Changes to and the Demise of Legislation

Learning Unit 4: Changes to and the Demise of Legislation

Outline

Learning Outline
Introduction
Who may Amend legislation
- Changes to Legislation
- Demise of Legislation
Activity
Additional Resources

Introduction

Builds upon the previous chapter regarding the commencement of legislation.
Addresses whether legislation is still in force and if it has been amended.
Explains how legislation may be changed or terminated.
Common-law rules can be abrogated by disuse, but legislation cannot (R v Detody 1926 AD 168).
Legislation needs to be repealed by a competent body or declared invalid by a court; it cannot simply disappear.
Before 1994, Parliament was sovereign, and courts could only invalidate delegated legislation that didn't comply with administrative law.
After 1994, courts can test all legislation, including Acts of Parliament, against the supreme Constitution.

Who May Amend and Repeal Legislation?

The Constitution is not self-executing.
Legislation conflicting with the Constitution is potentially unconstitutional (s 2 of the Constitution).
Legislation in force when the Constitution took effect remains in force until amended, repealed, or declared unconstitutional (item 2(1) Schedule 6 of the Constitution).
A competent body (legislature or court) must amend, repeal, or declare legislation unconstitutional to remove potentially unconstitutional legislation.
Legislation remains in force until amended or repealed; it cannot fall away through disuse.
Legislation is amended or repealed by relevant competent lawmakers, i.e., those with the legislative authority to do so.
For original legislation, the legislative authority of the relevant legislatures includes the power to pass or amend any legislation before them, subject to constitutional competencies (ss 44, 55, 68 for Parliament; ss 104, 114 for provincial legislatures; s 156 for municipalities).
In the case of subordinate legislation, the enabling Act may expressly state that the power to enact subordinate legislation includes the power to amend or repeal it (e.g., the Rules Board for Courts of Law Act).
In the absence of an express provision, the common-law principle of implied powers comes into play: the power to make laws includes the power to amend or repeal such subordinate legislation.

Changes to Legislation

Formal Amendment of Legislation by a Competent Legislature

Legislation may be amended (changed) by a competent legislature.
Parliament may amend an Act of Parliament via another Act of Parliament, a provincial legislature may amend provincial ordinances and provincial Acts, and so on.
Amendment of primary (original) legislation is a lengthy and expensive process.
Two types of amending legislation:
- Non-textual (indirect) amendment: No direct changes to the wording of the principal legislation, but the amending legislation describes the extent of the changes with reference to the provisions that will be affected.
- Textual (direct) amendment: Changes to the actual wording of principal legislation with additions, changes to the wording, et cetera.
  - The Constitution provides that a reference in old order legislation to—amongst other things—‘Administrator’ must be interpreted as referring to the Premier of a province, and so on.
If a number of Acts are amended at the same time, this will usually be done by means of a General Laws Amendment Act.
Specific legislation will be amended by means of specific amending legislation (e.g., the Births and Deaths Registration Amendment Act 1 of 2002 amended only the Births and Deaths Registration Act 51 of 1992).

Modificative Interpretation by the Courts

Courts are primarily involved in applying the law, but they also have a secondary law-making function.
This involves developing the common law to adapt to modern circumstances and giving form, substance, and meaning to particular legislative provisions in concrete situations.
The judiciary may modify (change or adapt) the initial meaning of a legislative provision to conform to the purpose or aim of the legislation.
Judicial law-making involves creative judicial discretion but must be based on legal rules and principles.
This is the exception to the rule; according to the doctrine of separation of powers, legislatures make legislation, and courts interpret legislation and dispense justice.

Attempts to Save Legislation During Constitutional Review

Testing legislation (constitutional review) refers to the process whereby legislation alleged to conflict with the Constitution is reviewed by the court.
The court measures the legislation against the provisions of the Constitution and decides whether the legislation is valid or invalid.
If a court declares legislation unconstitutional (invalidating it), the legislation cannot be applied anymore, which could create a vacuum in the legal order.
Competent courts involved in constitutional review may try, if reasonably possible, to modify or adapt the legislation to keep it constitutional and alive.
The court may employ corrective techniques or remedial correction of legislation (reading-down, reading-up, reading-in, and severance) to keep the legislation constitutional and valid.

Modification of the Legislative Meaning During Interpretation

Courts may, under exceptional circumstances, modify (change or adapt) the initial meaning of the legislative text to ensure that it reflects the purpose and object of the legislation.

The Demise of Legislation

It is important to distinguish between the terms ‘repeal’ and ‘invalidation’ of legislation, and to establish who is authorized to do it, in terms of the doctrine of separation of powers.
Repeal refers to the process whereby the legislation is deleted, in other words, removed from the statute book.
Invalidation happens when the legislation is declared to be legally unacceptable.
The legislation may no longer be applied but remains on the statute book until removed by a competent lawmaker.
Courts may not and do not repeal legislation—they invalidate legislation.
Elected legislatures and persons or other bodies so enabled by primary legislation are competent lawmakers, and they repeal legislation.
Courts invalidate legislation on constitutional grounds (the legislation is declared unconstitutional because it violates some or other constitutional principle) or because the legislation does not comply with administrative law requirements.

Example

In S v Makwanyane, the Constitutional Court held that the death penalty was unconstitutional.
Since a court cannot repeal legislation, the invalidated legislation which provided for the death sentence remained on the statute books, albeit unenforceable.
Parliament subsequently repealed all legislation relating to the death penalty with the Criminal Law Amendment Act 105 of 1997.

