RVW 210 Notes PDF 2024

Pass and Prosper RVW 210 NOTES for 2024 Week 1 (General Introduction) Legislation as a Overview source of law v In order to understand and apply the law, lawyers must be equipped with the skills to interpret it. v The “nuts and bolts” of law consist of the following parts: Ø Types and categories of...

Pass and Prosper RVW 210 NOTES for 2024 Week 1 (General Introduction) Legislation as a Overview source of law v In order to understand and apply the law, lawyers must be equipped with the skills to interpret it. v The “nuts and bolts” of law consist of the following parts: Ø Types and categories of legislation Ø Structural parts and components of legislation Ø Codes of legislation Ø Interrelationship of Pre- and Post-1994 laws Important concepts and definitions v The Law à Common law, Statute law, Indigenous (customary) law and case law. v A Law à A written statute enacted by those legislative bodies which have the authority to make laws. v Legislation à It comprises all the different types of enacted legislation, such as: Acts of Parliament, provincial legislation, municipal by-laws, proclamations and regulations. v An Act à Refers to a parliamentary statue or the legislation of a provincial legislature. v An act à Refers to conduct or action such as the act of a government official or an organ of state v The Common Law à is composed of the rules of law which were not originally written down, but came to be accepted as the law of the land because it is made up of the underlying original and basic legal principles. We have Roman-Dutch Common Law in South Africa. v Codifications à Statutory compilations of all the legal principles relating to a particular branch of the law. Legislation can displace common law, and where statute is silent, common law applies. v Indigenous Law à Refers to the traditional law of the indigenous black people black people of South Africa. May be unwritten customary law or codified law. v Case Law (stare decisis) à Is the law as various courts in specific cases before them have decided on it. The precedent system essentially means that judgements of higher courts bind lower courts and courts of equal status. Closing Notes The Evolution Legislation (statute law) plays an ever-increasing role in Common Law legal systems. In the past, legislation was the exception, designed to deal with advancement. As scientific and technological discovery increases, common law becomes outdated, requiring more legislation. This makes legislation the most important source of new law in most modern jurisdictions. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper The Relevance of Apartheid to Statutory Interpretation In a strictly legalistic sense, apartheid was an ideologically underpinned and public law driven system, based on a web of interlocking legislation. Thus, a thorough understanding of the statute law and new legislation is needed. Interpretation of Overview Statutes Interpretation of Statutes (the judicial understanding of legislation) deals with those rules and principles which are used to construct the correct meaning of legislative provisions to be applied in practical situations. It is about making sense of the total relevant legislative scheme applicable to the situation at hand. Interpretation requires more than a mere reading of the provisions, and is therefore not mechanical. Example Professor Lon Fuller à Train Hobo example. Example with Authority v Section 11 in Bill of Rights à “Everyone has the right to life.” Ø Immortality? § Absurd, biological and beyond control. Ø S v Makwanyane 1995 (3) SA 391 § Constitutional Court held that the right to life meant that the state could not take a person’s life in retribution. What of self-defense? Ø Makwanyane and Ex Parte Minister of Safety and Security : in re S v Walters 2002 (CC) § Existing right to kill in self-defence still stands. Ø Soobramoney v Minister of Health, Kwazulu-Natal 1998 (CC) § Constitutional right to life does not mean that the state has a duty to all terminal patients alive in all circumstances. Ø Carmichele v Minister of Safety and Security 2001 (CC) § The court linked the constitutional rights to life and theb freedom and security of the person to the constitutional duty imposed on the state and all of its organs not to perform any act that infringes these rights. British Case: Corocraft Ltd v Pan American Airways Inc The interpretation of statutes is a craft as much as a science and the judges, as craftsmen, select and apply the appropriate rules as the tools of their trade. The Process of Interpretation v It is not a mechanical process, calling for the joint application of both technical (structure of legislation and language rules) and substantive (constitutional values and fundamental rights) aspects. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper v Issues to keep in mind: Ø Constitutional Framework Ø Impact of other legislation Ø Forcefulness of legislation Ø Read provision within ambit of the entire Act Ø Context of the legislation Ø External Aids (dictionaries, etc) Legalese See TB discussion on pages 8 – 10 The issue of Purpose or Intention The interpreter has to determine what the legislation has to accomplish in the legal order (purpose). Case law and older sources refer to this as the intention of the legislature. The Problem with “Intention” The issue with this approach is largely based on the concept of a “collective will” which exists behind legislation. In order to be passed, legislation must be drafted, presented, voted on and then passed. The false presumption is that there was a definitive agreement after this process but keep the following in mind: v Many people vote v Some oppose, some agree, and some abstain v Some only agree or vote for legislation because of party loyalty, despite personal reservations. So, peer pressure basically. v Parliamentarians are likely not legal experts and are instead elected officials (laymen). v The people putting forward the bills usually are not the drafters (for the same reason as the point above). v Some of them might not even read the Bill before voting. As per the TB, pg 11: The intention of the legislature refers to the fictional collective intent of the majority of the legislative body present at the time when the vote took place expressing their will within the constraints of the voting guidelines laid down by the caucus of the ruling party in the legislature, and voting for draft legislation – formulated by legal drafters on the advice of bureaucrats from a government department – which had been approved earlier by the state law advisors. The term used is ultimately