Changes to and the Demise of Legislation

General Principles of Legislative Validity and Changes

• Continued Force of Legislation:

  • The primary question regarding legislation is no longer just "is it in force yet?" but also "is it still in force?" and "has it been amended?"

  • Common-law vs. Legislation: Common-law rules can be abrogated by disuse, but legislation cannot (as established in R v Detody $1926$ AD $168$). Legislation does not simply disappear; it must be repealed by a competent body or declared invalid by a court.

  • Constitutional Shift ($1994$):

    • Before $1994$, Parliament was sovereign. Courts could only invalidate delegated legislation that failed to comply with common-law rules of administrative law.

    • After $1994$, the Constitution became supreme. Courts now have the power to test all legislation, including Acts of Parliament, against the supreme Constitution.

• Constitutional Validity:

  • The Constitution is not self-executing. While Section $2$ states that legislation in conflict with the Constitution is invalid, this means such legislation is potentially unconstitutional.

  • Inconsistency does not result in automatic unconstitutionality.

  • Item $2(1)$ of Schedule $6$: All legislation in force when the Constitution took effect remains in force until it is specifically amended, repealed, or declared unconstitutional by a competent court.

Authority to Amend and Repeal Legislation

• Competent Lawmakers:

  • Legislation is amended or repealed by relevant legislative authorities (those with the power to pass laws).

  • Original Legislation: Legislative authority for original legislation is governed by the Constitution:

    • Parliament: Sections $44$, $55$, and $68$.

    • Provincial Legislatures: Sections $104$ and $114$.

    • Municipalities: Section $156$.

• Subordinate (Delegated) Legislation:

  • Express Power: Enabling Acts may explicitly state that the power to enact includes the power to amend or repeal (e.g., the Rules Board for Courts of Law Act allows the board to make, amend, or repeal rules for the Supreme Court of Appeal, High Courts, and lower courts).

  • Implied Powers: Under common law, the power to make laws by implication includes the power to amend or repeal (revoke, rescind, or retract) them.

  • Interpretation Act $33$ of $1957$ (Section $10$):

    • Section $10(1)$: When a law confers power or imposes a duty, it may be exercised "from time to time as occasion requires."

    • Section $10(4)$: Where law confers power to make rules, regulations, or by-laws, it includes the power (identically exercisable) to rescind, revoke, amend, or vary them.

Mechanisms for Changing Legislation

• Formal Amendment by Legislature:

  • Parliament amends an Act of Parliament with another Act. This is a lengthy and expensive process for primary legislation.

  • Non-textual (Indirect) Amendment: No direct changes are made to the wording of the principal legislation. Instead, the amending law describes the extent of changes by reference.

    • Examples: Item $3(2)(b)$ of Schedule $6$ of the Constitution (references to "Administrator" become "Premier"); Section $6$ of the Interpretation Act (masculine gender includes females; singular includes plural).

    • Mutatis Mutandis: A Latin term meaning "with the necessary changes having been made." It allows legislative amendments to apply to other situations while keeping the main point the same (e.g., Section $11A(1A)$ of the repealed South African Citizenship Amendment Act $64$ of $1961$).

  • Textual (Direct) Amendment: Actual wording of the principal legislation is changed with additions or deletions.

    • General Laws Amendment Act: Used to amend multiple Acts simultaneously.

    • Specific Amending Legislation: Only affects one Act (e.g., Births and Deaths Registration Amendment Act $1$ of $2002$).

    • Continuous Amendment: Some laws, like the Income Tax Act, are amended annually (e.g., Taxation Laws Amendment Act $24$ of $2011$).

• Informal Judicial 'Amendment' (Modificative Interpretation):

  • Courts have a secondary law-making function (creative judicial discretion) to adapt the common law and give meaning to legislative provisions in concrete situations.

  • Constitutional Review: The process of testing legislation against the Constitution.

  • Corrective Techniques: To avoid legal vacuums, courts try to keep legislation constitutional using:

    • Reading down.

    • Reading up.

    • Reading in.

    • Severance.

The Demise of Legislation: Invalidation vs. Repeal

• Definitions:

  • Repeal: The deletion or removal of legislation from the statute book by an elected legislature.

  • Invalidation: A court declaration that legislation is legally unacceptable. It remains on the statute book but cannot be applied until a lawmaker removes it.

• Process of Invalidation:

  • Courts invalidate based on constitutional grounds or administrative law requirements.

  • S v Makwanyane: The Constitutional Court declared the death penalty unconstitutional. The legislation remained on the books as unenforceable until Parliament repealed it via the Criminal Law Amendment Act $105$ of $1997$.

• Constitutional Invalidation (Section $172$):

  • High Courts, the Supreme Court of Appeal (SCA), or the Constitutional Court can declare legislation unconstitutional.

