Statutory Interpretation - Learning Unit 1

Theme 1 — What is Legislation?

LO1 — Legislation as a Source of Law

• Four Sources of South African Law:

  • Common law
  • Statute law (legislation)
  • Indigenous / customary law
  • Case law (judicial precedent)

• Terminology and Definitions:

  • The law: Represents all forms and sources of law combined.
  • A law: Refers specifically to a written statute enacted by an authorized legislative body.
  • Legislation ("enacted law-texts"): Comprises Acts of Parliament, provincial legislation, municipal by-laws, proclamations, and regulations.
  • Capitalization Rule: "Act" (capitalized) refers to a parliamentary or provincial statute; "act" (lowercase) refers to conduct or action.
  • Common Law: Unwritten Roman-Dutch law originating in 17th-century Holland, providing underlying legal principles. It can be modified or overridden by legislation, but applies wherever no statute covers the subject.
  • Codifications: Statutory compilations of legal principles covering an entire branch of law (e.g., a criminal code); distinct from traditional unwritten common law.
  • Indigenous Law: The traditional law of South Africa's indigenous peoples, existing either as unwritten customary law or in codified form.
  • Case Law ("judicial precedent" / stare decisis): Law developed through court judgments. Decisions of higher courts bind lower and equal courts.

• Why Legislative Intervention Matters:

  • Common law develops incrementally and cannot keep pace with rapid modern technological and societal developments (e.g., electronic funds transfers [EFTs], stem-cell research, human trafficking).
  • In South Africa, dismantling the legislative framework of apartheid required—and continues to require—extensive legislative intervention.

LO2 — What is "Interpretation of Statutes"?

• Definition and Scope:

  • Interpretation of statutes consists of the body of rules and legal principles used to construct the correct meaning of legislative provisions for practical application.
  • Lourens du Plessis describes statutory interpretation as construing enacted law-texts "to cater for the exigencies of an actual or hypothesised concrete situation."
  • It is an active, creative legal exercise—not a mechanical "join-the-dots" process or a simple dictionary lookup.

• Illustrative Example — Fuller's Railway Station:

  • A municipal law bans "sleeping in a railway station."
  • A literal application penalizes a tired commuting passenger dozing off while awaiting a train, but arguably misses an unhoused individual setting up a bed and blanket while awake.
  • Demonstrates that literal words alone cannot resolve legal meaning—underlying purpose and context are essential.

• Illustrative Example — "The Right to Life":

  • Section 11 of the Bill of Rights guarantees the right to life, which does not grant literal immortality.
  • Courts formulated its precise operational scope across key judicial decisions:
  • S v Makwanyane: Declared the death penalty unconstitutional.
  • S v Walters: Confirmed that self-defence is not abolished.
  • Soobramoney v Minister of Health: Held that the state has no duty to provide expensive life-ending renal care to terminal patients at all costs.
  • Carmichele v Minister of Safety and Security: Linked the right to life to the state's positive duty to protect citizens from violent crime.

• Judicial Craftsmanship — Corocraft Ltd v Pan American Airways Inc [1968]:

  • Donaldson J established that judges are not "computers" mechanically processing statutory language.
  • Statutory interpretation is a craft. Judges act as "finishers, refiners and polishers" of legislation, selecting and applying interpretive tools as skilled craftsmen—without usurping the legislative role to create new law.

• Drafting Imperfections and Legalese:

  • Technical statutory definitions can create practical absurdity (e.g., the Firearms Control Act definition of a firearm based on "muzzle energy exceeding 8 joules," a physics calculation beyond average citizens and law enforcement).
  • Bad drafting and circular definitions (e.g., the Orange Free State Civil Protection Ordinance's circular definition of "disaster") complicate judicial application.
  • Courts in Santam v Taylor explicitly criticized poor legislative drafting.

• Legislative Purpose vs. Subjective Intention:

  • Traditionally termed the "intention of the legislature" under parliamentary sovereignty, modern jurisprudence recognizes this as a legal fiction.
  • Legislative assemblies consist of hundreds of individuals with differing motivations: some vote against, some vote strictly along party lines without reading, some are absent, and text is drafted by legal advisers rather than Members of Parliament.
  • Modern interpretation shifts away from searching for subjective intention toward establishing objective legislative purpose and scheme.

