Theme 4 Review PDF

Pass and Prosper 27 THEME 4: CHANGES TO AND THE DEMISE OF LEGISLATION Introduction Overview v General Ø R v Detody 1926 AD 168 § Common law rules can be abrogated through disuse but legislation cannot be Ø In order for legislation to “disappear” it must: § Be repealed by a competent body; or § Decla...

Pass and Prosper 27 THEME 4: CHANGES TO AND THE DEMISE OF LEGISLATION Introduction Overview v General Ø R v Detody 1926 AD 168 § Common law rules can be abrogated through disuse but legislation cannot be Ø In order for legislation to “disappear” it must: § Be repealed by a competent body; or § Declared invalid by a court. Pre 1994 – Parliament was Sovereign ¨ Courts could only invalidate delegated legislation which did not comply with common law rules of administrative law. Post 1994 – Courts can test ALL law. v Who may amend/repeal? Ø Constitution is not “self-executing.” § Legislation that is inconsistent with the Constitution is not automatically declared unconstitutional and invalid. Ø Process for removal § Competent body must: Amend; or Repeal § A court must declare it invalid. v What are competent bodies? Ø Original Legislation § s44 and s55 read with s68 = Parliament § s104 and s114 = Provincial Legislatures § s156 = Municipalities Ø Subordinate Legislation § Enabling Act may provide for powers to amend and repeal. In absence of this provision, common law principle of implied powers. Power to enact, impliedly includes power to amend and repeal. § Section 10 of the Interpretation Act Power to enact includes power to repeal or amend, unless the contrary can be found from the wording of the enabling Act. Changes to Formal Amendment of Legislation by a Competent Legislature Legislation v Legislation may be amended by a competent legislator Ø Parliament can amend a Parliamentary Act with another Parliamentary Act. Ø Provincial Legislature can amend Provincial Legislation Ø Municipalities can amend municipal regulations/laws Ø Remember the hierarchies basically. v Two Types of Amending Legislation Ø Non-Textual (indirect) – Wording of original is not changed but explained. Ø Textual (direct) – original legislation wording actually changed. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 28 Informal Judicial Amendment v This is where the courts modify the meaning of legislation through interpretation. v Functions of the Court (NB for understanding) Ø Primary à Application of Law Ø Secondary à Law-making function (based on legal rules) § Developing common law in line with the modern day § Giving structure, substance meaning to legislative provisions v Attempts to save legislation during Constitutional Review Ø Courts may be asked to test legislation against the Constitution. Ø Courts may rule it unconstitutional à Creates a vacuum. Ø So instead, courts may try to interpret it to keep it in line with the Constitution and prevent a vacuum. v Modification of the Legislative Meaning during interpretation Ø Courts may modify (in exceptional circumstances) the initial meaning of legislative text to ensure it reflects the purpose and object of the legislation. The Demise of Overview Legislation v It is important to distinguish between repeal and invalidation. Ø Repeal refers to the process whereby the legislation is deleted, in other words, removed from the statute book. § Only the legislature repeals. § Law is removed from the statute book. Ø Invalidation is when the legislation is declared to be legally unacceptable. § Courts can only invalidate and do so on the basis of: Constitutional grounds Non-compliance with administrative law requirements § Law remains on the statute book but cannot be applied. Invalidation by Courts v Unconstitutional Provisions Ø Section 172 of the Constitution (High Court, SCA or Constitutional Court) may declare legislation unconstitutional. § Must violate a fundamental right or be in conflict with another constitutional requirement. § S172(1) à Court must declare legislation inconsistent with the Constitution as unconstitutional. § S172(2) + S167(5) à If High Court or SCA declares it unconstitutional, it has no force until confirmed by the Constitutional Court. Unless, it is local government or subordinate legislation. Then it doesn’t need to be confirmed by the Constitutional Court. v Invalid Subordinate Legislation Ø Delegated legislation can be invalidated by a court if it does not comply with the requirements of administrative law (vague, ultra vires, etc). Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 29 Repeal of legislation by a competent lawmaker v Substitution (repeal or replace) Ø When repealing Act (A) with Act (B), there might be the possibility that Act (A) is repealed and Act (B) is not yet in force at that time. Meaning there’s no law to govern the situation. Ø To prevent this legislative short circuit the repealing legislation may expressly provide for a suitable transitional period. Ø What if there is no express transitional period? § Section 11 of the Interpretations Act (Nice Test Question) Where a law repeals wholly or partially any former law and substitutes provisions for the law so repealed, the repealed law shall remain in force until the substituted provisions come into operation. Basically: The repealed law remains active until the new law meant to replace it becomes forceful. v Repeal (deletion) Ø Repeal is the revocation of legislation by the relevant competent lawmaker. § It is not changed or substituted; it is deleted. Ø Section 12 of the Interpretation Act § S12(1) à If provision X is repealed and later re-enacted as Y, all references to X in other existing legislation must be interpreted as references to Y. § S12(2) à Transitional provision, which provides that a repealed Act does not regain the force of law if the repealing Act itself is repealed. Ø Influence upon ongoing cases § Transnet Ltd v Ngcezula With respect to ongoing disputes, the current position is preserved until the pending case is finished. § Garydale Estate and Investment Co (Pty) Ltd v Johannesburg Western Rent Board Actions executed legally in line with legislation before it was repealed, remain valid and in force after repeal. This provision deals with rights derived from legislation only, and not those stemming from common law. § Mahomed v Union Government The right or privilege in question must have been acquired or accrued in terms of the repealed legislation before the repeal. § See practical examples on pages 79 – 82. Ø Continued application of Repealed Laws § Item 8, Schedule 2 of the Consumer Protection Act Despite the repeal of laws, for a period of three years after the general effective date of repeal the Commission may exercise any powers in terms of that repealed law to investigate any breach of that law that occurred during the period of three years immediately before the general effective date. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper Suspension Legislation Already Force 30 Ø Repeal of legislation incorporated by reference § If Act (A) repeals Act (B) the question of whether provisions of Act (B) which were incorporated into other Act’s by reference are also repealed. The short answer is no, not automatically, unless Act (A) expressly provides for that repeal. § Solicitor-General v Malgas Ruled that where earlier legislation is incorporated by reference into later legislation, it is not simultaneously repealed when the earlier legislation is repealed. Ø Sunset Clauses § A provision in legislation which terminates all or portions of the law after a specific date, unless further legislative action is taken to extend it. § It is a date-bound repeal and essentially provides for a limited lifespan. Ø Implied Repeal § Where to different enactments clash, the newest enactment prevails. § Therefore, there is a presumption that the legislature intended for the newest enactment to repeal the older enactment. § RULE: For this presumption to apply, the two enactments must: ¨ Be on the same hierarchical level; and ¨ Be on the same level of generality. of Overview v Legislation can also be temporarily suspended. in Ø It remains in force; but Ø Its operation is halted for the time being or until some other condition or requirement is met. v An example is suspension by a court. Schedule 4 of the Constitution (NB) v Provides for concurrent law-making powers of parliament and provincial legislatures. v Where there are conflicts between national and provincial legislation, the national legislation will sometimes prevail over the provincial legislation, but in other cases the provincial legislation may actually trump the national legislation. Ø Section 149 of Constitution § Where a court rules that one piece of legislation prevails over another, the other legislation is not invalidated. Rather, it is suspended as long as the conflict remains. Methods of Suspension v Suspension by Courts v Application of the cessante ratione legis, cessat et ipsa lex rule. v Formal amendment (with a sunset clause for example) Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 31 The Overview Presumption v This presumption means that legislation should be interpreted in such that Legislation a way that it is in accordance with existing law (legislation, common Does Not law and customary law) and changes it as little as possible. Intend to v Common Law Change the Ø Johannesburg Municipality v Cohen’s Trustees Existing Law § It is a sound rule to construe a statute in conformity with the More Than is common law rather than against it, except where and so far as Necessary the statute is plainly intended to alter the course of the common law. § It is presumed that legislation does not alter the common law. § Gordon v Standard Merchant Bank 1983 This presumption is rebutted if legislation clearly provides that the common law (on a particular point is being altered. v Legislation Ø Kent v SA Railways and Harbours § The presumption means that in interpreting a subsequent Act, it is assumed that the legislature did not intend to repeal or modify the earlier Act. Any amendment must be provided for expressly or by necessary implication. Ø Wendywood Development (Pty) Ltd v Rieger § An attempt should be made to read the earlier and subsequent legislation together in an effort to reconcile them. Ø Shozi v Minister of Justice, Kwazulu § If two apparently contradictory provisions are capable of a sensible interpretation which would reconcile the apparent contradiction, that interpretation should be preferred. Ø Entabeni Hospital Ltd v Van der Linde § If such reconciliation is impossible, it has to be presumed by necessary implication that the latter of the two provisions prevails, resulting in the amendment or repeal of the earlier one. Ø First National Bank of SA v Puckriah § Reflects the judgement in Entabeni. Ø Minister of Police v Haunawa § This rule only applies if the objects of the two conflicting provisions are in pari materia (essentially the same). § Legislative repeal by implication will only be accepted by the court if the subsequent legislation manifestly contradicts the earlier legislation. Ø Sappi Fine Papers (Pty) Ltd v ICI Canada Inc § Furthermore, according to the rule generalia specialibus non derogant, it is presumed that a provision in a subsequent general Act does not repeal an earlier specific provision. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect.