RVW Chapter 2 PDF

Chapter 2The term ‘legislation’ 2.1 What is 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 (also called ‘statute law’) is written law enacted by a body or person au...

Chapter 2The term ‘legislation’ 2.1 What is 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 (also called ‘statute law’) is written law enacted by a body or person authorised to do so by the Constitution or other legislation. Du Plessis (2002: 1) refers to legislation as ‘enacted law-texts’. What does ‘enacted law-text’ mean? Enacted means it was adopted/issued/promulgated in terms of the prescribed legal requirements (for instance, the Constitution of the Republic of South Africa, 1996 (‘the Constitution’) and the Interpretation Act 33 of 1957 (‘the Interpretation Act’)). Law means it has the force of law. Text means it is written law. The term legislation (statute law or enacted law-texts) comprises a number of sometimes confusing names and concepts, for instance, Acts, statutes, ordinances, regulations, proclamations, rules, notices and by-laws. Apart from the fact that the various types of legislation are categorised in terms of both a chronological timeline and a hierarchical power structure (discussed in 2.2 below), some of these names have different meanings, depending on the context in which they are used. Page 16 Please note: Generally, a statute is an Act of Parliament, but sometimes a statute may refer to something else: The Rome Statute (the Statute of the International Criminal Court) is a multilateral international treaty; the Statute of the University of Pretoria is subordinate legislation issued in terms of an enabling Act (the Higher Education Act 101 of 1997); and Statute also refers to an Act of Parliament, which is a type of original (primary) legislation. Then again, a notice may be a specific type of subordinate legislation issued by a competent subordinate lawmaker, but a notice in an Official Gazette could also be just that—an official notification of facts or situations that must be brought to the attention of the public. In order to determine the legal meaning of ‘legislation’, let us start with the definitions in the Interpretation Act. Section 1 of the 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, by-law, rule, regulation or order repugnant to such provisions or unless the contrary intention appears therein. ‘Law’ in this context does not include the common law. In other words, the rules of statutory interpretation apply only to legislation. But how does legislation define itself? Section 2 of the Interpretation Act defines ‘law’ as follows: ‘law’ means any law, proclamation, ordinance, Act of Parliament or other enactment having the force of the law. According to the Interpretation Act (ss 1 and 2 read together), legislation consists of: any law, proclamation, ordinance, Act of Parliament, all by-laws, rules, regulations or orders; and any other enactment having the force of the law. So far, so good: if these different types of legislation seem confusing, it gets worse! Section 239 of the Constitution also defines legislation: Page 17 In the Constitution, unless the context indicates otherwise— ‘national legislation’ includes— (a)subordinate legislation made in terms of an Act of Parliament; and (b)legislation that was in force when the Constitution took effect and that is administered by the national government;... ‘provincial legislation’ includes— (a)subordinate legislation made in terms of a provincial Act; and (b)legislation that was in force when the Constitution took effect and that is administered by a provincial government. Furthermore, sections 101(3) and 140(3) of the Constitution refer to subordinate legislation as proclamations, regulations and other instruments of subordinate legislation, item 1 of Schedule 6 of the Constitution distinguishes between old order legislation and legislation since 1994, and sections 44, 104 and 156 of the Constitution mention assigned legislation. Finally, section 156(2) of the Constitution empowers local governments (municipalities) to make by-laws as mentioned in the Interpretation Act. According to the Constitution, the legislative menu consists of the following: national and provincial legislation; proclamations, regulations and other instruments of subordinate legislation; assigned legislation; 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); legislation in the new constitutional order since 1994; and municipal by-laws. The various types of legislation must be understood in the three interrelated dimensions of time (horizontal chronological timeline), space (geographical territories) and hierarchy (vertical levels and spheres of legislative authority). All of these will be explained in the sections to follow. The Interpretation Act and the Constitution refer not only to legislation emanating from certain geographical areas (national, provincial and local authorities), but also to a timeline (old order and post-1994 legislation) as well as to a hierarchical distinction (for instance, ‘instruments of subordinate legislation’). This means that the term ‘legislation’ needs to be understood, interpreted and applied in terms of a horizontal timeline, geographical space and vertical hierarchical authority. Now things get interesting: fasten your seatbelts, or as William Shakespeare (Julius Caesar: Act 3 scene 1) put it: ‘Cry “Havoc!” and let slip the dogs of war...’. Example: A practical example of the complexities of interpretation is the requirement that gun owners must have a gun safe. In terms of section 83 of the Firearms Control Act 60 of 2000, firearms and ammunition must be stored in the prescribed manner. However, the Act does not immediately specify what ‘stored in the prescribed manner’ means. One of the basic principles of interpretation is that legislation must be read as a whole (which will be dealt with chapter 6). Suffice to say that section 1 of the Firearms Control Act (the definition section) defines ‘prescribed’ as ‘prescribed by regulation’. Section 145 of the Firearms Control Act enables the Minister of Police to regulate certain issues by means of regulation, which is a type of subordinate legislation (explained in 2.2.2 below). Regulation 86 of the Firearms Regulations of 2004 contains the detailed technical specifications for the various firearms safes contemplated in the Firearms Control Act. Long story short: to determine what a required gun safe is, section 83 of the Firearms Control Act 60 of 2000 must be read together with regulation 86 of the Firearms Regulations of 2004. 2.2 Categories of legislation In this part of the chapter, the various categories and types of legislation will be explained. These categories relate to the historical origins of legislation (chronological categories) as well as to the status of the various types of legislation in the legal order (hierarchical categories). Students may think that all types of legislation (statute law or enacted law texts) are essentially the same. Unfortunately, this is not the case. The various hierarchical categories of legislation differ fundamentally from each other. These differences have an impact on the commencement and demise of legislation, and Page 19 play an important role in all the other branches of the law (more specifically, administrative law, human rights law and constitutional law). 