LO3 — Impact of the Constitution, 1996

• Pre-1994 Legal Order:

  • Defined by parliamentary sovereignty: Parliament could pass any law, and courts lacked power to test Acts against standards of fairness, justice, or equality.
  • Statutory interpretation was dominated by rigid, conflicting canons, the "golden rule," and English literalism.

• Post-1994 Constitutional Order:

  • The Interim Constitution (effective 27 April 1994) replaced parliamentary sovereignty with constitutional supremacy.
  • Introduced a mandatory interpretation clause requiring courts to promote the "spirit and purport" of fundamental rights, eliminating purely literal interpretation that ignores fundamental values.
  • Entrenched by the Final Constitution of 1996 (effective 4 February 1997).

• Six Key Transforming Constitutional Provisions:

  • Section 1 (Foundational provision): Establishes foundational values (human dignity, equality, human rights, non-racialism, non-sexism, supremacy of the Constitution, and the rule of law).
  • Section 2 (Supremacy clause): Establishes the Constitution as supreme law; any law or conduct inconsistent with it is invalid.
  • Section 7 (Obligation clause): Compels the state to respect, protect, promote, and fulfil the rights in the Bill of Rights.
  • Section 8 (Application clause): Binds all arms of state (legislature, executive, judiciary) and natural/juristic persons to the Bill of Rights.
  • Section 36 (Limitation clause): Restricts limitations of fundamental rights to laws of general application that are reasonable and justifiable in an open and democratic society.
  • Section 39 (Interpretation clause): Mandates that when interpreting any legislation, every court, tribunal, or forum must promote the spirit, purport, and objects of the Bill of Rights.

• Academic Foresight — Devenish (1992):

  • Predicted that ending apartheid and adopting a justiciable Bill of Rights would create a new, value-coherent methodology of interpretation, empowering courts to test and invalidate non-compliant legislation.

• Operational Principle:

  • All legislation must be interpreted compatibly with constitutional values.
  • Constitutional supremacy does not equal judicial supremacy: courts remain subject to the Constitution, acting solely as guardians of its provisions.

LO4 — Categories of Legislation

• Three Dimensions of Classification:

  • Time (Chronological)
  • Space (Geographical jurisdiction)
  • Hierarchy (Authority level)

• (a) Chronological Categories:

  • Legislation before 1806: Old Dutch placaaten; absorbed into common law. May linger via disuse; statutory interpretation rules do not apply to them.
  • Old Order Legislation (enacted before 27 April 1994):
  • Pre-Union legislation (1806–1910): British colonial statutes and Boer Republic laws; mostly repealed or incorporated (e.g., Lord's Day Observance Act 1895 technically lingering).
  • Union to Democratic Era (1910–1994): Acts of Parliament, TBVC/homeland legislation, provincial ordinances (1910–1986), Administrator proclamations (1986–1994), and local by-laws.
  • Legislation in the New Constitutional Order (since 1994): Interim Constitution (repealed), 1996 Constitution, post-1994 national Acts, provincial Acts, and municipal by-laws.

• (b) Hierarchical Categories:

  • The Constitution: Supreme law (Section 2). Pursuant to the Citation of Constitutional Laws Act 5 of 2005, it carries no Act number.
  • Original (Primary) Legislation: Passed by deliberative, elected legislative bodies deriving capacity directly from the Constitution (Parliament under ss43/44, provincial legislatures under s104, municipalities under s156). Includes Acts of Parliament, new provincial Acts, provincial ordinances (1961–1986), TBVC/homeland laws, and municipal by-laws (Fedsure confirmed municipal by-laws are original legislation).
  • Subordinate (Delegated/Secondary) Legislation: Issued by executive authorities or unelected officials (President, Ministers, statutory boards) under authority delegated by an enabling Act (regulations, proclamations, notices). Must remain strictly within the powers of the enabling Act; acts done ultra vires are invalid. Municipalities cannot delegate by-law-making power, meaning no subordinate category exists at the local level.

LO5 — Hierarchy in Legislation

• Hierarchy Table:

  • Rank 1 — The Constitution: Supreme law of the Republic (s2).
  • Rank 2 — Original / Primary Legislation: Acts of Parliament, provincial Acts, municipal by-laws. "Constitutional Acts" (e.g., PAIA, PAJA, PEPUDA) rank higher within original legislation, as some expressly state they prevail over other ordinary statutes.
  • Rank 3 — Subordinate / Delegated Legislation: Regulations, proclamations, ministerial notices. Must stay within, and not conflict with, the enabling Act.

