We currently have too much complex law resulting in people not knowing or complying with the law. For South Africa, take a look at Acts Online – see how many laws there are. Those are just some of our laws. Read some of them and see if you understand them. Most of them are simply horrible documents.
Parliaments around the world (like the South African Parliament, the Australian, or the European) are creating more law and extending the ambit of laws further than ever before. The number of new laws and regulation is breathtaking. And we are not talking minor irrelevant laws. Between 1994 and 2014 the South African Parliament passed to 1252 pieces of legislation. It is virtually impossible for anyone to read all of them. I feel like I can’t keep up – and I’m a lawyer. I feel overwhelmed by complex law. It takes a lot of time to read new laws and the cost of complying with them is often huge.
Many of these new laws are necessary as the common law did not adequately deal with the issue, but some Parliaments take it to the extreme and over-regulate and enact laws that are too comprehensive and too difficult to implement. In many instances, Governments themselves are struggling to implement these new laws.
“If you make 10,000 regulations you destroy all respect for the law.” Winston Churchill, House of Commons, 1949
Examples of Complex Law
We are talking laws like the Companies Act 2008 – the act that provides the framework for every company and close corporation in the country. Do you own a company or a CC? Well then, you need to read the new Companies Act. It is quite a well-written law but radically changes the legal framework.
King 3 is not mandatory, but if people ask you why you have not complied with King 3, then you need to be able to explain why you didn’t. “Sorry what” is not an acceptable answer, I’m afraid. King III was in plain language, but still too complex. King IV is going to be released soon to try to fix this but it will require people to review their corporate governance framework.
The Consumer Protection Act has a huge impact on virtually every business in South Africa. If you sell goods or services to someone (a consumer), it probably applies to you and you probably have to pay a levy. That is everyone, isn’t it? South Africa now has one of the most protected consumers in any country in the whole world. But do consumers really understand their rights and how to exercise them? How many suppliers break the Consumer Protection Act every day?
The South African Parliament has passed a data protection law (POPI) that requires processors to protect the personal information of juristic persons (like companies and trusts) – a world first. POPI has been a long time coming and will have a big impact. Everyone processes personal information to some extent or another. And if you do, then you have to comply with it. POPI is 75 pages long and is very hard to apply practically. There are very few exemptions. In particular, SMEs are not exempt.
The Cybercrimes and Cybersecurity Bill will create 59 new crimes. Will everyone know about them? Some result in a penalty of 25 years in jail! Is that fair?
Every contract between a responsible party and an operator (which is almost all commercial contracts) needs to be amended to deal with security measures. Parliament has, with one sentence, created a legal obligation to change thousands of contracts.
Everyone is still trying to deal with the practical implications of FICA.
Every public and private body (except those who are exempt) have to have a PAIA Manual on their website.
Examples of the South Africa Government struggling to Implement
- The new Companies Act changed the whole regulatory regime for companies and CCs, but we don’t have the institutions to deal with the transformation.
- Does South Africa have the skills and money to create all the structures created by the Cybercrimes and Cybersecurity Bill?
- There was meant to be a national opt-out register that the NCC has failed to create for about six years.
- There was meant to be a register of business names that has not been created by CIPC for about six years.
- There was meant to be an Information Regulator that has not been established for about three years.
The effects of Complex Law
People feel overwhelmed and feel that compliance is an impossible task. This has the inevitable consequence that many people do not comply with the myriad of laws. I studied law for five years at University and have now practised law for many years, and I feel overwhelmed. How many criminal offences do you commit each day? For example, how often do you commit a cyber crime or do you comply with all laws that relate to IT?
Our criminal justice system cannot cope with prosecuting people for all the crimes that are committed. Complex law undermines the rule of law and is harmful to society. People are not protected and they do not enjoy the freedoms they have on paper. It also results in selective prosecution. The law and reality become disconnected.
Complex Law stops entrepreneurship, economic growth and job creation. This was emphasised by the President of South Africa in SONA 2016 when he said: “Government is developing a One Stop Shop/Invest SA initiative… (that) requires that government removes the red tape and reviews any legislative and regulatory blockages.”
According to a Fifth Era Report: The Impact of Internet Regulations on Investment 2016, 100% of Internet investors said that the legal environment in South Africa has a negative impact on investing.
Ignorance of the Law is No Excuse
Considering that old saying that ignorance of the law is no excuse, you need to read all of these laws and determine how they impact on you and what you need to be doing to comply with them.
How do you feel?
I’m really interested to know how other people feel about complex law? Are you aware of all of them? Have you read them? Are you planning to comply with them or just ignore them? Surely, the answer is simple law.