How do laws help us?

2008-04-04 00:00

What, I wonder, is the precise purpose of legislation? On the face of it, perhaps, it is to provide a framework of rules with which people are expected to comply in the interests of an orderly society. It is much more complex than this, however.

In South Africa, and notably because of its past history, legislation serves to implement the Constitution and there is a strong imperative on the part of the government to ensure that the rights guaranteed by that Constitution are both protected and advanced by various acts of Parliament. In some instances, new laws prohibit certain behaviour which would compromise the rights of others and must be considered essential to the wellbeing of the country. But our legislation is also characterised by idealism, to a lesser or greater degree. It is this legislation, in particular, that sometimes causes me to wonder whether it is really necessary at this time when compliance and enforcement require the devotion of resources which are in short supply and which might be more effectively utilised elsewhere. The question is whether it is the role of legislation to set standards to which we should aspire or whether its purpose is to respond to current circumstances with the aim of prevention.

For example, even the most cynical of critics of the labour laws must concede that they provide a framework which is essential in the 21st century in a country where exploitation was so much a part of the past.

The allocation of rights to employees and employers is essentially fair even despite those, on both sides of the spectrum, who maintain that there is bias in favour of the other party. These laws, too, have their idealistic elements, but they are fundamentally functional and serve a constructive purpose day by day. On the other hand, the Promotion of Access to Information Act brought about a flurry of reluctant compliance to no practical avail. This law represented the epitome of both idealism and technocratic impracticability.

In its original form reports, called quite ambiguously “manuals”, to be compiled by each entity had to be lodged with the Government Printer for printing in the Government Gazette. It soon became clear, however, that this worthy state department would not be able to cope with the volume. Here was a classic case of unintended consequence and in satisfaction of what, exactly? Well, it was the notion that companies and state departments should be open and transparent so that citizens’ right to know would be fulfilled. I wonder how many people have applied for information which they are entitled to have in terms of this act.

Then there are those laws that are ahead of their time. I count the anti-smoking laws among them. I support their objectives and have to concede that they have made a very positive difference to our lives, even those who are smokers. But, in truth, we cannot afford the enforcement of them and the Department of Health surely has enough priorities to occupy its full attention before we have amendments to the smoking laws. However, if the purpose of legislation is to pre-empt in some way the utopian environment in which we aspire to live, then this kind of legislation has made some notable contribution to the setting of a desirable standard. The same can be said of the suite of environmental laws. The standards which they set are particularly exacting in a country where until this time we have been slow to keep in line with international trends. Now we are ahead of some countries as far as the theory is concerned, but lagging badly in respect of practice.

There is also the desire to keep pace with the developed world. This is laudable insofar as a progressive regimen which espouses international values is comforting for potential investors. The downside, however, is that the requirements may be inappropriate for the country itself. I think especially of the irritating Financial Intelligence Centre Act (Fica) which, without doubt, renders banking facilities far less accessible to the poor.

In the final analysis, and notwithstanding some of the reservations I have expressed, I think it is comforting to know that our legal framework is of international repute in many instances and that the quality of legislation since 1994 is superior to that enacted before because it supports the aspirational goals of a highly regarded Constitution. It represents thoughtful proactivity and a surprisingly democratic process through parliamentary portfolio committees about which we know too little.

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