, it submits a memorandum to the National Assembly, who then votes on whether or not the Committee can introduce the Bill (Rule 273 of the National Assembly’s Rules).
See, for example, the Economic Regulation of Transport Amendment Bill. This bill was introduced by Parliament’s Portfolio Committee on Transport.
The National Lawmaking Process
In simple terms, once a bill is tabled in Parliament, it must be passed by both houses. I.e. both the National Assembly and the National Council of Provinces must agree that they want this law and adopt it, before it goes to the President to be signed into law.
Importantly, each house invites public comment and may amend the bill before voting. If both approve, the bill goes to the President.
President’s powers
The President may sign the bill into law or return it to Parliament if there are constitutional concerns (section 79). If unresolved, the bill goes to the Constitutional Court. If the Court upholds constitutionality, the President must assent to and sign it into law.
Conclusion
South Africa’s lawmaking process involves multiple stages and public participation. Repeated calls for comment reflect our participatory democracy.
Each process allows the public chances to comment on each new version of the Bill. This is why it may often be confusing, because it may seem like the public is being asked to repeatedly comment. Each of us should participate in the lawmaking process to ensure that the laws that govern us, are indeed laws that protect and advance our dignity, equality and human rights and freedoms.