RVW Chapter 3: Commencement of Legislation PDF

Chapter 3Is it in force? The commencement of legislation In the previous chapter, the question was: is it legislation, and if so, what type of legislation is it? Now the question is whether the legislation is in operation, in other words, can it be applied? Before the process of interpretation of le...

Chapter 3Is it in force? The commencement of legislation In the previous chapter, the question was: is it legislation, and if so, what type of legislation is it? Now the question is whether the legislation is in operation, in other words, can it be applied? Before the process of interpretation of legislation can start, the interpreter has to determine whether the legislation is actually in force. It goes without saying that legislation that is not in force cannot be applied; however, as shown below, not applying legislation that had commenced may be just as costly. This chapter deals with when and how legislation commences and takes effect. 3.1 Adoption and promulgation of legislation It is important to distinguish between the adoption (passage) of legislation, and its promulgation. The adoption of legislation by the relevant legislative body refers to the constitutionally-prescribed and other legal processes and procedures required for the draft legislation to become law, including preparation of a draft Bill, introduction of the Bill in the legislature, public participation (if required) as well as the committee stages, voting and assent. (The constitutional procedures to be followed in adopting Acts of Parliament and provincial Acts are found in Chapters 4 and 6 of the Constitution.) Once Parliament has passed (adopted) a Bill, the Act then has to be assented to and signed by the President. In the case of a Bill passed by a provincial legislature, the Premier of that province has to sign the Act. Once assented to and signed, such an Act (parliamentary or provincial) becomes law (ss 81 and 123 of the Constitution). Page 48 However, although such an Act is now legally enacted legislation, it is not yet in operation. For legislation to become operational, it needs to be promulgated. Promulgation refers to the process of putting legislation officially and legally into operation (the commencement or taking effect of the law). In other words: somebody has to ‘pull the trigger’. In the case of subordinate legislation the adoption and promulgation will, in practical terms, happen nearly simultaneously, because the adoption process is designed to be reasonably quick and easy. It was pointed out earlier that not everything published in the Government Gazette is legislation. However, be warned: as will be explained shortly, not all legislation published in the Government Gazette will necessarily be in operation and enforceable. 3.2 Hear ye, Hear ye! The requirement of publication Legislation is promulgated by publication in the Gazette. In terms of 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. In terms of section 162 of the Constitution municipal by-laws may be enforced after they have been published in the Gazette of the relevant province. 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’. However, both sections 13 and 16 of the Interpretation Act require that subordinate legislation must be published in order to commence. It was pointed out earlier that not everything published in the Government Gazette is legislation. However, be warned: as will be explained shortly, not all legislation published in a Government Gazette will necessarily be in operation. The principle underlying the requirement that legislation only commences upon publication is that it should be made known to the population to who it applies. But what if the relevant Gazette only appears days after publication in most of the remote areas of the country? Does the particular legislation commence on the date of publication, or at the time when it actually becomes known throughout the country? In Queen v Jizwa 11 SC 387 it was held that legislation commences on the Page 49 date of publication, irrespective of whether it has come to the knowledge of everybody in the remote areas. Steyn (1981: 180–1) criticises this as an arbitrary application of the rule, and suggests that there should be a period (eg eight days) between the de facto (actual) publication in the Gazette and the de iure (legal) promulgation and taking effect of the legislation. But why is accessibility of the law an issue? In President of the Republic of South Africa v Hugo 1997 (6) BCLR 708 (CC) para 102 the Constitutional Court addressed this question as follows: 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. Two other aspects of the publication requirement must be noted: 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); and 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 were published must be tabled in parliament (s 17 of the Interpretation Act). Certain new legislation (eg the Promotion of Equality and Prevention of Unfair Discrimination Act) also requires regulations made in terms of the particular Act to be furnished to parliament before publication. 3.3 Pulling the trigger: commencement of legislation 3.3.1 Who promulgates? It was explained earlier that the enacting clause of legislation affirms the legislative authority of the particular lawmaker. For example, an Act of Parliament will proclaim ‘BE IT ENACTED by the Parliament of the Republic of South Africa, as follows...’; or a ministerial regulation will state that ‘The Minister of Justice has made the regulations...’. Since it is the lawmaker who ‘speaks’, the resulting legislation is promulgated by the lawmaker in question. For a number of practical reasons, in the case of Acts of Parliament or a provincial legislature, this is not always possible. The authority will then be delegated by the legislature to a member of the executive branch (eg the President or Premier) who will later put the original legislation into operation by means of a proclamation. This is not a general legislative authority to enact subordinate legislation, but rather specific delegated authority to put the legislation into operation on behalf of the particular legislature. In Ex Parte Minister of Safety and Security: In re S v Walters (above) the court 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 lawfully be used to block or veto the implementation of the new law. Case law example: In 1998 the danger of ‘being too early out the starting blocks’ (prematurely putting legislation into operation) was illustrated by the Pharmaceuticals saga. Parliament repealed the Medicines and Related Substances Control Act 101 of 1965 (the 1965 Act) and replaced it with the South African Medicines and Medical Devices Regulatory Authority Act 132 of 1998 (the 1998 Act), and the commencement of the 1998 Act and the repeal of the 1965 Act happened simultaneously. After the new 1998 Act was put into operation—by a presidential proclamation in terms of section 55 of the Act—it became clear that the schedules for the new 1998 Act (to regulate certain controlled medicines) were not enacted to replace the schedules which were repealed with the 1965 Act. This meant that there was now a lack of a regulatory framework for certain controlled medicines. Page 51 The President is answerable to Parliament, and Parliament has the power to correct the decision. But Parliament was not in session at the time. The President ’s authority to put the Act into effect was not conferred by the Constitution (eg s 97), but by Parliament for a specific purpose. The Act was incomplete and would enter into force when the President so determined. Although the administrative arrangements to be made and practical requirements to be met to bring the Act into operation are determined by the President, the President cannot retract his proclamation to undo the commencement of the new Act—only Parliament has that authority. In Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa (above) the Constitutional Court invalidated the presidential proclamation because it lacked a rational basis. It was clear that the President was wrongly advised and mistakenly thought it was appropriate to bring the Act into force. As a result of the court’s invalidation of the President’s proclamation the 1998 Act was never put into operation, and the 1965 Act was still in force. The 1998 Act was subsequently repealed by the Medicines and Related Substances Amendment Act 59 of 2002, and the 1965 Act continued in force as the (renamed) Medicines and Related Substances Act 101 of 1965. Practical example: In terms of section 139(1) of the Firearms Control Act 60 of 2000 the Minister of Police may—by notice (a type of delegated legislation) in the Gazette—declare a firearms amnesty. Although such an amnesty declaration must be approved by Parliament (s 139(2)), the Minister is still the delegated ‘lawmaker’ and promulgating agency, not Parliament. 3.3.2 When is it in force? (a) The default setting: On the date of publication Section 13(1) of the Interpretation Act, as well as sections 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. Under normal circumstances, the date of publication will coincide with the day of commencement provided for in the legislation. (b) Delayed commencement: On a future specified date 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 (other than the date of publication) for its commencement. Since the legislation need not be published again on the future commencement date in the future, it will automatically commence on that specified date. For example: Citation of Constitutional Laws Act 5 of 2005 [ASSENTED TO 23 JUNE 2005][DATE OF COMMENCEMENT: 27 JUNE 2005] Another danger is ‘not hearing the gun going off’ (not realising that new legislation had in fact commenced). Practical example: In 2009 a failure by City of Johannesburg Metropolitan Municipality officials to take note that section 17 of the Administrative Adjudication of Traffic Offences Act 46 of 1998 commenced in Johannesburg was widely reported in the press. The change in the law now means that, instead of issuing a notice to pay a fine for certain traffic offences in terms of section 56 or 341 of the Criminal Procedure Act 55 of 1977, the notice must be issued in terms of section 17 of the Administrative Adjudication of Road Traffic Offences Act (AARTO). The prescribed date of commencement of section 17 of AARTO for the City of Tshwane Metropolitan Municipality was 1 July 2008; and in respect of the area of the City of Johannesburg Metropolitan Municipality it was 1 November 2008. However, Johannesburg Metro officials failed to implement AARTO in time: between 1 November 2008 and 11 February 2009 thousands of traffic fines were incorrectly issued by the Metro police in terms of the Page 53 Criminal Procedure Act. This meant that the fines were invalid, because they were issued in terms of the wrong legislation. Unpaid fines had to be withdrawn, and paid fines had to be refunded, resulting