CHAPTER 3: Kleyn et al
IS IT IN FORCE? THE COMMENCEMENT OF LEGISLATION
3.1 ADOPTION AND PROMULGATION OF LEGISLATION
Adoption of legislation v promulgation
o Adoption = the constitutionally prescribed and other legal processes and procedures
required for the draft legislation to become law
E.g. prep of draft bill, introduction of the bill in the legislature, public
participation, committee stage, voting and assent (chapter 4 and 6 of const)
Process of bill becoming an act
Passed (adopted by parliament)
Assented to and signed by president or premier if provincial leg
Once signed the act becomes law (but not yet in operation)
o Promulgation = the process of putting legislation officially and legally into operation
Promulgated by publication in the Gazette
3.3 THE REQUIREMENT OF PUBLICATION
Legislation is promulgated by publication in the Gazette
S 81 and 123 of const
o Acts of parliament and provincial acts take effect when published in the Gazette or on
a date determined in those acts
S 162
o Municipal by laws may be enforced after they have been published in the gazette of
the relevant province
Does subordinate legislation need to be published?
o Const does not expressly require it but s 101(3) provides that legislation must be
accessible to the public
o S 13 and 16 of the interpretation act require that subordinate legislation be published
in order to commence
16 Certain enactments to be published in Gazette When any by
law, regulation, rule or order is authorized by any law to be made by the President or a
Minister or by the Premier of a province
or a member of the Executive Council of a province or by any local authority, public body
or person, with the approval of the President or a
Minister, or of the Premier of a province or a member of the Executive Council of a provi
nce, such by law, regulation, rule or order shall, subject
to the provisions relative to the force and effect thereof in any law, be published in the Ga
zette.
Underlying principle of the publication requirement
o Legislation must be known to the population to who it applies
What if legislation only appears days after publication in remote areas of the country?
o Queen v Jizwa 11 SC 387held that legislation commences on date of publication,
irrespective of whether it has come to the knowledge of everyone in remote areas
Accessibility of the law
o President of the Republic of South Africa v Hugo 1997
Need for accessibility, precision and general application flow from the
concept of the rule of law
A person should be able to know the law and be able to conform his conduct
to the law
, 2 aspects of the publication requirement
o If government printer cannot print gazette, the president may by proclamation
prescribe alternative procedures for the promulgation of legislation (s 16
interpretation act)
o When president or member of executive committee of province has power to issue
delegated legislation, a list of proclamations and notices under which such types of
delegated legislation were published must be tabled in parliament (s 17 interp act)
3.3 COMMENCEMENT OF LEGISLATION
3.3.1 who promulgates?
The enacting clause of legislation affirms the legislative authority of the particular lawmaker
(BE IT ENACTED by the Parliament of the Republic of South Africa)
Since it is the lawmaker who speaks, the resulting legislation is promulgated by the lawmaker
in question
o If this is not possible the authority will be delegated by the legislature to a member of
the executive branch who will later put the original legislation into operation by
means of proclamation
Ex parte Minister of safety and security
o Court explained the power conferred by the legislature on the president to fix a date
for commencement is a public power and must be exercised lawfully for the purpose
of such a power
o This power could not lawfully be used to block or veto the implementation of new
law
Pharmaceutical manufacturers case
o Danger of being too early out the starting blocks
o Parliament repealed the medicines and related substances control act 101 of 1965 and
replaced it with the south African medicines and medical devices regulatory authority
act 132 of 1998.
o Commencement and repeal happened simultaneously
o Became clear the schedules for the 1998 act were not enacted to replace the schedules
of the 1965 act.
