IOS2601
Semester 1
Assignment 1
LLB TUTOR
, Question 1
1. Provisions dealing with the commencement of legislation are found in the
Interpretation Act of 1957. First, section 13 (1) of this Act defines
"commencement" as the day on which that law comes or came into effect.
Secondly, it provides that that day shall, unless the legislation in question
provides otherwise, be the day when the law was first published in the
Gazette as law.1 Further, subsection (2) provides that the '"day” begins
immediately at the end of the previous day. Although the word "law" as used
here includes subordinate legislation, section 16 provides ex abundanti
cautela (as result of excessive caution) that subordinate legislation has to be
published in the Gazette.2
The reason why legislation has to-be-published.before.it. is formally put. into
operation is that it should be made known to whom it applies. However, the
fact that the Gazette appears only days after publication in most remote areas
creates problems. Does legislation commence on publication or at the time
when it becomes known to everybody including people in remote areas? This
issue was pertinently raised in Queen v Jizwa. The court held that legislation
commences on the date of publication irrespective of whether it has come to
the knowledge of everybody. Steyn and Du Plessis criticised this decision and
suggested that there should be a period of at least eight days between the
actual publication and the promulgation of the legislation.3
If for some reasons the government printer is unable to print the Gazette,
section 16A empowers the President to prescribe alternative procedure for the
promulgation of legislation.
The rule that legislation has to be published before it commences is also
endorsed by the Constitution. Sections 81, 123 and 162 of the Constitution
provide that Acts of Parliament, Provincial Acts and Municipal by-laws must
be published before they come into operation.4
2. In National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
2000 (2) SA 1 (CC) the Constitutional Court laid down a number of principles
to be considered and followed before ‘reading-in’ is applied. However, these
factors will also apply to severance:5
• The results of reading-in/severance/reading-up must be consistent with the
Constitution and its values.
• The result achieved should interfere with the existing law as little as
possible.
1 Section 13(1) of interpretation Act 33 of 1957
2 Section 13(2) of interpretation Act 33 of 1957
3 Queen v Jizwa(SC)
4 Section 81 of the constitution of the republic of South Africa
5 Pg 196 textbook
Semester 1
Assignment 1
LLB TUTOR
, Question 1
1. Provisions dealing with the commencement of legislation are found in the
Interpretation Act of 1957. First, section 13 (1) of this Act defines
"commencement" as the day on which that law comes or came into effect.
Secondly, it provides that that day shall, unless the legislation in question
provides otherwise, be the day when the law was first published in the
Gazette as law.1 Further, subsection (2) provides that the '"day” begins
immediately at the end of the previous day. Although the word "law" as used
here includes subordinate legislation, section 16 provides ex abundanti
cautela (as result of excessive caution) that subordinate legislation has to be
published in the Gazette.2
The reason why legislation has to-be-published.before.it. is formally put. into
operation is that it should be made known to whom it applies. However, the
fact that the Gazette appears only days after publication in most remote areas
creates problems. Does legislation commence on publication or at the time
when it becomes known to everybody including people in remote areas? This
issue was pertinently raised in Queen v Jizwa. The court held that legislation
commences on the date of publication irrespective of whether it has come to
the knowledge of everybody. Steyn and Du Plessis criticised this decision and
suggested that there should be a period of at least eight days between the
actual publication and the promulgation of the legislation.3
If for some reasons the government printer is unable to print the Gazette,
section 16A empowers the President to prescribe alternative procedure for the
promulgation of legislation.
The rule that legislation has to be published before it commences is also
endorsed by the Constitution. Sections 81, 123 and 162 of the Constitution
provide that Acts of Parliament, Provincial Acts and Municipal by-laws must
be published before they come into operation.4
2. In National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
2000 (2) SA 1 (CC) the Constitutional Court laid down a number of principles
to be considered and followed before ‘reading-in’ is applied. However, these
factors will also apply to severance:5
• The results of reading-in/severance/reading-up must be consistent with the
Constitution and its values.
• The result achieved should interfere with the existing law as little as
possible.
1 Section 13(1) of interpretation Act 33 of 1957
2 Section 13(2) of interpretation Act 33 of 1957
3 Queen v Jizwa(SC)
4 Section 81 of the constitution of the republic of South Africa
5 Pg 196 textbook
