Stepping into the current technological age, parliament seeks to diminish the requirement to publish laws in the Government Gazette in favour of online publication. However, there are limits to the benefits of technology that make this a bad idea.
The draft Financial Services Laws General Amendment Bill, 2012, defines and inserts the phrase “official web site” into most of the acts that it aims to amend. The range of financial services legislation affected includes the insurance acts, the pension funds and medical schemes acts and the Financial Advisory and Intermediary Services Act.
“Official web site” is any location on the Internet containing a home page or web page, set up by the Financial Services Board (FSB).
Currently legislation obliges the various registrars to publish directives in the Government Gazette and in other media that the registrar deems appropriate where a directive is issued to ensure the protection of the public in general. The law would entitle the registrar to publish directives on the official web site and any other media that the registrar deems appropriate, in order to ensure that the public may easily and reliably access the directive. The various registrars may provide information and directives on the official web site unless an act specifically says that the notice must be published in the Government Gazette.
There are good reasons why legislation ought to be published in the Government Gazette. For instance, hard copies of the Gazette must be kept in a number of locations to ensure that the law is accurately recorded and safely stored. The Gazette is also a good record of the historical development of the law because on searching electronic databases, sources before the 1950s are difficult to find.
If rules and laws are published only on the official web site, they are open to the risks inherent in modern technology. For example, the official web site may be inaccessible for a number of hours or even days, as was evident during maintenance on the CIPC web site which saw the web site being down for days.
When this happens with the official FSB web site, the law would not be published as long as the web site is down.
Another risk is that web sites are open to hacking and abuse. There needs to be a hard copy of all laws that are published in the Government Gazette to verify what the correct version of the law is. The requirement could be that hard copies are sent to the Constitutional Court and designated libraries simultaneously with the law being published on the official website.
Directives should be published both in the Government Gazette and on the official web site. If there is doubt about which version is correct, the Government Gazette must prevail. This ensures that a reliable version of legislation is kept.
The history of the Government Gazette
South Africa’s Constitution states that a Bill assented to and signed by the president becomes an act of parliament and must be published promptly. The act takes effect when it is published or on a date determined in terms of the act (see section 81 of the Constitution of the Republic of South Africa, 1996).
The signed copy of the act is conclusive evidence of the provisions of that act and after publication it must be entrusted to the Constitutional Court for safekeeping (Section 82 of the Constitution). These sections envisage that hard copies of legislation be stored. Similar provisions apply to the publication of provincial acts.
Section 13 of the Interpretation Act, 1957, provides that when the word “commencement” is used with reference to any law, it means the day on which that law came into operation, and that day will either be the day that is fixed under that law, or the day when the law was first published in the Gazette as law. Law is defined as any law, proclamation, ordinance, act of parliament or other enactment having the force of law.
Section 16 of the Interpretation Act requires laws and bi-laws and regulations to be published in the Government Gazette.
This is qualified by the provision that if promulgation and commencement of laws and publication of notices in the Gazette is impracticable, or if publication of the Gazette cannot be effected or is likely to be seriously delayed as a result of circumstances beyond the control of the government printer, the president may, by proclamation published in the manner directed by him, make rules for publication during any specified period, of laws or notices required or authorized by law to be published in the Gazette. Laws or notices published in this way are deemed to have been published in the Gazette and deemed to have come into operation on the day on which it was first published, unless some other day is fixed by that law for its commencement. However, laws or notices published in this manner must still be published in the Gazette for general information as soon as publication of the Gazette can be effected.
Section 5 of the Civil Proceedings Evidence Act, 1965 states that judicial notice will be taken of any law or government notice, or of any other matter which has been published in the Gazette.
The Legal Deposit Act, 1997, makes provision for the preservation of the national documentary heritage through the legal deposit of published documents. Places of legal deposit are designated and include libraries in Bloemfontein, Cape Town, Pietermaritzburg and Pretoria. Any other library or institution described by the minister for the purposes of prescribed categories of documents also fall within the category of places of legal deposit.
The duties of a place of legal deposit include receiving, retaining and cataloging documents. They must also ensure freedom of access to documents. The number of copies of documents that need to be deposited is prescribed. For instance, at least five copies of official publications need to be deposited. An official publication means a document published by an organ of national, provincial or local government, parastatal organisation or any other institution listed as a public entity.
The National Archives and Records Service of South Africa Act, 1996 creates the national archives and records service to properly manage and care for the records of governmental bodies and to preserve and use the national archival heritage. The national archive is meant to preserve public and non-public records with enduring value for use by the public and the state. It needs to manage and care for public records and make such records accessible and promote their use by the public. The national archives should set the standard for and professional guidelines to provincial archive services.
No public record under the control of a government body can be destroyed or disposed of without written authorization of the national archivist and the consent of the relevant minister. The national archivist determines record classification systems to be applied by governmental bodies. The national archivist is also meant to determine the conditions subject to which records may be microfilmed or electronically reproduced and determine the conditions subject to which electronic record systems should be managed. The national archivist should be consulted on the Bill and conditions need to be set for any official web site.
The history of the Gazette and the various references to the Government Gazette in different statutes high-lights the importance of a permanent, accessible, reliable record of official publications especially if they have the force of law. While it is admirable that government is moving towards a more modern system of publication, publication in the Gazette or the permanent retention and availability of hard copies is still necessary and practical. There are benefits to publication on an official web site, but as many downfalls.
The situation can be improved by the requirement that directives and notices be published on the official web site as well as in the Government Gazette, and in the case of a discrepancy between the two, the Government Gazette publication should take precedence.
It is also useful for continuity and for reference to one official source that the Government Gazette still be used for all legislation, regulations, notices, directives and other laws. Confusion could be created if certain legislative acts of government must be published in the Gazette, while others may be published on various official web sites. Everything should be published in the Government Gazette, and things required to be published on the official web site should be published on both. This ensures that there is still one official source that is always accessible containing all legislation.
Written by Aneesa Bodiat, Associate, Norton Rose Fulbright South Africa