2.2.1 Chronological categories This classification explains all forms of existing legislation according to their historical origins. This part is fairly simple: it is a little bit of history, and the legislation is merely categorised in terms of a chronological timeline. (a) Legislation before 1806 Some statutes of the Staten-Generaal of the Netherlands and placaaten (statutes) of Holland may still be in force. Although technically classed as legislation, these became part of South African common law with no formal procedures required for their demise, and they may be abrogated by disuse. This means that neither the various definitions of legislation (statute law) nor the rules of statutory interpretation will apply to them. (b) Old order legislation Old order legislation is defined in item 2 of Schedule 6 of the 1996 Constitution as being any legislation in force before the interim Constitution took effect (just after midnight) on 27 April 1994. However, to understand the potential complexities of existing old order legislation, a few important historical highlights of South Africa’s constitutional development since 1910 are necessary. Constitutional highlights: On 31 May 1910, the four British colonies (Transvaal, Cape, Orange River Colony, and Natal) united in terms of the South Africa Act, 1909 (adopted by the British parliament) to form the Union of South Africa. The Union of South Africa became an independent state within the British Commonwealth after the Statute of Westminster was adopted by Britain in 1931. In 1955, the Freedom Charter was adopted in Kliptown (outside Johannesburg) by the Congress of the People, a loose alliance of extraparliamentary opposition groups). After the Republic of South Africa Constitution Act 32 of 1961 commenced on 31 May 1961 South Africa became a republic (and simultaneously left the British Commonwealth). In 1983, the Republic of South Africa Constitution Act 110 of 1983 resulted in a so called tricameral parliament for South Africa. In 1994, the era of constitutionalism and supreme constitutions started with the Constitution of the Republic of South Africa Act 200 of 1993 (referred to as the ‘interim Constitution’, negotiated by parties and stakeholders, and adopted by the Parliament of the previous regime), which took effect on 27 April 1996; and later culminated in the Constitution of the Republic of South Africa, 1996 (referred to as ‘the Constitution’, adopted by the Constitutional Assembly and certified by the Constitutional Court), which entered into force on 4 February 1997. Back to the categories of legislation—old order legislation is divided into the following two historical eras: Pre-Union legislation (1806–1910) This category refers to the legislation adopted between the British annexation of the Cape in 1806 and the creation of the Union of South Africa in 1910. It consists of legislation of the British colonies and the Boer Republics. Most of these had been either repealed or incorporated into legislation of the Union (1910–1961), and the Republic (since 1961) with legislation such as the Pre-Union Statute Laws Revision Act 24 of 1979. However, according to the Department of Justice and Constitutional Development, on 30 March 2007, some examples of pre-Union legislation still in force (and probably in conflict with the Constitution and other more recent legislation) include the Lord’s Day Observance Act 19 of 1895 (Cape Page 21 Province), the Sunday Act 28 of 1896 (Transvaal) and the Police Offences Ordinance 21 of 1902 (Free State). Legislation between Union and the democratic era (1910–1994) In view of the constitutional changes since 1994, this legislation is known as ‘old order legislation’ and would include most of the existing South African legislation: Acts of Parliament, legislation of the so-called ‘independent homelands’ or TBVC states (Transkei, Bophuthatswana, Venda and Ciskei), legislation of the former self-governing territories or homelands (KaNgwane, Gazankulu, Lebowa, KwaZulu, KwaNdebele and QwaQwa), provincial ordinances enacted by the provincial councils of the four ‘white-controlled’ provinces (Transvaal, Cape, Orange Free State and Natal from 1910 to 1986), proclamations issued by the administrators of the four ‘white-controlled’ provinces after the provincial councils were abolished (1986–1994), by-laws enacted by local authorities (town councils and municipalities), as well as other existing delegated (subordinate) legislation. (c) Legislation in the new constitutional order since 1994 This category refers to all legislation enacted after the start of constitutional democracy in 1994. It includes the interim Constitution (since repealed); the 1996 Constitution; national legislation (Acts of Parliament and delegated legislation issued in terms thereof); provincial legislation (Acts of the nine provincial legislatures and delegated legislation issued in terms thereof); other regulations and proclamations; and legislation by the new local authorities created since 1994. 2.2.2 Hierarchical categories The historical distinction was fairly easy. However, the hierarchical categories deal with the status of legislation, and this is where things become difficult. Before 1994 the Constitution was not supreme, and the classification of legislation was simple and straightforward: original legislation (such as Acts of Parliament) and subordinate legislation (such as regulations and proclamations). The post-1994 era is more complicated. Now we have a supreme Constitution, old order legislation and new post-1994 legislation, and three spheres of government (national, provincial and local). The Constitution is supreme, and all legislation is now subject to it. It may now be argued that legislation issued by the administration (also known as subordinate or secondary legislation) should be referred to as delegated legislation to avoid confusion. However, the Constitution itself expressly refers to subordinate legislation (ss 101, 140 and 239 of the Constitution). (a) The Constitution The Constitution is the supreme law of the Republic, any law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled (s 2). The courts may now test all legislation (including new and old order Acts of Parliament) and government action in the light of the Constitution. Initially, the Constitution was known as the Republic of South Africa Constitution Act 108 of 1996. However, the Constitution cannot merely be Act 108 of 1996. It is the highest law in the land, and incorporates the rights, aspirations and values of its people. It is degrading to number such an exalted document (the birth certificate of a new constitutional order) as merely the next statute on the legislative list. Furthermore, the Constitution was not adopted by Parliament but drafted by the Constitutional Assembly and certified by the Constitutional Court. This mistake has been corrected by the Citation of Constitutional Laws Act 5 of 2005. From the date of commencement of the Citation of Constitutional Laws Act, no Act number is associated with the Constitution. Any reference to the Constitution of the Republic of South Africa Act 108 of 1996 in any law in force immediately prior to the commencement of this Act, must be construed as a reference to the Constitution of the Republic of South Africa, 1996. Some people refer to the Constitution of 1996 as the final Constitution or FC. Since nothing is final except death and taxes, and although the Constitution refers to itself as the new Constitution (item 1 of Schedule 6), this book will refer to the Constitution of the Republic of South Africa, 199 6 as ‘the Constitution’. (b) Original legislation Original (primary) legislation derives from the complete and comprehensive legislative capacity of an authorised legislative body. The hierarchical status of original legislation in South Africa is based on two interrelated principles: First it