Invalidation of Legislation by the Courts

Unconstitutional Provisions

In terms of s 172 of the Constitution, the High Court, Supreme Court of Appeal, or the Constitutional Court may declare legislation unconstitutional.
Legislation may be declared unconstitutional if it violates a fundamental right in the Bill of Rights or if it conflicts with another constitutional requirement.
When deciding a constitutional matter within its power, the High Court, Supreme Court of Appeal, or Constitutional Court has to declare legislation that is inconsistent with the Constitution to be unconstitutional (s 172(1) of the Constitution).
In terms of s 167(5) read with s 172(2) of the Constitution, a declaration of unconstitutionality of legislation by a High Court or the Supreme Court of Appeal has no force until such a declaration is confirmed by the Constitutional Court, but a High Court or the Supreme Court of Appeal may make an order which is just and equitable (including appropriate interim relief).

Invalid Subordinate Legislation

Delegated legislation may be invalidated by a court if it does not comply with the requirements of administrative law (e.g., it is vague, ultra vires, etc.).
Before 1994, this was the only real possible review of legislation by the courts.
In MEC for Public Works, Roads and Transport, Free State v Morning Star Minibus Hiring Services 2003 (4) SA 429 (O), the court provided guidelines for determining ‘vagueness’.
The law required reasonable, not perfect, clarity—the legislation had to be understandable to the reasonable person, not to the fool.
What is important is the mischief which the legislation intended to curtail, as well the fact that it could be applied with reasonable certainty in many cases.
The mere fact that some words are vague does not necessarily lead to the whole provision being declared void.
The court will try to uphold the general tenure of the regulation and to separate the bad from the good.

Repeal of Legislation by a Competent Lawmaker

Substitution (Repeal and Replace)

When a lawmaker substitutes (repeals and replaces) legislation with another enactment, there might be a possibility that the replacing law is not in force when the other legislation departs from the scene.
To prevent this type of ‘legislative short circuit’ or gap in the law, the repealing legislation could expressly provide for a suitable transitional measure.
For those cases where the legislation in question does not provide for express transitional arrangements, s 11 of the Interpretation Act was enacted to deal with those unfortunate gaps in the law if the one enactment is repealed, but the replacement enactment has not yet become operational.
This means that if an enactment has been repealed and is replaced by another, but the replacement is not yet operational (for whatever reason), the repealed provision will remain in force—although repealed—until the replacement is in force.

Case Law Example

In S v Koopman 1991 (1) SA 474 (NC), the accused was found guilty in the magistrate’s court of a contravention of the Road Traffic Act 29 of 1989 and sentenced to a fine, as well as to an endorsement of his driver’s license.
On review, his lawyer argued that the endorsement was invalid because the Cape Province Road Traffic Ordinance 21 of 1966 had been repealed by the Road Traffic Act 29 of 1989.
The provisions in the Act which authorized the suspension, endorsement, or rescission of driver’s licenses had not yet come into operation.
However, the court held that in terms of s 11 of the Interpretation Act, the provision in the repealed ordinance providing for such endorsement was still in operation.
The endorsement of the license by the magistrate’s court was then confirmed.

Repeal (Deletion)

Repeal is the revocation of legislation by the relevant competent lawmaker.
The legislation is not changed or substituted (replaced); it is deleted (removed) from the statute book.
In the case of individual provisions of original legislation, all that remains will be the numbering (as placeholders) and the legislative codes.
However, what is the effect of the repeal of legislation on pending cases?
Will the repeal revive anything previously repealed?
Section 12 of the Interpretation Act deals with the consequences when legislation is repealed.

Activity 01

Is the Constitution self-executing? Briefly explain your answer.
Does legislation automatically become invalid if it conflicts with the Constitution? Why or why not?
What is meant by a "competent legislature"? Give an example.
Why is the amendment of primary legislation considered a lengthy and expensive process?

Activity 02

According to the doctrine of separation of powers, is it important to distinguish between the terms ‘repeal’ and ‘invalidation’ of legislation?
Which section of the Interpretation Act 33 of 1957 provides that where a law repeals another, but the new law (or part of it) is not yet in force, the repealed law can remain applicable until the new provisions take effect? Substantiate your answer using Case law.
Differentiate between textual and non-textual amendment.

Activity 03

Evaluate the different methods of amending legislation.
It is notable that some statutes that once existed before, no longer exist today. Discuss how legislation meets its demise. Substantiate your answer using case law.

Additional Resources

VIDEO REFERENCES:

Student Counsel (2023). Student Counsel [Online]. Available at: https://m.youtube.com/watch?v=Wi4J9STdlw&t=10s&pp=ygUcc291cmNlcyBvZiBzb3V0aCBhZnJpY2FuIGxhdw%3D%3D (Accessed: 15 April 2025).
Edu for All : Let's Educate (2021) INTERPRETATION OF STATUTES | ROADMAP for GREAT START (Online) . Available at: https://youtu.be/I0XUVBGP2sk?si=_gpV1GeOUxrGtTbf ( Accessed: 27 February 2025)
The A Level Law Teacher (2022). Statutory Interpretation (Online). Available at: https://youtu.be/HYvQzJ0LsPU?si=ST-1CDvZR4R7rSzL (Accessed: 24 April 2025).