Chapter 4 - Changes and the demise and amendment of legislation

Question 1

Amendment of legislation by a competent legislature

Answer 1

Legislation may be amended by a comepetent legislature. That means that parliament may amend an Act of Parliament with another Act of Parliament, a provincial legislature may amend provincial ordinances and provincial Acts, and so forth.

Question 2

Informal judicial amendment

Answer 2

Although the courts are primarily involved in the application of the law, they also have a secondary law-making function. This involves the development of the common law to adapt to modern circumstances, as well as giving form, substance and meaning to particular legislative provisions in concrete situations.

Question 3

Invalidation of legislation by the courts

Answer 3

In terms of section 172 of the Constitution, the High Court or Supreme Court of Appeal or the Constitutional Court may declare legislation unconstitutional. Legislation may be declared unconstitutional if it violates a fundamental right in the Bill of Rights, or if it is in conflict with another constitutional requirement.

Question 4

Invalid subordinate legislation

Answer 4

Delegated legislation may be invalidated by a court if it does not comply with the requirements of Administrative law.

Question 5

Repeal of legislation by a competent lawmaker

Answer 5

When a lawmaker substitutes legislation with another enactment there might be a possibility that the replacing law is not in force when the other legislation departs from the scene.

Question 6

Effect of repeal

Answer 6

Repeal is the revocation of legislation by the relevant competent lawmaker. The legislation is not changed or substituted, it is deleted from the statute book.

Question 7

Suspension of legislation already in force

Answer 7

Legislation can also be temporarily suspended, in other words, it remains in force, but its operation is halted for the time being until some or other condition is met or a requirement is complied with.

Question 8

Common law

Answer 8

It is presumed that legislation does not alter the common law, but this presumption is rebutted if legislation clearly provides that the common law is being altered.

Question 9

Legislation

Answer 9

With regard to legislation, the presumed means that in interpreting a subsequent Act it is assumed that the legislature did not intend to repeal or modify the earlier Act. Any repeal or amendment must be indicated expressly or by necessary implication.