RVW 210 Tutorial 1: Legal Terminology and Concepts

Acts of Parliament are passed by the national Parliament, while provincial acts are passed by provincial legislatures.

Subordinate or delegated legislation is law enacted by a person or body under the authority of a power granted by primary legislation, also known as the 'enabling' legislation.

Subordinate legislation cannot be in conflict with its enabling original legislation.

If the enabling Act is declared unconstitutional, the delegated legislation will cease to exist, unless the court orders otherwise.

If the enabling Act is repealed, the delegated legislation will cease to exist, unless the new Act expressly provides otherwise.

Only the 'fit and proper legislature' can repeal or amend its own legislation.

Parliament cannot delegate the power to amend or repeal an Act of Parliament to a subordinate legislator.

Parliament cannot repeal or amend subordinate legislation, but they can repeal the empowering Act that allows the subordinate legislation to exist.

In the company analogy, the primary legislature is analogous to the Constitution, while the subordinate legislature is analogous to primary legislation.

These documents are not considered legislation because they are not enacted by authorized lawmakers.

Law of general application includes all forms of legislation (original and delegated), as well as the common law and customary law.

While Parliament cannot delegate the power to amend or repeal primary legislation, they can repeal the empowering Act that allows subordinate legislation to exist.

A process refers to a series of actions or steps taken to achieve a particular goal, while a procedure is a specific set of instructions or rules for carrying out a particular task or process.

Ultra vires refers to an action or decision that goes beyond the legal authority or power granted to a particular entity or individual. The principle of trias politica, or separation of powers, aims to prevent any single branch of government from exercising too much power by dividing it among the executive, legislative, and judicial branches. If one branch acts ultra vires, it violates the principle of trias politica by overstepping its constitutional bounds.

The ratio decidendi is the principle or rule of law upon which a court's decision is based, and it is binding on lower courts in subsequent cases. An obiter dictum, on the other hand, is a remark or observation made by a judge that is not essential to the decision and does not have binding authority.

Stare decisis is the legal principle that requires courts to follow precedents established by higher courts in previous cases with similar facts and legal issues. It promotes consistency, predictability, and stability in the common law system by ensuring that lower courts adhere to the rulings of higher courts.

Legalese refers to the specialized and often complex language used in legal documents, which can be difficult for non-lawyers to understand. Accessibility, on the other hand, refers to the principle of making legal information and processes understandable and accessible to the general public, promoting access to justice. The use of legalese can hinder accessibility and create barriers to accessing the legal system.

Foreign law refers to the domestic laws of other nations or jurisdictions, while international law is a body of rules and principles that govern the relationships and interactions between sovereign states and other international entities.

Section 2 of the Interpretation Act and Section 239 of the Constitution provide the legal basis for legislation to remain in force until it is repealed, amended, or invalidated by a competent authority.

Legislation in South Africa is classified chronologically into three categories: 1) Legislation before 1806 (e.g., Placaats) is considered common law and abrogated by disuse. 2) Old-order legislation (1806-1994) remains in force unless repealed, amended, or declared unconstitutional. 3) Legislation since 1994 is subject to the current constitutional framework.

The Constitution holds that old-order legislation does not have a wider territorial application than it had before the Constitution came into effect. This means that provincial ordinances and legislation from the former TBVC states are still applicable only within their original geographical areas until repealed, amended, or declared unconstitutional.

The hierarchical structure of legislation in South Africa is as follows: 1) The Constitution (lex fundamentalis) is the supreme law of the land. 2) Original or primary legislation is enacted by a democratically elected body during a plenary session, in accordance with the authority and legislative power derived directly or indirectly from the Constitution.

The phrase 'lex fundamentalis' refers to the Constitution as the fundamental or supreme law of the land, which takes precedence over all other laws and legislation in South Africa.

Old-order legislation can be repealed or amended by the legislature, or it can be declared unconstitutional and invalid by a competent court. Repeal or amendment by the legislature removes or modifies the legislation, while a court declaration of unconstitutionality renders the legislation unenforceable and invalid.