irrelevant, as the most important thing is how that purpose (or intention) is ascertained and construed. The New Overview Constitutional Traditionally, interpretation of statues in South Africa was saddled with Order unnecessary (and unacceptable) baggage, a confusing system of maxims and canons of interpretation, tentative principles, a golden rule, overriding principles, so called primary, secondary and tertiary rules, manifest and clear meanings, rules of Roman-Dutch law influenced by Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper English law, misconceptions about the structure and meaning of language exceptions to the rule, as well as differences of opinion about how the socalled intention of the legislature should be ascertained. Supremacy of the Constitution As the lex fundamentalis of the land, the Constitution serves as the backdrop against which all law is scrutinised. Although parliament remains the highest legislative body in a system of government with a supreme constitution, and legislation or act of any government body (including parliament) which is in conflict with the constitution will be invalid. Judicial supremacy is also overpowered by the supremacy of the constitution. The past of Parliamentary Sovereignty In the past Parliament was not only the highest legislative body, capable of enacting any laws it wished, but no court was allowed to test the substance of parliamentary Acts against standards such as fairness or equality. Then came the commentary of Devenish in 1992 (See Page 13, TB). Effect of the Constitution on Statutory Interpretation v Parliamentary Sovereignty is replaced by constitutional supremacy. v The interpretation clause stated that the spirit and purport of the fundamental rights had to be taken into account during the interpretation of statutes. v Therefore, courts could no longer ignore value judgements. Ø Fairness and Equality, for ex. Transformation of Interpretation v Hinges on the following provisions of the Constitution Ø Section 1 (Foundational Provision) Ø Section 2 (Supremacy Clause) Ø Section 7 (Obligation Clause) Ø Section 36 (Limitation Clause) Ø Section 39 (Interpretation Clause) Botha & Overview Bekink Article v It deals with “Aspects of Legislative Drafting” v Essentially it boils down to Plain Language is not always plain sailing. v In the Abstract of the article: Modern lawmakers are compared to the priests of the medieval era. Those who enter to hear the word of God ultimately don’t really understand the rules. In the same way, modern layman don’t really understand the law as lawyers and legal Practioners talk about it. Principles of Plain Language Drafting: Brief Overview v Globalization and the digital age emphasize the need for effective and clear communication. v Lawyers and drafters of legal documents have long been accused of drafting documents which are deceitful as a result of their being Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper ambiguous and difficult to understand. The accusation is that they do this on purpose to give rise to loopholes should they need them. v Revisiting Some Principles of Plain Language Drafting Ø Structure of the Legal Document § Chapters and parts. § User friendly and attractive. § Not overly technical (so make it simple to follow) Ø Structure within Chapters or Parts Ø Sentence Construction and Language § Keep short where possible. § Clear and simple language. § Emphasis on: Clarity Recognizability Intelligibility Accessibility Accuracy Unambiguity v The International Perspective Ø Australia § Began in 1970s § Centre for Plain Legal Language in 1990 § Made huge contributions § State departments and private firms have adopted this Ø United Kingdom § Plain language deteriorated since Anglo-Saxon times. § Modern developments in 1960. § Verbose legal documents now replaced by more plain language. Ø United States § Initiatives in the 1970s. § Document Design Project in 1978. § Bill Clinton’s specific executive directives to use plain language in Federal Administration. The Complex South African Background v Constitution of 1996 was drafted in plain language but there is no South African law that requires plain language drafting. v Old Order Legislation (1806 – 1994) vs Pre- Union Legislation (1806 – 1910) Ø Most law before 1910 has been incorporated into Union Law or the Republic’s law (1961) v Legislation between Union of South Africa and the new Democratic Era (1910 – 1994) Ø This is now “old order legislation” and includes: § Acts of Parliament § Legislation of the four former so-called ‘independent homelands’ Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper § § § § § Legislation of the six former self-governing territories (Bantustans) Provincial ordinances enacted by the provincial councils of the former four “white” provinces (1910 – 1986) Regulations of the four provinces By-laws enacted by the various local authorities Delegated (subordinate) legislation The Hierarchical Levels of Legislation v Original Legislation Ø Acts of Parliament Ø New Provincial Acts Ø Provincial Ordinances Ø Legislation of the former homelands Ø Legislation of the former TBVC states Ø New municipal legislation v Subordinate Legislation Ø Existing provincial proclamations and regulations (1868 – 1994) Ø New provincial proclamations and regulations Ø Other proclamations and regulations Sensitive Issues: Language, Linguistics and Culture v Multilingualism Ø Linked to multiculturalism Ø Treat different cultures and language carefully Ø Different cultures and groups assign different meanings to general terms. v Legislation and the Official Languages Ø 12 Official languages (recently added Sign Language) Ø Assent and signing of legislation is part of the prescribed procedure during the passing of original legislation. Constitutional and Other Legal Demands v Constitution is Supreme v Founding Values and Basic Constitutional Features Ø Preamble, Section 1, Bill of Rights Ø Human dignity Ø Equality Ø Freedom Text-based vs Text-in-context approach v Text based = Literal Approach Ø Legal positivism Ø Rooted in Common Law v Text-in-context = Constitution-based approach Ø Must promote the spirit, purport and objects of the Bill of Rights Ø Holomisa v Argus Newspapers Ltd Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper § The Constitution has changed the context of all legal thought and decision-making in South Africa. What is Being Done v Postgraduate certificate courses in legislative drafting. v Legislative Drafting Programme for South Africa v Departments and Institutions based out of Universities of Privately v Pan African Parliament Le Roux Article Overview v Article