Changes to and the Demise of Legislation
Introduction
The chapter addresses the question of whether legislation is still in force and whether it has been amended, building on the previous discussion about the commencement of legislation.
Common-law rules can be abrogated by disuse, but legislation cannot. It must be repealed by a competent body or declared invalid by a court (R v Detody 1926 AD 168).
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 Constitution.
Who May Amend and Repeal Legislation?
The Constitution is not self-executing; legislation conflicting with it is potentially, but not automatically, unconstitutional.
Legislation in force when the Constitution took effect remains so until amended, repealed, or declared unconstitutional (item 2(1) Schedule 6 of the Constitution).
A competent body (legislature or court) must act to remove potentially unconstitutional legislation.
Legislation remains in force until amended or repealed by competent lawmakers.
Legislative authority:
Original legislation: relevant legislatures can pass or amend legislation, subject to constitutional competencies (ss 44 and 55 read with s 68, s 104 and 114, and s 156 of the Constitution).
Subordinate legislation: enabling Act may grant power to amend or repeal. The Rules Board for Courts of Law Act empowers the Rules Board for Courts of Law to make, amend, or repeal rules for the Supreme Court of Appeal, the High Courts, and the lower courts.
Common-law principle of implied powers applies if the enabling Act is silent. A delegated lawmaker's power to enact subordinate legislation includes the power to amend or repeal it.
Changes to Legislation
Formal Amendment of Legislation by a Competent Legislature
Legislation may be amended by a competent legislature (Parliament, provincial legislature, etc.).
Amendment of primary 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; the amending legislation describes the extent of changes in the law with reference to the provisions that will be affected.
The Constitution states reference to a old order legislation to an 'Administrator' must be interpreted as referring to the Premier of a province
Textual (direct) amendment: actual wording of principal legislation is changed with additions, changes to the wording, etc.
A General Laws Amendment Act amends multiple Acts simultaneously.
Specific legislation is amended by specific amending legislation (e.g., the Births and Deaths Registration Amendment Act 1 of 2002 amended the Births and Deaths Registration Act 51 of 1992).
Modificative Interpretation by the Courts
Courts have a secondary, law-making function involving development of common law and giving meaning to legislative provisions.
Judiciary may modify the initial meaning of legislation to conform to its purpose.
Judicial law-making must be based on legal rules and principles.
Legislatures make legislation, and courts interpret legislation and dispense justice, according to the doctrine of separation of powers.
Attempts to Save Legislation During Constitutional Review
Constitutional review: 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.
A court may invalidate legislation.
Courts may modify or adapt legislation to keep it constitutional.
Corrective techniques or remedial correction of legislation (reading-down, reading-up, reading-in, and severance) may be employed.
Modification of the Legislative Meaning During Interpretation
Courts may modify the initial meaning of the legislative text to ensure it reflects the purpose and object of the legislation.
The Demise of Legislation
Distinction between 'repeal' and 'invalidation' and who is authorized to do it is important in terms of the doctrine of separation of powers.
Repeal: legislation is deleted from the statute book.
Invalidation: legislation is declared legally unacceptable but remains on the statute book until removed by a competent lawmaker.
Courts invalidate legislation.
Legislatures repeal legislation.
Courts invalidate legislation on constitutional grounds or due to non-compliance with administrative law requirements.
Example
In S v Makwanyane, the Constitutional Court held that the death penalty was unconstitutional.
The invalidated legislation remained on the statute books.
Parliament subsequently repealed all legislation relating to the death penalty via 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 or conflicts with another constitutional requirement.
In terms of s 167(5) read with s 172(2) of the Constitution, a declaration of unconstitutionality by a High Court or the Supreme Court of Appeal has no force until confirmed by the Constitutional Court. 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 if it does not comply with 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.
The mischief which the legislation intended to curtail was important, as well as 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
Repeal is the revocation of legislation by the relevant competent lawmaker.
Substitution (Repeal and Replace)
When a lawmaker substitutes legislation, there might be a gap if the replacing law is not in force when the other legislation departs.
The repealing legislation could expressly provide for a suitable transitional measure.
s 11 of the Interpretation Act deals with gaps in the law if the one enactment is repealed, but the replacement enactment has not yet become operational.
If an enactment has been repealed and is replaced by another, but the replacement is not yet operational, 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 of a contravention of the Road Traffic Act 29 of 1989.
The 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.
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 deleted 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.
Section 12 of the Interpretation Act deals with the consequences when legislation is repealed.
Legislation remains in force until amended, repealed, or declared unconstitutional by a competent body (legislature or court). Courts can test legislation against the Constitution.
Legislative Authority: Original legislation is amended by relevant legislatures; subordinate legislation is amended as per the enabling Act.
Formal Amendment: Non-textual (indirect) amendments change the law's effect without altering the text. Textual (direct) amendments change the wording directly.
Modificative Interpretation: Courts interpret and modify legislation to align with its purpose, based on legal rules and principles.
Constitutional Review: Courts review legislation for constitutionality and may modify it using techniques like reading-down, reading-up, reading-in, and severance.
Demise of Legislation: Repeal (legislative deletion) vs. Invalidation (judicial declaration of unconstitutionality).
Invalidation: Courts invalidate unconstitutional or administratively non-compliant legislation. A declaration of unconstitutionality from lower courts requires confirmation by the Constitutional Court.
Repeal: Lawmakers revoke legislation, which is then deleted from the statute book. Substitution involves repeal and replacement, with transitional measures to avoid gaps.
Substitution: s 11 of the Interpretation Act deals
Legislation remains in force until amended, repealed, or declared unconstitutional by a competent body (legislature or court). Courts can test legislation against the Constitution.
Legislative Authority: Original legislation is amended by relevant legislatures; subordinate legislation is amended as per the enabling Act.
Formal Amendment: Non-textual (indirect) amendments change the law's effect without altering the text. Textual (direct) amendments change the wording directly.
Modificative Interpretation: Courts interpret and modify legislation to align with its purpose, based on legal rules and principles.
Constitutional Review: Courts review legislation for constitutionality and may modify it using techniques like reading-down, reading-up, reading-in, and severance.
Demise of Legislation: Repeal (legislative deletion) vs. Invalidation (judicial declaration of unconstitutionality).
Invalidation: Courts invalidate unconstitutional or administratively non-compliant legislation. A declaration of unconstitutionality from lower courts requires confirmation by the Constitutional Court.
Repeal: Lawmakers revoke legislation, which is then deleted from the statute book. Substitution involves repeal and replacement, with transitional measures to avoid gaps.
Substitution: s 11 of the Interpretation Act deals