in massive financial losses for the Johannesburg Metro. (c) Delayed commencement: On an unspecified future date still to be proclaimed Where an Act will commence on date to be determined by for instance the President, the President’s proclamation is all that is required. The Act need not (and will not) be published again, and will commence on the date indicated in the proclamation. This means that since lawyers will not know in advance when that proclamation will be published, every Gazette has to be scrutinised. Section 13(3) of the Interpretation Act provides that if any 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. (d) 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. As will be explained in 3.4 (below), constitutional and common-law rules (eg due process and fairness) make the application of legislation with a retro-effect very difficult, which means that this type of commencement is the exception rather than the rule. For example: Repeal of Volkstaat Council Provisions Act 30 of 2001 [ASSENTED TO 12 NOVEMBER 2001][DATE OF COMMENCEMENT: 30 APRIL 2001] (e) A combination of the above When published, there may be a confusing combination of possible commencement options (specified or unspecified future dates) for various parts of the legislation. This means that interpreters have to be very careful as to whether a particular provision is in force. For example—a specific commencement date (with proviso): Most of the Act will commence on a fixed date, except a number of provisions (as indicated in the Act itself) which may commence at a later specified date and / or later unspecified dates still to be proclaimed. Promotion of Access to Information Act 2 of 2000 [ASSENTED TO 2 FEBRUARY 2000][DATE OF COMMENCEMENT: 9 MARCH 2001] (Unless otherwise indicated) Another example—unspecified commencement date in the future (with proviso): Some provisions of the Act will commence at later unspecified dates still to be proclaimed, while most of the provisions will commence on specified dates (as indicated in the Act itself). This was the way the Children’s Act 38 of 2005 was published initially, with the majority of the provisions commencing on 1 July 2007: Children’s Act 38 of 2005 [ASSENTED TO 8 JUNE 2006][DATE OF COMMENCEMENT: TO BE PROCLAIMED] (Unless otherwise indicated) However, after it was amended by the Children’s Amendment Act 41 of 2007 the date of commencement was changed: Children’s Act 38 of 2005 [ASSENTED TO 8 JUNE 2006][DATE OF COMMENCEMENT: 1 APRIL 2010] (Unless otherwise indicated) In practical terms, this meant that the majority of the Act actually commenced on 1 July 2007, and the remainder took effect on 1 April 2010. Page 55 An example from the Constitution: Early 1997 the Constitution provided an interesting mix of commencement dates for itself. In terms of section 243 (‘Short title and commencement’) of the Constitution the Constitution was to come into effect as soon as possible on a date set by the President by proclamation, which may not be a date later than 1 July 1997. However, the President may set different dates before 1 July 1997 for different provisions of the Constitution. Most of the Constitution was then put into operation by presidential proclamation, after which the heading of the Constitution stated that it will commence on 4 February 1997, unless otherwise indicated. The ‘otherwise indicated’ was expressly provided for in section 243(5) of the Constitution, which provided that ten sections of the Constitution will only become operational on 1 January 1998. (f) When does a ‘day’ start? In terms of section 13(2) of the Interpretation Act ‘day’ begins immediately at the end of the previous day (ie immediately after midnight at 00:01). This effectively means retroactive commencement, because by the time the Gazette is published, the legislation could already have been in force for a few hours. 3.3.3 Jumping the gun? Section 14 of the Interpretation Act Two interesting aspects of the commencement of legislation are dealt with in section 14 of the Interpretation Act. Section 315 (‘Short title and commencement’) of the Children’s Act provides that the Act will commence on a date to be fixed by the President by proclamation. The Act also provides that section 315 commences on 1 July 2007, which means that Parliament itself promulgated the provision which authorises the President to put those remaining provisions into force. But what if the entire Act has to be put into operation by a presidential proclamation? After all, subordinate legislation obtains its validity from original legislation. How can the President issue a proclamation authorised by an enabling Act that itself is not operational yet? To avoid the possibility of an endless circle of invalidity, section 14 of the Interpretation Act 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 another practical dilemma. Sometimes the practical application and enforcement of an Act depend on a regulatory framework and structures being in place when that Act commences. However, the subordinate legislation to support the enabling Act cannot take effect before the Act is operational. Section 14 solves that problem by providing for 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. This means that the necessary preparations can be made and structures provisionally put in place—even before the enabling Act is operational—to ensure that the total legislative scheme is in place and ready to be implemented when the Act enters into force. This is