Is it in force? The commencement of legislation CH3 Flashcards
Adoption
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.
Promulgation:
Refers to the process of putting legislation officially and
legally into operation
The Requirement of
Publication
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.
Queen v Jizwa
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
Two other aspects of the publication requirement
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
President of the Republic of South Africa v Hugo 1997
A person should be able to know of the law and be able to conform his or her conduct to the law
Who promulgates legislation?
The lawmaker who ‘speaks’, the resulting legislation is
promulgated by the lawmaker in question
Ex parte Minister of Saftey and Security: In re S v Walters
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.
When is it in force?
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
The Default:
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.
Delayed Commencement
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
Delayed Commencement: On an unspecified future date still to
be proclaimed
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.
A combination of the above:
When published, there may be a
confusing combination of possible commencement options for
various parts of the legislation.
Retroactive commencement
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
Section 14 of the Interpretation Act
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.
The Presumption that Legislation applies only to the future.
S v Mhlungu
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.
Transnet Ltd v Chairman National Transport Commission
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.
Veldman v Director of Public Prosecutions, Witwatersrand Local
Division 2007 (CC)
the well-established common law principle was given express constitutional backing.
Retroactive vs Retrospective
Explained in National Director of Public Prosecutions v Carolus
Retroactive
Legislation operates as of a time prior to its enactment, and essentially operates backwards.
Example: Terrorism Act 83 of 1967
Retrospectivity
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.
The Deeming Clause
1) It is an exercise in virtual reality
2)The legislation creates a legal fiction
3) Therefore, it essentially creates a presumption
What prevents the legislation from applying with retro-effect?
1) The common law presumption
2) New offences and higher penalties
3) Other constitutional rights
The common law presumption
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.
Common Law Presumption case
(Lek v Estate Agents Board)
It could be inferred if the legislation would result in absurd or unfair results should it not have retro-effect
New offences and higher penalties
Section 35
Section 35(n)
law cannot retroactively:
1)Create offences
2)Increase penalties
Section 35
provides that a person may not be
convicted for an act that was not an offence at the time it was
committed.
Section 35(3)(n)
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
Other constitutional rights
1)Right to property
2)The right to fair administrative justice
3)The right to access information
Exceptions
1) Neutral
2) Improves substantive rights
R v Sillas
If the procedure negatively affects the substantive rights
then it is not allowed.
Common Law Principles
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
