JURISPRUDENCE 110
Unit 8
Legislation
Learning outcomes
- Understand and explain when legislation will be passed
- Understand and explain the legislative process
- Investigate how legislation comes into force and stops being in force
- Define and understand amendments and repeals
- Understand and be able to explain and apply the theoretical approaches to the interpretation of statutes
- Understand and apply the techniques of interpretation and presumptions
What is legislation
- Laid down by an organ of the state which has the power to do so
- Laws are embodied in writing and are known as statutes/ acts
- In South Africa
o Parliament is the highest organ that can pass legislation on the national level
▪ The Constitution empowers Parliament to do so
o There are lower bodies that can pass subordinate legislation
▪ Municipalities
• Enact by-laws
- Legacy of parliamentary sovereignty
o Constitution is supreme
▪ No longer Parliament
- Act of parliament
- Legislation has binding authority
o First source when solving a particular legal problem
- Parliament
o Must consist of representatives of the community who ae elected in a democratic manner
▪ Thus, the community through its representatives passes legislation according to which the
entire community lives
o Consists of 2 houses
1. National Assembly
▪ Elected officials specifically elected to deal with legislation
2. National Council of Provinces
▪ Purpose is to give the provinces a say in national legislation that affects them
o Democratically elected
- Judiciary
o Not democratically elected
- Before 1994
o When the Interim Constitution came into force
▪ South African Parliament was a product of the apartheid system and not of a democratic
process
▪ Majority of the population
• Not allowed to vote
• Therefore not represented in Parliament
- Constitution now
o Provides for a fully democratic Parliament where the whole of society can participate in the legislative
process
o Legislation is an embodiment of laws that have been democratically passed
1
, - Power to legislate
o Constitution
o Parliament
o Provincial
o Municipal
When does Parliament enact new legislation
- Lacunae in law
o Outer space laws
o 4th industrial revolution
o Covid-19
▪ Not a lot of history for precedent to turn to
- Law no longer relevant to modern society
o Repeal & coming out of force
- Defects/ gaps in existing legislation
o Missing
Power of legislation
- Principle – binds the whole society
- Quickest and most effective way to
o Amend old laws
o Create new laws
- Overnight a new statute can change the existing law
o Whether it is
▪ Other statues
▪ A court decision
▪ Rules of common law
▪ Custom
▪ Opinions of modern authors
- Large parts of the law are to be found in legislation
o E.G.
▪ Law of marriage
▪ Law of succession
▪ Company law
▪ Law of insolvency
▪ Law of criminal procedure
- South African statues are often based on their English counterparts
- Laws will change when:
o There are gaps in the law
o When the law no longer corresponds to the needs in society
o When there are defects or loopholes in existing legislation.
- Parliament will investigate the need to change laws
How a statue is made
- New legislation arises
o Government may draft a green paper that puts forward various policy options on a particular topic
▪ This is published for public comment
o White paper is drafted which states government policy
▪ Public may comment
o Then experts draft a Bill concerning the matter
▪ Sometimes a Bill is not preceded by green and white papers
▪ Not the final statute
▪ Only a proposal
▪ Usually published in the Government Gazette
• To allow public to comment
2
Unit 8
Legislation
Learning outcomes
- Understand and explain when legislation will be passed
- Understand and explain the legislative process
- Investigate how legislation comes into force and stops being in force
- Define and understand amendments and repeals
- Understand and be able to explain and apply the theoretical approaches to the interpretation of statutes
- Understand and apply the techniques of interpretation and presumptions
What is legislation
- Laid down by an organ of the state which has the power to do so
- Laws are embodied in writing and are known as statutes/ acts
- In South Africa
o Parliament is the highest organ that can pass legislation on the national level
▪ The Constitution empowers Parliament to do so
o There are lower bodies that can pass subordinate legislation
▪ Municipalities
• Enact by-laws
- Legacy of parliamentary sovereignty
o Constitution is supreme
▪ No longer Parliament
- Act of parliament
- Legislation has binding authority
o First source when solving a particular legal problem
- Parliament
o Must consist of representatives of the community who ae elected in a democratic manner
▪ Thus, the community through its representatives passes legislation according to which the
entire community lives
o Consists of 2 houses
1. National Assembly
▪ Elected officials specifically elected to deal with legislation
2. National Council of Provinces
▪ Purpose is to give the provinces a say in national legislation that affects them
o Democratically elected
- Judiciary
o Not democratically elected
- Before 1994
o When the Interim Constitution came into force
▪ South African Parliament was a product of the apartheid system and not of a democratic
process
▪ Majority of the population
• Not allowed to vote
• Therefore not represented in Parliament
- Constitution now
o Provides for a fully democratic Parliament where the whole of society can participate in the legislative
process
o Legislation is an embodiment of laws that have been democratically passed
1
, - Power to legislate
o Constitution
o Parliament
o Provincial
o Municipal
When does Parliament enact new legislation
- Lacunae in law
o Outer space laws
o 4th industrial revolution
o Covid-19
▪ Not a lot of history for precedent to turn to
- Law no longer relevant to modern society
o Repeal & coming out of force
- Defects/ gaps in existing legislation
o Missing
Power of legislation
- Principle – binds the whole society
- Quickest and most effective way to
o Amend old laws
o Create new laws
- Overnight a new statute can change the existing law
o Whether it is
▪ Other statues
▪ A court decision
▪ Rules of common law
▪ Custom
▪ Opinions of modern authors
- Large parts of the law are to be found in legislation
o E.G.
▪ Law of marriage
▪ Law of succession
▪ Company law
▪ Law of insolvency
▪ Law of criminal procedure
- South African statues are often based on their English counterparts
- Laws will change when:
o There are gaps in the law
o When the law no longer corresponds to the needs in society
o When there are defects or loopholes in existing legislation.
- Parliament will investigate the need to change laws
How a statue is made
- New legislation arises
o Government may draft a green paper that puts forward various policy options on a particular topic
▪ This is published for public comment
o White paper is drafted which states government policy
▪ Public may comment
o Then experts draft a Bill concerning the matter
▪ Sometimes a Bill is not preceded by green and white papers
▪ Not the final statute
▪ Only a proposal
▪ Usually published in the Government Gazette
• To allow public to comment
2
