2.5 - RELATIONSHIP BETWEEN LEGISLATION AND COMMON LAW
The Constitution is the highest law in the land, and any law (including the common
law) inconsistent with the Constitution is invalid (s 2)
The courts must promote the spirit, purport and objects of the Bill of Rights when
they develop the common law (s 39(2))
Since 1994, both legislation and the common law are trumped (overruled) by the
supreme Constitution
Common law is not ‘repealed’ by legislation, but ‘trumped’ or overruled → it is
possible for new legislation to provide expressly that it will operate side- by- side with
existing common- law rules
e.g. S 2(10) of the Consumer Protection Act
Certain common- law rules (such as presumptions) are used to interpret legislation
Ch.3 - Is it in force? The commencement of legislation
Is the legislation in operation? Can it be applied?
Before the process of interpretation of legislation can start, the interpreter has to
determine whether the legislation is actually in force
This chapter deals with when and how legislation commences and takes affect
3.1 - ADOPTION AND PROMULGATION OF LEGISLATION:
It is important to distinguish between the adoption (passage) of legislation and its
promulgation
Adoption
The process of having legislation passed in Parliament or provincial legislature
Refers to the constitutionally prescribed and other legal processes and
procedures required for the draft legislation to become law → this includes
preparation of a draft bill, introduction of the Bill in the legislature, and public
participation, committee stages, voting and assent
Stages, readings and processes through which legislation has to pass before
accepted and issued by relevant legislative body
Once legislature has adopted a Bill, the Act has to be assented to and signed by the
President or Premier → once this is done, it becomes law
Although such an Act is now legally enacted legislation, it is not yet operational, it
needs to be promulgated
, Promulgation
Legal enactment is not operational legislation → for an Act to commence, it
must be promulgated
Process by which legislation commences and takes effect – by publication in
official Gazette
Refers to the process of putting legislation officially and legally into
operation→ taking effect of law
For subordinate legislation- adoption and promulgation will happen almost
simultaneously
3.2 Hear ye, hear ye! Publication requirement
Legislation has to be published in Gazette for it to take effect
Does not always mean the law will take effect on that day, a different date may be
determined
Rationale for this: the law should be known to people affected by it
Constitution s 1(c) - rule of law → people must know what the law is
s 1(d) - democratic government to ensure accountability, responsiveness
+ openness
Legislation commences on the date of publication, irrespective of whether it has come
to the knowledge of all people
• If Government, for reasons beyond its control, cannot print Gazette, President may
prescribe alternative procedures for promulgation of legislation
• A list of proclamations + notices under which delegated legislation were published
must be tabled in Parliament
• Some legislation (e.g. PEPUDA, s30(2)) requires regulations made in terms of that
Act to be tabled in Parliament
3.3 – Pulling the Trigger…COMMENCEMENT OF LEGISLATION:
Who promulgates?
authority to promulgate (bring an act into operation) is not the same as authority to
legislate
Since it is the legislature who ‘speaks’, the resulting legislation is promulgated by the
lawmaker in question
, Practicality often demands that authority to put legislation into operation be
delegated to a member of the executive → will put legislation into operation by
means of a proclamation (specific delegated- authority to put original legislation into
operation on behalf of the particular legislature)
Ex parte Minister of Safety and Security: In re S v Walters
The court explained that the power conferred by the legislature on the President
to fix a date for commencement is a public power and has to be exercised
lawfully and to achieve purpose for which it was given; the power could not
lawfully be used to block or veto the implementation of the new law
Dealt with s 39 of Criminal Procedure Act → ‘shoot- to- kill’ policy
The president decided that staff needed to be trained first so he asked to delay
commencement of legislation
The president put off bringing the section of the Act into operation
CC was unhappy → separation of powers
The court concluded that the President could not refuse to bring the Act into operation
3.3.2 - When is it in force?