deals with how statutory interpretation can be employed to undo the past. v Article investigates how the Constitutional Court has approached the interpretation of apartheid marriage laws under section 35(2) of the Interim Constitution and 39(2) of the Constitution of 1996. v Claims of article: Ø Court has adopted a narrow, text-based approach instead of a purposive approach as it often claims it does. Ø The narrow approach is hermeneutically and politically suspect. Ø Furthermore, it discloses a predilection for monumental, as opposed to memorial practices of memory. Statutory interpretation as a jurisprudence of restraint v Section 35(2) of the Interim Constitution provides (in summary): Ø No law that limits any of the rights in the Bill of Rights will be invalid solely because the wording of that law on a prima facie basis exceeds the limits imposed. If the reading of such a law is reasonably capable of giving rise to a more restrictive interpretation it will adopt that meaning instead. Ø There is very limited judicial activism in this approach. Ø De Lange v Smuts § Ackerman J explained that the same approach provided in section 35(3) of the Interim Constitution should be applied to section 39(2) of the Constitution of 1996. Section 39(2) called for the judiciary to “promote” the spirit, purport and objects of the Bill of Rights. This did not address whether it should still take the narrow textual approach as was implied in the Interim Constitution. § Mokoro J in her dissenting opinion opposed the views of Ackerman J, stating that 39(2) was far more permissive and not as restrictive. Thereby allowing a more robust and activist process of statutory interpretation as this was not the case with the Interim Constitution. v Principle of interpretation conforming to the constitution, makes constitution sense according to Du Plessis because: Ø The Constitution is not only interpreted by the Constitutional Court but by an open community Ø The Constitutional Court has a weak institutional position in this community of interpreters Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper Ø Opportunities for mediated dialogue between the legislature and the judiciary are created by this approach Ø The Constitution is a written text which requires constant interpretation and reinterpretation Reinterpreting Apartheid Laws: A lesson from National Coalition for Gay and Lesbian Equality v Minister of Home Affairs v Facts Ø Dealt with section 25(5) of the Aliens Control Act 96 of 1991. Ø “Spouse” of a permanent resident. Ø Does this discriminate unfairly and unjustifiably against the unmarried same-sex life partners of permanent residents? Ø The Minister of Home Affairs said it did not because using section 39(2), the term “spouse” would include permanent same-sex life partners. v Judgement Ø The court unanimously rejected this argument. This is because the Minister confused the following: § Section 39(2) à Interpretation of statute § Section 172 à Altering words of a statute through the constitutional remedies of reading-in and severance. Ø Ackerman J explained that words should not be distorted in order to justify the court’s position. Spouse denotes a “married” person and therefore could not mean same-sex life partner. Ø However, the section was then discriminatory because it gave advantages to married persons. So it was struck down and amended under section 172 to include such partners. v Other relevant cases based on the above approach Ø Satchwell v Minister of Home Affairs § Confirmed the approach. § Judges’ Remuneration Act and Conditions of Employment Act 88 of 1989 § Financial benefits to “surviving spouse” Ø Daniels v Campbell § Began to disagree with the National Coalition judgement as it pertained to Muslim partners who were not formally solemnized in terms of the Marriages Act. § Wider and more inclusive meaning extends beyond civil marriage so Muslim marriage partners are “spouses”. § Majority of judges agreed with the wider interpretative approach and did not adopt the textual approach in National Coalition. § So now spouse means “partner to marriage whether by law or religion” Ø Volks v Robinson § Meaning of Spouse again in terms of the Maintenance of Surviving Spouses Act 27 of 1990. § Heterosexual life partnership partner approaches court. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper § The dissenting judgment of Sachs J confirms the existence of two clearly defined and diametrically opposed interpretative approaches: Textual Purposive Ø Fourie v Minister of Home Affairs § Common law recognises same sex marriages. § Question was whether such marriages could be included in the Marriage Act of 1961. § Majority ruled that it could not. § So the marriage formula of “husband and wife” was declared unconstitutional. § Minority judgement argues that this was not necessary and they could simply have just interpreted it with section 39(2) to included “lawful spouse” beyond just “husband and wife”. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper Week 2 – The Term ‘Legislation’ What is Overview legislation? It is important to distinguish legislation from other sources of law, because the rules and principles of statutory interpretation apply only to legislation. Legislation is written law enacted by a body or person authorised to do so by the Constitution or other legislation. What is ‘enacted law-text’? (NB for test purposes) v Enacted: means adopted/issued/ promulgated in terms of the prescribed legal requirements (like the Constitution) and the Interpretation Act 33 of 1957. v Law: means it has the force of law. v Text: means it is written law. Other terms which refer to ‘legislation’ v Acts v Statutes v Ordinances v Regulations v Proclamations v Rules v Notices v By-laws Besides the fact that the various types of legislation are usually categorised in terms of both hierarchy and chronological timeline, the different names may also give rise to different meanings, depending on the context in which they are used. For example: 1. The Rome Statute is a multilateral international treaty. 2. Statute of the University of Pretoria is subordinate legislation to the enabling Act which is the Higher Education Act. The Legal Meaning of ‘Legislation’ (Just Understand) v S1 of Interpretation Act provides: The provisions of this Act shall apply to the interpretation of every law (as in this Act defined) in force at or after the commencement of this Act, in the Republic or any portion thereof, and to the interpretation of all by-laws, rules, regulations or orders made under the authority of any such law, unless there is something in the language or context of the law, bylaw, rule, regulation or order repugnant to such provisions or unless the contrary intention appears therein. Ø Law does not include common law. v S2 of Interpretation Act defines Law as follows: ‘law’ means any law, proclamation, ordinance, Act of parliament or other enactment having the force of law. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper Thus, reading S1 and S2 together the following becomes clear. Legislation is (Memorise): v Any law, proclamation, ordinance, Act of Parliament, all by-laws, rules, regulations or orders; and v Any other enactment having the force of law The issue now comes in with the Constitution which provides that legislation consists of the following: v national and provincial legislation v proclamations, regulations and other instruments of subordinate legislation v assigned legislation v old order legislation (defined in item 1 of Schedule 6 of the Constitution as any legislation enacted before the interim Constitution took effect on 27 April 1994) v legislation in the new constitutional order since 1994 v municipal by laws Categories Legislation The 3-fold approach to understanding different legislation (NB) v Dimensions of time (horizontal chronological timeline) Ø Old order and Post 1994 Legislation v Space (geographical territories) Ø National, Provincial and Local v Hierarchy (vertical levels and spheres of legislative authority) Ø Instruments of subordinate legislation of Overview Legislation is ultimately classified along chronological and hierarchical lines. It is important for understanding the commencement and demise of the legislation. Chronological categories 1. Legislation before 1806 à Although technically classified as legislation, this law is now largely part of South African Common Law, and can be abrogated by disuse. 2. Old order legislation à Any legislation in force before the interim Constitution took effect. It is divided into 2 categories. a. Pre-Union legislation (1806 -1910) à Adopted between the British annexation if the Cape in 1806 and the creation of the Union of South Africa in 1910. Most have been either repealed or incorporated into legislation of the Union. b. Legislation between the Union and the Democratic era (1910 – 1994) à Known as ‘old order’ legislation, it includes most of the existing South African legislation as defined by the IA but with appreciation for historical context in terms of areas that were ‘white controlled’ and the TBVC states (independent homelands). Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 3. Legislation in the new Constitutional Order since 1994 à This refers to all legislation enacted after the start of the constitutional democracy. Hierarchical categories 1. Before 1994 à Constitution was not supreme. Therefore, hierarchy was simple. Original Legislation (Acts of Parliament) and Subordinate legislation (regulations and proclamations). 2. Post 1994 à Now there is a Supreme Constitution, old-order and new post 1994 legislation, and three spheres of government (national, provincial and local). Essentially we have the Constitution (1), Original Legislation (2) and Subordinate Legislation (3). a. The Constitution (1) à Supreme Law and every other law is tested against it. It did have an Act number, which was corrected by the Citation of Constitutional Laws Act 5 of 2005. It was degrading for it to have an Act number. b. Original Legislation (2) à The hierarchical status of primary legislation is based on 2 interrelated principles: i. Firstly, enacted by democratically elected, deliberative, law-making bodies. 1. Middelburg Municipality v Gertzen 1914 AD 544, the Appellate Division stressed that the status of legislation is to a large extent determined by the deliberation during the law-making process. The Constitution may also require a certain level of public participation. ii. Secondly, the original law-making powers of the elected deliberative legislatures are always founded in the Constitution, but are derived in two different ways: 1. Directly from the Constitution. 2. Indirectly from the Constitution, assigned by another Act of Parliament. c. Acts of Parliament à All acts of Parliament since 1910. The legislative authority of the current Parliament is derived directly from the Constitution and makes it the highest legislative body in South Africa. However, Acts of Parliament can still be tested against the Constitution. Although the Constitution is the supreme law, some Acts of Parliament have a higher status than other original legislation. PAIA, PAJA and PEPUDA were all enacted to give effect to specific and express legislative measures required by the Constitution. d. New provincial Acts (1994 –) à Comprises legislation enacted by the nine new provincial legislatures. Their legislative power is also derived directly from the Constitution or assigned to them by Acts of Parliament. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper e. f. g. h. The legislative powers of the provincial legislatures is subject to: i. Original Legislative Power, to pass provincial legislation in line which Schedules 4 and 5 of the Constitution. ii. Additional Powers, as provided for by Acts of Parliament. iii. Premier, Limpopo Province v Speaker of the Limpopo Provincial Government 2011 (6) SA 396 (CC) à Constitutional Court ruled that a provincial legislature cannot enact legislation dealing with its own financial management because it was not expressly provided for in Schedules 4 or 5 of the Constitution or assigned to them by the Financial Management of Parliament Act 11 of 2009. Provincial Ordinances à The Provincial Government Act 32 of 1961 empowered the four provincial councils of the time (Transvaal, Orange Free State, Natal and Cape Province) to enact provincial ordinances on matters concerning their respective provinces. These councils were abolished on 1 July 1986. It is original legislation and only applies to the ‘old’ geographical area. Legislation of the former homelands à The homelands enjoyed concurrent original legislative powers with the central government. They had complete legislative capacity with regard to certain specific matters which were granted to them by the now repealed Self-governing Territories Constitution Act 21 of 1971. Legislation of the former TBVC states à The legislation of former so-called ‘independent’ homelands did not form part of the South African legislation. However, it remains valid as part of South African law in the area where it previously applied, because these areas have been reincorporated into the Republic. It has the same force as Provincial Acts, provincial ordinances and legislation of the former self-governing territories. New Municipal Legislation i. Fedsure Life Assurance Ltd v Greater Johannesburg Trasntitional Metropolitan Council 1999 (1) SA 374 (CC) 1. In terms of the Constitution municipal councils may enact by-laws in respect of local government matters for their areas. Because, municipal councils are representative and deliberative legislative bodies, new municipal by-laws (after 1994) constitute original legislation. 