FSAL Term 4 Lesson 2 summarized notes on Statutory interpretation with case law

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 Common law is not ‘repealed’ by legislation, but ‘trumped’ or overruled → it is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