Chapter 3 notes .pdf

lOMoARcPSD|5215371 CHAPTER 3 COMMENCEMENT OF LEGISLATION ADOPTION AND PROMULGATION (a) ADOPTION: The adoption of legislation refers to the different stages, readings and proc...

lOMoARcPSD|5215371 CHAPTER 3 COMMENCEMENT OF LEGISLATION ADOPTION AND PROMULGATION (a) ADOPTION: The adoption of legislation refers to the different stages, readings and processes through which the particular legislation has to pass before it is accepted and issued by the relevant legislative body. (The procedures to be followed in adopting Acts of parliament and provincial Acts are found in Chapters 4 and 6 of the Constitution.) When parliament has passed (adopted) a Bill, the Act then has to be signed by the President. In the case of a Bill passed by a provincial legislature, the premier of that province has to sign the Act. Once signed, such an Act (parliamentary or provincial) becomes law. However, although such an Act is now legally enacted legislation it is not yet in operation. (b) PROMULGATION: For legislation to become operational, it needs to be promulgated. Promulgation refers to the process by which the legislation commences and takes effect; in other words, when it is formally put into operation. Legislation is promulgated by publication in an official gazette. (c) PUBLICATION: In terms of sections 80 and 123 of the Constitution, Acts of parliament and provincial Acts take effect when published, or on a date determined in terms of those Acts. Acts of parliament and provincial Acts must be published in the Government Gazette or the Provincial Gazette of the relevant province (ss 2 and 13 of the Interpretation Act). In terms of section 162 of the Constitution municipal by-laws may be enforced after they have been published in the Gazette of the relevant province. Downloaded by Sean De Lange ([email protected])  lOMoARcPSD|5215371 COMMENCEMENT: Sec 13(1) reads: The expression 'commencement' when used in any law and with reference thereto, means the day which that law comes or came into operation, and that day shall, subject to the provisions of sub- section (2) and unless some other day is fixed by or under the law for the coming into operation thereof, be the day when the law was first published in the Gazette as law. In terms of section 13(2) 'day' begins immediately at the end of the previous day (i.e. immediately after midnight at 00:00) This effectively means retrospective commencement, because by the time the Gazette is published, the legislation would have been in force for a few hours. THE PRESUMPTION THAT LEGISLATION ONLY APPLIES TO FUTURE MATTERS: Unless the contrary appears either expressly or by necessary implication, it is presumed the legislature intends to regulate future matters only (Transnet Ltd v Ngcezula 1995 3 SA 53B (A)). According to case law, this rule is based on the prevention of unfair results. Unless a retrospective intention is clear, it is presumed that legislation applies to the future and not the past. An enactment may provide expressly that it has retrospective force. The presumption could also be rebutted if it appears from the enactment that the legislature intended it to be retroactive. Such a necessary implication could be inferred if the legislation would result in absurd or unfair results should it not be retroactive (Lek v Estate Agents Board 1978 3 SA 160(C)). The common law view is that unless the contrary appears, an Act expressly retroactive in nature will not affect transactions or actions already brought to a close during a repealed Act's existence. IF THE ENACTMENT DEALS WITH PROCEDURE: The presumption does not apply if the retroactive legislation deals with procedure. New rules of procedure apply to future cases, the facts of which may date from the past. The new Act is retroactive only in that the new procedural rules apply even in the case of claims or disputes which arose before the new rules came into effect; however, rules of procedure and evidence are not always retroactive. Generally, rules of procedure do not infringe upon vested rights, but at times the distinction between mere procedural rules and substantive rights is a fine one. Downloaded by Sean De Lange ([email protected])  lOMoARcPSD|5215371 In Euromarine International of Mauren v The Ship Berg 1986 2 SA 700 (A), it was held that a provision in the relevant Act not only created a new remedy, but also imposed a new obligation on persons who had no previous legal obligations. This is therefore an example where substantive (and not merely procedural) rights are involved, and retrospective operation is therefore excluded. In Minister of Public Works v Haffejee 1996 3 SA 745 (A) the court cautioned that when a provision introduces new rules of procedure, it does not necessarily mean that the provision is retroactive. It must first be determined whether existing rights and obligations are affected by it, and whether those rights and obligations are enforceable by means of the new procedures. Conclusion: The presumption does therefore not apply if the retrospective legislation deals with procedure where no rights are affected, or if the retrospective application will benefit the individual. IF THE ENACTMENT FAVOURS OR DISFAVOURS THE INDIVIDUAL If the retroactive operation of legislation will benefit the individual, the presumption also does not apply. For example, in R v Sillas 1959 4 SA 305 (A) the amending Act reduced the existing penalty after the accused had committed the crime, but before sentence was passed. The court found that the presumption against retrospectivity had in this instance been rebutted by 'other considerations'. The amendment was applied retrospectively and the new, more lenient penalty imposed. One of the 'other considerations' might well have been the presumption that the legislature intends to burden its subjects as little as possible. On the other hand, if an amendment Act places the individual in a worse position than before, the presumption will apply. For example, in R v Mazibuko 1958 4 SA 353 (A), the court found that if the penalty provided for in an Act is increased by an amending Act, the presumption against retrospectivity applies. Downloaded by Sean De Lange ([email protected])  lOMoARcPSD|5215371 THE CONSTITUTIONAL INFLUENCE Section 35(3)(1) of the Constitution reads as follows: Every accused person has the right to a fair trial, which includes the right not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted. Section 35(3)(n) reads as follows: Every accused person has a right to a fair trial, which includes the right to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing. This means that offences cannot be created, and punishment may not be increased retroactively. These 'parts' of the presumption which prohibit retrospective offences and increased punishment are now entrenched as fundamental rights in the Constitution. In all other respects, the presumption will apply as in the past. Although the legislature may expressly enact retroactive legislation (other than penal provision), the courts will have to 'test' any retroactive legislation against the Bill of Rights in the Constitution to ensure that the effects of the retroactive application do not infringe on one of the other fundamental rights. Downloaded by Sean De Lange ([email protected])