• Judicial Review Principles across the Hierarchy:

  • Courts hold authority to review and test all categories of legislation against the Constitution.
  • If an enabling Act is declared unconstitutional, subordinate legislation framed under it automatically falls away (Moseneke).
  • Parliament cannot confer power on a delegated body to amend or repeal an Act of Parliament (Executive Council Western Cape).
  • Subordinate legislation must be interpreted in light of its enabling Act, but an enabling Act cannot be interpreted by reference to its subordinate regulations (Freedom of Expression Institute).

LO6 — What Does Not Qualify as Legislation

• Non-Legislative Legal Texts:

  • Common-law and indigenous-law rules: Constitute law, but were not enacted by a legislative authority.
  • Case law: Binding judicial precedent, but created by judges rather than lawmakers.
  • Policy documents (Green Papers, White Papers, interpretation notes, explanatory memoranda, practice notes): Not enacted text; cannot override, amend, or conflict with legislation.
  • "Administrative quasi-legislation" (Baxter): Departmental directives, circulars, and internal administrative manuals; may bind officials internally, but do not constitute subordinate legislation.
  • Legal notices and advertisements: Published in the Gazette, but lack legislative status.

• Judicial Distinction — Arun Property Development v City of Cape Town (2015):

  • The court affirmed: "Policy is not legislation but a general and future guideline for the exercise of public power by executive government… to achieve reasonable and consistent decision-making."

• Interpretive Utility:

  • Although non-legislative texts are not law, texts like explanatory memoranda, commission reports, and practice notes may serve as extrinsic interpretive aids, while Green/White Papers may evolve into future legislation.

LO7 — Components of Legislation (Structure and "Codes")

• Standard Structural Elements (Model: Labour Relations Act 66 of 1995):

  • Heading block: Displays Act number, year, assent date, commencement date, and signing authority. Includes historical amendments and subordinate regulations.
  • Preamble: Outlines historical context and rationale. Compulsory for Private Acts; optional for public Acts (reserved for nationally significant legislation).
  • Long title: Descriptive summary of scope and object; routinely concludes with "…and matters incidental thereto."
  • Enacting provision: E.g., "BE IT ENACTED by the Parliament of the Republic of South Africa as follows," establishing constitutional authorization.
  • Table of contents: Structural layout of the Act.
  • Definitions section: Internal statutory dictionary; usually situated near the beginning.
  • Purpose / interpretation clauses: Standard in post-1994 legislation.
  • Regulations / ministerial powers sections: Grants regulatory powers.
  • Repeal / amendment section: Usually placed in a schedule near the end.
  • Short title and commencement: Typically the final section.
  • Schedules: Houses technical data (e.g., national flag description in Schedule 1 of the Constitution).

• Standard Statutory Numbering Conventions:

  • Section: Arabic numerals (e.g., 1, 2, 3)
  • Subsection: Arabic numerals in brackets (e.g., (1), (2))
  • Paragraph: Lowercase letters in brackets (e.g., (a), (b))
  • Subparagraph: Roman numerals in brackets (e.g., (i), (ii))
  • Item: Italicised lowercase letters in italicised brackets (e.g., (aa))
  • Subitem: Italicised uppercase letters in italicised brackets (e.g., (AA))
  • Inserted Sections: Receive capital letter suffixes (e.g., s66A) to prevent renumbering the entire Act.

• Statutory "Codes":

  • Bracketed notes following amended provisions (e.g., "[S. 200A inserted by s. 51 of Act 12 of 2002.]").
  • Function as historical cross-references pointing to amending Acts.

Theme 2 — When is Legislation in Force?

LO8 — How Legislation is Passed and Promulgated

• Two Distinct Formal Steps:

  • 1. Adoption (Passage): The constitutional legislative process—drafting, introduction, public participation (s118/s59), committee consideration, parliamentary voting, and assent (President under s81; Premier under s123).
  • 2. Promulgation: Officially bringing enacted legislation into legal effect by publication in the official Government Gazette.