  • Engelbrecht v Road Accident Fund: Regulation $2(1)(c)$ of the Road Accident Fund Act $56$ of $1996$ was invalidated because a $14$-day limit to submit affidavits violated the right of access to courts (Section $34$).

  • Matatiele Municipality v President of the RSA $2006(5)$ SA $47$ (CC): Parts of the Constitution Twelfth Amendment Act of $2005$ were invalidated due to lack of public participation required by Section $118$.

  • Confirmation: Declarations of unconstitutionality for Acts of Parliament by High Courts or the SCA have no force until confirmed by the Constitutional Court (Section $167(5)$ and $172(2)$). This does not apply to delegated or local government legislation.

• Invalidation of Subordinate Legislation:

  • May be invalidated for administrative law failures (e.g., ultra vires or vagueness).

  • Vagueness Standard: MEC for Public Works… v Morning Star Minibus Hiring Services $2003(4)$ SA $429$(O) established that the law requires reasonable clarity, not perfection. The court attempts to separate "the bad from the good," upholding the general tenure where possible.

Substitution and Transitional Arrangements

• Substitution (Repeal and Replace):

  • To prevent a "legislative short circuit," lawmakers include transitional measures.

  • Companies Act $71$ of $2008$ (Schedule $2$, Item $9$): Winding-up provisions of the previous Act continue to apply until the Minister is satisfied that replacement legislation is ready.

• Section $11$ of the Interpretation Act:

  • Provides a safety net: when a law is repealed and substituted, the repealed law remains in force until the substitute provisions come into operation.

  • S v Koopman $1991(1)$ SA $474$(NC): Provisions of the Cape Province Road Traffic Ordinance $21$ of $1966$ remained in effect because the corresponding parts of the Road Traffic Act $29$ of $1989$ had not yet commenced.

  • Children's Act $38$ of $2005$: Repealed the Child Care Act $74$ of $1983$ in total, but some $1983$ provisions stayed in force until $2010$.

  • National Health Act $61$ of $2003$: The Human Tissue Act $65$ of $1983$ remained operational in parts for nearly $7$ years (until March $2012$) due to delayed commencement of the replacement chapters.

Consequences of Repeal (Section $12$ of the Interpretation Act)

• Section $12(1)$ - References: If provision $X$ is replaced by $Y$, all references in other laws to $X$ are construed as references to $Y$.

• Section $12(2)$ - Transitional Protections: Unless a contrary intention appears, repeal shall not:

  1. Revive anything not in force at the time of repeal.

  2. Affect previous operations or things duly done under the repealed law.

  3. Affect any right, privilege, obligation, or liability acquired under the law.

  4. Affect any penalty, forfeiture, or punishment incurred for past offences.

  5. Affect any pending investigation or legal proceeding.

• Case Law on Section $12(2)$:

  • R v Maluma $1949$ $3$ SA $856$(T): Repealing an Act that declared an action illegal does not retroactively make that past action legal.

  • Estate Crosby v Wynberg Municipality $1912$ CPD $1026$: A valuation process started under a repealed Act had to be completed under that Act.

  • Keagile v Attorney-General, Transvaal $1984$ $2$ SA $816$(T): The Attorney-General could still issue a bail refusal under the repealed Internal Security Act $44$ of $1950$ for an offense committed while it was in force.

  • Nourse v Van Heerden $1999(2)$ SACR $198$(W): Charges under the Abortion and Sterilization Act $2$ of $1975$ stood even after the Choice on Termination of Pregnancy Act $92$ of $1996$ was passed, as the trial began before the repeal and the new Constitution.

Specialized Repeal and Termination Concepts

• Incorporation by Reference:

  • If legislation $A$ incorporates provisions from legislation $B$, and $B$ is later repealed, the incorporated provisions in $A$ remain in force unless specifically addressed (Solicitor-General v Malgas $1918$ AD $489$).

  • Occupational Health and Safety Act $85$ of $1993$ (Section $76$): Standards incorporated by reference are treated as regulations and remain in force even if the original standard is replaced, until updated by notice in the Gazette.

• Sunset Clauses:

  • Provisions that terminate all or part of a law after a specific date unless extended by the legislature.

  • Customs and Excise Act $91$ of $1964$ (Section $48(6)$): Amendments by the Minister lapse on the last day of the next calendar year unless Parliament says otherwise.

  • FIFA World Cup Bubble (Act $20$ of $2006$): Tax exemptions within designated areas existed for a specific period (one week before kick-off until the closing ceremony).

• Implied Repeal:

  • Occurs when two enactments on the same hierarchical level and generality clash. It is presumed the later enactment repeals the earlier one.

  • Case Study: The Ingwavuma/KwaZulu land issue. The Black Administration Act $38$ of $1927$ allowed land alteration without consultation, but the Self-Governing Territories Constitution Act $21$ of $1971$ required consultation. The latter provision prevailed.

  • Rule: Generalia specialibus non derogant — a general provision in a later Act does not repeal a specific provision in an earlier Act.

Suspension of Legislation

• Definition: Legislation remains in force, but its operation is temporarily halted.

• Conflict Resolution (Section $149$): In the system of co-operative government, if a court decides national legislation prevails over provincial legislation (or vice versa), the legislation that does not prevail becomes "inoperative" but is not invalidated.

• Cessante Ratione Legis, Cessat et Ipsa Lex: A rule where a court may suspend legislation because its purpose has been met in another way.

• Administrative Suspension:

  • In $2011$, National Treasury attempted to suspend Section $45$ of the Income Tax Act. Although the legislative suspension was never adopted, a temporary administrative suspension for $18$ months occurred.

  • Later, Section $23K$ was inserted via the Taxation Laws Amendment Act $24$ of $2012$ and retroactively dated to June $3$, $2011$, to cover the conduct during that suspension.

Presumption Against Changing Existing Law

• Concept: Legislation should be interpreted to align with existing law (legislation, common law, customary law) as much as possible.

• Common Law: As stated in Johannesburg Municipality v Cohen's Trustees $1909$ TS $811$, a statute is construed in conformity with common law unless it plainly intends to alter it.

• Legislation: It is assumed the legislature did not intend to repeal an earlier Act. Courts should strive to reconcile contradictory provisions (Wendywood Development (Pty) Ltd v Rieger $1971(3)$ SA $28$(A)). Only if reconciliation is impossible is the later provision presumed to repeal the former.

1. Explain the primary questions concerning legislative force that a court might consider.

2. Differentiate between common law and legislation with respect to how they can be abrogated or invalidated. Provide an example from the provided notes.

3. Discuss the significance of the constitutional shift that occurred in 1994 concerning parliamentary sovereignty and the role of the courts.

4. What does it mean for legislation to be deemed "potentially unconstitutional" as mentioned in the section discussing constitutional validity?

5. Identify the authorities that can amend or repeal legislation, providing specific sections from the Constitution applicable to Parliament, provincial legislatures, and municipalities.

6. Describe the difference between formal amendment and informal judicial amendment of legislation.

7. Define the terms "repeal" and "invalidation" in the context of legislation. How do they differ in effects?

8. What are some mechanisms for changing legislation? Include examples of textual and non-textual amendments.

9. Illustrate the concept of substitution in legislation with a relevant example from the notes.

10. Explain the implications of the suspensive mechanism of legislation as defined in the notes, including any relevant case law.

11. What does the presumption against changing existing law entail? Why is it significant in legislative interpretation?

1. Primary Questions Concerning Legislative Force: Courts consider whether legislation is still in force, has been amended, or is inconsistent with the Constitution.

2. Common Law vs. Legislation: Common law can be abrogated by disuse, while legislation cannot simply disappear; it must be repealed or declared invalid by a competent body. An example is R v Detody (1926) AD 168.

3. Significance of 1994 Constitutional Shift: Before 1994, Parliament was sovereign, but post-1994, the Constitution became supreme, allowing courts to test all legislation, including Acts of Parliament, against the Constitution.

4. Potentially Unconstitutional Legislation: Legislation deemed potentially unconstitutional means it conflicts with the Constitution but is not automatically invalid until declared so.

5. Authorities to Amend/Revoke Legislation: - Parliament: Sections 44, 55, and 68.

   • Provincial Legislatures: Sections 104 and 114.

   • Municipalities: Section 156.

6. Formal vs. Informal Amendment: Formal amendment involves changing the wording through a new Act, while informal amendment (or modificative interpretation) involves courts adapting the meaning of the law without changing its text.

7. Repeal vs. Invalidation: Repeal is the deletion of legislation, while invalidation is a court declaration that legislation cannot be applied, remaining on the books until formally removed.

8. Mechanisms for Changing Legislation: Mechanisms include formal amendments by the legislature, textual changes, non-textual amendments (e.g., references changed), and informal judicial amendments.

9. Concept of Substitution: For example, the Companies Act 71 of 2008 includes transitional measures that allow previous winding-up provisions to remain in effect until satisfied with the replacement legislation.

10. Suspensive Mechanism Implications: Legislation can be temporarily halted (suspended) without being invalidated, which may occur if it conflicts with other legislation. Case law like Cessante Ratione Legis, Cessat et Ipsa Lex highlights this principle.

11. Presumption Against Changing Existing Law: It entails interpreting new legislation to align with existing laws. It is significant as courts should aim to reconcile contradictions unless it is impossible, thus preserving the continuity of the legal framework.