PART 1

Good Law Checklist Part 1 - Constitutionality

The questions in Parts 1 and 2 apply to all laws (legislation and regulations) made for any purpose whatsoever.

Most answers must, as indicated, be "Yes". In some cases "No" can be justified by very special Constitutionally valid circumstances.

Nr	Question	Yes	No	If "No", the Special Reason
1	Does the legislative body for whom the law has been prepared have the power under the Constitution to pass the law?			Must be "Yes". (If "No" the law will be unconstitutional.)
2	Is the proposed law a law of general application, equally applicable to all?			Must be "Yes".
3	Is the purpose of the law set out in the long title?
4	Is the purpose of the law set out in the preamble?
5	Does the law comply with the requirements of the rule of law:
	a) Is the law free of provisions which allow the arbitrary exercise of power by any person?			Must be "Yes".
	b) Is the law clear?			Must be "Yes".
	c) Is the law precise?			Must be "Yes".
	d) Is the law unambiguous?			Must be "Yes".
	e) Is the law free of retrospective provisions that either impose duties or take away existing rights?			Most likely must be "YES"
	f) Does the law conflict with any existing law?
	g) If the law conflicts with existing laws, does it identify such laws and amend them?
	h) Is the law compatible with South Africa’s international obligations?			Must be "Yes".
6	Does the law avoid limiting the rights in the Bill of Rights?			If No see 7 and 8
7	If the law limits any of these rights, does the limitation comply with any internal limitation set out in the relevant provision?			Must be "Yes".
8	If the law limits any of these rights, does it satisfy the requirements of section 36?			Must be "Yes"

9	Does the law uphold the separation of powers between legislature, executive and judiciary?	Must be "Yes".
10	If the law authorises any person to make regulations:
	a) Does it define clearly who may make the regulations?	Must be "Yes".
	b) Does it define clearly and limit the purposes for which regulations may be made?	Must be "Yes".
	c) Does it give guidelines with which the regulations must comply?	Must be "Yes".
	d) Are the regulations restricted to administrative and procedural matters?	Must be "Yes".
11	If the law authorises any person to exercise discretion:
	a) Does it define clearly who may exercise discretion?	Must be "Yes".
	b) Does it define clearly and limit the discretion?	Must be "Yes".
	c) Does it define clearly the purpose for which the discretion may be exercised?	Must be "Yes".
	d) Does it give guidelines as to the manner in which the discretion may be exercised?	Must be "Yes".
12	If the law sets up a tribunal:
	a) Why are the courts not used?
	b) Is the tribunal free of administrative or executive responsibilities?	Must be "Yes".
	d) Does the law define the composition of the tribunal clearly?	Must be "Yes".
	e) Does the law define and limit the powers of the tribunal clearly?	Must be "Yes".
	f) Does the law require the tribunal to observe natural justice?	Must be "Yes".

Good Law Checklist Part 2 - Feasibility

Unlike the questions in Part 1, these questions are concerned with determining whether a law is suitable for its purpose. The answers are a matter of judgement requiring careful consideration and debate.

It is important to note that a number of the provisions on this Checklist are constitutionally required. They will need to have been established under Part 1 of the Checklist before moving on to Part 2. They are repeated and in some cases elaborated here to ensure that this list is coherent.

Answers to questions in this Checklist may strengthen constitutional requirements in Part 1. Conversely, a negative answer in Part 2 may expose a provision in a law as undesirable even though they may be constitutional.

All the answers should be "Yes". A "No" answer means that insufficient consideration has been given to the law, or that it is conceptually flawed.

A	The General Purpose and Objective of the Law	YES	NO
1	Has the purpose of the law been defined?
2	Has the importance of the purpose been quantified or evaluated?
3	Does the importance of the purpose justify legislation?
4	Has the objective (how the purpose will be achieved) been defined?
5	Are there good reasons to believe that the law would achieve its purpose?
6	Has an estimate been made of the benefits expected from the law?
	a) Is the estimate of the benefits realistic? b) Where the benefit has monetary value, has the value of the estimate been quantified? c) Has the estimate been recorded as matter of public record for later monitoring and performance evaluation? d) For accountability purposes, have the persons (preferably department heads) responsible for the estimation of benefits confirmed their satisfaction with the estimate? e) Has an estimate been made of by when or over what period the benefits are expected? f) Has the estimate of the timing of benefits been recorded as matter of public record for later monitoring and performance evaluation?
7	Has a list of alternative methods of attaining the purpose of the law been prepared?
	a) Have the alternative methods of attaining the purpose of the proposed law been considered and rejected for known compelling reasons? b) Has the repeal of existing law which may be causing or exacerbating the problem been considered as an alternative method? c) Is the proposed law clearly the best way of attaining the purpose?
10	Will it be possible to implement ad administer the proposed law?
	a) Have all departments and structures responsible for implementing the proposed law confirmed in writing that they have the administrative capacity to do so? b) If not, have adequate arrangements been made for the provision of the necessary capacity before the law is implemented? c) Does the implementation of the law require the diversion of resources from other purposes? d) If so, has adequate provision been made for the continued performance of those purposes? d) Can the law be implemented without additional budgets, or the appointment of more functionaries or officials? e) If not, have the relevant departments, particularly of finance and public services, agreed in writing to the proposed law and its implications? f) Has any special training which may be needed to apply the law been prepared, costed and budgeted?
10	Will it be possible to enforce the proposed law?
	a) Have all departments and structures responsible for enforcing or policing the proposed law, particularly the police and the courts, confirmed in writing that they have the capacity to do so? b) If not, have adequate arrangements been made for the provision of the necessary capacity before the law has to be enforced? c) Does the enforcement of the law require the diversion of resources from other purposes? d) If so, has adequate provision been made for the continued performance of those purposes? e) Can the law be enforced without the appointment of more functionaries, police or judicial officers? b) If not, have the relevant departments, particularly of finance and public services, agreed to the proposed law and its implications? c) Has any special training which may be needed to enforce the law been prepared, costed and budgeted?
12	Will it be possible to comply with the law in the ordinary course of events? , and is widespread compliance likely or achievable in practice?
13	Is generalised compliance with the law achievable in practice and likely?
14	Has a cost-benefit analysis been done of the law?
15	To ensure accountability, has senior person or department head taken responsibility for the accuracy and adequacy of the cost-benefit analysis?
16	Is the expected cost to the State in all its forms of implementing and enforcing the law justified by the expected benefits?
17	Is the expected cost to the public for compliance with the law justified by the expected benefits?
	a) Have the compliance costs for every sector or interest group affected directly by the law been estimated separately? b) Do the compliance costs affect poor and wealthy people fairly in proportion their wealth and income? c) Do the compliance costs affect micro, small, medium and bigger businesses fairly in proportion their wealth and income?
17	Have all direct and indirect regulatory impacts, including side effects (secondary and unintended consequences), of the proposed law been considered?
18	Does the expected benefit from the law outweigh likely undesirable side effects?
19	Have all reasonable measures to minimise undesirable side effects been incorporated in the law?
20	Is there any mechanism in place to monitor the affect of the law in order to improve its benefits and reduce undesirable side-effects?
21	Has the inclusion of a "sunset" clause I the law been considered?
	If no sunset clause is included, has provision been made for monitoring the efficacy of the law in terms of its intended objectives, and anticipated cost and benefits? If so, does the sunset clause specify unambiguous criteria for its implantation.