is enacted by democratically elected, deliberative, Page 23 law-making bodies. In 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 (discussions) during the law-making process. Please note that in certain cases, the Constitution also requires the additional measure of public participation as part of the law-making process of original legislation. Secondly, the original law-making powers of the elected deliberative legislatures are always founded in the Constitution, but are derived in two different ways: directly from the Constitution—Parliament (ss 43(a) and 44), provincial legislatures (ss 43(b) and 104(1)) and municipalities (ss 43(c) and 156(1)(a)); and indirectly from the Constitution (assigned by another Act of Parliament or a provincial legislature) — Provincial legislatures (additional legislative powers assigned by Acts of Parliament (ss 44(1)(a)(iii) and 104(1)(b)(iii))); and municipalities (additional legislative powers assigned by Acts of Parliament (ss 44(1)(a)(iii) and 156(1)(b)) and additional legislative powers assigned by provincial Acts (ss 104(1)(c) and 156(1)(b)). Acts of Parliament These include all Acts of Parliament since 1910. Between 1910 and 1983, Parliament consisted of the House of Assembly and Senate; between 1983 and 1994, it comprised the House of Assembly, the House of Representatives, the House of Delegates and the President’s Council; and since 1994, Parliament has consisted of the National Assembly and the National Council of Provinces. The legislative authority of the current Parliament is derived directly from the Constitution. Parliament is the highest legislative body in South Africa and it may, subject to the Constitution, pass legislation on any matter. This means the courts may review (test) Acts of Parliament against the Constitution. Although the Constitution is the supreme law, some Acts of Parliament have a higher status than other original legislation. The Promotion of Access to Information Act, the Promotion of Administrative Justice Act and the Promotion of Equality and Prevention of Unfair Discrimination Act (the so-called ‘constitutional Acts’) were enacted to give effect to specific and express legislative measures required by the Constitution (ss 32, 33(1) and 9 read with item 23 (1) of Schedule 6 of the Constitution, respectively). A good example of this specific superior status is found in section 5 of the Promotion of Access to Information Act: Application of other legislation prohibiting or restricting disclosure This Act applies to the exclusion of any provision of other legislation that— (a)prohibits or restricts the disclosure of a record of a public body or private body; and (b)is materially inconsistent with an object, or a specific provision, of this Act. Other examples of original legislation also contain provisions stating that it will prevail over any other law in a particular field of law (for example s 70 of the Higher Education Act 101 of 1997): Application of Act when in conflict with other laws This Act prevails over any other law dealing with higher education other than the Constitution. Obviously, provisions such as these have to be read in conjunction with the supreme Constitution as well as with the constitutional Acts (for instance, the Promotion of Administrative Justice Act). New provincial Acts (1994–) This category comprises the 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. The courts also have the power to review provincial Acts in the light of the Bill of Rights in the Constitution. The Constitution confers original legislative powers directly on provincial legislatures to pass legislation for their provinces on matters referred to in Schedules 4 and 5 to the Constitution and, in addition, provides for additional legislative powers to be assigned to them by Acts of Parliament on matters outside the Schedules. Page 25 Case law example: In Premier, Limpopo Province v Speaker of the Limpopo Provincial Government 2011 (6) SA 396 (CC) the court held that a provincial legislature cannot enact legislation dealing with its own financial management, because the Constitution does not directly authorise that in Schedules 4 and 5, nor has it been assigned to them by the Financial Management of Parliament Act 11 of 2009. Provincial ordinances (1961–1986) 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 provincial councils were abolished on 1 July 1986 by the Provincial Government Act 69 of 1986. Since these ordinances were enacted by an elected body, could alter the common law and could even have retroactive force, they represent a category of original legislation. A particular ordinance applies only in the ‘old’ geographical area of the former province. Legislation of the former homelands The homelands (self-governing territories) enjoyed concurrent original legislative powers with the central government. In terms of the repealed Self-governing Territories Constitution Act 21 of 1971, these territories were granted complete legislative capacity with regard to certain specific matters (eg health and welfare, education and agriculture). In these matters the particular legislative assemblies could enact any legislation and even repeal or amend parliamentary legislation. Prescribed matters such as defence and foreign affairs fell outside their legislative competence. They were also not empowered to repeal the Self-Governing Territories Constitution Act or the proclamations in terms of the Act which granted self-governing status to a particular homeland. Legislation of the former TBVC states Although the legislation of former so-called ‘independent’ homelands did not form part of South African legislation, it remains valid as part of South African law in the area where it previously applied, because these territories have been reincorporated into the Republic. It will have the same force of law as provincial Acts, provincial ordinances and legislation of the former self-governing territories in their areas of operation. Although the legislation of the TBVC states is original legislation, the High Court has the jurisdiction to test its constitutionality against the provisions of the supreme Constitution like that of any Act of Parliament (Zantsi v Council of State, Ciskei 1995 (4) SA 615 (CC)). New municipal legislation 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 (Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC)). Municipal councils now have original legislative powers, and may pass by-laws for their areas on matters referred to in Schedules 4B and 5B of the Constitution without the need for enabling parliamentary or provincial Acts. Additional legislative powers may also be assigned to them by either national or provincial legislation. Municipalities cannot delegate the making of a by-law. As a result, there is no subordinate legislation category for the local sphere. (c) Subordinate (delegated or secondary) legislation 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 reason for subordinate legislation is not as sinister as it seems. Acts of Parliament and other forms of original legislation are sometimes drafted in broad terms (skeleton form); subordinate (delegated) legislation then ‘adds the flesh’ (Hahlo & Kahn (1973: 163)). Because the respective elected deliberative legislative bodies are not continuously in session so as to deal with every possible detail in a changing society, they may find it necessary to delegate some of their powers to other persons (eg the President or a Minister) or bodies (eg the Rules Board or the Council of a university). These are then vested with Page 27 delegated legislative powers under