Constitutional and Administrative Law

Policy, Legislative and Regulatory

K&K provides legal advice in respect of the Constitution of the Republic of South Africa, in so far as it relates to amongst others the Bill of Rights, the Promotion of Administrative Justice and the Promotion of Access to Information. Individual members of the firm have litigated for and against a number of administrative bodies, provincial authorities, local government and other organs of the state. Our litigation team in this regard is headed by Mr. Madoda Khumalo backed by a team of specialist consultants and counsel.

K&K aims to support the development and facilitation of effective regulation (coherent and consistent regulatory system) to regulators, agencies, government departments and/or private undertakings/individuals, within the Republic of South Africa. There is wide recognition that different forms of regulation require dedicated regulators and/or agencies and K&K believes that regulation, whether sectoral or economy-wide, requires a range of expertise and skills which should assist in promoting consistency, certainty and transparency in the development and application of the relevant laws, policies and/or regulations.

In view of the need for consistency and legal certainty, the roles and activities of government, regulators and/or agencies need to be clarified and monitored from time to time to ensure there is no abuse of process, irregularities and that there is compliance with the Rule of Law.

K&K believes that certain functions are best placed in specific institutions, depending on levels of expertise and/or specialisation. Although there are moves towards promoting coherence and consistency in the regulatory system, regulation in South Africa remains fragmented and contradictory in some respects. At times, difficulties arise in the administration of different forms of regulation hence the need for coherence and integration in the legislative/policy/regulatory environment has become an increasingly important issue (not only in South Africa, but also in both developed and developing economies). A more integrated policy/legislative/regulatory framework is necessary to promote transparent, consistent and coherent business regulation such as the following:

• Regulation that involves adoption, interpretation and enforcement of framework and rules designed to ensure that markets are efficiently “self regulating” as possible. Which also include preventing firms from concluding anticompetitive agreements, engaging in abuse of dominant position conduct and carrying out anticompetitive mergers.
• Regulation that involves directly controlling or specifying production technologies, eligible providers (granting and policing licenses), terms of sale (output process and terms of access) and standard marketing practices (advertising).
• Regulation that involves setting and enforcing product and process standards designed to deal with safety, environment and switching costs externalities, and allocating publicly owned or controlled resources.

In South Africa, although responsibility for different types of regulation appears to have been allocated, some ambiguity remains and needs to be considered carefully. As a result, K&K aims to provide regulatory support services in line with amongst others the following:

• promoting and facilitating the flow and exchange of information and the application of consistent decision-making practices and procedures;
• fostering an understanding of roles and activities mandated by law;
• avoiding duplication of functions, activities and resources;
• harmonization of regulatory policies and legislation across different industries and/or sectors and to standardize regulatory policies, practices and procedures;
• establishing sound relationships with other regulatory bodies, national and provincial government, the public and other stakeholders;
• monitoring and evaluating regulatory practices and determining training and/or legal support needs;
• developing, conducting and managing information and capacity building programs;
• promoting coherent and consistent regulatory policies, legislation and regulations, where applicable;
• preparing position papers on key aspects of regulation, including but not limited to examination of policies, strategies and legislation in the sectors in comparison with international trends and best practices;
• investigating and deliberating on issues which impact negatively on the development of regulatory policies and procedures; and
• promoting working relationships with other national and international agencies that have similar objectives on regulation and related matters.