Why policymaking in South Africa has become more adversarial

Adversarial policymaking in South Africa is increasingly playing itself out in the media and the courts.

In May 2014, new immigration legislation, which has been widely contested for its potential negative impact on tourism, came into force. The electronic tolling of the highways between Johannesburg, the financial capital, and Pretoria, the seat of government, has been so widely resisted by drivers that government was forced to cut the tariff by half.

Now, the City of Cape Town has taken the South African National Roads Agency Limited (Sanral) to court for its allegedly unlawful decision to toll 180km of a highway in the Western Cape.

A substantial part of Cape Town’s argument is that the project is not “socially and financially viable” and would have an adverse impact on Capetonians, particularly the poor. Sanral counters that tolling roads is the only way to fund the upgrading of South Africa’s road network.

But why are legislative changes and the introduction of new regulations becoming so controversial in South Africa? The question is more pertinent considering that South Africa has taken tentative steps towards implementing evidence-based policymaking.

South Africa introduced Regulatory Impact Assessment in 2007. This was part of the government’s broader commitment at that time to reduce red tape and improve regulatory efficiency.

Regulatory Impact Assessment refers to a series of standardised steps for policymaking. These include setting out the problem, various policy options and each option’s potential impact on the economy, society and the environment. These steps culminate in a report published alongside the draft law presented to Cabinet.

Institutionalising these assessments could make policymaking less adversarial. Regulatory Impact Assessment could also provide a platform for stakeholders, including within government, to present their arguments and supporting data for and against the proposed policy. This would lead to a more structured and timely debate, and ultimately better policy outcomes.

Why has this not happened in South Africa?

Since Regulatory Impact Assessment has had no legal backing the policy has never been systematically implemented in South Africa. Few assessments were ever conducted. Those that were undertaken were often done late in the policymaking process. They were done sometimes at the request of cabinet in a bid to block potentially “damaging” legislation.

Rather than being undertaken by government officials responsible for drafting policies, these assessments were outsourced to consultants. This created a disjuncture between the policymaking process and the assessment of the impact of proposed policies.

Public consultation – another important aspect of the process – was often ad hoc and the outcomes of these consultations were seldom presented in the final report.

Another stumbling block to implementing Regulatory Impact Assessments has been the prevalence of legislation that sets the broad framework but leaves the development of regulations to the minister. These regulations are rarely subject to assessment. Yet they may have a much greater social and economic impact than primary legislation.

Furthermore, the whole process has not been transparent. Regulatory Impact Assessment reports were not published on a single central website. Often they were not published at all. This prevented stakeholders from debating individual policy proposals. Much more fundamentally, however, the lack of transparency denied stakeholders the opportunity to assess the Regulatory Impact Assessment process as a whole.

By 2013-14, implementation had essentially been put on hold and no Regulatory Impact Assessments were reported as completed. Then this year government replaced the Regulatory Impact Assessment process with the Socio-economic Impact Assessment programme. This will assess a narrower range of impacts that are in line with national priorities. These include:

• social cohesion;

• security;

• economic growth; and

• environmental sustainability.

Whether this new approach will encounter the same difficulties and challenges as Regulatory Impact Assessment remains to be seen.

But South Africa is by most accounts overregulated and under governed. Too many new laws are poorly thought out. They are therefore not well crafted to achieve their objective without imposing a burden on society. It is therefore critical that the systematic implementation of Socio-economic Impact Assessment is rigorously supported across government.

If so, Socio-economic Impact Assessment could help replace the current de facto model of policymaking, whereby battles are fought in the press and courts, with a more informed and measured debate. This will ultimately help South Africa achieve more coherent governance.

_This article draws from interviews with Chris Darroll of SBP, Sarah Truen and Brent Cloete of DNA Economics, as well as from various unpublished material.* _

Camilla Adelle does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.