The Promotion of Economic Activity Bill is based on a simple initiative: empowering the President to deregulate certain sectors of the economy where laws and regulations are unduly hindering or impeding economic development, competition, or the creation of job opportunities.
The exercise of this power would be subject to parliamentary oversight, and the President would be prohibited from exercising it in such a way that might result in the protection or advancement of any economic incumbent, monopolisation, or exempting the State from complying with laws that the private sector must.
Similar bills can be adopted at the provincial level to bestow a similar power upon premiers.
Martin van Staden
Editor
BILL
To empower the President to suspend provisions of laws or conditions, limitations, or obligations thereunder or to grant exemption therefrom, if he or she is satisfied that circumstances exist under which the application of or compliance with those laws, conditions, limitations, or obligations unduly impedes economic development or competition in the economic field, or the creation of job opportunities; and to provide for incidental matters.
Preamble
WHEREAS the superior courts have repeatedly recognised the importance of freedom of choice to the advancement of the constitutional value and right to human dignity;
AND WHEREAS sections 10 (human dignity), 12 (freedom and security of the person), 14 (privacy), 18 (association), 22 (trade, occupation, and profession), 23 (labour), and 25 (property) of the Bill of Rights contained in the Constitution of the Republic of South Africa, 1996, read together, guarantee the right to everyone to engage freely in economic activity and decide their own economic affairs;
AND WHEREAS the over-encumbrance of the economy with unnecessary and burdensome conditions, limitations, or obligations has slowed down inclusive economic growth, economic development, and job creation;
AND WHEREAS inclusive economic growth, economic development, and job creation, are necessary for the realisation of the rights in the Bill of Rights in the Constitution,
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:—
Power of President to suspend or grant exemption from provisions of laws or conditions, limitations, or obligations thereunder
1. (1) Subject to compliance with the provisions of subsections (2), (3) and (4), the President may, if satisfied that circumstances exist under which the application of a provision of any law administered by the national government or compliance with any condition, limitation, or obligation thereunder, unduly impedes economic development or competition in the economic field, or the creation of job opportunities, by proclamation in the Gazette—
(a) suspend in whole or in part —
(i) that provision, other than a provision of an Act of Parliament;
(ii) that condition, limitation or obligation; or
(b) grant exemption in whole or in part from the provisions of that law, including an Act of Parliament, or that condition, limitation or obligation, in general, or with regard to—
(i) a specific undertaking, industry, trade or occupation or a specific class thereof;
(ii) a specific area;
(iii) a class of persons;
(iv) specific circumstances under which any undertaking, industry, trade or occupation or class thereof is carried on or exercised.
(2) (a) Any condition, limitation or obligation under an Act of Parliament shall be so suspended or exemption from the provisions of that Act or any condition, limitation, or obligation thereunder shall be granted, only—
(i) if and to the extent to which that Act relates to any matter mentioned in the Schedule;
(ii) on the advice of a standing committee of Parliament to which the suspension or exemption in question has been referred.
(b) Paragraph (a) shall not be construed as including any condition, limitation, or obligation under any proclamation, regulation or notice under such Act.
(3) A proclamation with regard to the suspension or exemption from the provisions of any law relating to any matter concerned with labour affairs and relations, conditions of employment, and workplace safety, shall not affect any contract of employment entered into before the issue of such proclamation.
(4) Before the President issues a proclamation under subsection (1), he or she shall cause to be published in the Gazette a draft of the proposed proclamation together with a notice calling upon all interested persons to lodge any objections and representations in writing within a period of 60 days from the date of publication of the notice with the Secretary to Parliament for submission to the standing committee contemplated in subsection (2): Provided that if the President on the advice of the standing committee thereafter determines on any alteration in the draft proclamation published as aforesaid, it shall not be necessary to publish such alteration before finally issuing the proclamation in terms of this section.
(5) The President may, by the said proclamation, make regulations—
(a) relating to conditions subject to which the law, condition, limitation, or obligation in question is suspended or exemption from the provisions thereof is granted; and
(b) in order to give effect to that suspension or exemption, to regulate matters in connection therewith, to remove ambiguities and contradictions with other laws, and to remove any administrative problems which may be experienced.
(6) Regulations contemplated in subsection (5) may provide for penalties for any contravention thereof or failure to comply with the provisions thereof, of a fine or imprisonment not exceeding the maximum fine or imprisonment prescribed in the law to which the suspension or exemption in question relates.
(7) No proclamation contemplated in subsection (1) may have as its direct or indirect purpose the protection of any industrial or sectoral incumbent person; the exclusion of any new or existing persons from an industry, sector, or geographical area; the monopolisation, by a state or private person, of any good or service; or the exemption of state persons from compliance with laws, conditions, limitations, or obligations with which private persons must comply. After determining that a proclamation has had such consequences, a court shall be competent to invalidate the proclamation to the extent that it creates such consequences, or to modify it so as to not create such consequences.
Consultation
2. Before issuing a proclamation under section 1, the President may consult with, or authorise any Minister to consult with, any person or organ of state who or which in the opinion of the President—
(i) represents the persons or class of persons concerned contemplated in section 1;
(ii) is concerned with the administration of the law in question; or
(iii) is otherwise competent to advise the President.