• Commencement Requirements across Levels:

  • Acts of Parliament and Provincial Acts: Take effect upon publication in the Gazette or on a date specified within the Act (ss81, 123 Constitution; s13 Interpretation Act).
  • Municipal By-laws: Take effect upon publication in the relevant provincial Gazette (s162 Constitution).
  • Subordinate Legislation: Must be published to commence (ss13, 16 Interpretation Act); Section 101(3) requires public accessibility. Adoption and promulgation occur almost simultaneously.
  • Emergency Gazette Procedures: If the Government Printer cannot publish, the President may prescribe alternative publication mechanisms (s16A Interpretation Act).
  • Parliamentary Oversight: Lists of proclamations and notices under which subordinate legislation is published must be tabled in Parliament (s17 Interpretation Act).

• Judicial Standard — President of the RSA v Hugo (1997):

  • Underlying the concept of "prescribed by law" are core rule of law requirements: accessibility, precision, and general application.
  • Individuals must be able to know the law in advance to conform their conduct accordingly.

LO9 — Calculating Days and Periods (ss13 & 14, Interpretation Act 33 of 1957)

• Key Rules under Section 13:

  • Section 13(2): A statutory "day" begins immediately at the conclusion of the previous day (00:01). This creates a technical retroactivity of a few hours, as the physical Gazette is published later during that date.
  • Section 13(1) Default Rule: If legislation provides no commencement date, it takes effect automatically on its date of publication in the Gazette.
  • Section 13(3): Where an Act commences on a date to be proclaimed, different commencement dates may be proclaimed for different provisions of the same Act.

• Five Commencement Scenarios:

  • (a) Default: Commences on date of publication in the Gazette.
  • (b) Delayed, specified: Fixed future date stated in the Act (e.g., Citation of Constitutional Laws Act 5 of 2005—assented 23 June 2005, commenced 27 June 2005).
  • (c) Delayed, unspecified: "To be proclaimed" by executive notice in the Gazette—requires legal practitioners to monitor every Gazette.
  • (d) Retroactive: Stated to commence prior to publication (e.g., Terrorism Act 83 of 1967—published June 1967, deemed in force from 27 June 1962).
  • (e) Combination: Different sections commence on different dates (e.g., Children's Act 38 of 2005—bulk commenced 1 July 2007, remaining provisions on 1 April 2010).

• Two Cautionary Tales:

  • "Too early out the starting blocks" (The Pharmaceuticals Saga): An Act was brought into operation before its supporting regulations and schedules were finalized, creating an unenforceable regulatory vacuum.
  • "Not hearing the gun going off" (The Johannesburg Metro AARTO Fiasco): Traffic officials issued fines under an old, repealed Act for over three months after a new Act commenced, invalidating thousands of fines and forcing refunds.

LO10 — Importance of Section 14 of the Interpretation Act

• The Logical Problem:

  • An authority (e.g., President or Minister) cannot exercise powers granted by an Act (such as appointing boards or framing regulations) before that Act has taken effect.

• The Statutory Solution (Section 14):

  • Empowers an authorized body to exercise statutory powers (making appointments or issuing regulations) after the Act is passed, but before it comes into force.
  • Limitation: Actions taken or regulations made under Section 14 cannot take legal effect prior to the commencement of the main Act itself.
  • Purpose: Prevents an "endless circle of invalidity" by allowing administrative structures to be established in advance, ensuring full operationality upon commencement.

• Key Case Law Applications:

  • R v Magana (1961): Held that "bringing the law into operation" under Section 14 includes "rendering it operative"—making it capable of immediate application upon commencement.
  • Cats Entertainment CC v Minister of Justice (1995): Confirmed that the Minister acted lawfully in inviting nominations for the Lotteries and Gambling Board before the enabling Act commenced.
  • Practical Application: Under the Jurisdiction of Regional Courts Amendment Act, the Minister issued regulations shortly before commencement, setting their effective date to coincide with the Act's commencement. Proper use of Section 14 avoids operational failures like the Pharmaceuticals saga.

Theme 3 — Presumptions & the Retro-Effect

LO11 — Presumptions Preventing Retro-Effect

• General Rule of Law Principle:

  • Legislation is presumed to apply prospectively (to the future only), not retrospectively (Gardner v Lucas; Transnet Ltd v Ngcezula).
  • Underpinned by the rule of law: subjects must know legal rules in advance to guide conduct, and vested rights must not be arbitrarily stripped retroactively (Curtis v Johannesburg Municipality).

• Three Legal Obstacles to Retroactivity:

  • All three obstacles must be overcome before retro-effect can apply validly:
  • 1. Common-law presumption against retrospectivity: Must be rebutted expressly (e.g., Terrorism Act deeming clause) or by necessary implication (where prospective application produces absurd or unjust results: Lek v Estate Agents Board; or where vested rights are unaffected and a benefit is conferred: Kruger v President Insurance).
  • 2. Section 35 of the Constitution: Strictly prohibits creating retroactive criminal offences (s35(3)(l)) and applying retroactive penalty increases (s35(3)(n)—the accused is entitled to the benefit of the least severe penalty).
  • 3. Other constitutional rights: Protections for property, fair administrative action, or access to courts may independently block retroactivity. Note: Section 37(2)(a) bars retroactive state of emergency declarations.

• Illustrative Cases and Statutory Exceptions:

  • R v Mazibuko (1958): An statutory amendment introduced the death penalty for robbery with aggravating circumstances. The court applied the presumption: the increased penalty could not apply retroactively to crimes committed before the amendment—the date of the offence, not the trial date, is decisive.
  • Firearms Control Act 60 of 2000 (Schedule 1, Item 8(4)): A rare instance overcoming all three obstacles: expressly allows prosecution under the new Act for conduct committed under the old Act, provided penalties do not exceed those allowed under the old Act.
  • Bareki NO v Gencor Ltd (2006):
  • Community members sued mining companies to rehabilitate an asbestos mine under the "duty of care" in Section 28 of the National Environmental Management Act 107 of 1998 (NEMA), covering pollution occurring before NEMA's 1999 commencement.
  • The court applied the common-law presumption against retrospectivity: because Section 28 created a strict obligation (requiring no fault or unlawfulness), the legislature could not be presumed to have intended it to apply retroactively. The claim failed.
  • (Note: While overtaken by a 2009 statutory amendment inserting Section 28(1A), the decision remains a key illustration of how the strictness of a legal obligation weighs against inferring retroactivity).

LO12 — Exceptions to the "Future Only" Rule

• Two Exceptions to the Presumption:

  • (a) Procedural Enactments:
  • Statutory changes dealing purely with court procedures apply retroactively to pending matters, provided substantive rights remain unimpaired (Minister of Public Works v Haffejee).
  • If a procedural change impairs or alters substantive rights (imposing new duties), the presumption against retroactivity re-applies (Euromarine International v The Ship Berg).
  • (b) Beneficial Retroactivity:
  • Where an enactment takes away no vested rights and purely benefits the individual, the presumption against retroactivity does not apply.
  • R v Sillas (1959): An amending Act reduced a criminal penalty between commission of the crime and sentencing. The court applied the lighter penalty retroactively, holding that the legislature "intends to burden its subjects as little as possible."

• Non-Retroactivity of the Constitution:

  • The 1996 Constitution is not retroactive.
  • Laws in force when the Constitution took effect remain valid until amended, repealed, or declared unconstitutional (Item 2, Schedule 6).
  • Pending judicial proceedings must be finalized as if the Constitution had not been enacted, unless the interests of justice require otherwise (Item 17, Schedule 6).

LO13 — Retroactivity vs. Retrospectivity

• Conceptual Distinction (NDPP v Carolus):
  • Retroactivity ("True" / "Strong" Retro-effect):
  • Effect: Operates from a date prior to enactment—rewinds and alters the law backwards in time.
  • Commencement: Set to a date before publication.
  • Mechanism: Requires a statutory deeming clause (a legal fiction).
  • Example: Terrorism Act 83 of 1967 (published June 1967, deemed in force from 27 June 1962).
  • Retrospectivity ("Weak" Retro-effect):
  • Effect: Operates prospectively for the future, but attaches new legal consequences to events completed in the past.
  • Commencement: Operates prospectively from date of publication.
  • Mechanism: No deeming clause required.
  • Example: Section 17 of the Children's Act (lowering age of majority from 21 to 18). A 19-year-old already major under old law is unaffected; a 19-year-old minor under old law automatically becomes a major forward in time upon commencement.

Theme 4 — Demise of Legislation

LO14 — Who May Amend and Repeal Legislation

• Impossibility of Abrogation by Disuse:

  • Legislation cannot fall away through disuse (R v Detody); it remains in force until formally repealed by a competent legislature or declared invalid by a court.

• Competence to Amend and Repeal:

  • Original Legislation: Can be amended or repealed only by a competent legislature acting within its constitutional and territorial jurisdiction (ss44, 55, 68 for Parliament; ss104, 114 for provinces; s156 for municipalities).
  • Subordinate Legislation: Power to amend/repeal may be explicitly granted in the enabling Act. Where omitted, common-law implied power applies (power to make implies power to repeal), codified in Section 10 of the Interpretation Act:
  • Section 10(1): Statutory power may be exercised from time to time as occasion requires.
  • Section 10(3): Power to make rules, regulations, or by-laws includes power to rescind, revoke, amend, or vary them.
  • Judicial Role: Courts cannot repeal legislation; courts may only declare unconstitutional or unlawful provisions invalid.

LO15 — Ways in Which Legislation is Changed

• (a) Formal Amendment by Legislature:

  • Non-textual (indirect) amendment: Wording remains physically unchanged; the amending statute alters application by reference (e.g., Item 3(2)(b) of Schedule 6 of the Constitution deeming "Administrator" to mean "Premier"; or use of mutatis mutandis).
  • Textual (direct) amendment: Physical wording is altered via insertions, deletions, or substitutions (e.g., General Laws Amendment Acts amending multiple statutes; or specific amending Acts like the Births and Deaths Registration Amendment Act 1 of 2002).

• (b) Informal Judicial "Amendment" (Modificative Interpretation):

  • Constitutional Remedies: Reading down, reading up, reading in, and severance—used to cure unconstitutional text.
  • Purposive Adaptation: In exceptional circumstances, courts adapt literal meaning to align with legislative purpose. Used restrictively due to separation of powers.

LO16 — Invalidation of Legislation by the Courts

• Distinction Between Repeal and Invalidation:

  • Repeal: Performed by the legislature; removes text from the statute book.
  • Invalidation: Performed by a court; declares text legally unenforceable due to constitutional or administrative conflict. Text remains physically on the statute book until formally repealed by the legislature.
  • S v Makwanyane Example: The Constitutional Court invalidated death penalty provisions in 1995, but formal repeal by Parliament occurred later via the Criminal Law Amendment Act 105 of 1997.

• (a) Invalidation of Unconstitutional Provisions:

  • Under Section 172, the High Court, SCA, or Constitutional Court may declare legislation unconstitutional.
  • Under Sections 167(5) and 172(2), High Court or SCA declarations invalidating Acts of Parliament or Provincial Acts have no force until confirmed by the Constitutional Court (temporary interdictory relief may be granted in the interim).
  • Declarations invalidating municipal by-laws or subordinate regulations do not require Constitutional Court confirmation.
  • If an enabling Act is declared unconstitutional, subordinate regulations framed under it automatically fall away (Moseneke).
  • Engelbrecht v Road Accident Fund (2007): A 14-day affidavit deadline was declared unconstitutional for violating Section 34 (access to courts).
  • Matatiele Municipality v President of the RSA (2006): Legislation was declared unconstitutional for failing to satisfy public participation requirements under Section 118.

• (b) Invalidation of Subordinate Legislation:

  • Subordinate legislation may be invalidated on administrative law grounds (vagueness, ultra vires).
  • MEC for Public Works, Free State v Morning Star (2003): The legal standard for vagueness is reasonable clarity—understandable to the reasonable person, not "the fool." Courts attempt to sever vague clauses rather than void an entire regulation.

LO17 — Ways in Which Legislation May Be Repealed

• (a) Substitution (Repeal and Replace):

  • Risks a "legislative short circuit" if the old law is repealed before the replacement law commences.
  • Solutions: Include explicit transitional provisions in the repealing Act (e.g., Item 9, Schedule 5, Companies Act 71 of 2008).
  • Default Rule (Section 11, Interpretation Act): Where a law repeals and substitutes provisions, the repealed provisions remain in force until the substituted provisions actually commence (S v Koopman).

• (b) Repeal (Deletion) — Section 12, Interpretation Act 33 of 1957:

  • Section 12(1): Where a law repeals and re-enacts a provision, cross-references in other statutes to the repealed provision are read as references to the new provision.
  • Section 12(2): Repeal does not:
  • Revive anything not in force at the time of repeal;
  • Affect the previous operation of the repealed law or anything done under it;
  • Affect any right, privilege, obligation, or liability accrued or incurred;
  • Affect any penalty, forfeiture, or punishment incurred;
  • Affect any pending investigation, legal proceeding, or remedy—which continue as if the repealing law had not passed.
  • Keagile v AG Transvaal & Nourse v Van Heerden (1999): A criminal trial must be completed under the law existing when the trial began, even if the offence is later decriminalized or repealed.

• Related Repeal Mechanisms:

  • Repeal of legislation incorporated by reference: If Law B provisions are incorporated into Law C, repeal of Law B does not automatically repeal the incorporated provisions in Law C (Solicitor-General v Malgas).
  • Sunset clauses: Provisions specifying automatic termination on a fixed future date unless extended ("adopted and repealed at the same time," e.g., FIFA World Cup tax-free zones).
  • Implied repeal: Where two enactments on the same hierarchical level conflict irreconcilably, the later enactment impliedly repeals the earlier.

LO18 — Suspension of Legislation Already in Force

• Nature of Suspension:

  • Operation of in-force legislation is temporarily halted pending a condition (differs from repeal or invalidation).

• Section 149 of the Constitution:

  • "A decision by a court that legislation prevails over other legislation does not invalidate that other legislation, but that other legislation becomes inoperative for as long as the conflict remains."
  • Arises from co-operative governance conflict resolution (ss40–41, Schedule 4, ss146–150).

• Common Law Maxim — Cessante ratione legis, cessat et ipsa lex:

  • Courts may suspend application where statutory purpose has been completely fulfilled through alternative means.

• Formal vs. Administrative Suspension:

  • Formal: Effected via legislative amendment (e.g., sunset clauses).
  • Administrative: An executive agency puts implementation on hold (e.g., 2011 National Treasury suspension of Section 45 Income Tax Act for 18 months, later formalised retroactively via Section 23K of Taxation Laws Amendment Act 24 of 2012).

LO19 — Presumption Against Changing Existing Law More Than Necessary

• Core Canon:

  • Legislation must be interpreted consistently with existing law (common law and statutes) and presumed to alter existing law as little as possible.

• (a) Relation to Common Law:

  • Johannesburg Municipality v Cohen's Trustees (1909) (Solomon J): "It is a sound rule to construe a statute in conformity with the common law rather than against it, except where and so far as the statute is plainly intended to alter the course of the common law."
  • Presumption is rebutted only where text clearly alters common law (Gordon v Standard Merchant Bank).

• (b) Relation to Other Legislation:

  • Presumed the legislature did not intend to repeal or modify an earlier Act (Kent v SA Railways and Harbours).
  • Duty to Reconcile: Courts must first attempt to reconcile apparently conflicting statutory provisions (Shozi v Minister of Justice).
  • Implied Repeal: If reconciliation is impossible, the later provision prevails and impliedly repeals the earlier (Entabeni Hospital v Van der Linde; FNB v Puckriah).
  • Government of the RSA v Government of KwaZulu (1983): Land dispute where the 1927 Black Administration Act and 1971 Self-Governing Territories Constitution Act conflicted irreconcilably; the earlier provision was impliedly repealed by the later.

• Limits on Implied Repeal:

  • Applies only where provisions are in pari materia (same subject matter).
  • Requires manifest contradiction (Minister of Police v Haunawa).
  • Generalia specialibus non derogant: A later general provision is presumed not to repeal an earlier specific provision (Sappi Fine Papers v ICI Canada).

Key Interpretation Act 33 of 1957 Sections

• Section 2: Defines "law" as any law, proclamation, ordinance, Act of Parliament, or other enactment having force of law.
• Section 10: Codifies implied power to amend/repeal subordinate rules and exercise powers as occasion requires.
• Section 11: Preserves repealed provisions during substitution until replacement provisions actually commence.
• Section 12: Preserves accrued rights, incurred liabilities, penalties, and pending legal proceedings following repeal.
• Section 13: Governs commencement; defaults to Gazette publication date, sets day start at 00:01, permits varied proclamation dates.
• Section 14: Authorizes preparatory actions (appointing boards, framing regulations) after passage but before commencement.
• Section 16A & 17: Regulates emergency Gazette printing alternatives and mandatory parliamentary tabling of subordinate notices.