RVW 210 Tutorial 2 Slides 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 THEME 4 GENERAL PRINCIPLES R v Detody case = legislation cannot be abrogated by disuse, it must be repealed by a competent legislature or declared invalid by a competent court Constitution is not self-executing = all current legislation in force when the Constitution took effect, remains in force until amended or repealed, or declared unconstitutional Common law principle of implied powers = if the delegated lawmaker gets the power to enact subordinate legislation, it is assumed by implication that this power also includes the power to amend or repeal the subordinate legislation 9 AMENDMENT 10 Non-textual amendment = wording of the actual legislative provision is not directly changed but the provision is amended by reference Item 3(2)(b) of Schedule 6 of the Constitution Textual amendment = actual wording of the legislation is changed with amending legislation Taxation Laws Amendment Act 24 of 2011 MODIFICATIVE INTERPRETATION BY THE COURTS Secondary, law-making function Development of common law and giving form, substance and meaning to particular legislative provisions BUT courts must exercise judicial discretion and judicial restraint 1. Constitutional review = if reasonably possible, the court can try to modify or adapt the legislation through corrective techniques to keep the legislation constitutional and valid 2. Legislation meaning = in exceptional circumstances, the courts may modify the initial meaning of the legislative text so that it reflects the purpose and object of the legislation 11 SECTION 11 OF THE INTERPRETATION ACT 12 The amending law is not in force yet when the other legislation is repealed = no law regulating that specific issue Express provision for transitional measures or section 11 When a law repeals and substitutes provisions for any former law, the repealed law shall remain in force until the substituted provisions come into operation S v Koopman case SECTION 12 OF THE INTERPRETATION ACT Repeal = revocation of legislation by the relevant competent lawmaker Section 12(1) = provision X is repealed and later re-enacted as Y, all references to X in other existing legislation must be interpreted as being references to Y Section 12(2)(a) = if legislation X is repealed by legislation Y, and later on legislation Y is repealed, legislation X does not revive Section 12(2)(b)-(e) = if legislation X has been repealed by legislation Y, any rights, obligations, liabilities, penalties, punishments, investigations, or legal proceedings from before legislation X’s repeal may be imposed as if legislation X had not been repealed Nourse v Van Heerden case 13 IMPLIED REPEAL When two different enactments that deal with the same thing clash, it is presumed that the legislature intended the later one to repeal the earlier one by implication Both of the enactments must be on the same hierarchical and generality levels 14 SECTION 149 OF THE CONSTITUTION 15 Legislation can be temporarily suspended = it remains in force but its operation is paused until a certain condition or requirement is met E.g. Act X and Act Y both deal with the same subject matter but have conflicting provisions. If a court decides that Act Y prevails over Act X, Act X isn’t invalidated by Act Y. Act X will instead become inoperative or suspended for as long as there is a conflict or “legislative standoff” between the two Acts until the relevant legislature deals with the conflict cessante ratione legis, cessat et ipsa lex = if the reason for a law ceases, the law itself ceases PRESUMPTION THAT LEGISLATION DOES NOT INTEND TO CHANGE THE EXISTING LAW MORE THAN IS NECESSARY Legislation must be interpreted in such a way that existing law is changed as little as possible Should be construed to be in conformity with the common law and not against it Presumed that the legislature did not intend to repeal or amend the earlier Act If they conflict, the earlier and later legislation must be read together in order to reconcile them If it is impossible to reconcile them = the later of the two provisions will prevail and the earlier one is impliedly repealed by the later one generalia specialibus non derogant = general things do not derogate from specific things 16 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 Law Building Office 4-60 Roelof van Jaarsveld – [email protected] Tuesdays from 8:15 – 11:15 Wednesdays from 8:15 – 11:15