RVW 210 Tutorial 1 - Terminology in Law

Legislation = written law exacted by a person or body with the authority to do so by the Constitution or legislation.

Legislation will remain in force until repealed or amended by a competent lawmaker (legislature) or invalidated by a competent court.

Legislation before 1806 (e.g. Placaats) = common law and therefore abrogated by disuse.

<ol> <li>Constitution (lex fundamentalis), 2. Original / primary legislation = enacted by a democratically elected body during a plenary session, in accordance with an authority / legislative power derived directly or indirectly from the Constitution.</li> </ol> Signup and view all the answers

<p>The Constitution holds that old-order legislation does not have a wider territorial application than it had before the Constitution.</p> Signup and view all the answers

<p>Provincial Ordinances and legislation of the former TBVC states are still applicable to the old geographical areas of the former provinces and homelands until repealed/amended by legislature or declared unconstitutional by a competent court.</p> Signup and view all the answers

<p>The hierarchical structure of legislation in South Africa is: Acts of Parliament (national), Provincial Acts (provincial), and municipal by-laws (local).</p> Signup and view all the answers

<p>Subordinate 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's existence, power, and authority comes from primary legislation.</p> Signup and view all the answers

<p>If the enabling Act is declared unconstitutional, the subordinate legislation will cease to exist, unless the court orders otherwise. If the enabling Act is repealed, the subordinate legislation will cease to exist, unless the new Act expressly provides otherwise.</p> Signup and view all the answers

<p>The principle is that only the fit and proper legislature can repeal or amend its own legislation.</p> Signup and view all the answers

<p>Subordinate legislation cannot be in conflict with its enabling original legislation, and subordinate legislators can only issue subordinate legislation within the framework of the authority specifically bestowed on them by the enabling legislation, otherwise it would be ultra vires (beyond their legal power or authority).</p> Signup and view all the answers

<p>Examples of subordinate legislation mentioned in the text include provincial proclamations, ministerial regulations, and university statutes.</p> Signup and view all the answers

<p>According to the case law cited (Executive Council Western Cape Legislature v President of the RSA), Parliament cannot delegate the power to amend or repeal an Act of Parliament to a subordinate legislator.</p> Signup and view all the answers

<p>Parliament cannot repeal or amend subordinate legislation, but they can repeal the empowering Act that gave rise to the subordinate legislation.</p> Signup and view all the answers

<p>Documents such as common law, case law, practice and interpretation notes, explanatory memoranda, policy documents, departmental memoranda, uncodified indigenous law, legal opinions, circulars, and resolutions of Parliament are not considered legislation because they are not enacted by authorized lawmakers.</p> Signup and view all the answers

<p>Law of general application includes all forms of legislation (original and delegated), as well as the common law and customary law.</p> Signup and view all the answers

<p>The hierarchy of legislation is: 1) Constitution, 2) Primary legislation, 3) Subordinate legislature, 4) Subordinate legislation.</p> Signup and view all the answers

<p>The company analogy shows the hierarchy as: 1) Constitution, 2) Primary legislation, 3) Subordinate legislature, 4) Subordinate legislation. This mirrors the structure of a company, with the constitution at the top, followed by primary and subordinate levels of authority.</p> Signup and view all the answers

<p>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 task or operation.</p> Signup and view all the answers

<p>Parliamentary sovereignty refers to the principle that the parliament is the supreme lawmaking body, and its laws cannot be overridden by any other institution, such as the courts or the executive. Constitutional supremacy, on the other hand, means that the constitution is the highest law of the land, and all other laws must conform to it. Judicial supremacy is the principle that the courts have the final authority to interpret and apply the law, including the constitution.</p> Signup and view all the answers

<p>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 future cases. An obiter dictum, on the other hand, is a statement or observation made by a judge that is not essential to the decision and is not binding on other courts.</p> Signup and view all the answers

<p>Codified law refers to laws that have been organized and collected into a systematic and comprehensive code or statute book, such as the United States Code or the French Civil Code. Uncodified law, on the other hand, consists of laws that have not been formally compiled or organized into a code, such as common law or customary law.</p> Signup and view all the answers

<p>Foreign law refers to the domestic laws of a particular country or jurisdiction, which are applicable within that country's borders. An example would be the laws of France or Japan. International law, on the other hand, refers to the body of rules and principles that govern the relationships and interactions between nations, such as treaties, conventions, and customary international law. An example would be the United Nations Convention on the Law of the Sea.</p> Signup and view all the answers

<p>Legalese refers to the specialized language and terminology used in legal documents and proceedings, which can be difficult for non-lawyers or lay persons to understand. It often includes Latin expressions, long sentences, and legal doublets (e.g., null and void, terms and conditions). The use of legalese can create barriers to accessibility and access to justice, as it can make it challenging for individuals to understand and navigate the legal system effectively.</p> Signup and view all the answers