Is it in force? The commencement of legislation CH3

Question 1

Adoption

Answer 1

1)Preparation of a draft Bill
2)Introduction of the Bill in the legislature
3)Public participation (if required) as well as the committee stages,
voting and assent.

Question 2

Promulgation:

Answer 2

Refers to the process of putting legislation officially and
legally into operation

Question 3

The Requirement of
Publication

Answer 3

1)Section 162 of the Constitution
Municipal by-laws may be enforced after they have been
published in the Gazette of the relevant province.
2) Section 101(3) of the Constitution
The Constitution does not expressly require the publication of
subordinate legislation to commence, but Section 101(3) of the
Constitution provides that: Proclamations, regulations and other
instruments of subordinate legislation must be accessible to the
public.
3)Sections 13 and 16 of the Interpretation Act
Requires that subordinate legislation must be published in order
to commence.

Question 4

Queen v Jizwa

Answer 4

It was held that legislation commences on the date of publication,
irrespective of whether it has come to the knowledge of
everybody in the remote areas

Question 5

Two other aspects of the publication requirement

Answer 5

President may by proclamation
prescribe alternative procedures for the promulgation of legislation
A list of proclamations and notices under which such types of delegated legislation must be tabled in
Parliament

Question 5

President of the Republic of South Africa v Hugo 1997

Answer 5

A person should be able to know of the law and be able to conform his or her conduct to the law

Question 6

Who promulgates legislation?

Answer 6

The lawmaker who ‘speaks’, the resulting legislation is
promulgated by the lawmaker in question

Question 7

Ex parte Minister of Saftey and Security: In re S v Walters

Answer 7

Explained that the power conferred by the legislature on the
President to fix a date for commencement is a public power and
must be exercised lawfully for the purpose of such a power.
However, the power could not be used to block or veto the
implementation of new law.

Question 8

When is it in force?

Answer 8

1) The Default
2) Delayed Commencement
3) Delayed Commencement: On an unspecified future date still to
be proclaimed
4) Retroactive commencement
5) A combination of the above

Question 9

The Default:

Answer 9

Section 13(1) of the Interpretation Act as well as section 81 and 123 of the Constitution, provides that if the legislation does not prescribe a date of commencement, it automatically
commences on the day of its publication in the Gazette.

Question 10

Delayed Commencement

Answer 10

In terms of section 13(1) of the
Interpretation Act (and sections 81 and 123 of the Constitution) the
legislation as published in the Gazette may provide for another fixed
date for its commencement

Question 11

Delayed Commencement: On an unspecified future date still to
be proclaimed

Answer 11

Section 13(3) of the Interpretation
Act provides that if an Act provides for commencement on a date to
be proclaimed by the President or the Premier of a province, there
may be different commencement dates for different provisions of that
Act.

Question 12

A combination of the above:

Answer 12

When published, there may be a
confusing combination of possible commencement options for
various parts of the legislation.

Question 12

Retroactive commencement

Answer 12

Retroactive commencement refers to
publication on a specific date, but the legislation is deemed to have
commenced earlier on a date prior to the publication

Question 13

Section 14 of the Interpretation Act

Answer 13

Provides that if a person has the power to put legislation into
operation, that power may be exercised at any time after the
legislation was passed with a view to put it into effect.

Question 14

The Presumption that Legislation applies only to the future.
S v Mhlungu

Answer 14

The court explained that the presumption was not intended to
exclude the benefits of rights sanctioned by new legislation but
rather to prevent the invasion of rights.

Question 15

Transnet Ltd v Chairman National Transport Commission

Answer 15

The time-honoured principle that legislation should only apply to
the future is one of the basic foundations of a legal system based
on the rule of law.
The principle is based on the prevention of: 1)Unfair results
2)The prevention of unreasonable results
3)To ensure predictability and legality.

Question 16

Veldman v Director of Public Prosecutions, Witwatersrand Local
Division 2007 (CC)

Answer 16

the well-established common law principle was given express constitutional backing.

Question 17

Retroactive vs Retrospective

Answer 17

Explained in National Director of Public Prosecutions v Carolus

Question 18

Retroactive

Answer 18

Legislation operates as of a time prior to its enactment, and essentially operates backwards.
Example: Terrorism Act 83 of 1967

Question 19

Retrospectivity

Answer 19

1) Legislation operates for the future only
2) No express retroactivity.
3) Whether the future
application of the legislation on events from the past will be unfair, take away vested rights or violate substantive rights.

Question 20

The Deeming Clause

Answer 20

1) It is an exercise in virtual reality
2)The legislation creates a legal fiction
3) Therefore, it essentially creates a presumption

Question 21

What prevents the legislation from applying with retro-effect?

Answer 21

1) The common law presumption
2) New offences and higher penalties
3) Other constitutional rights

Question 22

The common law presumption

Answer 22

1) The legislature can either expressly or by necessary implication
trump common law.
2) The true issue is with “necessary implication” as this means that the
legislature failed to express the intention clearly.

Question 23

Common Law Presumption case
(Lek v Estate Agents Board)

Answer 23

It could be inferred if the legislation would result in absurd or unfair results should it not have retro-effect

Question 24

New offences and higher penalties

Answer 24

Section 35
Section 35(n)
law cannot retroactively:
1)Create offences
2)Increase penalties

Question 25

Section 35

Answer 25

provides that a person may not be
convicted for an act that was not an offence at the time it was
committed.

Question 26

Section 35(3)(n)

Answer 26

Provides that an accused person
has the right to the benefit of the least severe of the prescribed
punishments if the prescribed punishment for the offence has been
changed between the time that the offence was committed and the
time of sentencing

Question 27

Other constitutional rights

Answer 27

1)Right to property
2)The right to fair administrative justice
3)The right to access information

Question 28

Exceptions

Answer 28

1) Neutral
2) Improves substantive rights

Question 29

R v Sillas

Answer 29

If the procedure negatively affects the substantive rights
then it is not allowed.

Question 30

Common Law Principles

Answer 30

Statutes do not bind the state
Statute law does not alter existing law more than is necessary
Statute law does not apply retrospectively
Statute law is not invalid or purposeless