Detailed Notes on Legislative Changes and Demise

Previous chapter discussed the commencement of legislation.
Key questions: Is the legislation still in force? Has it been amended?
This chapter explains how legislation can be changed or terminated.
Common-law rules can be abrogated by disuse, but legislation cannot be (R v Detody 1926 AD 168).
Legislation needs to be repealed by a competent body or declared invalid by a court.
Before 1994, Parliament was sovereign; courts could only invalidate delegated legislation for non-compliance with administrative law.
After 1994, courts can test all legislation, including Acts of Parliament, against the Constitution.

The Constitution is not self-executing.
Section 2 of the Constitution states conflicting legislation is invalid, meaning it is potentially unconstitutional.
Legislation inconsistent with the Constitution is not automatically unconstitutional.
All legislation in force when the Constitution took effect remains in force until amended, repealed, or declared unconstitutional (item 2(1) Schedule 6 of the Constitution).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 must amend or repeal potentially unconstitutional legislation, or a competent court must declare it unconstitutional.
Legislation remains in force until amended or repealed; it does not fall away through disuse.
Legislation is amended or repealed by relevant competent lawmakers, i.e., bodies or persons with legislative authority.
For original legislation, the legislative authority includes the power to pass or amend any legislation, subject to hierarchical and territorial competencies prescribed by the Constitution (ss 44, 55, 68 for Parliament; ss 104, 114 for provincial legislatures; s 156 for municipalities).
For subordinate legislation, the enabling Act may state that the power to enact subordinate legislation includes the power to amend or repeal it (e.g., Rules Board for Courts of Law Act).
In the absence of an express provision, the common-law principle of implied powers applies: the power to make laws includes the power to amend or repeal such subordinate legislation.

Legislation may be amended by a competent legislature.
Parliament may amend an Act of Parliament via another Act of Parliament, and similarly for provincial legislatures and provincial ordinances/Acts.
Amending 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; the amending legislation describes the extent of changes with reference to affected provisions.
  - The Constitution provides that references to 'Administrator' in old order legislation 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 wording, etc.
  - General Laws Amendment Act: Used when several Acts are amended simultaneously.
  - Specific amending legislation: Used for specific legislation (e.g., the Births and Deaths Registration Amendment Act 1 of 2002 amended the Births and Deaths Registration Act 51 of 1992).

Courts have a secondary, law-making function in addition to applying the law.
This includes developing the common law to adapt to modern circumstances and giving form, substance, and meaning to legislation in concrete situations.
The judiciary may modify the initial meaning of a legislative provision to conform to the legislation's purpose or aim.
Judicial law-making involves creative judicial discretion but must be based on legal rules and principles.
According to the doctrine of separation of powers, legislatures make legislation, and courts interpret legislation and dispense justice.

Testing legislation (constitutional review): The process where legislation alleged to conflict with the Constitution is reviewed by the court.
The court measures the legislation against the Constitution and decides its validity.
If a court declares legislation unconstitutional, it cannot be applied, creating a vacuum in the legal order.
Competent courts may modify or adapt the legislation to keep it constitutional and alive if reasonably possible.
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.

Courts may modify the initial meaning of the legislative text under exceptional circumstances to ensure it reflects the legislation's purpose and object.