enabling legislation. Since Parliament can amend an Act of Parliament only by means of another (amending) Act of Parliament (a long, expensive and cumbersome process), something that must be changed frequently and quickly needs to be dealt with in terms of subordinate legislation. Practical example: The fuel price in South Africa is determined by a number of constantly changing factors such as the price of imported crude oil, the exchange rate, and so on. But who may adjust the petrol price? If the prescribed price of petrol is controlled by an Act of Parliament it would be very difficult for Parliament to constantly adjust such a price, because to amend an Act of Parliament another Act (an amendment Act) is required. Such a process is too cumbersome, expensive and drawn-out: Parliament cannot be recalled once a month to adjust the fuel price. So Parliament delegates some of these law-making powers (to deal with issues that must be done often and quickly outside the normal democratic parliamentary legislative process) to a designated person or body. In terms of section 2 of the Petroleum Products Act 120 of 1977, the Minister may prescribe the price of petrol in South Africa: 2 Powers of Minister and others with regard to petroleum products (1) The Minister may be regulation or by notice...... (c)prescribe the price, or a maximum or minimum price, or a maximum and minimum price, at which any petroleum product may be sold or bought by any person, and conditions under which the selling or buying of petroleum products other than in accordance with the prescribed, maximum or minimum price may take place; But who is ‘the Minister’? Section 1 of the Petroleum Products Act defines ‘Minister’ as the Minister Energy. Although the definition section of the Act defines ‘Minister’ as the ‘Minister of Minerals and Energy’, this designation was changed by the President with Proclamation 44 in Government Gazette 32367 of 1 July 2009 (transfer of administration and powers and functions entrusted by legislation to certain cabinet members) in terms of section 97 of the Constitution. Such subordinate (delegated) legislative enactments are known as legislative administrative acts whose validity may be reviewed by the courts. In each case the scope of the subordinate legislation will depend on the provisions of the particular enabling (authorising) legislation. Subordinate legislation in terms of national legislation The 1996 Constitution and an Act of Parliament may confer delegated legislative powers on certain persons or bodies, for example— In terms of section 89 of the Defence Act 42 of 2002, the President is authorised, subject to section 203 of the Constitution, to declare a state of national defence by proclamation. A Minister is authorised to promulgate certain regulations in accordance with the prescription of the particular enabling Act (eg s 75 of the National Road Traffic Act 93 of 1996, which empowers the Minister of Transport to issue regulations dealing with—amongst others—the use of any vehicle on public roads; or s 69 of the Higher Education Act 101 of 1997, which empowers the Minister of Higher Education and Training to issue regulations on a number of higher education-related matters; s 27 of the Disaster Management Act 57 of 2002 empowers the relevant minister to—by notice in the Government Gazette—declare a state of disaster). A statutory body or a person may be empowered to make regulations (eg s 32 (read with s 33) of the Higher Education Act 101 of 1997, which authorises the Council of a university, subject to the 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; or s 6 of the Rules Board for Courts of Law Act Page 29 107 of 1985, which empowers the Rules Board for Courts of Law subject to the approval of the Minister of Justice—to make, amend or repeal the rules for the Supreme Court of Appeal, the High Courts and the lower courts). New and existing provincial proclamations and regulations Before the provincial councils were abolished in 1986, certain ordinances enabled members of the various provincial executive committees to issue regulations and proclamations. The Provincial Government Act 69 of 1986 abolished provincial councils and therefore any elected legislative bodies for the provinces and its accompanying original legislative competency. The legislative authority for the provinces was transferred to the Administrator of each province. The Administrator enacted or amended or repealed provincial legislation by proclamation and could issue regulations under existing or new parliamentary Acts, provincial ordinances or new proclamations. As a result, old order provincial legislation consists of both original and delegated legislation, which may have to be read together. The new provincial legislatures will, like their parliamentary counterparts, be able to empower other functionaries, such as the Premier or members of a provincial Cabinet, to ‘add the flesh’ to provincial Acts through proclamations or regulations. These will also have to satisfy the requirements and limits set by the enabling Act. Finally, a few general aspects of subordinate (delegated) legislation must be borne in mind: Subordinate legislation may not be in conflict with original legislation. The persons or bodies authorised to issue delegated legislation may do so only within the framework of the authority specifically bestowed on them by the enabling legislation. If not, they have acted ultra vires (outside the scope of their powers) and the subordinate legislation in question could be invalidated by a court of law. Delegated (subordinate) legislation owes both its existence and its authority to its enabling original legislation. If the enabling Act is declared unconstitutional by a court, the subordinate legislation issued in terms of such an invalidated Act will also cease to exist unless the court orders otherw ise (Moseneke v Master of the High Court 2001 (2) SA 18 (CC)). If the enabling Act is repealed, all the subordinate legislation issued in terms of the repealed Act will also cease to exist (Hatch v Koopoomal 1936 AD 197; Pharmaceutical Manufacturers Association of SA; In re: Ex parte Application of the President of the Republic of South Africa 2000 (2) SA 674 (CC)), unless the repealing Act expressly provides otherwise. For example, item 24(3) of Schedule 6 of the Constitution expressly provides that although the interim Constitution has been repealed, the regulations made in terms of section 237(3) of the interim Constitution remain in force. 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 1995 (4) SA 877 (CC)). Although subordinate legislation must be read and interpreted together with its enabling Act, 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) ZAGPJHC 2 (24 January 2011)). 