Theme 4 - Changes to and the demise of Legislation

Question 1

Can legislation be abrogated by disuse?

General.

Answer 1

• In terms of R v Detody common-law rules can be abrogated by disuse, but legislation cannot.
• It needs to be repealed by a competent body/declared invalid by a court.

Question 2

Who may amend and repeal legislation?

Who may amend and repeal legislation?

General.

Answer 2

Legislation is amended/repealed by the relevant competent lawmakers.

Question 3

Who may amend and repeal legislation?

Who may amend and repeal original legislation?

General.

Answer 3

The legislative authority of the relevant legislatures includes the power to pass/amend any legislation before them, subject of course to the hierarchical and territorial competencies prescribed by the Constitution.

Question 4

Who may amend and repeal legislation.

Who may amend and repeal subordinate legislation?

General.

Answer 4

• The enabling Act may in some cases expressly state that the power to enact subordinate legislation includes the power to amend/repeal.
• In the absence of such an express provision, the common-law principle of implied powers come into play: if a delegated lawmaker gets the power to enact subordinate legislation, it is assumed that such a power to make laws also by implication includes the power to amend/repeal.

Question 5

Formal amendment of legislation by a competent legislature.

Discuss the formal amendment of legislation by a competent legislature.

Changes to legislation.

Answer 5

• In the case of primary (original) legislation the amendment is a lengthy and expensive process.
• There are two types of amending legislation: the non-textual (indirect) amendment and the textual (direct) amendment.

Question 6

Formal amendment of legislation by a competent legislature.

Explain the non-textual (indirect) amendment.

Changes to legislation.

Answer 6

Occurs where there are no direct changes to the actual wording of the principal legislation , but the amending legislation merely describes the extent of the changes in the law with reference to the provisions that will be affected.

Question 7

Formal amendment of legislation by a competent legislature.

Explain the textual (direct) amendment.

Changes to legislation.

Answer 7

The actual wording of the principal legislation is changed with additions, changes to the wording, etc.

Question 8

Formal amendment of legislation by a competent legislature.

What happens if a number of Acts are amended at the same time?

Changes to legislation.

Answer 8

• Will usually be done with the General Laws Amendment Act.
• Specific legislation will be amended by specific amending legislation.
• Some legislation is amended continuously.

Question 9

Informal judicial amendment (modificative interpretation by the courts).

Discuss the informal judicial amendment/modificative interpretation by the courts.

Changes to legislation.

Answer 9

• Court 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.
• It also means that the judiciary may modify the initial meaning of a legislative provision in such a way that it conforms to the purpose and aim of the legislation.

Question 10

Informal judicial amendment (modificative interpretation by the courts).

Discuss the attempts to save legislation during constitutional review.

Changes to legislation.

Answer 10

• Refers to the process whereby legislation, which is alleged to be in conflict with the Constitution, is reviewed/tested by the court.
• If the court does declare legislation unconstitutional, the legislation can’t be applied anymore.
• This could create a vacuum in the legal order, thus the competent courts involved in constitutional review may try, if reasonably possible, to modify/adapt the legislation to keep it constitutional and alive.

Question 11

Informal judicial amendment (modificative interpretation by the courts).

Discuss the modification of the legislative meaning during interpretation.

Changes to legislation.

Answer 11

Courts may under exceptional circumstances modify the initial meaning of the legislative text to ensure that it reflects the purpose and the object of the legislation.

Question 12

Define ‘repeal’.

The demise of legislation.

Answer 12

The process whereby the legislation is deleted/removed from the statute book.

Question 13

Define ‘invalidation’.

The demise of legislation.

Answer 13

Is when legislation is declared to be legally unacceptable.

Question 14

Invalidation of legislation by the courts.

Discuss unconstitutional provisions.

The demise of legislation.

Answer 14

• The High Court, Supreme Court of Appeal/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 the Constitution.
• A declaration of unconstitutionality of legislation by a High Court/Supreme Court of Appeal has no force until such a declaration is confirmed by the Constitutional Court.
• Local government legislation and delegated legislation may also be declared unconstitutional, but such an invalidation need not be be confirmed by the Constitutional Court.

Question 15

Invalidation of legislation by the courts.

Discuss invalid subordinate legislation.

The demise of legislation.

Answer 15

Delegated legislation may be invalidated by a court if it doesn’t comply with the requirements of administrative law.

Question 16

Repeal of legislation by a competent lawmaker.

Explain substitution.

The demise of legislation.

Answer 16

• When a lawmaker substitutes (repeal and replace) legislation with another enactment there might be a possibility that the replacing law is not in force.
• In order to prevent this type of gap in the law, the repealing legislation could expressly provide for a suitable transitional measure.
• However, in those cases where the legislation in question doesn’t provide for express transitional arrangements, section 11 of the Interpretation Act deals with those unfortunate gaps in the law.
• This means that if an enactment was repealed and replaced, but the replacement is not operational yet, the repealed provision will remain in force.

Question 17

Repeal of legislation by a competent lawmaker.

Explain repeal (deletion).

The demise of legislation.

Answer 17

• Revocation of legislation by the relevant competent lawmaker.
• Legislation is not changed/substituted, it is deleted from the statute book.

Question 18

Repeal of legislation by a competent lawmaker.

Discuss the repeal of legislation incorporated by reference.

The demise of legislation.

Answer 18

In Solicitor-General v Malgas the court held that if the provisions of earlier legislation is incorporated into subsequent legislation, the incorporated provisions are not affected when the earlier legislation is repealed.

Question 19

Repeal of legislation by a competent lawmaker.

What is a sunset clause?

The demise of legislation.

Answer 19

Provision in legislation which terminates all/portions of the law after a specific date, unless further legislative action is taken to extend it.

Question 20

Repeal of legislation by a competent lawmaker.

What is an implied repeal?

The demise of legislation.

Answer 20

• Where two different enactments dealing with the same matter clash, it is presumed by the judiciary that the relevant legislature by implication intended that the later enactment repeals the earlier enactment.
• The two enactments must be on the same hierarchical level and be on the same level of generality.

Question 21

Discuss the suspension of legislation already in force.

Suspension of legislation already in force.

Answer 21

• Legislation can be temporarily suspended.
• It remains in force, but its operation is halted for the time being until some/other condition is met/requirement complied with.

Question 22

Common law.

Discuss the common law.

The presumption that legislation does not intend to
change the existing law more than is necessary.

Answer 22

Presumption is that legislation does not alter the common law, unless the legislation express an intention to modify.

Question 23

Legislation.

Discuss legislation.

The presumption that legislation does not intend to
change the existing law more than is necessary.

Answer 23

• Any repeal/amendment must be indicated expressly/necessary implication.
• An attempt should be made to read the earlier and subsequent legislation together in an effort to reconcile them.
• If reconciliation is impossible, it has to be presumed by necessary implication that the latter previals.