Therefore there was a lack of regulatory framework for certain controlled
medicines
o Parliament had power to correct the decision but was not in session
o President cannot retract their proclamation to undo the commencement of the new
act, only parliament can
o Therefore the act had to be brought to the constitutional court who invalidated the
presidential proclamation because it lacked a rational basis
3.3.2 When is it in force?
a) The default setting: on the date of publication
a. S 13(1) of interp act and s 81 and 123 of const provides that if leg does not prescribe
a date for commencement, it automatically commences on the day of its publication
in the Gazette
b) Delayed commencement: On a future specified date
a. S 13(1) of interp act and s 81 and 123 const
IS IT IN FORCE? THE COMMENCEMENT OF LEGISLATION
3.1 ADOPTION AND PROMULGATION OF LEGISLATION
Adoption of legislation v promulgation
o Adoption = the constitutionally prescribed and other legal processes and procedures
required for the draft legislation to become law
E.g. prep of draft bill, introduction of the bill in the legislature, public
participation, committee stage, voting and assent (chapter 4 and 6 of const)
Process of bill becoming an act
Passed (adopted by parliament)
Assented to and signed by president or premier if provincial leg
Once signed the act becomes law (but not yet in operation)
o Promulgation = the process of putting legislation officially and legally into operation
Promulgated by publication in the Gazette
3.3 THE REQUIREMENT OF PUBLICATION
Legislation is promulgated by publication in the Gazette
S 81 and 123 of const
o Acts of parliament and provincial acts take effect when published in the Gazette or on
a date determined in those acts
S 162
o Municipal by laws may be enforced after they have been published in the gazette of
the relevant province
Does subordinate legislation need to be published?
o Const does not expressly require it but s 101(3) provides that legislation must be
accessible to the public
o S 13 and 16 of the interpretation act require that subordinate legislation be published
in order to commence
16 Certain enactments to be published in Gazette When any by
law, regulation, rule or order is authorized by any law to be made by the President or a
Minister or by the Premier of a province
or a member of the Executive Council of a province or by any local authority, public body
or person, with the approval of the President or a
Minister, or of the Premier of a province or a member of the Executive Council of a provi
nce, such by law, regulation, rule or order shall, subject
to the provisions relative to the force and effect thereof in any law, be published in the Ga
zette.
Underlying principle of the publication requirement
o Legislation must be known to the population to who it applies
What if legislation only appears days after publication in remote areas of the country?
o Queen v Jizwa 11 SC 387held that legislation commences on date of publication,
irrespective of whether it has come to the knowledge of everyone in remote areas
Accessibility of the law
o President of the Republic of South Africa v Hugo 1997
Need for accessibility, precision and general application flow from the
concept of the rule of law
A person should be able to know the law and be able to conform his conduct
to the law
, 2 aspects of the publication requirement
o If government printer cannot print gazette, the president may by proclamation
prescribe alternative procedures for the promulgation of legislation (s 16
interpretation act)
o When president or member of executive committee of province has power to issue
delegated legislation, a list of proclamations and notices under which such types of
delegated legislation were published must be tabled in parliament (s 17 interp act)
3.3 COMMENCEMENT OF LEGISLATION
3.3.1 who promulgates?
The enacting clause of legislation affirms the legislative authority of the particular lawmaker
(BE IT ENACTED by the Parliament of the Republic of South Africa)
Since it is the lawmaker who speaks, the resulting legislation is promulgated by the lawmaker
in question
o If this is not possible the authority will be delegated by the legislature to a member of
the executive branch who will later put the original legislation into operation by
means of proclamation
Ex parte Minister of safety and security
o Court explained the power conferred by the legislature on the president to fix a date
for commencement is a public power and must be exercised lawfully for the purpose
of such a power
o This power could not lawfully be used to block or veto the implementation of new
law
Pharmaceutical manufacturers case
o Danger of being too early out the starting blocks
o Parliament repealed the medicines and related substances control act 101 of 1965 and
replaced it with the south African medicines and medical devices regulatory authority
act 132 of 1998.
o Commencement and repeal happened simultaneously
o Became clear the schedules for the 1998 act were not enacted to replace the schedules
of the 1965 act.
Therefore there was a lack of regulatory framework for certain controlled
medicines
o Parliament had power to correct the decision but was not in session
o President cannot retract their proclamation to undo the commencement of the new
act, only parliament can
o Therefore the act had to be brought to the constitutional court who invalidated the
presidential proclamation because it lacked a rational basis
3.3.2 When is it in force?
a) The default setting: on the date of publication
a. S 13(1) of interp act and s 81 and 123 of const provides that if leg does not prescribe
a date for commencement, it automatically commences on the day of its publication
in the Gazette
b) Delayed commencement: On a future specified date
a. S 13(1) of interp act and s 81 and 123 const
