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Questions and Answers
Legislation may be amended by a competent ______.
Legislation may be amended by a competent ______.
legislator
A ______ Legislature can amend Provincial Legislation.
A ______ Legislature can amend Provincial Legislation.
Provincial
There are two types of amending legislation, ______ and Textual.
There are two types of amending legislation, ______ and Textual.
Non-Textual
The Primary function of the Court is the ______ of Law.
The Primary function of the Court is the ______ of Law.
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Courts may try to interpret legislation to keep it in line with the ______.
Courts may try to interpret legislation to keep it in line with the ______.
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Courts may rule legislation ______ if it is against the Constitution.
Courts may rule legislation ______ if it is against the Constitution.
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Courts may modify the initial meaning of legislative text to ensure it reflects the ______ and object of the legislation.
Courts may modify the initial meaning of legislative text to ensure it reflects the ______ and object of the legislation.
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The process of deleting a law from the statute book is called ______.
The process of deleting a law from the statute book is called ______.
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A court can only ______ a law, and it remains on the statute book but cannot be applied.
A court can only ______ a law, and it remains on the statute book but cannot be applied.
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According to Section 172 of the Constitution, a court may declare legislation unconstitutional if it violates a ______ right.
According to Section 172 of the Constitution, a court may declare legislation unconstitutional if it violates a ______ right.
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If a High Court or SCA declares a law unconstitutional, it has no force until ______ by the Constitutional Court.
If a High Court or SCA declares a law unconstitutional, it has no force until ______ by the Constitutional Court.
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Local government or subordinate legislation does not need to be ______ by the Constitutional Court if it is declared unconstitutional by a High Court or SCA.
Local government or subordinate legislation does not need to be ______ by the Constitutional Court if it is declared unconstitutional by a High Court or SCA.
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Delegated legislation can be invalidated by a ______ if it does not comply with the requirements of administrative law.
Delegated legislation can be invalidated by a ______ if it does not comply with the requirements of administrative law.
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Repeal of legislation by a competent ______.
Repeal of legislation by a competent ______.
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Ø To prevent this legislative short circuit the repealing legislation may expressly provide for a suitable ______ period.
Ø To prevent this legislative short circuit the repealing legislation may expressly provide for a suitable ______ period.
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Where a law repeals wholly or partially any former law and substitutes provisions for the law so repealed, the repealed law shall remain in force until the substituted provisions come into ______.
Where a law repeals wholly or partially any former law and substitutes provisions for the law so repealed, the repealed law shall remain in force until the substituted provisions come into ______.
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The repealed law remains active until the new law meant to replace it becomes ______.
The repealed law remains active until the new law meant to replace it becomes ______.
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Repeal is the ______ of legislation by the relevant competent lawmaker.
Repeal is the ______ of legislation by the relevant competent lawmaker.
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It is a sound rule to construe a ______ in conformity with the common law rather than against it.
It is a sound rule to construe a ______ in conformity with the common law rather than against it.
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Legislation is presumed not to ______ the common law.
Legislation is presumed not to ______ the common law.
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The ______ is rebutted if legislation clearly provides that the common law is being altered.
The ______ is rebutted if legislation clearly provides that the common law is being altered.
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An ______ should be made to read the earlier and subsequent legislation together in an effort to reconcile them.
An ______ should be made to read the earlier and subsequent legislation together in an effort to reconcile them.
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If reconciliation is impossible, it has to be presumed by ______ implication that the latter of the two provisions prevails.
If reconciliation is impossible, it has to be presumed by ______ implication that the latter of the two provisions prevails.
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If two apparently contradictory provisions are capable of a ______ interpretation which would reconcile the apparent contradiction, that interpretation should be preferred.
If two apparently contradictory provisions are capable of a ______ interpretation which would reconcile the apparent contradiction, that interpretation should be preferred.
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The rule in Minister of Police v Haunawa only applies if the objects of the two conflicting provisions are in ______ materia.
The rule in Minister of Police v Haunawa only applies if the objects of the two conflicting provisions are in ______ materia.
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Legislative repeal by implication will only be accepted by the court if the subsequent legislation manifestly ______ the earlier legislation.
Legislative repeal by implication will only be accepted by the court if the subsequent legislation manifestly ______ the earlier legislation.
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According to the rule ______ specialibus non derogant, a provision in a subsequent general Act does not repeal an earlier specific provision.
According to the rule ______ specialibus non derogant, a provision in a subsequent general Act does not repeal an earlier specific provision.
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The judgement in First National Bank of SA v Puckriah reflects the judgement in ______.
The judgement in First National Bank of SA v Puckriah reflects the judgement in ______.
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Sappi Fine Papers (Pty) Ltd v ICI Canada Inc is a case that illustrates the rule ______ specialibus non derogant.
Sappi Fine Papers (Pty) Ltd v ICI Canada Inc is a case that illustrates the rule ______ specialibus non derogant.
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Study Notes
Amendment of Legislation
- Legislation can be amended by a competent legislature, which includes Parliament, Provincial Legislatures, and Municipalities.
- There are two types of amending legislation:
- Non-Textual (indirect): the wording of the original legislation is not changed, but its meaning is explained.
- Textual (direct): the original legislation's wording is actually changed.
Informal Judicial Amendment
- This is where the courts modify the meaning of legislation through interpretation.
- The courts have two functions:
- Primary: applying the law.
- Secondary: law-making, which involves developing common law and giving structure to legislative provisions.
- The courts may attempt to save legislation during Constitutional Review by interpreting it to keep it in line with the Constitution.
- In exceptional circumstances, the courts may modify the initial meaning of legislative text to ensure it reflects the purpose and object of the legislation.
The Demise of Legislation
- It is important to distinguish between repeal and invalidation.
- Repeal refers to the process of deleting legislation from the statute book, which can only be done by the legislature.
- Invalidation is when the legislation is declared legally unacceptable by the courts, and it remains on the statute book but cannot be applied.
Invalidation by Courts
- Unconstitutional provisions can be declared unconstitutional by the courts under Section 172 of the Constitution.
- The courts can only invalidate legislation on Constitutional grounds or non-compliance with administrative law requirements.
- Section 172(1) requires the court to declare legislation inconsistent with the Constitution as unconstitutional.
- Section 172(2) and Section 167(5) require confirmation by the Constitutional Court for invalidation.
Repeal of Legislation
- Repeal can be done through substitution, where a new Act replaces an existing one.
- To prevent a legislative short circuit, the repealing legislation may provide for a transitional period.
- If there is no express transitional period, Section 11 of the Interpretations Act applies, which states that the repealed law remains in force until the substituted provisions come into operation.
Common Law Change
- The Johannesburg Municipality v Cohen's Trustees rule states that a statute should be construed in conformity with the common law rather than against it, unless the statute plainly intends to alter the common law.
- There is a presumption that legislation does not alter the common law, unless it is clearly provided for.
Legislation and Common Law
- The Kent v SA Railways and Harbours rule states that the legislature did not intend to repeal or modify the earlier Act, unless it is provided for expressly or by necessary implication.
- The Wendywood Development (Pty) Ltd v Rieger rule states that an attempt should be made to read the earlier and subsequent legislation together in an effort to reconcile them.
- If two provisions are in conflict, the latter provision prevails, resulting in the amendment or repeal of the earlier one.
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Description
This quiz covers the different ways a competent legislature can amend legislation, including parliamentary acts, provincial legislation, and municipal regulations. It also explains the two types of amending legislation: non-textual and textual. Test your knowledge of the legislative amendment process!
