The term 'Legislation' CH2 Flashcards
Legislation
Is written law enacted by a body or
person authorised to do so by the Constitution or other
legislation
The 3-fold approach to understanding different legislation
1)Dimensions of time (horizontal chronological timeline)
2) Space (geographical territories)
3) Hierarchy (vertical levels and spheres of legislative authority)
Dimensions of time (horizontal chronological timeline)
Old order and Post 1994 Legislation
Space (geographical territories)
National, Provincial and Local
Hierarchy (vertical levels and spheres of legislative authority)
Instruments of subordinate legislation
Du Plessis (legislation)
enacted law-texts
Define ‘Enacted’?
Means it was adopted/issued/promulgated in
terms of the prescribed legal requirements
Chronological categories of legislature
1) Legislation before 1806
2) Old order legislation
3) Legislation in the new constitutional order since 1994
Legislation before 1806
1) Some statutes of the Staten-Generaal of the Netherlands and
placaaten (statutes) of Holland may still be in force.
2) Became part of South
African common law with no formal procedures required for
their demise, and they may be abrogated by disuse
Old order legislation
Any legislation in force before the
interim Constitution took effect (just after midnight) on 27 April 1994. 2 Categories
Old order legislation(1)
Pre-Union legislation (1806 -1910) à Adopted between
the British annexation if the Cape in 1806 and the creation
of the Union of South Africa in 1910. Most have been
either repealed or incorporated into legislation of the
Union.
Old order legislation
Legislation between the Union and the Democratic era
(1910 – 1994) à Known as ‘old order’ legislation, it
includes most of the existing South African legislation as
defined by the IA but with appreciation for historical
context in terms of areas that were ‘white controlled’ and
the TBVC states (independent homelands).
Legislation in the new constitutional order since 1994
1) refers to all legislation enacted after the start of constitutional democracy in 1994. It includes the interim Constitution (since repealed)
2) the 1996 Constitution
3) national legislation (Acts of Parliament)
4)provincial legislation
(Acts of the nine provincial legislatures and delegated
legislation)
5) Other regulations and
proclamations
6) Legislation by the new local authorities created since 1994.
Hierarchical categories
1)The Constitution
2) Original legislation
3) Subordinate (delegated or secondary) legislation
1) The Constitution
Supreme Law and every other
law is tested against it. It did have an Act number, which was corrected by the Citation of Constitutional Laws Act
5 of 2005. It was degrading for it to have an Act number.
Original Legislation (2)
The hierarchical status of
primary legislation is based on 2 interrelated principles:
1) Firstly, enacted by democratically elected, deliberative, law-making bodies.
2) Secondly, the original law-making powers of the elected deliberative legislatures are always
founded in the Constitution, but are derived in two different ways:
1. Directly from the Constitution.
2. Indirectly from the Constitution, assigned by another Act of Parliament.
Acts of Parliament
All acts of Parliament since 1910.
The legislative authority of the current Parliament is derived directly from the Constitution and makes it the highest legislative body in South Africa. However, Acts of Parliament can still be tested against the Constitution.
Although the Constitution is the supreme law, some Acts
of Parliament have a higher status than other original legislation
New provincial Acts
Comprises legislation
enacted by the nine new provincial legislatures. Their
legislative power is also derived directly from the Constitution or assigned to them by Acts of Parliament.
The legislative powers of the provincial legislatures is
subject to:
i. Original Legislative Power, to pass provincial legislation in line which Schedules 4 and 5 of the
Constitution.
ii. Additional Powers, as provided for by Acts of Parliament.
iii. Constitutional Court ruled that a
provincial legislature cannot enact legislation dealing with its own financial management because it was not expressly provided for in Schedules 4 or 5 of the Constitution or assigned to
them by the Financial Management of Parliament Act 11 of 2009
Provincial Ordinances
The Provincial Government
Act 32 of 1961 empowered the four provincial councils of the time (Transvaal, Orange Free State, Natal and Cape Province) to enact provincial ordinances on matters concerning their respective provinces. These councils were abolished on 1 July 1986
Legislation of the former homelands
The homelands
enjoyed concurrent original legislative powers with the central government. They had complete legislative capacity with regard to certain specific matters which were granted to them but are now repealed.
Self-governing Territories Constitution Act 21 of 1971.
Legislation of the former TBVC states
The legislation of former so-called ‘independent’ homelands did not form
part of the South African legislation. However, it remains
valid as part of South African law in the area where it previously applied, because these areas have been
reincorporated into the Republic. It has the same force as Provincial Acts, provincial ordinances and legislation
of the former self-governing territories.
New Municipal Legislation
Principle of co-operative government is embraced by this democratic dispensation
Subordinate (delegated or secondary) legislation
In principle, subordinate legislation is a violation of the separation of powers principle because unelected
(appointed) persons, sometimes members of the executive, obtain law-making powers
Subordinate legislation in terms of National Legislation
The 1996 Constitution and an Act of Parliament may confer delegated legislative powers on certain persons or bodies.
President,Minister and statutory body
New and existing provincial proclamations and
regulation
Legislative authority was transferred to the Administrator of each province.
ii. Old order legislation consists of both original and
delegated legislation, which may have to be read together.
Moseneke v Master of the High Court
if the enabling legislation is declared invalid it carries over to invalidating the
subordinate legislation.
Hatch v Koopoomal
Subordinate legislation issued in terms of a repealed Act will also cease to exist, unless the repealing Act expressly
provides otherwise
Executive Council Western Cape Legislature v President of the RSA
Parliament cannot confer a power on a
delegated legislative body to amend or
repeal an Act of Parliament
List of examples of things that are NOT legislation:
1)Common law rules and rules of indigenous law
2)Case law – Judge-made law.
3) Policy Documents – Green and White papers – Not enacted by
lawmakers