2. Schedules 4B and 5B apply. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 3. Additional legislative powers can be assigned to them. 4. However, they cannot delegate the making of a by-law, meaning there is no subordinate legislation in this sphere. i. Subordinate (delegated or secondary) legislation (3) à In principle, subordinate legislation is a violation of the separation of powers principle because unelected (appointed) persons, sometimes members of the executive, obtain law-making powers. However, the intention is to give specificity to the broader form of original legislation, which is usually drafted in such a way that it requires refinement. Original legislation are the bones and subordinate legislation is the flesh which permits adaptability to changing circumstances on the fly at a faster rate than what Parliament can act. j. Subordinate legislation in terms of National Legislation à The 1996 Constitution and an Act of Parliament may confer delegated legislative powers on certain persons or bodies, for example: i. In terms of section 89 of the Defence Act 42 of 2002, the President is authorised, subject to S203 of the Constitution, to declare a statement of national defence by proclamation. ii. A Minister is authorised to promulgate certain regulations in accordance with the prescription of the particular enabling Act. Examples include S75 of the National Road Traffic Act, which empowers the Minister of Transport to issue regulations. iii. A statutory body or a person may be empowered to make regulations of the Higher Education Act 101 of 1997, which authorises the Council of a university, subject to approval of the Minister of Higher Education and Training, to issue an institutional statute for the university dealing with the general management of such a university,. k. New and existing provincial proclamations and regulation à Before the Provincial Government Act 69 of 1986 abolished provincial councils in 1986, certain ordinances enabled members of the various provincial executive committees to issue regulations and proclamations. i. Legislative authority was transferred to the Administrator of each province. ii. Old order legislation consists of both original and delegated legislation, which may have to be read together. iii. General Aspects of Subordinate Legislation: Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 1. It may not be in conflict with original legislation. 2. Empowered persons or bodies may not act ultra vires. 3. Subordinate legislation owes both its existence and its authority to its enabling original legislation. This means that as per Moseneke v Master of the High Court, if the enabling legislation is declared invalid it carries over to invalidating the subordinate legislation. 4. Subordinate legislation issued in terms of a repealed Act will also cease to exist, unless the repealing Act expressly provides otherwise (Hatch v Koopoomal) 5. Parliament cannot confer a power on a delegated legislative body to amend or repeal an Act of Parliament (Executive Council Western Cape Legislature v President of the RSA). 6. Although they must be read together, the enabling Act may not be interpreted on the basis of the subordinate legislation made under it (Freedom of Expression Institute v Chair, Complaints and Compliance Committee [unreported case 2009/51933] ). Applying Old Order Legislation in the New Constitutional Order Overview The Constitution defines old order legislation as any legislation enacted before the interim Constitution took effect. In terms of item 2 of Schedule 6 of the Constitution, all legislation that was in force when the Constitution took effect continues to be in force, subject to any amendment or repeal, an consistency with the Constitution. Important Notes to Consider v Each of the new provinces has its own provincial legislature and executive, generating new original and delegated legislation. v New provincial boundaries overlap at times and some local authorities have been amalgamated. v Black local authorities were subject to general affairs legislation, where White, Indian and Coloured local authorities derived their powers from their own affairs legislation. v New Acts of Parliament have to be read together with other existing original legislation as well as a vast amount of subordinate legislation to keep the system going. v Ynuico Ltd v Minister of Trade and Industry 1996 (3) SA 989 (CC) held that reference to ‘laws’ in section 229 of the interim Constitution is not limited to primary legislation but includes subordinate legislation. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper v Existing old order legislation cannot simply disappear and must either be repealed or declared unconstitutional by a competent authority. This means that new provinces, such as North West, would still administer existing Transvaal ordinances in those North West areas which were part of the Transvaal before 1994. v Note the practical example on page 32. What is the Overview Law of General In terms of S36 of the Constitution, a fundamental right in the Bill of Application? Rights may be limited in terms of the law of general application. Definition It includes all forms of legislation, as well as common law and indigenous law (Du Plessis v De Klerk 1996 (3) SA 850 (CC)). What is NOT Overview legislation? Legislation is written law enacted by a body or person with authority to do so. In order for it to take effect it must be published in the Gazette but not everything published in the Gazette is legislation. It must first pass all Constitutional and other legal requirements dealing with authority, adoption and publication. List of examples of things that are NOT legislation: v Common law rules and rules of indigenous law v Case law – Judge-made law. v Policy Documents – Green and White papers – Not enacted by lawmakers Ø Akani Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd the court explained that laws, regulations and rules are legislative instruments, but policy determinations are not. Policy determinations cannot override, amend or be in conflict with legislation, otherwise the separation between legislature and executive will disappear. Ø Arun Property Development (Pty) Ltd v City of Cape Town the Constitutional Court explaiedn the difference between policy and legislation: Policy is not legislation but a general and future guideline for the exercise of public power by executive government. Often, but not always, its formulation is required by legislation. The primary objects of policy are to achieve reasonable and consistent decision-making; to provide a guide and a measure of certainty to the public and to avoid case by case and fresh enquiry into every identical request or need for the exercise of public power. v Internal Departmental Memos – Administrative quasi-legislation Legislative Overview Structure and When beginning the interpretation process, the legislation must first be CODES read and analysed. One must understand the structure of legislation, and how these structural components interact. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper General Structure (using LRA as example pg 36 of TB) 1. List of Amendments 2. List of regulations 3. Preamble a. If there is one, it states the circumstances and background of, and reasons for the legislation. b. Always used in Private Acts. c. Usually only used in public Acts of national or constitutional importance. 4. Long title a. An Act always has a long title. b. It is not really a title. c. Rather it is a short descriptive summary of the subject matter of the Act. 5. Enacting Provision a. This acknowledges the constitutional authority of the body that is enacting the primary legislation. 6. Table of contents a. The ‘road map’ of the Act. 7. Definitions a. Internal dictionary. b. Usually at the start of the Act. 8. Purpose and interpretation a. Are frequently included in post-1994 legislation. b. These clauses give an immediate overall picture of what the Act wants to achieve, help explain its purpose and should be used during the interpretation process. 9. Regulations and ministerial powers a. Empowerments and Regulations. 10. Repeal/amendment of legislation a. Repeals and amendments of an Act are done by means of another Act. b. Usually this is done with a Schedule at the end of the new Act. 11. Short title and commencement a. The Title of the Act. b. Usually at the end. 12. Schedules a. These are used to deal with technical detail that will otherwise clog up the main body of an Act. 13. Numbering in legislation a. Traditional Number system i. Section 1 ii. Subsection (1) iii. Paragraph (a) iv. Subparagraph (i) v. Item (aa) vi. Subitem (AA) Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper b. When an additional section is included into an Act through an amendment, it takes the number of the section after the section amended and add a capital letter after it. i. If you amend section 66, you will add in section 66A. 14. General explanatory note a. When an amendment Bill is published the Official Gazette for public comment, there is a General Explanatory Note included in the second page. (See page 43 in TB) 15. Legislative Codes a. Amendments (including insertions and deletions) are also indicated clearly in square brackets after the relevant provisions in the amended version of an Act. This could help an interpreter by: i. Indicating a date of commencement for the provision ii. It will serve as a historical paper trail. Relationship Overview between The Roman-Dutch common law is not sacrosanct, untouchable or Legislation and protected from constitutional scrutiny. The Constitution is supreme over Common Law all law, and any law inconsistent with it is invalid (s 2). In terms of s 39(2) of the Constitution, the courts must promote the spirit, purport and objects of the Bill of Rights when they develop the common law. Important cases for s 39(2) and Common Law v Carmichele v Minsiter of Saftey and Security the Constitutional Court held that a court is obliged to develop the common law in view of the Constitution. v Pharmaceutical Manufacturers Association of SA; In Re: Ex parte Application of the President of the Republic of South Africa para 44 of the judgement: Ø I cannot accept this contention, which treats the common law as a body of law separate and distinct from the Constitution. There are not two systems of law, each dealing with the same subjectmatter, each having similar requirements, each operating in its own field with its own highest Court. There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control. v Rand Bank Ltd v De Jager 1982 (3) SA 418 (C) establishes the rule that legislation trumps and overrules common law, but does not repeal it. This is because where the legislation is then repealed, the common law is revived. v Common-law rules (such as presumptions) are used to interpret legislation, as long as it is not in conflict with the values of the Constitution. Three essential Summary of cases cases as per v Hatch v Koopoomal study outcomes Ø Judgement Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper § § Was on appeal. In the original case the dispute centered around regulations which had been implemented under an Act which was no repealed. The court in the first case held that because the regulations did not directly rely on certain empowering provisions of that Act, the regulations survived. Ø Decision § Subordinate legislation issued in terms of a repealed Act will also cease to exist, unless the repealing Act expressly provides otherwise v Executive Council Western Cape Legislature v President of the RSA Ø Judgement This case involves fundamental questions of constitutional law. At issue were matters of grave public moment concerning the imminent local government elections. Ø Decision § Parliament cannot confer a power on a delegated legislative body to amend or repeal an Act of Parliament v Pharmaceutical Manufacturers Association of SA; In Re: Ex parte Application of the President of the Republic of South Africa Ø Judgement § Exercise of all public power must comply with the Constitution and therefore the requirement of legality. § Question was whether the President Act ultra vires. § Para 44 of Judgement: I cannot accept this contention, which treats the common law as a body of law separate and distinct from the Constitution. There are not two systems of law, each dealing with the same subject-matter, each having similar requirements, each operating in its own field with its own highest Court. There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control. Ø Decision § The proclamation made by the president was held to be invalid. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper Theme 3: The commencement of legislation Adoption and Overview Promulgation of Adoption concerns the passage of legislation, whereas promulgation Legislation deals more so with when the legislation will take effect. Adoption Refers to when the relevant legislative body refers to the constitutionally prescribed and other legal processes and procedures required for the draft legislation to become law, including: v Preparation of a draft Bill v Introduction of the Bill in the legislature v Public participation (if required) as well as the committee stages, voting and assent. Once Parliament has passed (adopted) a Bill, the Act then has to be assented to and signed by the President. In the case of Provincial legislation, the Premier of that province has to sign the Act. Once assented to and signed, such an Act becomes law (as per sections 81 and 123 of the Constitution. Promulgation Although an Act which assented to and signed becomes law, it is not yet in operation. For legislation to become operation, it needs to be promulgated. Promulgation: Refers to the process of putting legislation officially and legally into operation. Sometimes referred to as “pulling the trigger” on the law. The adoption and promulgation happens nearly simultaneously for subordinate legislation. For original (parliamentary) legislation, it must be published in the Government Gazette. However, not everything which is published there will necessarily be in operation and enforceable. The Overview Requirement of Legislation is promulgated by publication in the Gazette. In terms of Publication sections 81 and 123 of the Constitution (and s 13 of the Interpretation Act), Acts of Parliament and provincial Acts take effect when published in the Gazette, or on a date determined in terms of those Acts. Relevant Sections v Section 162 of the Constitution Ø Municipal by-laws may be enforced after they have been published in the Gazette of the relevant province. v Section 101(3) of the Constitution Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper Ø The Constitution does not expressly require the publication of subordinate legislation to commence, but Section 101(3) of the Constitution provides that: Proclamations, regulations and other instruments of subordinate legislation must be accessible to the public. v Sections 13 and 16 of the Interpretation Act Ø Requires that subordinate legislation must be published in order to commence. Publication vs Knowledge of the Population v The principle underlying publication is that the law should be made known to the population to who it applies. v Question arises: Does the particular legislation commence on the date of publication, or at the time when it becomes known throughout the country? v Queen v Jizwa Ø It was held that legislation commences on the date of publication, irrespective of whether it has come to the knowledge of everybody in the remote areas. Ø Steyn criticises this as an arbitrary application of the rule and suggests that there should be a period between the de facto publication and the de iure promulgation and taking effect of the legislation. v President of the Republic of South Africa v Hugo 1997 (6) BCLR 708 (CC) addressed the question of the accessibility of the law in para 102 of the judgement: Ø It can be seen then that several concerns underlie the interpretation of ‘prescribed by law.’ The need for accessibility, precision and general application, flow from the concept of the rule of law. A person should be able to know of the law and be able to conform his or her conduct to the law. v Two other aspects of the publication requirement must be noted: Ø If, for some reason beyond its control, the Government Printer is unable to print the Gazette, the President may by proclamation prescribe alternative procedures for the promulgation of legislation (s 16A of the Interpretation Act). Ø When the President, a minister, a premier or a member of the executive committee of a province has the power to issue delegated legislation, a list of proclamations and notices under which such types of delegated legislation must be tabled in Parliament (s 17 of the Interpretation Act). Certain new legislation (PEPUDA) also requires regulations made in terms of the particular Act to be furnished to parliament before publication. Commencement Who promulgates legislation? of Legislation v The enacting clause of legislation affirms the legislative authority of the particular lawmaker. v Since it is the lawmaker who ‘speaks’, the resulting legislation is promulgated by the lawmaker in question. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper v Where it is not practical, such as with Acts of Parliament or a provincial legislature, the authority will be delegated by the legislature to a member of the executive branch (like the President), who will later put the original legislation into operation by means of a proclamation. v Ex parte Minister of Saftey and Security: In re S v Walters, explained that the power conferred by the legislature on the President to fix a date for commencement is a public power and must be exercised lawfully for the purpose of such a power. However, the power could not be used to block or veto the implementation of new law. v Read page 50, “case law example” which details the 1998 Pharmaceuticals scandal as it pertained to prematurely putting legislation into operation. When is it in force? v The Default: Section 13(1) of the Interpretation Act as well as section 81 and 123 of the Constitution, provides that if the legislation does not prescribe a date of commencement, it automatically commences on the day of its publication in the Gazette. v Delayed Commencement: In terms of section 13(1) of the Interpretation Act (and sections 81 and 123 of the Constitution) the legislation as published in the Gazette may provide for another fixed date for its commencement. Examples include the Citation of Constitutional Laws Act 5 of 2005, which was assented to on 23 June 2005 and took effect on 27 June 2005. v Delayed Commencement: On an unspecified future date still to be proclaimed. Where an Act will commence on a date to be determined by for instance, the President, the President’s proclamation is all that is required. Section 13(3) of the Interpretation Act provides that if an Act provides for commencement on a date to be proclaimed by the President or the Premier of a province, there may be different commencement dates for different provisions of that Act. v Retroactive commencement: Retroactive commencement refers to publication on a specific date, but the legislation is deemed to have commenced earlier on a date prior to the publication. v A combination of the above: When published, there may be a confusing combination of possible commencement options for various parts of the legislation. v When does a ‘day’ start? Ø Section 13(2) of the Interpretations Act states that a ‘day’ begins immediately at the end of the previous day (00:01). This effectively means retroactive commencement, because at the time the Gazette is published, the legislation could already have been in force for a few hours. Jumping the Gun – Section 14 of the Interpretation Act v Issue is as follows: Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper v v v v The Presumption that Legislation applies only to the future Ø Act states that it will commence upon a date to be fixed by the President. Ø The section of the Act which states the President can fix the date, provides that it comes into effect on 1 July 2007. Ø This means parliament itself promulgated this provision which authorises the President. Ø So how can the President act on this power, because the legislation which gives rise to the power is not yet in effect, but the only way it will come into effect is if the President promulgates it (paradox). Section 14 of the Interpretation Act Ø Provides that if a person has the power to put legislation into operation, that power may be exercised at any time after the legislation was passed with a view to put it into effect. Section 14 also deals with a different issue Ø Some original legislation requires the enactment of subordinate legislation to provide for frameworks in which the original legislation can function. However, subordinate legislation cannot come into effect before the original legislation. Section 14 then provides for: Ø The making of appointments and subordinate legislation by the relevant functionaries, provided that the appointments or subordinate legislation cannot be effective before the Act is in force. Ø This should have been done to avoid the pharmaceuticals fiasco. Cats Entertainment CC v Minister of Justice Ø The Minister of Justice, acting in terms of the Lotteries and Gambling Board Act, invited nominations for candidates for the Lotteries and Gambling Board. Ø Court ruled this was not unlawful and was in line with Section 14 as the election of the Board was needed for the operation of the Act. Overview As per Transnet Ltd v Chairman National Transport Commission, the time-honoured principle that legislation should only apply to the future is one of the basic foundations of a legal system based on the rule of law. The principle is based on the prevention of: v Unfair results v The prevention of unreasonable results v To ensure predictability and legality. In S v Mhlungu, the court explained that the presumption was not intended to exclude the benefits of rights sanctioned by new legislation but rather to prevent the invasion of rights. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper In Veldman v Director of Public Prosecutions, Witwatersrand Local Division 2007 (CC) the well-established common law principle was given express constitutional backing. Retroactive vs Retrospective v Explained in National Director of Public Prosecutions v Carolus v Retroactive Ø Legislation operates as of a time prior to its enactment, and essentially operates backwards. Ø Example: Terrorism Act 83 of 1967 v Retrospectivity Ø In this case legislation operates for the future only, in line with the basic principle. Ø The legislation is prospective, but could impose new results in respect of a past event. Ø There is thus, no express retroactivity. Ø However, the problem is that there could be future application of the new legislation to new cases (with facts and circumstances that originated before the commencement), resulting in a practical retro-effect. Ø Although retrospectivity is not as drastic as retroactivity, the most important consideration is still whether the future application of the legislation on events from the past will be unfair, take away vested rights or violate substantive rights. The Deeming Clause The difference between retroactivity and retrospectivity lies in the commencement date of the legislation in question. In the case of retroactive legislation, the commencement date is before the date of publication. The function of a deeming clause is as follows: v It is an exercise in virtual reality v The legislation creates a legal fiction v Therefore, it essentially creates a presumption What prevents Overview the legislation There are essentially three tests or barriers which must be overcome in from applying order for retro-effect to take place. with retroeffect? The common law presumption v The legislature can either expressly or by necessary implication trump common law. v The true issue is with “necessary implication” as this means that the legislature failed to express the intention clearly. v There are guidelines which may help to determine whether the presumption is rebutted by necessary implication: Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper Ø It could be inferred if the legislation would result in absurd or unfair results should it not have retro-effect (Lek v Estate Agents Board) Ø It is easier to decide that legislation does not only apply to the future, when vested rights will not be affected by the retro-effect of the legislation; or the purpose of the legislation is to grant a benefit or to effect even-handedness in the operation of the law (Kruger v President Insurance Co Ltd) New offences and higher penalties v Section 35 of the Constitution provides that a person may not be convicted for an act that was not an offence at the time it was committed. v Section 35(3)(n) of the Constitution provides that an accused person has 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. v So, what this means is that the law cannot retroactively: Ø Create offences Ø Increase penalties Other constitutional rights Essentially, the new laws cannot violate any constitutional rights such as but not limited to: v Right to property v The right to fair administrative justice v The right to access information Read the practical example on page 63 on Fire Arms Act No harm done Overview exceptions Essentially where it retroactively creates only benefits, then it is allowed. Specifically, there are two considerations what when met allow retroactive application: v Where the law exclusively deals with procedure and that procedure is (Minister of Public Works v Haffejee): Ø Neutral; or Ø Improves substantive rights (without imposing obligations [Euromarine International of Mauren v The Ship Berg] or negatives) § R v Sillas (EXCEPTION) If the procedure negatively affects the substantive rights, then it is not allowed. v If it favours the individual Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect.