Rvw 210 Tutorial 2 PDF

RVW 210 TUTORIAL 2 Presented By: Tamrin Slager THEME 3 White Paper Idea 1 2 2 Green Paper 3 Bill 4 Draft Bill 5 Adoption 6 Assent 7 Promulgate 8 9 Publish LEGISLATIVE PROCESS ADOPTION & PROMULGATION Adoption = constitutionallyprescribed processes and procedures required for the draft legislation to...

RVW 210 TUTORIAL 2 Presented By: Tamrin Slager THEME 3 White Paper Idea 1 2 2 Green Paper 3 Bill 4 Draft Bill 5 Adoption 6 Assent 7 Promulgate 8 9 Publish LEGISLATIVE PROCESS ADOPTION & PROMULGATION Adoption = constitutionallyprescribed processes and procedures required for the draft legislation to become law 3 Promulgation = putting legislation officially and legally into operation through publication Enacting clause = who promulgates Ex Parte Minister of Safety and Security: In re S v Walters Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa SECTION 14 OF THE INTERPRETATION ACT The enabling Act doesn’t have the force of law yet because the President needs to promulgate it but without the enabling Act being in force the President doesn’t have the authority to promulgate the Act = “endless circle of invalidity” If a person has the power to put legislation into operation, that power may be exercised at any time after the legislation was passed with a view to putting it into effect Cats Entertainment case Relevant functionaries can make appointments and subordinate legislation if the appointments or subordinate legislation cannot be effective before the Act is in force 4 PRESUMPTION THAT LEGISLATION ONLY APPLIES TO THE FUTURE 5 Common law presumption After the Act is promulgated and once it commences, it only applies from then on and not before it commenced Reasons for this rule: 1. Ensures predictability and legality 2. Prevents unfair and unreasonable results Rebutted either expressly or by necessary implication RETRO-EFFECT 6 Retroactive (“strong”) = operates backwards in time 1. assented to = 13th of January 2024 2. published = 18th of March 2024 3. commencement date = 15th of April 2021 Retrospective (“weak”) = only looks backwards in time 1. assented to = 13th of January 2024 2. published = 18th of March 2024 3. commencement date = 15th of April 2024 Legal fiction Deeming clause Potentially attaches new consequences to a past event National Director of Public Prosecutions v Carolus case OBSTACLES TO RETRO-EFFECT Common law presumption Expressly or by necessary implication 1. Legislation as a whole 2. Surrounding circumstances 3. Absurd/unfair results 4. Vested rights not affected 5. Grants a benefit R v Mazibuko case Section 35(3) sec 35(3)(l) = new offences cannot be created sec 35(3)(n) = existing punishment cannot be increased Constitution Depends on the facts and rights involved in each case S v Ndiki case 7 EXCEPTIONS TO THE PRESUMPTION 8 1. Procedure 2. Benefits Individual If the legislation: 1. Deals with procedure 2. Substantive rights and obligations are not affected 3. Substantive rights can still be enforced through the newly prescribed procedure = presumption will not apply If the individual: 1. Receives benefits 2. None of their vested rights are taken away 3. Retro-effect is beneficial for them = presumption will not apply R v Sillas case! Euromarine International of Mauren v The Ship Berg case