RVW 210 Tutorial 1 PDF

RVW 210 TUTORIAL 1 Presented By : Tamrin Slager TERMINOLOGY Process and procedure Existing law and vested rights Act vs act Legislation, legislator and legislature Constitutionality and the rule of law Legitimacy vs legality Codified vs uncodified law Foreign vs international law Parliamentary sover...

RVW 210 TUTORIAL 1 Presented By : Tamrin Slager TERMINOLOGY Process and procedure Existing law and vested rights Act vs act Legislation, legislator and legislature Constitutionality and the rule of law Legitimacy vs legality Codified vs uncodified law Foreign vs international law Parliamentary sovereignty, constitutional supremacy (lex fundamentalis) and judicial supremacy Trias politica Ultra vires vs intra vires 2 CASE LAW Decision vs judgment Binding vs persuasive authority Majority vs minority judgment Stare decisis Ratio decidendi Obiter dictum/a 3 CASE SUMMARY F = Facts I = Issue R = Rule A = Analysis / Application C = Conclusion 4 CASE SUMMARY F = Facts I = Issue R = Rule A = Analysis / Application C = Conclusion 5 THEME 1 6 Interpretation = rules and principles which are used to construct the correct meaning of legislative provisions. Legal vs statutory interpretation? A law = a written statute enacted by those legislative bodies which have the authority to do so. LEGALESE Legalese = specialised language used by lawyers in legal documents that a non-lawyer or lay person would not be able to understand. Includes Latin expressions, long sentences, and legal doublets (null and void, terms and conditions, etc.) Accessibility and access to justice? 7 THEME 2 PRIMARY SOURCES 1. Constitution 2. Legislation 3. Common law and customary law 4. Case law 5. Custom and Public International Law 8 LEGISLATION 9 Legislation = written law exacted by a person or body with the authority to do so by the Constitution or legislation. Section 2 of the Interpretation Act Section 239 of the Constitution Legislation will remain in force until repealed or amended by a competent lawmaker (legislature) or invalidated by a competent court. CHRONOLOGICAL Legislation before 1806 (e.g. Placaats) = common law and therefore abrogated by disuse. Old-order legislation (1806-1994) = repealed/amended by legislature or declared unconsitutional and invalid by court. 1. Pre-union legislation (1806-1910) 2. Legislation between the union and democratic era (1910-1994) Legislation since 1994 10 GEOGRAPHICAL Old-order legislation was originally enacted and envisaged for a map that is different from what South Africa looks like now. The Constitution holds that old-order legislation does not have a wider territorial application than it had before the Constitution. Provincial Ordinances and legislation of the former TBVC states are still applicable to the old geographical areas of the former provinces and homelands until repealed/amended by legislature or declared unconstitutional by a competent court. 11 HIERARCHICAL 13 1. Constitution (lex fundamentalis) 2. Original / primary legislation = enacted by a democratically elected body during a plenary session, in accordance with an authority / legislative power derived directly or indirectly from the Constitution. Parliament (national) = Acts of Parliament Provincial legislatures (provincial) = Provincial Acts Municipal councils (local) = municipal by-laws (but not pre-1994!) HIERARCHICAL 14 3. Subordinate / delegated legislation = law enacted by a person or body under the authority of a power granted by primary legislation. We refer to this primary legislation as the “enabling” legislation E.g. provincial proclamations, ministerial regulations, university statutes. Subordinate legislation’s existence, power, and authority comes from primary legislation. Subordinate legislation doesn’t disappear when a new subordinate legislator comes into power. New subordinate legislators that come into power can amend or repeal subordinate legislation issued by their predecessors. IMPORTANT PRINCIPLES 15 1. Subordinate legislation cannot be in conflict with its enabling original legislation. 2. Subordinate legislators can only issue subordinate legislation within the framework of the authority specifically bestowed on them by the enabling legislation = otherwise ultra vires 3. If the enabling Act is declared unconstitutional = delegated legislation will cease to exist, unless the court orders otherwise. 4. If the enabling Act is repealed = delegated legislation will cease to exist, unless the new Act expressly provides otherwise (Hatch v Koopoomal). 5. Rule = only the fit and proper legislature can repeal or amend its own legislation. 6. Parliament cannot delegate the power to amend or repeal an Act of Parliament to a subordinate legislator (Executive Council Western Cape Legislature v President of the RSA). 7. Parliament cannot repeal or amend subordinate legislation but they can repeal the empowering Act. STATUS & HIERARCHY 16 Constitution Primary legislature Primary legislation Subordinate legislature Subordinate legislation COMPANY ANALOGY Primary legislature 17 Constitution Primary legislation Subordinate legislature Subordinate legislation WHAT IS NOT LEGISLATION AND WHY? Common law Case law Practice and interpretation notes Explanatory memoranda Policy documents (White and Green papers) 18 Departmental memoranda Uncodified indigenous law Legal opinions Circulars Resolutions of Parliament THEY ARE NOT ENACTED BY AUTHORISED LAWMAKERS! LAW OF GENERAL APPLICATION 19 Law of general application includes all forms of legislation (original and delegated), as well as the common law and customary law THANK YOU! Tamrin Slager – [email protected] Mondays from 9:30 – 12:30 Tuesdays from 14:30 – 16:30 Thursdays from 11:30 – 12:30 Sthembiso Chauke – [email protected] Tuesdays from 9:30 – 11:30 Wednesdays from 9:30 – 11:30 Thursdays from 12:30 – 13:30 Fridays from 11:30 – 12:30 Roelof van Jaarsveld – [email protected] Tuesdays from 8:15 – 11:15 Wednesdays from 8:15 – 11:15 Law Building Office 4-60