2.2.3 Old wine in new bags: applying old order legislation in the new constitutional order As was explained earlier, 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, and consistency with the Constitution. Old order legislation that remains in force does not have wider application that it had before, and continues to be administered by the authorities that administered it when the Constitution took effect, unless the Constitution stipulates otherwise. Item 2 of Schedule 6 ensures an orderly transition, because this process was not yet complete when the 1996 Constitution was enacted. This means that the vast majority of legislative enactments (including those of the previous four former provinces, the large number of racially segregated local government structures, and even certain legislation of the six self-governing territories and four ‘independent’ homelands) remain on the statute book. However, these were replaced by nine provinces and (at the time of writing) 283 municipalities. Each of the new provinces Page 31 has its own provincial legislature and executive, generating new original and delegated legislation. Often the new provincial boundaries overlap with old ones, and sometimes neighbouring local authorities have been amalgamated. To cloud the issue even further, it must also be borne in mind that during the apartheid era, local government was structured on a racial basis. Black local authorities were controlled by general affairs legislation, while the white, Indian and coloured local authorities derived their powers from their own affairs legislation. The new authorities at national, provincial and local level have to contend with both existing and new legislation, applicable to old and new areas of jurisdiction. Some of the old order legislation has been repealed fully and some merely in part, while the greater part of existing legislation remains in force to enable the new structures and authorities to govern, and services to continue. 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 (for example, officials and administrative bodies derive their powers and authority from existing enabling legislation). Also note that in Ynuico Ltd v Minister of Trade and Industry 1996 (3) SA 989 (CC) the Constitutional Court held that the reference to ‘laws’ in section 229 of the interim Constitution (which also provided for old order legislation to remain in force until it was amended, repealed or invalidated) is not limited to primary legislation, but includes subordinate legislation. Existing old order legislation cannot simply disappear. Legislation has to be repealed or declared unconstitutional by a competent authority. This means that a new province, for instance, North West, will still administer existing Transvaal ordinances in those North West areas which were part of the Transvaal before 1994. So: try to picture the territory of North West (mostly old Transvaal, bits of Bophuthatswana, and a tiny bit of the old Cape Province). The challenge is to determine in which areas the Transvaal ordinances will still apply by using old legislation to find out what used to be the former Transvaal territory (maps, magisterial districts, and so on). However, remember that the North West legislature is authorised to repeal existing old order legislation at provincial level (provincial ordinances and homeland legislation) for North West only. Those ordinances and homeland legislation will remain in force in other provinces until their respective legislatures repeal them. Practical example: North West province consists of parts of the former Transvaal and Cape provinces, and bits and pieces of the former Bophuthatswana, inheriting legislation from those territories insofar as those applied to the province (Schedule 1A (‘Geographical areas of provinces’) of the Constitution, inserted by section 4 of the Constitution Twelfth Amendment Act of 2005). Let us pretend that a family intends to exhume the body of a family member buried 20 years ago in what is now the North West province, and rebury it somewhere else. The issue of the exhumation and reburial of bodies in North West is governed by three sets of old order legislation: the Transvaal Removal of Graves and Dead Bodies Ordinance 7 of 1925; the Cape Province Exhumations Ordinance 12 of 1980; and the Bophuthatswana Traditional Authorities Act 23 of 1978 In terms of Proclamation 110 of 17 June 1994 the administration of the two provincial ordinances and the Bophuthatswana Act have been assigned to North West province. In terms of the two ordinances, permission to exhume a body had to be obtained from the Administrator of the province; and in terms of the Bophuthatswana Act permission for an exhumation had to be obtained from the local tribal authority. So when a body is to be exhumed, the permission to do so will depend on where the grave is located. But who is the Administrator of the province (according to the old order ordinance)? ‘Administrators’ of provinces were abolished after the new constitutional dispensation took effect. In general, Item 3 Schedule 6 of the Constitution (‘Interpretation of existing legislation’) deals with old order terminology: a reference to ‘the Administrator’ in existing legislation allocated to a province must be construed as ‘the Premier’ of that province. However, in terms of section 1 of the now-repealed Local Government Transition Act 209 of 1993 ‘administrator’ is substituted by ‘Member of the Executive Council’ of the relevant province. Page 33 Of course, the story does not end here. The exhumed human remains have to reburied somewhere else, but by law permission for reburials is required. ‘Cemeteries, funeral parlours and crematoria’ fall within Schedule 5B of the Constitution (read with section 13 of the Local Government: Municipal Systems Act 32 of 2000), which means that municipalities administer burials and funerals. So: in this case permission to exhume is given by the relevant provincial government (in terms of three possible sets of old order legislation), and permission to rebury is granted by the municipality in whose area of jurisdiction the reburial will take place (for instance the Drakenstein Municipality Cemeteries and Crematoria By-Law 2 of 2007). But there is more! Let us assume the remains were exhumed in North West province, and the reburial will take place in Limpopo. This means that the human remains may have to be transported from North West through Gauteng into Limpopo. Depending on the location earmarked for the reburial there might in theory be a number of different sets of national and provincial legislation regulating the transportation of human remains (eg regulations made by the Minister of Health in terms of s 68 of the National Health Act 61 of 2003; s 6(2)(dA) of the Extension of Security of Tenure Act 62 of 1997; the Births and Deaths Registration Act 51 of 1992; the Transvaal Cemetery Ordinance 8 of 1932 for burials outside municipalities; the Transvaal Local Government Ordinance 17 of 1939 (repealed for Gauteng by the Gauteng Local Government Laws Amendment Act 1 of 2006)), and so on and so forth. This is merely a hypothetical example—apart from the cultural and emotional issues involved in an exhumation and subsequent reburial, this example tries to emphasise that in the process there might be a multitude of possible primary and subordinate legal rules (both old and new) emanating from all three spheres of government in a number of different geographical areas. Another practical example: The Transkei Penal Code Act 9 of 1983 was promulgated by the former Transkei for the territory then known as the Republic of Transkei. In 1994 the Transkei once again became part of South Africa. In terms of section 229 of the interim Constitution and Item 2 Schedule 6 of the Constitution, the Transkei Penal Code remains in force in the geographical area that used to be Transkei. It was amended a number of times since: by the Justice Laws Rationalisation Act 18 of 1996 (which repealed Part 9 of the Transkei Penal Code which dealt with sexual offences), the Criminal Law Amendment Act 105 of 1997 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. 2.2.4 ‘Law of general application’ In terms of section 36 of the Constitution (the general limitation clause), a fundamental right in the Bill of Rights may be limited in terms of the law of general application. What is ‘law of general application’? Is it all law, or only statute law (legislation)? For the purpose of this book, it is sufficient to note that the term ‘law of general application’ in section 36 of the Constitution includes all forms of legislation, as well as common law and indigenous law (Du Plessis v De Klerk 1996 (3) SA 850 (CC)). 2.3 What is not legislation? By now you should have a pretty good idea of what legislation is. Legislation is written law enacted by a body or person with the authority to do so. As will be explained in Chapter 3, legislation must be published in an official Gazette in order to take effect. However, not everything published in an official Gazette is legislation! Before any document can be classified as legislation, it needs to comply with all the constitutional and other legal requirements dealing with authority, adoption and publication. Using the term ‘enacted law-text’ it is also possible to determine which texts (including other lawtexts) are not classified as legislation: Common-law rules and rules of indigenous law also constitute law (and can in most instances be found in texts). However, these rules are not enacted as legislation by an authorised lawmaker. Page 35 Case law is also binding law (dealing with interpretation, development and application of legal rules) and is found in texts, but since this judge-made law is not issued by lawmakers it does not constitute legislation. Policy documents such as Green and White Papers, interpretation notes, explanatory memoranda and practice notes also constitute law texts (practical applications of legal rules), but as they were not enacted by lawmakers, they do not constitute legislation. A wide range of policy documents issued by government departments in the process of formulating public policy are published to elicit public comment as part of a process of public participation. In Akani Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd 2001 (4) SA 501 (SCA) 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. In Arun Property Development (Pty) Ltd v City of Cape Town 2015 (2) SA 584 (CC) para 47 the Constitutional Court explained 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 a 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. Paradoxically, some of these legal texts (explanatory memoranda, commission reports and practice notes)—although not legislation—may be used during the interpretation of legislation (as will be explained in Chapter 6), or may even be part of legislation in the future (Green and White Papers and draft Bills). Internal departmental memos and policy guidelines on how government departments apply legislation are circulated on a regular basis. These and other official documents are not legislation. Legislation (especially subordinate legislation) should be distinguished from what Baxter (1984: 200) refers to as ‘administrative quasi-legislation’. This consists of departmental memos and directives, which, although enforceable in some instances, do not constitute subordinate legislation. Legal notices and even advertisements are regularly published in the Gazette, but these texts are not even close to being legislation. 2.4 Legislative structure and ‘codes’ To start the interpretation process, the legislation must be read and analysed. Legislation is drafted in a particular form and structure, according to the drafting conventions and rules used by the state law advisors and other legislative drafters. Although the language and structure of the legislative text are not the only aspects that are considered during statutory interpretation, students must understand the structure of legislation, and how these structural components interact. How and when the different components, as well as the structural interrelatedness of legislation may be used during the interpretation process, will be explained in chapter 6 (below). Unless otherwise indicated, the Labour Relations Act 66 of 1995 will be used as examples to illustrate legislative structure: LABOUR RELATIONS ACT 66 OF 1995 [ASSENTED TO 29 NOVEMBER 1995][DATE OF COMMENCEMENT: 11 NOVEMBER 1996] (Unless otherwise indicated) (English text signed by the President) List of amendments If applicable, before the long title an Act will include a list of Acts that have amended it since its promulgation: as amended by Labour Relations Amendment Act 42 of 1996 Basic Conditions of Employment Act 75 of 1997 Labour Relations Amendment Act 127 of 1998 Labour Relations Amendment Act 12 of 2002 Intelligence Services Act 65 of 2002 Electronic Communications Security (Pty) Ltd Act 68 of 2002 General Intelligence Laws Amendment Act 52 of 2003 Prevention and Combating of Corrupt Activities Act 12 of 2004 Public Service Amendment Act 30 of 2007 List of regulations If applicable, after the list of amendments, an Act will include a list of regulations issued in terms of the Act: Page 37 Regulations under this Act BARGAINING COUNCILS ACCREDITED BY THE CCMA, 2009 (1) (GenN 195 in GG 31925 of 27 February 2009) BARGAINING COUNCILS ACCREDITED BY THE CCMA, 2009 (2) (GenN 863 in GG 32298 of 12 June 2009)... RULES FOR THE CONDUCT OF PROCEEDINGS IN THE LABOUR COURT (GN 1665 in GG 17495 of 14 October 1996) RULES REGULATING THE CONDUCT OF THE PROCEEDINGS OF THE LABOUR APPEAL COURT (GN 1666 of 14 October 1996) TARIFF OF FEES: COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION (GN 231 in GG 34107 of 18 March 2011) Preamble The preamble (if there is one) states the circumstances and background of, and reasons for the legislation. Unlike Private Acts, where a preamble is always used, its use in ordinary Acts is usually restricted to legislation of constitutional or national importance. It is usually placed after the long title and is an integral part of the legislation. The following is the preamble of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998: Preamble WHEREAS no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property; AND WHEREAS no one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances; AND WHEREAS it is desirable that the law should regulate the eviction of unlawful occupiers from land in a fair manner, while recognising the right of landowners to apply to a court for an eviction order in appropriate circumstances; AND WHEREAS special consideration should be given to the rights of the elderly, children, disabled persons and particularly households headed by women, and that it should be recognised that the needs of those groups should be considered;... Long title An Act always has a long title. It is not really a title, but rather a short descriptive summary of the subject matter of the Act. The long title is a part of the statute tabled for adoption by Parliament, and always ends with an open-ended phrase such as ‘... and matters incidental thereto’. In some instances, the long title will be comprehensive, and will provide the interpreter with some information at the start of the process (eg the Labour Relations Act 66 of 1995): ACT To change the law governing labour relations and, for that purpose— to give effect to section 27 of the Constitution; to regulate the organisational rights of trade unions; to promote and facilitate collective bargaining at the workplace and at sectoral level; to regulate the right to strike and the recourse to lock-out in conformity with the Constitution; to promote employee participation in decision-making through the establishment of workplace forums; to provide simple procedures for the resolution of labour disputes through statutory conciliation, mediation and arbitration (for which purpose the Commission for Conciliation, Mediation and Arbitration is established), and through independent alternative dispute resolution services accredited for that purpose; to establish the Labour Court and Labour Appeal Court as superior courts, with exclusive jurisdiction to decide matters arising from the Act; to provide for a simplified procedure for the registration of trade unions and employers’ organisations, and to provide for their regulation to ensure democratic practices and proper financial control; to give effect to the public international law obligations of the Republic relating to labour relations; to amend and repeal certain laws relating to labour relations; and to provide for incidental matters. However, sometimes the long title is nothing more than a very sketchy description of the issues dealt with by the Act (eg the Firearms Control Act 60 of 2000): ACT To establish a comprehensive and an effective system of firearms control; and to provide for matters connected therewith. Enacting provision This acknowledges the constitutional authority of the body that is enacting the primary legislation (the national legislative authority is vested in Parliament; the provincial legislative authority is vested in the provincial legislatures; and the municipal legislative authority is vested in the municipal councils): Page 39 BE IT ENACTED by the Parliament of the Republic of South Africa as follows:— Table of contents The table of contents is the ‘road map’ of the Act. It not only provides a quick reference to the reader where to find particular provisions, but it also gives an initial overview of the legislative scheme: Contents of Act Chapter I Purpose, Application and Interpretation 1.Purpose of this Act 2.Exclusion from application of this Act 3.Interpretation of this Act... As a ‘road map’ the table of contents of the Income Tax Act 58 of 1962 (which is amended very frequently) is a confusing reflection of the continuous stream of amendments (including the numbering of repealed provisions retained as placeholders). Definitions The definitions serve as an ‘internal dictionary’ for the particular legislation. The definition section is usually found at the beginning of an Act, but in the case of the Labour Relations Act they are placed at the end of the Act: 213 Definitions In this Act, unless the context otherwise indicates— ‘area’ includes any number of areas, whether or not contiguous; ‘auditor’ means any person who is registered to practise in the Republic as a public accountant and auditor; ‘bargaining council’ means a bargaining council referred to in section 27 and includes, in relation to the public service, the bargaining councils referred to in section 35;... But sometimes (such as in the Labour Relations Act) there are also definitions in other parts of the Act, for example: CHAPTER VWORKPLACE FORUMS (ss 78–94) 78 Definitions in this Chapter In this Chapter— (a)‘employee’ means any person who is employed in a workplace, except a senior managerial employee whose contract of employment or status confers the authority to do any of the following in the workplace— (i)... [Sub-para. (i) deleted by s. 23 of Act 42 of 1996.] (ii)represent the employer in dealings with the workplace forum; or determine policy and take decisions on behalf of the employer that may be in conflict with the representation of employees in the workplace;... Sections 36 and 43 of the Consumer Protection Act 68 of 2008 contain definitions that are applicable to those sections only. Purpose and interpretation Purpose and interpretation clauses are frequently included in post-1994 legislation. These clauses give an immediate overall picture of what the Act wants to achieve, help to explain the purpose of the Act, and should be used during the interpretation process. Here is one example: 1. Purpose of this Act The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act... Regulations and ministerial powers 207 Ministers empowered to add and change to Schedules (1) The Minister, after consulting NEDLAC, by notice in the Government Gazette may change, replace or add to Schedules 2 and 4 to this Act and the Schedule envisaged in subsection (3). [Sub-s. (1) substituted by s. 50 (a) of Act 42 of 1996 and by s. 26 (a) of Act 127 of 1998.]... [Date of commencement of s. 207: 1 January 1996.] 208 Regulations The Minister, after consulting NEDLAC and when appropriate, the Commission, may make regulations not inconsistent with this Act relating to— (a)any matter that in terms of this Act may or must be prescribed; and (b)any matter that the Minister considers necessary or expedient to prescribe or have governed by regulation in order to achieve the primary objects of this Act. [Date of commencement of s. 208: 1 January 1996.] Page 41 Repeal / amendment of legislation Repeals and amendments of an Act are done by means of another Act. When a new Act is passed, other existing Acts may need to be amended or repealed. The new Act must contain a section that provides for amendments and/or repeals. The conventional way of dealing with repealed or amended Acts is with a schedule at the end of the Act. 211 Amendment of laws Each of the laws referred to in items 1 and 2 of Schedule 5 is hereby amended to the extent specified in those items. 212 Repeal of laws, and transitional arrangements (1) Each of the laws referred to in the first two columns of Schedule 6 is hereby repealed to the extent specified opposite that law in the third column of that Schedule. (2) The repeal of those laws does not affect any transitional arrangements made in Schedule 7. (3) The transitional arrangements in Schedule 7 must be read and applied as substantive provisions of this Act. Short title and commencement The short title is the title of the Act and is usually the last section in an Act. 214 Short title and commencement (1) This Act is called the Labour Relations Act, 1995. (2) This Act will come into operation on a date to be determined by the President by proclamation in the Government Gazette, except in the case of any provision in relation to which some other arrangement regarding commencement is made elsewhere in this Act. [Sub-s. (2) substituted by s. 53 of Act 42 of 1996.] Schedules These are used to deal with technical detail that will otherwise clog up the main body of an Act (eg Schedule 1 of the Constitution which contains a description of the national flag). Schedules are also used when several Acts or parts of Acts are repealed, or for a large number of amendments. Numbering in legislation The following is the traditional numbering system used in primary legislation: Section 1—Arabic numerals Subsection (1)—Arabic numerals in brackets Paragraph (a)—lowercase letter in brackets Subparagraph (i)—roman figures in brackets Item (aa)—italicised lowercase letters in italicised brackets Subitem (AA)—italicised uppercase letters in italicised brackets Where an additional section is inserted into an Act through an amendment Act, the section to be inserted takes the number of the section after which it is to be inserted and gets a capital letter after it. If, for example, you need to insert a new section between the current sections 66 and 67, you will insert section 66A. This system of numbering is necessary, otherwise the whole Act must be renumbered, and such renumbering will have to be done by means of an amendment Act. However, in practical terms renumbering is impossible: every cross-reference in other legislation will have to be amended as well, but references to the previous numbering in case law and textbooks cannot be changed. In older legislation the inserted sections were numbered bis, ter, quat, and so on. For example: 200A Presumption as to who is employee (1) Until the contrary is proved, a person who works for, or renders services to, any other person is presumed, regardless of the form of the contract, to be an employee, if any one or more of the following factors are present: (a)the manner in which the person works is subject to the control or direction of another person;... [S. 200A inserted by s. 51 of Act 12 of 2002.] Please note that when a part of legislation (be it a chapter, section, paragraph, and so on) is repealed, the number of the repealed provision remains as a placeholder to avoid wholesale renumbering. For example, the Income Tax Act, where the entire Part IV of the Act was repealed, but the original numbering remains as a place holder: Part IVUndistributed Profits Tax 48.... [S. 48 repealed by s. 30(1) of Act 101 of 1990.] 49.... [S. 49 repealed by s. 31(1) of Act 101 of 1990.] 50.... [S. 50 repealed by s. 32(1) of Act 101 of 1990.]... Page 43 General Explanatory Note When an amendment Bill is published in the Official Gazette for public comment, there usually is a General Explanatory Note included on the second page, with the following explanation: [ ] Words in bold type and in square brackets indicate deletions from existing enactments; and _______ Words underlined with a solid line indicate insertions in existing enactments. Legislative ‘codes’ Amendments (including insertions and deletions) are also indicated clearly in square brackets after the relevant provisions in the amended version of an Act. These indicators help the interpreter of the Act in a number of ways, for instance: It may indicate a particular date of commencement for the provision; or It will serve as a historical paper trail should a lawyer have to use the previous versions of the legislation (for pending cases or as an aid to interpret the amended provisions). Please bear in mind that although an amendment Act is a separately enacted law-text in its own right, the amendments in an amending Act will later be incorporated into the initial Act. The legislative codes serve as a route map or cross-reference to the amending Acts. In other words, the codes, the list of amending Acts at the beginning of the Act and the amending Acts themselves should correlate. The following examples of such codes are from the Income Tax Act: Where a section was amended: [S. 1 amended by s. 1 of Act 45 of 1961.] Where a definition in the definition section was first amended, then substituted and then finally deleted: ‘dependant’... [Definition of ‘dependant’ substituted by s. 4(1)(b) of Act 88 of 1971 and by s. 4(1)(d) of Act 85 of 1974, amended by s. 3(1)(a) of Act 104 of 1979 and by s. 2(1)(c) of Act 104 of 1980 and deleted by s. 2(b) of Act 90 of 1988.] Where a subsection was inserted without the need for renumbering: [Sub s. (7) added by s. 4(b) of Act 16 of 2004.] Where a paragraph was inserted without the need for renumbering: [Para. (c) added by s. 4(b) of Act 201 of 1993.] Where a section was amended and later repealed in full: 9... [S. 9 substituted by s. 3 of Act 45 of 1961 and repealed by s. 344(1) of Act 51 of 1977.] Where a new section was inserted between ss 16 and 17: [S. 16A inserted by s. 13 of Act 102 of 1967.] Where a new section was inserted between ss 5 and 6, amended several times and later repealed in full: 5A... [S. 5A inserted by s. 6 of Act 88 of 1971, amended by s. 5(1) of Act 85 of 1974, by s. 5 of Act 69 of 1975, by s. 6 of Act 103 of 1976, by s. 6 of Act 113 of 1977 and by s. 5 of Act 104 of 1979 and repealed by s. 4 of Act 104 of 1980.] 2.5 Relationship between legislation and common law The Roman-Dutch common law is not sacrosanct, untouchable or protected from constitutional scrutiny, although some lawyers still believe otherwise. The Constitution is the highest law in the land, and any law (including the common law) inconsistent with the Constitution is invalid (s 2), and in terms of section 39(2), the courts must promote the spirit, purport and objects of the Bill of Rights when they develop the common law. In Carmichele v Minister of Safety and Security (above) the Constitutional Court stressed that a court is obliged to develop the common law in view of the Constitution. In Pharmaceutical Manufacturers Association of SA; In re: Ex parte Application of the President of the Republic of South Africa (above) para 44 Chaskalson P very clearly placed the common law in a constitutional framework: 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 Page 45 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. This does not mean that the different legal traditions have been abolished. We still have RomanDutch common law, African customary law, legislation and all the various sources of law and legal cultures. However, since 1994, both legislation and the common law are trumped (overruled) by the supreme Constitution. The Constitution is the highest law of the land, and trumps both common law and legislation. Although it is presumed that the legislature does not intend to alter the common law more than is necessary, common law may expressly be trumped by legislation. It is important to note that common law is not repealed by legislation, but trumped or overruled. This means that if legislation trumps a rule of common law, and that legislation itself is later repealed, the common-law rule will revive again (Rand Bank Ltd v De Jager 1982 (3) SA 418 (C)). Legislation trumps common law... most of the time. Of course, it is possible for new legislation to provide expressly that it will operate side-by-side with existing common-law rules (for example, s 2(10) of the Consumer Protection Act): (10) No provision of this Act must be interpreted so as to preclude a consumer from exercising any rights afforded in terms of the common law. [Date of commencement of s. 2: 24 April 2010.] However, just to make things really interesting, certain common-law rules (such as presumptions) are used to interpret legislation. The courts and other interpreters may still rely on these common-law maxims and presumptions in so far as they are not in conflict with the values of the Constitution. In the past, the common-law presumptions of interpretation should have played a more important role during the interpretation process. These presumptions may be described as preliminary assumptions as to the meaning of the legislation. In other words, it is assumed that legislation has a particular purpose, which should accomplish an ideal, predefined result. In the absence of a judicially enforceable Bill of Rights in South Africa before 27 April 1994, one could have referred to the presumptions as a rebuttable common-law bill of rights. The principles of justice, fairness and individual rights were always part of our law. Unfortunately, those values were rebutted, ousted, debased and ignored during the era of parliamentary sovereignty. The role and character of the presumptions of statutory interpretation have been fundamentally changed by the new Constitution. If one compares these presumptions with the fundamental rights in the Bill of Rights, it appears that many of the values underpinning the presumptions of interpretation are now to a large extent subsumed in the Bill of Rights. Although these presumptions have not been abrogated by the Constitution, most of the underlying principles of the rebuttable common-law presumptions are reflected in the Constitution. Because the fundamental rights are entrenched in the Constitution, it must be accepted that some of the presumptions will be applied to an increasingly lesser extent in the future, possibly even disappearing as a result of disuse. Some of the more important presumptions will be discussed in the following chapters.