Is it still in force? Changes to and the demise of legislation CH4

Question 1

R v Detody 1926 AD 168

Answer 1

Common law rules can be abrogated through disuse but legislation cannot be

Question 2

In order for legislation to “disappear” it must:

Answer 2

1)Be repealed by a competent body; or
2)Declared invalid by a court.

Question 3

Pre 1994 – Parliament was Sovereign

Answer 3

Courts could only invalidate delegated legislation which did not comply with common law rules of administrative law.

Question 4

Post 1994

Answer 4

Courts can test ALL law

Question 5

Subordinate Legislation

Answer 5

Enabling Act may provide for powers to amend and repeal.
In absence of this provision, common law principle of
implied powers. Power to enact, impliedly includes
power to amend and repeal.

Question 6

Section 10 of the Interpretation Act

Answer 6

Power to enact includes power to repeal or amend, unless
the contrary can be found from the wording of the
enabling Act.

Question 7

Changes to Legislation

Answer 7

Legislation may be amended by a competent legislator
1) Parliament can amend a Parliamentary Act with another
Parliamentary Act.
2) Provincial Legislature can amend Provincial Legislation
3) Municipalities can amend municipal regulations/laws

Question 8

Two Types of Amending Legislation

Answer 8

1) Non-Textual (indirect) – Wording of original is not changed but explained.
2) Textual (direct) – original legislation wording actually changed.

Question 9

Functions of the Court

Answer 9

Primary - Application of Law
Secondary -Law-making function (based on legal rules)

Question 10

Attempts to save legislation during Constitutional Review

Answer 10

1)Courts may be asked to test legislation against the Constitution.
2)Courts may rule it unconstitutional à 3) Creates a vacuum.
4) So instead, courts may try to interpret it to keep it in line with the
Constitution and prevent a vacuum.

Question 11

The Demise of
Legislation

Answer 11

1) Repeal
2) Invalidation

Question 12

Repeal

Answer 12

refers to the process whereby the legislation is deleted, in
other words, removed from the statute book.

Question 13

Invalidation

Answer 13

1)When the legislation is declared to be legally unacceptable.
2)Courts can only invalidate and do so on the basis of:
2.1) Constitutional grounds
2.2) Non-compliance with administrative law requirements
3) Law remains on the statute book but cannot be applied.

Question 14

Unconstitutional Provisions

Answer 14

S172(2) + S167(5) à If High Court or SCA declares it unconstitutional, it has no force until confirmed by the
Constitutional Court.

Question 15

Invalid Subordinate Legislation

Answer 15

Delegated legislation can be invalidated by a court if it does not
comply with the requirements of administrative law

Question 16

Repeal of legislation by a competent lawmaker

Answer 16

1) Substitution (repeal or replace)
2) Repeal (deletion)

Question 17

Substitution (repeal or replace)

Answer 17

When repealing Act (A) with Act (B), there might be the possibility that Act (A) is repealed and Act (B) is not yet in force

Question 18

Section 11 of the Interpretations Act

Answer 18

The repealed law remains active until the new law meant to replace it becomes forceful.

Question 19

Repeal (deletion)

Answer 19

Repeal is the revocation of legislation by the relevant competent
lawmaker.

Question 20

Section 12(1) of the Interpretation Act

Answer 20

If provision X is repealed and later re-enacted as Y, all references to X in other existing legislation must be
interpreted as references to Y.

Question 21

Section 12(2)

Answer 21

Transitional provision, which provides that a repealed Act does not regain the force of law if the repealing
Act itself is repealed.

Question 22

Repeal of legislation incorporated by reference

Answer 22

If Act (A) repeals Act (B) the question of whether provisions of Act (B) which were incorporated into other Act’s by reference are also repealed. The short answer is no, not automatically, unless Act (A) expressly provides for that repeal.

Question 23

Sunset Clauses

Answer 23

1) A provision in legislation which terminates all or portions of
the law after a specific date, unless further legislative action
is taken to extend it.
2) It is a date-bound repeal and essentially provides for a
limited lifespan.

Question 24

Common Law Presumption Implied Repeal

Answer 24

1) Where to different enactments clash, the newest enactment
prevails.
2) Therefore, there is a presumption that the legislature intended for the newest enactment to repeal the older enactment.

Question 25

Exceptions (2)

Answer 25

Be on the same hierarchical level; and
¨Be on the same level of generality.