1. The default setting: on date of publication
s 13(1) of Interpretations Act, ss 81 and 123 of the Constitution
If the legislation does not prescribe a date of commencement, it automatically
commences on the day of its publication in the Gazette
2. Delayed commencement: on a future specified date
s 13(1) of Interpretations Act, ss 81 and 123 of the Constitution
The legislation as published in the Gazette may provide for another fixed date
(other than the date of publication) for its commencement → since the
legislation need not be published again on the future commencement date, it
will automatically commence on that specified date
3. Delayed commencement: on an unspecified future date still to be proclaimed
s 13(3) of the Interpretations Act
Where an Act is to commence on a date to be determined by the President, the
President’s proclamation is all that is required → the Act will commence on
the date indicated in the proclamation
4. Retroactive commencement
The Constitution is the highest law in the land, and any law (including the common
law) inconsistent with the Constitution is invalid (s 2)
The courts must promote the spirit, purport and objects of the Bill of Rights when
they develop the common law (s 39(2))
Since 1994, both legislation and the common law are trumped (overruled) by the
supreme Constitution
Common law is not ‘repealed’ by legislation, but ‘trumped’ or overruled → it is
possible for new legislation to provide expressly that it will operate side- by- side with
existing common- law rules
e.g. S 2(10) of the Consumer Protection Act
Certain common- law rules (such as presumptions) are used to interpret legislation
Ch.3 - Is it in force? The commencement of legislation
Is the legislation in operation? Can it be applied?
Before the process of interpretation of legislation can start, the interpreter has to
determine whether the legislation is actually in force
This chapter deals with when and how legislation commences and takes affect
3.1 - ADOPTION AND PROMULGATION OF LEGISLATION:
It is important to distinguish between the adoption (passage) of legislation and its
promulgation
Adoption
The process of having legislation passed in Parliament or provincial legislature
Refers to the constitutionally prescribed and other legal processes and
procedures required for the draft legislation to become law → this includes
preparation of a draft bill, introduction of the Bill in the legislature, and public
participation, committee stages, voting and assent
Stages, readings and processes through which legislation has to pass before
accepted and issued by relevant legislative body
Once legislature has adopted a Bill, the Act has to be assented to and signed by the
President or Premier → once this is done, it becomes law
Although such an Act is now legally enacted legislation, it is not yet operational, it
needs to be promulgated
, Promulgation
Legal enactment is not operational legislation → for an Act to commence, it
must be promulgated
Process by which legislation commences and takes effect – by publication in
official Gazette
Refers to the process of putting legislation officially and legally into
operation→ taking effect of law
For subordinate legislation- adoption and promulgation will happen almost
simultaneously
3.2 Hear ye, hear ye! Publication requirement
Legislation has to be published in Gazette for it to take effect
Does not always mean the law will take effect on that day, a different date may be
determined
Rationale for this: the law should be known to people affected by it
Constitution s 1(c) - rule of law → people must know what the law is
s 1(d) - democratic government to ensure accountability, responsiveness
+ openness
Legislation commences on the date of publication, irrespective of whether it has come
to the knowledge of all people
• If Government, for reasons beyond its control, cannot print Gazette, President may
prescribe alternative procedures for promulgation of legislation
• A list of proclamations + notices under which delegated legislation were published
must be tabled in Parliament
• Some legislation (e.g. PEPUDA, s30(2)) requires regulations made in terms of that
Act to be tabled in Parliament
3.3 – Pulling the Trigger…COMMENCEMENT OF LEGISLATION:
Who promulgates?
authority to promulgate (bring an act into operation) is not the same as authority to
legislate
Since it is the legislature who ‘speaks’, the resulting legislation is promulgated by the
lawmaker in question
, Practicality often demands that authority to put legislation into operation be
delegated to a member of the executive → will put legislation into operation by
means of a proclamation (specific delegated- authority to put original legislation into
operation on behalf of the particular legislature)
Ex parte Minister of Safety and Security: In re S v Walters
The court explained that the power conferred by the legislature on the President
to fix a date for commencement is a public power and has to be exercised
lawfully and to achieve purpose for which it was given; the power could not
lawfully be used to block or veto the implementation of the new law
Dealt with s 39 of Criminal Procedure Act → ‘shoot- to- kill’ policy
The president decided that staff needed to be trained first so he asked to delay
commencement of legislation
The president put off bringing the section of the Act into operation
CC was unhappy → separation of powers
The court concluded that the President could not refuse to bring the Act into operation
3.3.2 - When is it in force?
1. The default setting: on date of publication
s 13(1) of Interpretations Act, ss 81 and 123 of the Constitution
If the legislation does not prescribe a date of commencement, it automatically
commences on the day of its publication in the Gazette
2. Delayed commencement: on a future specified date
s 13(1) of Interpretations Act, ss 81 and 123 of the Constitution
The legislation as published in the Gazette may provide for another fixed date
(other than the date of publication) for its commencement → since the
legislation need not be published again on the future commencement date, it
will automatically commence on that specified date
3. Delayed commencement: on an unspecified future date still to be proclaimed
s 13(3) of the Interpretations Act
Where an Act is to commence on a date to be determined by the President, the
President’s proclamation is all that is required → the Act will commence on
the date indicated in the proclamation
4. Retroactive commencement