Tabling of proclamations
3. (1) A copy of any proclamation in terms of section 1 shall, in the case of a proclamation dealing with a matter which falls within a functional area of concurrent national and provincial legislative competence, be tabled in the National Council of Provinces or, in the case of a proclamation dealing with a matter which falls outside any such functional area, be tabled in the National Assembly within 14 days after the issue thereof, if Parliament is then in ordinary session, or, if Parliament is not then in ordinary session, within 14 days after the commencement of its next ordinary session.
(2) A proclamation contemplated in subsection (1) or any provision thereof may be annulled by the National Council of Provinces or by the National Assembly, as the case may be, by resolution passed during the same session during which it was tabled, and if the proclamation or provision thereof has been so annulled, that proclamation or provision shall cease to be of force and effect from the date on which it was annulled by the National Council of Provinces or the National Assembly, as the case may be.
(3) The provisions of subsection (2) shall not derogate from the validity of anything done in terms of that proclamation or any provision thereof before the date upon which it so ceased to be of force and effect, or from any right, privilege, obligation, or liability acquired, accrued or incurred at the said date in terms of such a proclamation or provision thereof.
Duration of Act, and saving
4. (1) Any proclamation issued under section 1 shall continue to be of force until it is amended, withdrawn, or partially withdrawn by the President by proclamation in the Gazette: Provided that any proclamation with regard to the suspension of or exemption from the provisions of an Act of Parliament, and of any other law relating to any matter concerned with labour affairs and relations, conditions of employment, and workplace safety, shall only be amended, withdrawn, or partially withdrawn on the advice of a standing committee of Parliament to which the amendment or withdrawal in question has been referred.
(2) Any amendment, withdrawal, or partial withdrawal of a proclamation referred to in subsection (1) shall not come into operation before the expiry of 30 days after the issue thereof, if Parliament is then in ordinary session, or, if Parliament is not then in ordinary session, before the expiry of 30 days after the commencement of its next ordinary session.
(3) The provisions of section 3 (1) and (2) shall mutatis mutandis apply in respect of any proclamation issued under subsection (1) of this section.
Short title
5. This Act shall be called the Promotion of Economic Activity Act, 2022.
Schedule
Matters with regard to—
(a) the registration, recognition, and licensing of businesses, undertakings, industries, sectors, trades, professions, and occupations; of child-care facilities; of educational institutions; of health services; or of firefighting services;
(b) the employment, subdivision, lease, sale, or use of land, premises, and buildings;
(c) the transfer, lease, sale, or auction of state land to private persons; or of radio frequency spectrum;
(d) health and safety restrictions or requirements with which persons, premises, and buildings must comply;
(e) the prohibition or regulation of, or restriction on, the erection of dwellings, buildings, and other structures, including building codes and standards;
(f) the conveyance of persons and goods;
(g) restrictions or requirements on the days on which and the times when business may be done;
(h) labour affairs and relations, conditions of employment, and workplace safety;
(i) environmental standards, restrictions or requirements;
(j) road traffic and transportation standards, restrictions or requirements;
(k) consumer protection restrictions or requirements;
(l) credit, usury, and loaning restrictions or requirements;
(m) monopolies that are directly or indirectly supported by the state;
(n) media, broadcasting, and digital services conditions, restrictions or requirements;
(o) tourism, hospitality, and recreational affairs;
(p) the monetary jurisdiction of the small claims courts;
(q) the administration or enforcement of taxation;
(r) vendor, seller, and street trading restrictions or requirements; and
(s) any other matter reasonably relating to any item or items contained in this schedule.
Memorandum on the objects of the Promotion of Economic Activity Bill, 2022
1. Objects of the Bill
The purpose of the Bill is to empower the President to suspend provisions of laws or conditions, limitations or obligations thereunder or to grant exemption therefrom, if he or she is satisfied that circumstances exist under which the application of or compliance with those laws, conditions, limitations or obligations unduly impedes economic development or competition in the economic field, or the creation of job opportunities; and to provide for incidental matters.
2. Contents of the Bill
Clause 1 empowers the President, by proclamation, to suspend provisions of laws or conditions, limitations or obligations thereunder or to grant exemption therefrom, if he or she is satisfied that circumstances exist under which the application of or compliance with those laws, conditions, limitations or obligations unduly impedes economic development or competition in the economic field, or the creation of job opportunities.
Clause 2 provides the President with a discretion to consult before issuing a proclamation.
Clause 3 provides for the tabling of the President’s proclamations in Parliament, and empowers Parliament to annul any such proclamation.
Clause 4 provides for the duration of the Act until withdrawn or amended.
Clause 5 provides for the short title of the Bill.
3. Constitutional implications
The Bill allows the President to suspend provisions of laws or conditions, limitations, or obligations thereunder or to grant exemption therefrom, if he or she is satisfied that circumstances exist under which the application of or compliance with those laws, conditions, limitations, or obligations unduly impedes economic development or competition in the economic field, or the creation of job opportunities; and to provide for incidental matters. This does not conflict with the constitutional separation of powers as practiced in South Africa. Parliament retains the power to annul any proclamation made by the President under clause 3.
4. Parliamentary procedure
It is proposed that the Bill be dealt with in terms of the procedure established by section 76 of the Constitution.