Statutory Interpretation 6th Edition PDF

Statutory Interpretation An Introduction for Students Sixth edition Christo Botha Hons BA (Unisa) LLB (Pret) LLD (Unisa) Professor of Public Law, University of Pretoria Advocate of the High Court of South Africa Fellow of the Salzburg Global Conference 6TH ED © Juta and Company (Pty) Ltd 1st floor, Sunclare Building, 21 Dreyer Street Claremont, 7708, Cape Town PO Box 24299, Lansdowne 7779 PO Box 44368, Claremont 7735 www.jutalaw.co.za This work is protected by copyright under the Berne Convention. In terms of the Copyright Act 98 of 1998, no part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from the publisher. The author and the publisher believe on the strength of due diligence exercised that this work does not contain any material that is the subject of copyright held by another person. In the alternative, they believe that any protected pre-existing material that may be comprised in it has been used with appropriate authority or has been used in circumstances that make such use permissible under the law. Cover design by Comet Design ISBN (print): 978 0 70219 858 8 ISBN (epub): 978 0 70219 953 0 Page v Preface Teaching interpretation of statutes to the so-called Y- generation—armed with the newest tablet computers, smart phones and other electronic gadgets, and well-trained in social-media interaction—at South African law schools is not for the faint-hearted. Since the preface to the fourth edition of this book was written in 2005 nothing has changed. If anything, students’ reading and writing skills are worse, and they know (and care) less and less about time and space. For many students Wikipedia, Blackberry, Twitter and Facebook represent the extreme limits of their contextual world. One of the current education-speak issues workshopped by South African legal academics is whether or not we ‘over- teach’ law students (other buzz phrases are ‘closing the curriculum gap’, ‘blended learning’, ‘enquiry-led teaching’, ‘expectancy zones’ and ‘scaffolding of threshold concepts’); a lecturer should not be a ‘sage on the stage’, but rather a ‘guide on the side’; et cetera and so on and so forth. However valuable these profound deliberations may turn out to be in the future, in the meantime fewer law lecturers at understaffed faculties have to teach more and more hopelessly under-taught and over-confident students who enter universities straight out of a collapsing school system. According to modern educationists, lecturers just have to accept this situation as an unfortunate given. Get used to it, get over it and get on with it, because (according to those in the know) if you are not part of the solution, you are part of the problem. After all, to quote from one of the many anonymous parodies of Rudyard Kipling’s If, lecturers are supposed to be quite adaptable: If you can write, and not be tired of writing Or being laughed at, aren’t reduced to tears; Or if ignored, do not indulge in hating, Or being fought, do not give way to sneers; If you can talk with fools and keep your virtue; If you can read until your eyes are gone, Yours are the Clouds and nothing else, you fool you and which is less—you’ll be a lecturer, my son! Page vi Mind you, since beleaguered lecturers are struggling in the trenches, Alfred Lord Tennyson’s Charge of the Light Brigade may be more apt! On the other hand the Y-generation law students will have to accept that, like toll roads and rock ’n roll, interpretation of statutes is here to stay. During recent discussions between the Council for Higher Education, members of the South African Law Deans’ association, law teachers and members of the professions, one of the required core skills of South African law graduates was identified as having ‘the ability to read and interpret statutes and legal documents’. So: as the Americans are fond of saying, let’s cut to the chase. Law students may consider interpretation of statutes boring, confusing and instantly forgettable, but the legislation and Government Gazettes and Green Papers will still be waiting out there, and the principles, rules and maxims needed to interpret legislation will accompany all lawyers for the rest of their careers. Because this book is aimed at the next generation of lawyers, allow me a number of explanatory clauses and disclaimers: It is largely based on my own re-interpretation and personal adaptation of Lourens du Plessis’s suggested practical and inclusive approach to interpretation. However, while I accept that there may be different viewpoints about my categorisation of certain presumptions and rules within the suggested inclusive approach, it should be borne in mind that this book is, first and foremost, a teaching tool. Furthermore, this is an introductory textbook for undergraduate students—a basic and ‘student-friendly’ introduction to the fundamental principles of the interpretation of legislation. It is not intended as an exhaustive reference work or complete compendium. After all, this year’s landmark case is next year’s overturned decision, and today’s draft Bill is tomorrow’s repealed Act... Let us be frank about it: it is impossible to teach every rule, maxim, principle, theory and presumption of interpretation to a large group of students in a single semester (paradoxically, those perceived dangers of ‘over- teaching’ are sometimes counterbalanced by sheer numbers and lack of time). This introduction for students does not cover every aspect of the discipline, and it cannot teach students how to interpret legislation. It is merely an attempt to teach Page vii students the most important rules and principles of the interpretation of legislation, as well as some of the necessary skills required to find solutions to future problems. In a way it is similar to teaching a novice the basic principles of golf: it is impossible to teach every possible shot in just a few coaching sessions. However, a player who has mastered the fundamentals of the golf swing should have the basic skills to deal with a plugged lie in the bunker, to play a high fade into the wind or to take on a bump-and-run chip from a tight lie. This also means that the golfer has to hone those skills on the course, not only on the practice range. But then again, interpretation of legislation and golf are not exact sciences: from time to time there will be bad drafting or out-of-bounds shots to deal with! It is suggested that this book be used as part of an integrated teaching methodology. The rules of statutory interpretation cannot be taught in isolation, and should be continually linked to other law subjects (preferably in the same year of study), with suitable practical examples and references to relevant legislation. Practical examples and hypothetical scenarios will not only enable the students to link the rules and principles of interpretation to the ‘real’ world, but will also emphasise the interrelatedness of statutory interpretation and the rest of the law. Needless to say, such an approach will necessarily require more problem- based examples during lectures and contact sessions. This fifth edition is not only the product of more than three decades’ efforts (including misguided visions and mistakes) to teach interpretation of statutes to undergraduate students, but it has also been influenced by lectures to the association of Regional Magistrates of Southern Africa and by my certificate course in legislative drafting (offered by the University of Pretoria). I also have to acknowledge the positive criticism, innovative ideas, comments and suggestions of a number of my friends: Rassie Malherbe, Isabeau Southwood, Bernard Bekink, Pieter Carstens, Jakkie Wessels, Mike van Heerden, Koos Malan, Werner Krull and all the other usual suspects. However, all the mistakes, shortcuts and wrong interpretations will inevitably be deemed to be mine. of course, since my personal mantra is ‘Why procrastinate if you can do it tomorrow’, Linda van de Vijver of Juta deserves a medal for her infinite patience. Page viii Finally, this fifth edition includes supplementary material containing the Constitution of the Republic of South Africa, 1996 and the Interpretation Act 33 of 1957 CHRISTO BOTHA PRETORIA 2012 Page ix Contents Preface Part 1: Statute law 1 General Introduction 1.1 Legislation as source of law 1.2 What is interpretation of statutes? 1.3 The new constitutional order 2 The term ‘legislation’ 2.1 What is legislation? 2.2 Categories of legislation 2.2.1 Chronological categories (a) Legislation before 1806 (b) Old order legislation (c) Legislation in the new constitutional order since 1994 2.2.2 Hierarchical categories (a) The Constitution (b) Original legislation (c) Subordinate (delegated or secondary) legislation 2.2.3 Old wine in new bags: Applying old order legislation in the new constitutional order 2.2.4 ‘Law of general application’ 2.3 What is not legislation? 2.4 Legislative structure and ‘codes’ 2.5 Relationship between legislation and common law 3 Is it in force? The commencement of legislation 3.1 Adoption and promulgation of legislation 3.2 Hear Ye, hear Ye! The requirement of publication Page x 3.3 Pulling the trigger: Commencement of legislation 3.3.1 Who promulgates? 3.3.2 When is it force? (a) The default setting: on the date of publication (b) Delayed commencement: on a future specified date (c) Delayed commencement: on an unspecified future date still to be proclaimed (d) Retroactive commencement (e) A combination of the above (f) When does a ‘day’ start? 3.3.3 Jumping the gun? Section 14 of the Interpretation 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 3.4.2 The difference between retroactive and retrospective 3.4.3 What prevents legislation from applying with retro-effect? (a) The common-law presumption (b) New offences and higher penalties (c) Other constitutional rights 3.4.4 No harm done: Exceptions to the rule (a) If the enactment deals with procedure (b) If the retro-effect favours the individual 3.4.5 Retroactivity and other constitutional issues 4 Is it still in force? Changes to and the demise of legislation 4.1 General Page xi 4.2 Changes to legislation 4.2.1 Formal amendment of legislation by a competent legislature 4.2.2 Modificative interpretation by the courts (a) Attempts to save legislation during constitutional review (b) Modification of the legislative meaning during interpretation 4.3 The demise of legislation 4.3.1 Invalidation of legislation by the courts (a) Unconstitutional provisions (b) Invalid subordinate legislation 4.3.2 Repeal of legislation by a competent lawmaker (a) Substitution (repeal and replace) (b) Repeal (deletion) 4.4 Suspension of legislation already in force 4.5 The presumption that legislation does not intend to change the existing law more than is necessary 4.5.1 Common law 4.5.2 Legislation Part 2: How legislation is interpreted 5 Theoretical foundations 5.1 Introduction 5.2 Jurisprudential perspectives on statutory interpretation 5.2.1 The general principles of hermeneutics 5.2.2 The influence of certain modern critical theories (a) The Critical Legal Studies Movement (CLS) (b) Deconstruction (c) The linguistic turn 5.3 South African theories of interpretation 5.3.1 The orthodox text-based approach Page xii 5.3.2 The text-in-context approach 5.3.3 The influence of the supreme Constitution 5.3.4 A practical, inclusive method of interpretation 6 A practical, inclusive methodology: The five interrelated dimensions of interpretation 6.1 The language dimension 6.1.1 Basic principles (a) The initial meaning of the text (b) Every word is important (c) No addition or subtraction (d) The continuing time-frame of legislation: the law is always speaking 6.1.2 Internal language aids to interpretation (a) The legislative text in another official language (b) The preamble (c) The long title (d) The definition clause (e) Express purpose clauses and interpretation guidelines (f) Headings to chapters and sections (g) Schedules 6.1.3 External language aids to interpretation (a) Dictionaries and linguistic evidence (b) Examples and footnotes (c) Definitions in the Constitution and the Interpretation Act (d) The clock is ticking: computation of time 6.2 The holistic (contextual and structural) dimension: Don’t miss the wood for the trees 6.2.1 Legislation must be construed within the total legal picture Page xiii 6.2.2 Balance between text and context 6.2.3 Structure of legislation 6.2.4 Conflicting legislation (a) Legislation has a purpose: the presumption that legislation does not contain futile or nugatory provisions (b) Conflicts with other legislation 6.2.5 The King can do no wrong: The presumption that government bodies are not bound by their own legislation 6.3 The value-laden (teleological) dimension: The ghost in the machine 6.3.1 The new constitutional approach to statutory interpretation, or, moving from bumper stickers to substantive interpretation 6.3.2 Ubuntu 6.4 The historical dimension: Lest we forget 6.4.1 Preamble to the constitution 6.4.2 Prior legislation 6.4.3 Preceding discussions (a) Debates during the legislative process (b) Commission reports 6.4.4 The mischief rule 6.4.5 Contemporanea expositio 6.4.6 Subsecuta observatio 6.5 The Comparative Dimension 6.5.1 Foreign law 6.5.2 International law Part 3: Some practical issues and tricks of the trade: Judicial law-making during interpretation, and peremptory and directory provisions 7 Judicial law-making during concretisation 7.1 What is concretisation? Page xiv 7.2 The law-making function of the courts 7.2.1 The text-based viewpoint 7.2.2 The text-in-context viewpoint 7.2.3 The myth that courts merely interpret the law 7.2.4 Factors which support and limit judicial law-making during statutory interpretation (a) Restrictions on the law-making discretion of the courts (b) Factors which support judicial law-making 7.3 Possibilities during concretisation 7.3.1 No problems with correlation 7.3.2 Modification of the meaning is necessary (a) Restrictive interpretation (b) Extensive interpretation 7.3.3 No modification of the meaning is possible 8 Peremptory and directory provisions 8.1 General introduction 8.2 Some guidelines 8.2.1 Semantic guidelines 8.2.2 Jurisprudential guidelines 8.2.3 Presumptions about specific circumstances Part 4: Constitutional interpretation 9 Constitutional interpretation 9.1 Introduction 9.1.1 Constitutional interpretation and ‘ordinary’ statutory interpretation 9.1.2 The supreme Constitution and ordinary legislation 9.2 Why is a supreme Constitution different? 9.2.1 A constitution as formal power map Page xv 9.2.2 Substantive constitutionalism 9.2.3 Constitutional symbolism 9.3 How to interpret the constitution 9.3.1 Constitutional guidelines 9.3.2 A comprehensive methodology (a) Grammatical interpretation (b) Systematic (or contextual) interpretation (c) Teleological (value-based) interpretation (d) Historical interpretation (e) Comparative interpretation 9.4 Avoiding unconstitutional legislation 9.4.1 The limits of corrective interpretation during constitutional review 9.4.2 Reading-down 9.4.3 Reading-up 9.4.4 Reading-in 9.4.5 Severance 9.5 Contemporary challenges, or, whose Constitution is it anyway? 9.5.1 The counter-majoritarian difficulty 9.5.2 The constitutional values 9.5.3 Fostering a rights culture 9.5.4 Constitutional interpretation and social justice Bibliography Table of Cases Index Supplementary material The Constitution of the Republic of South Africa, 1996 The Interpretation Act 33 of 1957 Page 1 Part 1 Statute law 1 General Introduction 2 The term ‘legislation’ 3 Is it in force? The commencement of legislation 4 Is it still in force? Changes to and the demise of legislation Page 3 Chapter 1 General Introduction 1.1 Legislation as source of law In order to understand and apply the rules, principles and canons required to interpret legislation (Part 2), lawyers need to be proficient in the technical ‘black letter’ or ‘nuts and bolts’ aspects of legislation explained in Part 1. These aspects include the various types and categories of legislation, the structural parts or components of legislation, and the sometimes confusing ‘codes’ used in legislative texts, as well as the challenging interrelationship between existing old order legislation and new post-1994 laws. The law consists of all forms of law (common law, statute law, indigenous (customary) law, case law), while a law is a written statute enacted by those legislative bodies which have the authority to make laws. Legislation (‘enacted law-texts’ or statute law) comprises all the different types of enacted legislation, such as Acts of Parliament, provincial legislation, municipal by- laws, proclamations and regulations. An Act (upper case) refers to a parliamentary statute or the legislation of a provincial legislature (wet). An act (lower case) refers to conduct or action (optrede or handeling) such as the act of a government official or an organ of state. The common law is composed of the rules of law which were not originally written down, but came to be accepted as the law of the land. The common law is made up of the underlying original or basic legal principles. South African common law is known as Roman-Dutch law and most of it originated during the seventeenth century in the erstwhile province of Holland. Common law needs to be distinguished from codifications, which are statutory compilations of all the legal principles Page 4 relating to a particular branch of the law (eg a criminal code). The common law may be changed by original legislation, but if there is no statutory law on the subject, the common law applies. Indigenous law refers to the traditional law of the indigenous black people of South Africa. This may either be unwritten customary law, or codified (statutory compilations). Case law (also referred to as ‘judicial precedent’) is the law as various courts in specific cases before them have decided on it. (For law students, the term ‘case law’ usually refers to those cases they had to read, but did not, and had to discuss in the examination, and could not!) The precedent system (also known as stare decisis) means that judgments of higher courts bind lower courts and courts of equal status. Statute law (legislation) plays an ever-increasing role in common-law legal systems. In the past, legislation may have been viewed as exceptions to the common law, but the rapid changes in modern society have stretched the adaptability of common-law rules to their limits. Since the common law cannot deal with the regulation of new technological and scientific developments such as electronic funds transfers, stem cell research and cross-border human trafficking (to name only a few), more and more legislative intervention is necessary and inevitable. As a result, legislation is the most important source of new law in most modern societies. In South Africa there is, of course, a more fundamental reason for a thorough understanding of the technical aspects of legislation. In a strictly legalistic sense apartheid was an ideologically underpinned and public-law driven system, based on a web of interlocking legislation. The dismantling of this legal edifice not only requires an excellent knowledge of statute law, but a great deal of new legislation is needed to remedy the situation in the new constitutional dispensation. 1.2 What is interpretation of statutes? Interpretation of statutes, or perhaps more precisely, the juridical understanding of legislation, deals with those rules and principles which are used to construct the correct meaning of legislative provisions to be applied in practical situations. Du Plessis (2002: 18) explains it as follows: [S]tatutory (and constitutional) interpretation is about construing enacted law-texts with reference to and reliance Page 5 on other law-texts, concretising the text to be construed so as to cater for the exigencies of an actual or hypothesised concrete situation. In other words, it is about making sense of the total relevant legislative scheme applicable to the situation at hand. But why do we need special rules of interpretation? Lawyers all have (or should have!) the necessary language skills to read and understand legislation. You just read the legislation carefully and apply it to the situation at hand. How difficult can it be? Should you encounter an ambiguity in the text, you can always use a dictionary. However, it is not that simple. Interpretation of legislation requires more than a mere reading of the provisions. It is not a mechanical sequence of join-the-dots or painting-by-numbers. For example: During the 1950s Professor Lon Fuller (1958: 664) provided a very interesting hypothetical example to illustrate the inherent difficulties of language (words) in legislation. At the same time he asked uncomfortable questions about issues such as morality, poverty and power (in other words, value judgements). Suppose a law is passed that states that it is a criminal offence to sleep in any railway station. Common sense tells us that the law is intended to prevent homeless people (vagrants or squatters or tramps) from using railway stations as shelters. Two men appear in court on a charge of contravening the law in question. One man is a regular commuter who sat upright, but dozed off while waiting for the train; the other man, who brought a blanket to the station and settled down for the night on one of the benches, was arrested while still fully awake. How should the court interpret and apply the legislation? Surely the court cannot read the legislation in a literal sense. If not, why not? After all, the words are clear—or are they? What about the historical background and other surrounding circumstances? How much of these may the court take into consideration? All of a sudden interpretation of statutes is not that simple and straightforward any more. Page 6 Another example, closer to home: Take s 11 of the Bill of Rights in the Constitution as an example. It reads: ‘Everyone has the right to life.’ Does the supreme Constitution guarantee immortality? That is absurd, since we all know that it a biological impossibility. But, then, what does s 11 mean? Since ‘the right to life’ forms part of an ‘enacted law-text’ (the Constitution), how do the courts interpret it? In S v Makwanyane 1995 (3) SA 391 (CC) the Constitutional Court held that the right to life means that the state may not take a person’s life in retribution, and the death penalty was declared unconstitutional. Does this decision mean that a person may not be killed in self- defence? Not at all: In Makwanyane and Ex parte Minister of Safety and Security: In re S v Walters 2002 (4) SA 613 (CC) the Constitutional Court held that the existing right to kill a person in self- defence was not abolished by the Constitution. On the other hand, the decision of the Constitutional Court in Soobramoney v Minister of Health, Kwazulu-Natal 1998 (1) SA 765 (CC) effectively means that the constitutional right to life does not mean the state has a duty to keep all terminal patients alive in all circumstances. Furthermore, in Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) the Constitutional Court linked the constitutional rights to life and the freedom and security of the person to the constitutional duty imposed on the state and all of its organs not to perform any act that infringes these rights. Now the phrase ‘Everyone has the right to life’ does not seem so simple and unambiguous anymore! This simple example makes it clear that there is more to interpretation of legislation than reading and spelling skills, and words, phrases and grammar. The supreme Constitution, the context of legislation, and competing human rights and fundamental values also form part of this process: a very intricate, nuanced and multi-faceted process. Du Plessis (1999: 230) explains this aspect very well: One cannot understand a legal text merely by concentrating on its language. You must also understand how law works and what it seeks to achieve in order to understand how it communicates with you and what it wants to tell you. Page 7 In the British case of Corocraft Ltd v Pan American Airways Inc. 3 WLR 714 732 Donaldson J explained interpretation of legislation as follows: In the performance of this duty the judges do not act as computers into which are fed the statutes and the rules for the construction of statutes and from which issue forth the mathematically correct answer. The interpretation of statutes is a craft as much as a science and the judges, as craftsmen, select and apply the appropriate rules as the tools of their trade. They are not legislators, but finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further processing. The interpretation of legislation is not a mechanical exercise during which predetermined formulae, well-known maxims and careful reading will reveal the meaning of the legislative provision. Technical aspects (eg the structure of the legislation and language rules) must be applied in conjunction with substantive aspects (eg constitutional values and fundamental rights). Apart from the inherent difficulties of language and meaning, the interpreter has to keep a number of other related issues in mind: The provision must be read, understood and applied within the framework of the supreme Constitution and the Bill of Rights. What is the impact of other legislation (eg the Promotion of Access to Information Act 2 of 2000, the Promotion of Administrative Justice Act 3 of 2000 and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000)? Is the legislation that must be interpreted still in force? If still in force, has it been amended since? If, for instance, a provision in an Act of Parliament is to be interpreted, it must be read with the rest of the Act, including its definition section and possibly its schedules as well. Regulations may have been issued in terms of the particular provision, which have to read with the enabling legislation. Are those regulations valid? What is the context (general background or surrounding circumstances) of the legislative text? Other external aids (eg dictionaries or commission reports) may be used to establish the meaning of the legislation. Sometimes the interpreter will be confronted by the results of poor drafting, conflicting provisions or a lack of resources to research the current law. Page 8 Make no mistake: interpretation of legislation is not easy, quick or mechanical. It not only requires excellent language skills, but the interpreter must also have a very good knowledge of the law and where to find it. This means research: reading reported cases (lots of them!), finding and analysing the latest Acts and regulations, and keeping up to date with new developments in the law. Practical example: As has been pointed out, interpretation of statutes is not easy. Take a look at the definition of a ‘firearm’ in s 1 of the Firearms Control Act 60 of 2000: In this Act, unless the context indicates otherwise—... ‘firearm’ means any— (a) device manufactured or designed to propel a bullet or projectile through a barrel or cylinder by means of burning propellant, at a muzzle energy exceeding 8 joules (6 ft- lbs);... What is muzzle energy of 8 joules (6 ft-lbs)? Muzzle energy is the kinetic energy of the bullet when it exits the barrel. To know the muzzle energy, you need to know the muzzle velocity (the speed of the bullet when it exits the barrel), the mass of the bullet, and a lot of mathematics! Muzzle energy (in ft-lbs) is calculated as follows: Muzzle velocity (in feet per second)2 d 450240 x bullet weight in grains. One grain =.064789 gram, and one ft-lb muzzle energy = 1.356 joule. Did the legislative drafters know or understand this definition? Do you think the prosecutors, legal practitioners and the judiciary understand the definition? To cut a long story short—there is more to interpretation of legislation than merely glancing through the words in the text! Legalese Bad drafting and legalese is another problem. ‘Legalese’ refers to the perplexing and specialised language (or social dialect) used by lawyers in legal documents, incomprehensible to the non-lawyer. Somebody once defined it as ‘the language of lawyers that they would not use in ordinary communications but for the fact that they are lawyers’. It is characterised by wordiness, Latin expressions, passive verbs, lengthy sentences Page 9 and legal doublets (stringing together two words to convey a single legal concept such as null and void, fit and proper, perform and discharge and terms and conditions). Why do drafters use verbose language? Maybe it is part of a professional mystique, compelling lawyers to write in a complicated and learned style in order to maintain an aura of profound importance. Lord Radcliffe (1950: 368) explained the use of legalese as follows: It seems to me that a sort of hieratic language has developed by which the priests incant the commandments. I seem to see the ordinary citizen today standing before the law like the laity in a medieval church: at the far end the lights glow, the priestly figures move to and fro, but it is in an unknown tongue that the great mysteries of right and wrong are proclaimed. Yet despite the efforts of the advocates of more understandable plain language in legal drafting, interpreters still have to deal with convoluted language in legislation. Just imagine you have to interpret the following provisions: Section 1 of the Orange Free State Civil Protection Ordinance 10 of 1977 was a somewhat ridiculous attempt to define a ‘disaster’: In this Ordinance, unless the context otherwise indicates—‘disaster’ means a disaster or a state which is not a state of emergency or a state of disaster and which, in the opinion of the Administrator or of the local authority concerned, is a disaster, as defined in section 1 of the Act, or is likely to develop into such a disaster; Or even worse, another potential tongue-twister was s 1(4) of the previous Labour Relations Act 28 of 1956: The definition of ‘unfair labour practice’ referred to in subsection (1), shall not be interpreted either to include or exclude a labour practice which in terms of the said definition is an unfair labour practice, merely because it was or was not an unfair labour practice, as the case may be, in terms of the definition of ‘unfair labour practice’, which definition was substituted by section 1(a) of the Labour Relations Amendment Act, 1991: provided that a strike or lock-out shall not be regarded as an unfair labour practice. In an almost desperate attempt to make sense of s 22(1)(d) and 22(1)(bb) of the Compulsory Motor Vehicle Insurance Act 56 of 1972 (as amended several times), Botha JA in Santam Page 10 Insurance Ltd v Taylor 1985 (1) SA 514 (A) 523B and 526E expressed himself as follows on the confusion: In an attempt to escape from the prolixity which disgraces this piece of legislation I shall take a number of short cuts when referring to its provisions... In my opinion the man in the street would be at least as perplexed by the language used by the legislature as is the man on the Bench who is writing this judgment. Clearly the judge was not impressed with the standard of drafting and the legalese used in the legislation which it had to interpret. As Botha & Bekink (2007: 34) point out, it is not always easy to use so-called ‘plain language drafting’ in legislation and other legal documents. However, even in South Africa legislative drafters, legislatures and lawyers are becoming more aware of the need to draft legal documents in more understandable language. Practical example: Section 3(1)(b)(iv) of the Consumer Protection Act 68 of 2008 is a good example of an express legislative acknowledgement of the link between understandable language and access to justice: 3 Purpose and policy of Act (1) The purposes of this Act are to promote and advance the social and economic welfare of consumers in South Africa by—... (b) reducing and ameliorating any disadvantages experienced in accessing any supply of goods or services by consumers—... (iv) whose ability to read and comprehend any advertisement, agreement, mark, instruction, label, warning, notice or other visual representation is limited by reason of low literacy, vision impairment or limited fluency in the language in which the representation is produced, published or presented; What is in a name: purpose or intention? As explained earlier, interpretation of statutes is about the juridical understanding of legislation. The interpreter has to determine what the legislation has to accomplish in the legal order. Case law and most of the older sources refer to this as Page 11 the ‘intention of the legislature’. Other sources prefer the terms ‘purpose of the legislation’ or the legislative scheme, and so on. The term ‘intention of the legislature’ is closely linked to the principle of sovereignty of parliament. Parliament was the sovereign lawmaker in the Republic and legislation reflected a parliamentary legislative intention. As one of the influential proponents of the intention theory, Steyn (1980: 1) defined statutory interpretation as the process during which the will or thoughts of the legislature are ascertained from the words used by the legislature to convey that will or thoughts. But it is difficult to picture such a collective intention exercised by all the members of a legislative body: The legislature is composed of a large number of persons, all of whom take part in the legislative process. As part of the democratic legislative process some members of the legislature may oppose the legislation for various reasons, with the result that the adopted legislation ultimately reflects the ‘intention’ of only the majority of the legislature. Some members will support legislation for the sake of party unity, though they may be personally opposed to a Bill. This means that the ‘intention’ of the legislature is subject to what the individual members of the legislative body, under pressure from their party caucus, ‘had to’ intend! Parliamentarians are elected politicians, and they do not necessarily understand the complex and technical legislation which they adopt. A Bill introduced in the legislature is not drafted by the public representatives, but by legislative drafters and law advisers acting on the advice of bureaucrats from various state departments. Some members of the legislative body may even be absent when voting on draft legislation takes place. To put it another way: the intention of the legislature refers to the fictional collective intent of the majority of the legislative body present at the time when the vote took place, expressing their will within the constraints of the voting guidelines laid down by the caucus of the ruling party in the legislature, and voting for draft legislation—formulated by legal drafters on the advice of bureaucrats from a government department—which had been approved earlier by the state law advisors! In the final analysis the correct interpretation of legislation does not depend on which term is used. What is important, Page 12 though, is how that purpose (or intention or legislative scheme or aim of legislation) is ascertained and construed. The correct way to interpret legislation is discussed in greater detail in Part 2 of this book. 1.3 The new constitutional order For many years statutory interpretation was the Cinderella of South African jurisprudence. During the late 1970s and the 1980s in particular, the unsystematic application of the rules and principles of statutory interpretation was criticised by academics. Traditionally, interpretation of statutes in South Africa was saddled with unnecessary (and unacceptable) baggage: a confusing system of maxims and canons of interpretation, tentative principles, a golden rule, overriding principles, so-called primary, secondary and tertiary rules, manifest and clear meanings, rules of Roman-Dutch law influenced by English law, misconceptions about the structure and meaning of language, exceptions to the rule, as well as differences of opinion about how the so-called intention of the legislature should be ascertained. The acceptance and legitimacy of the new supreme Constitution may have been compromised if the application of the fundamental rights was hampered by the orthodox interpretation of ‘ordinary’ legislation. A supreme constitution is the highest law (lex fundamentalis) in the land. Although parliament remains the highest legislative body in a system of government with a supreme constitution, any legislation or act of any government body (including parliament) which is in conflict with the constitution will be invalid. However, constitutional supremacy does not imply judicial supremacy. The courts are also subject to the constitution and merely act as the final guardians of the values and principles embodied in the constitution. Traditionally, the South African rules of statutory interpretation were based on the sovereignty of Parliament. In such a system, Parliament is not only the highest legislative body, capable of enacting any laws it wishes, but no court may test the substance of parliamentary Acts against standards such as fairness or equality. This was the system of government which operated in South Africa before the interim Constitution took effect. In 1992 Devenish (1992: 290-291) articulated the need for a new method of statutory interpretation in a constitutional democracy as follows (emphasis added): Page 13 The constitutional doctrine of parliamentary sovereignty, the jurisprudence of positivism, and the political hegemony of Afrikaner Nationalism have greatly influenced the methodology and theory of interpretation in South Africa. Steyn’s advocacy of the subjective or intention theory of interpretation facilitated a sympathetic interpretation of apartheid and draconian security legislation... [T]he demise of the apartheid state and the emergence of a new political and legal order involving a negotiated and legitimate constitution with a entrenched and justiciable bill of rights must of necessity influence the process and theory of interpretation. The courts will be able, in the new constitutional and political dispensation, (which will of necessity be cleansed of all race discrimination laws) to exercise their powers to test and invalidate legislation. In order to do this all statute law will have to be interpreted to be compatible with the letter and the spirit of the constitution. This means that a value-coherent theory of interpretation should become increasingly prevalent. In effect the introduction of a justiciable bill of rights is likely to herald a new methodology and theory of interpretation of statutes. On 27 April 1994 the Constitution of the Republic of South Africa 200 of 1993 (hereafter ‘the interim Constitution’) came into operation. Apart from its constitutional implications and political ramifications, it also changed the interpretation of statutes as we knew it. Not only was the principle of parliamentary sovereignty replaced by constitutional supremacy, but the interpretation clause stated that the spirit and purport of the fundamental rights had to be taken into account during the interpretation of statutes. In other words, the courts can no longer ignore value judgements. Since the commencement of the interim Constitution, even the rules of statutory interpretation have been influenced by the new constitutional order. The critical questions asked by academics were no longer theoretical reflections. Suddenly the correct method of statutory and constitutional interpretation formed the centre of the debate about the protection of fundamental human rights! On 4 February 1997 the Constitution of the Republic of South Africa, 1996 (hereafter ‘the Constitution’) came into operation. Those principles of the interim Constitution which transformed statutory interpretation were retained in the Constitution of 1996. Apart from the constitutional values, the interpretation of statutes was transformed by six provisions of the Constitution in particular: s 1 (the foundational provision); s 2 (the Page 14 supremacy clause); s 7 (the obligation clause); s 8 (the application clause); s 36 (the limitation clause) and s 39 (the interpretation clause). These provisions, as well as the constitutional values, are discussed fully in later chapters. Page 15 Chapter 2 The 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 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 the set of subordinate legislation regulating the internal organisation of a university. A notice may be a specific type of subordinate legislation issued by a competent functionary, 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: 1 Application of Act 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: 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; Page 17... ‘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, ss 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 ss 44, 104 and 156 of the Constitution mention assigned legislation. Finally, s 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. All of these will be explained in the sections to follow. It should now be clear that 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 time-line (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...’ 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 Page 18 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 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 time-line. (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. Page 19 Constitutional highlights: On 31 May 1910 the four erstwhile 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 extra-parliamentary 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 various parties and stakeholders, and adopted by the Parliament of the previous regime), which took effect on 27 April 1994 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 Page 20 with the Constitution and other more recent legislation) include the Lord’s Day Observance Act 19 of 1895 (Cape 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 Page 21 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, 1996 as ‘the Constitution’. (b) Original legislation Original (primary) legislation derives from the complete and comprehensive legislative capacity of an authorised legislative Page 22 body. The hierarchical status of original legislation in South Africa is based on two interrelated principles: Firstly, it is enacted by democratically elected, deliberative, 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 Page 23 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 s 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 24 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 10 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 Page 25 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 delegated legislative powers under enabling legislation. Since Parliament can amend an Act of Parliament only by means of Page 26 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 constantly to 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 dealt with often and quickly outside the normal democratic parliamentary legislative process) to a designated person or body. In terms of s 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 by 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; Page 27 But who is ‘the Minister’? Section 1 of the Petroleum Products Act defines ‘Minister’ as the Minister of 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 s 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 s 89 of the Defence Act 42 of 2002, the President is authorised, subject to s 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). 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 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). Page 28 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 otherwise (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 Page 29 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 s 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 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 Page 30 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 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 s 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. Page 31 Practical example: North West province consists of parts of the former Transvaal and Cape Province, and bits and pieces of the former Bophuthatswana, inheriting legislation from those territories in so far as those applied to the province (Schedule 1A (‘Geographical areas of provinces’) mentioned in the Constitution, inserted by s 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 the North West province. In terms of the two ordinances, permission to exhume a body has to be obtained from the Administrator of the province; and in terms of the Bophuthatswana Act, permission for an exhumation has to be obtained from the local tribal authority. So when a body is to be exhumed, the permission necessary 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 of 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 should be construed as ‘the Premier’ of that province. However, in terms of s 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 32 Of course, the story does not end here. The exhumed human remains have to be 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 s 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 the 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. Page 33 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 s 229 of the interim Constitution and item 2 of Schedule 6 of the Constitution, the Transkei Penal Code remains in force in the geographical area that used to be Transkei. It has been 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 s 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 s 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 before 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 law-texts) 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 34 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. 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. Page 35 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. Unless otherwise indicated, the Labour Relations Act 66 of 1995 will be used 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: 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: 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) Page 36 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 of, the background to and the 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 to 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’. 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 Page 37 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. 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): 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 as to 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). Page 38 Definitions The definitions serve as an ‘internal dictionary’ for the particular legislation. Definitions are 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 in the Labour Relations Act there are also definitions in other parts of the Act, for example: CHAPTER V WORKPLACE 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 (iii) determine policy and take decisions on behalf of the employer that may be in conflict with the representation of employees in the workplace;... 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, and they help to explain the purpose of the Act and how it should be interpreted, for instance: 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... Page 39... Regulations & 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 tha

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