exactly what the health officials should have done to avoid the embarrassing Pharmaceuticals fiasco (explained above). Had the necessary regulatory framework been prepared in advance, it would have been ready to be put into operation at the same time the President put the Act into effect by proclamation. Case law example: The application of section 14 of the Interpretation Act was considered in Cats Entertainment CC v Minister of Justice; Van der Merwe v Minister of Justice; Lucksters CC v Minister of Justice 1995 (1) SA 869 (T). The Minister of Justice, acting in terms of the Lotteries and Gambling Board Act 210 of 1993, invited nominations for candidates for the Lotteries and Gambling Board (to be established in terms of the Act). The question was whether this could be done prior to the commencement of the Act. Were the Minister’s actions premature and unlawful, or necessary to bring the Lotteries and Gambling Board Act into operation, and therefor lawful? The court held that the purpose of the Act was to establish the Board which was to be responsible for the activities set out in the Act. It was clear from the Act, without the Board, the Act could not come into operation. The court held that in terms of section 14 the Minister could only exercise his powers between the passage of the Act and its promulgation in so far it might be necessary to put the enactment into operation at the date of commencement. Page 57 It is important to note that in R v Magana 1961 (2) SA 654 (T) the court correctly pointed out that the ‘bringing the law into operation’ in section 14 of the Interpretation Act also includes ‘rendering it operative’, in other words, making it possible for the Act to be applied fully. Practical example: The Jurisdiction of Regional Courts Amendment Act 31 of 2008 was published on 5 November 2008, and Act authorised the Minister of Justice and Constitutional Development to put it into operation at a later date. The Minister then determined that the Act will come into operation on 9 August 2010. The Act furthermore provided that the Minister may enact subordinate legislation to determine the areas of jurisdiction of the Regional Civil Courts, the places where the courts will sit, as well as the monetary jurisdiction of the courts. It goes without saying that these issues were crucial for the operation of the courts when the Act eventually commenced. On 29 July 2010 the Minister published subordinate legislation (a notice) in which these matters were dealt with. Of course, this led to a number of arguments and opinions in legal circles: it was incorrectly argued by a number of lawyers that the Minister’s notice was invalid because it was published before the enabling Act took effect. However, in the process two important aspects were missed. First, section 14 of the Interpretation Act does in fact make provision for that kind of legislative preparations pending the commencement of the enabling Act. The second (and crucial) fact is that the Minister’s notice very clearly stated that it will commence on 9 August 2010, which of course was simultaneous with the commencement date of the enabling Act! 3.4 Back in the time warp: The presumption that legislation applies only to the future 3.4.1 General principle: let bygones be bygones The time-honoured principle (Transnet Ltd v Chairman National Transport Commission 1999 (4) SA 1 (SCA)) that legislation should only apply to the future is one of the basic foundations of a legal system based on the rule of law. In fact, in the old English case of Gardner v Lucas (1878) 3 App Cas 582 it was described a ‘general rule of every civilised country’. This principle is reflected in the common-law presumption that the legislature intends to regulate future matters only, and not the past (Transnet Ltd v Ngcezula 1995 (3) SA 538 (A)). According to case law, this rule is based on the prevention of unfair results, the prevention of unreasonable results, and to ensure predictability and legality: individuals must be able to know what the law is and to adapt their conduct accordingly. It is therefore presumed that the legislation applies only to cases or transactions occurring after the coming into operation of the Act in question (Principal Immigration Officer v Purshotam 1928 AD 435), so that vested rights are not taken away (Curtis v Johannesburg Municipality 1906 TS 308). In S v Mhlungu 1995 (3) SA 867 (CC) 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. In Veldman v Director of Public Prosecutions, Witwatersrand Local Division 2007 (3) SA 210 (CC) the well-established common-law principle was given express constitutional backing. The court affirmed that unless otherwise provided, legislation was not to be interpreted to take away existing rights and obligations, because this principle is basic to the notions of fairness and justice that are integral to the rule of law, a foundational principle (s 1) of the Constitution. 