ex Africa semper aliquid novi

South African law includes a wide and ecletic range of materials, from the formulation of the Aquiliean action derived from Roman praetors to Reserve Bank rules on liquidity and on to traditional law on chiefs. The Constitution is the supreme law. The Bill of Rights provides a way of eliciting an emerging coherence from these materials. That coherence is likely to prove the work of decades even centuries.

But there is a simpler more mundane coherence that can be achieved rather more easily and that will, in a modest way, contribute to acces to justice. One of the primary sources of law is statutes; statutes passed by the colonial and apartheid governments, and statutes passed by the democratically elected parliaments. Statutes are often lengthy (the Companies Act 2008 is 225 sections long with 5 schedules), complicated and often the source of subordinate laws (referred in South African parlance as regulations) that are created by executive officials under the authority of the statute.

Unsuprisingly a deadwood collection of the South African statutes isn’t something one can carry around unaided. Rather suprisingly there is little order to the statutes. Government ministries and their corresponding departments are regarded as have responsibility for specific statutes. Commerical publishers have organised the statutes under topics, but the statutes themselves are not organised as a code. Finding the relevant statute requires skill and experience.

Perhaps that was unavoidable when law was paper based. It is eminently avoidable now. South Africa could create a legislative code along the same lines as the United States Code which is prepared by the Office of the Law Revision Counsel of the United States House of Representatives. The US Code is “a consolidation and codification by subject matter of the general and permanent laws of the United States”. The Code is organised by titles, chapters and sections.

Why is a statutory code desireable? Collecting all the legislation (and sudordinate) legislation on an issue in one place makes finding the law easier. That is important to a society comitted to the rule of law. Not every legal question should require a lawyer, simpler legal questions should be answereable by citizens for themselves.

Collating the legal sources on issues serves another purpose, it reduces legal costs because lawyers don’t have to find widely seperated sources. That too serves access to justice. But collation also serves other purposes assists review of the law; do the statutes work together or do they contradict one another, are time periods and penalties harmonious or disproportionate? Is is necessary for a new statute to define terms or can it rely on terms already defined? Must new structures be created or can existing structures be modified to take on additional tasks? Codeifying South African statory law would not prevent contradiction, duplication or incoherence. It is does however change the nature of the intellectual task of statutory drafting from a discrete problem solving exercise to systemic exercise that requires consideration of how the statute in question fits into the far larger edifice of South African statute law.

PS. Of course South Africa could create a Code differently to the US, the South African Code could be born digital, the code could be fully searcheable, sections that refer to each other could be hyperlinked, subordinate regulations could be hyperlinked and a lense could enable the users of the Code to annotate the Code, adding links to relevant materials such as cases and law journal articles.

Who would run such a project? The Department of Justice is one possibility but Parliament itself is a good candidate since legislation is passed by parliament and while the executive branch implements legislation parlimentarians (should) consider legislation as their responsibility.