Legislative & regulatory drafting · 01
Empowering legislation & subordinate legislation (rules, regulations and codes)
The empowering-provision analysis first; then drafting of the instrument itself — rules, regulations, codes of conduct, standards, notices and determinations; the consultation document and the…
The empowering-provision analysis first; then drafting of the instrument itself — rules, regulations, codes of conduct, standards, notices and determinations; the consultation document and the handling of comment; the memorandum to the responsible authority; the gazetting pathway; and the commencement and transitional provisions.
Statutory councils, professional bodies, regulators and organs of state making or amending subordinate legislation.
Subordinate legislation made outside the empowering provision is invalid however sensible it is — which is the analysis most often skipped. The second failure is transitional provisions: an instrument that changes a requirement without saying what happens to those part-way through the old regime creates a class of people governed by nothing.
The law it sits under
The framework this work answers to.
Subordinate legislation is valid only so far as the empowering provision reaches. An instrument that goes beyond it is ultra vires and a court will set it aside, however sensible its content. The exercise of any public power is constrained by the principle of legality — the rule confirmed in Fedsure Life Assurance v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC) and extended to rationality in Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the Republic of South Africa 2000 (2) SA 674 (CC). Where the making of a rule affects the public, section 4 of the Promotion of Administrative Justice Act 3 of 2000 governs how it must be done. And where the empowering Act requires publication in the Government Gazette, publication is not an administrative formality — it is a condition of validity.
How the engagement runs
What you are committing to.
The empowering-provision analysis comes first and is delivered as a short written note: what the Act permits, what it requires, what it forecloses, and whether the instrument you want is available at all. Only then is anything drafted. The instrument is produced in amending form where it changes something that already exists, with a schedule of consequential amendments and the transitional provisions that decide who is governed by the old rule and who by the new. A drafting note accompanies the text, recording the choice made at each contested point — which is the document that answers a reviewing court, and the one nobody thinks to write.
The most common failure is not bad drafting. It is an instrument that quietly repeals a provision other instruments still cross-refer to, leaving a rule that points at nothing. The second most common is a commencement clause that says "on publication" where the Act requires a date to be fixed by the Minister.
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