3.4.2 The difference between retroactive and retrospective In practical terms the rule that legislation only applies to the future means that legislation should not have a retro-effect. In National Director of Public Prosecutions v Carolus 1999 (2) SACR 607 (SCA) paras 33—34 the court explained the difference between the two types of retro-effect of legislation: Retroactivity (‘true or strong’ retro-effect) In this case the legislation operates as of a time prior to its enactment, in other words, it operates backwards in time and changes the law from what it was. Page 59 For example: The Terrorism Act 83 of 1967 was assented to on 12 June 1967 and published on 27 June 1967, but section 9(1) of the Act provided that, with the exception of a few provisions, the Act was deemed to have come into operation on 27 June 1962. This means the Act was deemed to have been in force five years before it was adopted and published. Retrospectivity (‘weak’ retro-effect) In this case the legislation operates for the future only, in line with the basic principle. The legislation is prospective, but could impose new results in respect of a past event. It operates forwards, but it ‘looks backwards’ in that it attaches new consequences for the future to an event that took place before the legislation was enacted. In other words, it changes the law from what it otherwise would be with respect to a prior event. The legislation commences for the future from a particular date, but could apply to new cases and processes (that will start after the commencement), based on earlier facts and circumstances (that arose prior to the commencement). Bear in mind that there is no express retroactivity involved here, because there is no commencement and application of the legislation ‘backwards in time’. 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): in other words, there could be a practical retro-effect. 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 (existing) rights or violate substantive rights. For example: Section 7 of the Children’s Act of 2005 provides as follows: 17 Age of majority A child, whether male or female, becomes a major upon reaching the age of 18 years. [Date of commencement of s. 17: 1 July 2007.] When section 7 of the Children’s Act commenced, it also repealed the Age of Majority Act 57 of 1972, which provided that a person reached the age majority upon reaching the age of 21 years. After 1 July 2007 a person becomes a major immediately upon reaching the age of 18. This is normal—the Act operates into the future as expected. However: what if on 30 June 2007 the person is 19 years old and no longer a ‘child’ (in other words, already older than 18), but not yet older than 21? The person cannot become a major in terms of the Age of Majority Act anymore (because it was repealed when section 17 of the Children’s Act became operational), but the person was already older than 18 when section 17 became operational. In this case the Act has retrospective effect: as soon as the 19-year-old person moves into the ambit of section 17 after 1 July 2007, that person will automatically become a major. The Act is not retroactive: persons who reached the ‘previous’ age of majority of 21 before 1 July 2007 will not be affected, and the effects of their age of majority will not be ‘adjusted’ retroactively to that of 18 somewhere in the past. Enter 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. This means that the legislation operates backwards in time, or, history is rewound. Because this kind of ‘legislative time travel’ is physically impossible, the legislation uses a deeming clause: the legislation is deemed to have commenced on a date prior to publication date. But what is a deeming clause? In the case of retroactive commencement it is a legislative exercise in ‘virtual reality’ (or legal makebelieve). Since a commencement date before the enactment of the legislation is impossible in real physical terms, the legislation creates a legal fiction: The legislation does not change the fact; it makes-believe that the facts (reality) are otherwise. In other words, the deeming clause creates a presumption: in this case by providing that something is ‘deemed’ to have happened. Page 61 3.4.3 What prevents legislation from applying with retro-effect? This time-honoured principle is not an absolute rule. In terms of South African law, three legal ‘obstacles’ must be removed before legislation may apply with retro-effect (both retroactive and retrospective). (a) The common-law presumption Before the advent of constitutionalism and a supreme constitution, the common-law presumption that legislation only applies to the future was the only legal obstacle that stood in the way of laws with a retro-effect. However, as explained earlier, legislation trumps common law, which means that the legislature could trump the presumption either expressly (eg the Terrorism Act of 1967), or by necessary implication. Remember, the presumption states that legislation only applies for the future, unless the legislation provides otherwise. By necessary implication means that the legislature actually wanted to rebut the presumption, but failed to express that intention clearly in the legislation. Although not expressly provided in the legislation, it is the only reasonable conclusion that can be reached—the presumption was rebutted by necessary implication. But if the rebuttal of the presumption is not expressly stated in the legislation, how will the courts determine whether it is done by necessary implication? Such a conclusion will depend on the court’s interpretation of the legislation in question, but remember, this principle is all about considerations of fairness and vested rights. This means that a court needs to be convinced that the legislation by implication should have a retro-effect. Although each case will depend on the legislation as a whole, as well as the surrounding circumstances, the courts have laid down a few of guidelines which may help to determine whether the presumption is rebutted by necessary (reasonable) implication, for instance: Such a necessary implication could be inferred if the legislation would result in absurd or unfair results should it not have retro-effect (Lek v Estate Agents Board 1978 3 SA 160 (C)); and in Kruger v President Insurance Co Ltd 1994 2 SA 495 (D) 503G the court held that it is easier to decide (by necessary implication) that legislation not applies to the future only 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. Case law example: In R v Mazibuko 1958 (4) SA 353 (A) the court heard an appeal against the death sentence imposed for robbery. The Criminal Procedure Act 56 of 1955 was amended after the crime had been committed, but before sentence was passed. In terms of the amended Act, the death sentence could be imposed after a conviction for robbery with aggravating circumstances. The court applied the presumption that legislation only applies for the future, and found that the legislature had not intended that the increased penalty should apply retroactively. The earlier, more lenient penalty was imposed. The increased penalty could only have been imposed in respect of crimes committed after the amendment Act came into effect. The court relied on the common-law rule that if there is a difference in penalties between the date of the crime and the date of the trial, the date of the crime will be decisive. (b) New offences and higher penalties The second ‘obstacle’ is the prohibition of new offences and higher penalties with retro-effect in section 35 of the Constitution (‘Arrested, detained and accused persons’). Section 35(3)(l) 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. In other words, it is a basic human right that a new offence may not be created with retro-effect. Furthermore, 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. The effect of these two provisions in the Bill of Rights is that new offences cannot be created, and existing punishment may not be increased either retrospectively or retroactively. (c) Other constitutional rights Should the first ‘obstacle’ (the common-law presumption) and the second ‘obstacle’ (new offences and higher penalties) have been circumvented successfully, the retroactive or Page 63 retrospective application of the legislation may still be prevented by other provisions in the supreme Constitution (the third ‘obstacle’). Aspects such as the right to property, the right to fair administrative justice, the right to access of information, etcetera may also play a role in determining whether the legislation only applies to the future or not. Whether or not the legislation passes general constitutional scrutiny in order to have retroactive or retrospective application will depend on the facts and rights involved in each case. Practical example: Item 8(4)(a) and (b) Schedule 1 of the Firearms Control Act 60 of 2000 provides a very good example of a retrospective provision ‘defeating’ the three legal obstacles against the retro-effect of legislation: (a)Despite the repeal of the previous Act, any person who, before such repeal, committed an act or omission which constituted an offence under that Act and which constitutes an offence under this Act, may after this Act takes effect be prosecuted under the relevant provisions of this Act. (b)Despite the retrospective application of this Act as contemplated in paragraph (a), any penalty imposed in terms of this Act in respect of an act or omission which took place before this Act came into operation may not exceed the maximum penalty which could have been imposed on the date when the act or omission took place. First of all—why is the provision retrospective (and not retroactive)? It is retrospective because the Firearms Control Act 60 of 2000 does not contain any deeming provision indicating that it commenced prior to the date on which it was assented to (4 April 2001). Furthermore, item 8(4)(b) itself correctly states that paragraph (a) contemplates retrospective application of the Act. Secondly—will this retrospective application of the Act ‘defeat’ the three legal obstacles against retro-effect? The first obstacle (the common-law presumption) is clearly rebutted. Legislation trumps common law, and the Act clearly overrides the common-law rule. The second obstacle (s 35 of the Constitution) is also defeated. Paragraphs (a) and (b) clearly state that the new Firearms Control Act will be applicable to acts or omissions committed in terms of the now-repealed Arms and Ammunition Act 75 of 1969, if those actions are also offences under both the repealed 1969 Act and the new 2000 Act (no new crimes are created); and the penalties for such offences in terms of the new 2000 Act should not be higher that they would have been under the repealed 1969 Act. Since there are no obvious violations of any other constitutionally protected right, the third obstacle is also defeated. This means that the retrospective application of the Firearms Control Act 60 of 2000 would pass constitutional scrutiny and may impose new results in respect of past events. However, please note that such retrospective prosecutions will not apply to pending cases not yet finalised (to be discussed in chapter 4 below). Another example: let us assume a state of emergency is declared with express retroactive application. Such express retroactivity will trump the first ‘obstacle’ (the common-law presumption), and since there do not seem to be any new offences or increased penalties, the second ‘obstacle’ (s 35(3)) may also be bypassed. But the third ‘obstacle’ cannot be breached: in terms of section 37(2)(a) of the Constitution a state of emergency may never be retroactive, but only prospective. Case law example: In S v Ndiki 2008 (2) SACR 252 (Ck) counsel for the accused argued that the Electronic Communications and Transactions Act 25 of 2002 (ECT Act) did not retrospectively apply to his client, because it came into operation after he committed of the offences. This was a good example of possible retrospective application of the new ECT Act: the Act was clearly intended for the future and the trial of the accused only started after the Act had commenced, but the alleged offence was committed before Page 65 the Act became operational. On a timeline the events progressed from when the offences were committed past the commencement date into the ambit of the ‘forward-looking’ Act. One of the arguments raised by state was that the new rules of evidence are procedural in nature and that it is one of the exceptions to the presumption against the retroactive or retrospective application of legislation (see also 3.4.4 below). Although the court in the end did not have to rule on the retrospective application of the Act (for other technical reasons), it did, however, venture an opinion on the issue. One of the strong considerations against retrospective operation (in this case) of a statute is that unfair consequences might result, or that it might interfere with existing rights. The court pointed out that the new legislation must be read in the light of the Constitution to give effect to its fundamental values. To the extent that the retrospective application of the ECT Act allows the admission of evidence that would otherwise not constitute legal evidence, there is merit in the argument that it affects the substantive right of an accused to a fair trial in general and should not operate retrospectively. 3.4.4 No harm done: exceptions to the rule There are two instances when the principle that legislation only applies to the future will not apply: where the legislation changes procedure or grant benefits. At first glance, procedure is red tape, neutral administrative arrangements, and of course, nobody will argue that the retroactive granting of benefits is unfair! (a) If the enactment deals with procedure As a general rule, the presumption will not apply if the legislation deals with procedure. Although procedure may seem to be neutral and harmless, the courts have indicated that there is a fine line between ‘neutral’ procedure (formalities) and substantive rights. If substantive rights and obligations remain unimpaired and capable of enforcement by using the newly prescribed procedure, then the general principle does not apply (Minister of Public Works v Haffejee 1996 (3) SA 745 (A)). However, if new procedure violates substantive rights, the general principle against legislation with retro-effect will apply and the three ‘obstacles’ come into play. In Euromarine International of Mauren v The Ship Berg 1986 (2) SA 700 (A) the court held that a provision in the relevant Act not only created a new remedy, but also imposed a new obligation on persons who had no legal obligations in the past. This is an example where substantive (and not merely procedural) rights are involved, and the presumption that legislation only applies for the future will apply. (b) If the retro-effect favours the individual If the retrospective operation of legislation will benefit the individual, the presumption also does not apply. Remember, the reason for the principle is to avoid unfair results. If a person will receive a benefit, and no vested rights are taken away, the retroactive or retrospective application of the legislation will be beneficial and the presumption becomes unnecessary. Case law example: In R v Sillas 1959 (4) SA 305 (A) an amending Act reduced the existing penalty after the accused had committed the crime, but before sentence was passed. The court found that the presumption that legislation only applies for the future had been rebutted by ‘other considerations’. The amendment was applied retroactively and the new, more lenient penalty was imposed. (One of the ‘other considerations’ might well have been the presumption that the legislature intends to burden its subjects as little as possible.) The court also found that the rule that the penalty in force when the crime was committed must apply, only applies to amendments which increase the penalty. Where new legislation reduces the penalty, the time when sentence is passed is decisive in determining whether amended penalties apply to an accused or not. 3.4.5 Retroactivity and other constitutional issues The principle that legislation should only be prospective also applies to the Constitution. This means that the Constitution itself is also not retroactive: As explained earlier, all law in force when the Constitution took effect, remains in force subject to amendment or repeal, and consistency with the Constitution (item 2 Schedule 6 of the Constitution); and all proceedings pending before a court when the new Constitution took effect, must be finalised as if the new Page 67 Constitution had not been enacted, unless the interests of justice require otherwise (item 17 Schedule 6 of the Constitution). However, any legislative process started in terms of the interim Constitution, but not yet finalised when the 1996 Constitution took effect, must be finalised in terms of the 1996 Constitution (item 5 Schedule 6 of the Constitution).