Theme 3 - The Legislative Process

Question 1

Define the process ‘adoption of legislation’.

Adoption and promulgation of legislation.

Answer 1

Constitutionally-prescribed and other legal processes and procedures required for the draft legislation to become law, including the preparation of the draft Bill, introduction of the Bill in the legislature, public participation as well as the committee stages, voting and assent.

Question 2

Define ‘promulgation’.

Adoption and promulgation of legislation.

Answer 2

• For legislation to become operational, it needs to be promulgated.
• Refers to the process of putting legislation officially and legally into operation.

Question 3

Discuss the requirement of publication.

The requirement of publication.

Answer 3

• Legislation is promulgated by publication in the Gazette.
• In terms of sections 81 and 123 of the Constitution (and section 13 of the Interpretation Act), Acts of Parliament and provincial Acts take effect when published in the Gazette, or on a date determined in the terms of those Acts.
• However, not everything published in the Gazette is legislation.

What about remote areas?

Question 4

Does legislation commence on the date of publication, or at the time when it actually becomes known throughout the country?

The requirement of publication.

Answer 4

In Queen v Jizwa it was held that legislation commences on the date of publication, irrespective of whether it has come to the knowledge of everybody in the remote areas.

Question 5

Who promulgates?

Who promulgates?

The commencement of legislation.

Answer 5

A competent law-maker with the necessary authority sets an Act into force.

Question 6

When is it in force?

Discuss the default setting: on the date of publication.

The commencement of legislation.

Answer 6

If legislation doesn’t prescribe a date of commencement, it automatically commences on the date of its publication in the Gazette.

Question 7

When is it in force?

Discuss a delayed commencement: on a future specified date.

The commencement of legislation.

Answer 7

Legislation as published in the Gazette may provide for another fixed date for its commencement.

Question 8

When is it in force?

Discuss a delayed commencement: on an unspecified future date still to be proclaimed.

The commencement of legislation.

Answer 8

Where an Act will commence on a date to be determined by for instance the President, the President’s proclamation is all that is required.

Question 9

When is it in force?

Discuss retroactive commencement.

The commencement of legislation.

Answer 9

Refers to publication on a specific date, but the legislation is deemed to have commenced earlier on a date prior to the publication.

Question 10

Jumping the gun? Section 14 of the Interpretation Act.

How can the President issue a proclamation authorised by an enabling Act that itself is not yet operational?

The commencement of legislation.

Answer 10

To avoid the possibility of an endless circle of invalidity, section 14 of the Interpretation Act provides that if a person has the power to put legislation into operation, that power may be exercised at any time after the legislation was passed with a view to put it into effect.

Question 11

General principle: let bygones be bygones.

Explain the general principle.

The presumption that legislation only applies to the future.

Answer 11

• The time-honoured principle that legislation should only apply to the future is one of the basic foundations of a legal system based on the rule of law.
• This rule is based on the prevention of unfair results, the prevention of unreasonable results, and to ensure predictability and legality.

Question 12

The difference between retroactive and retrospective.

Explain retroactivity.

The presumption that legislation only applies to the future.

Answer 12

• True/strong retro-effect.
• Legislation operates as of a time prior to its enactment, it operates backwards in time and changes the law from what it was.

Question 13

The difference between retroactive and retrospective.

Explain retrospectivity.

The presumption that legislation only applies to the future.

Answer 13

• Weak retro-effect.
• Legislation operates for the future only, in line with the basic principle, but could impose new results in respect of a past event.
• It operates forwards, but looks backwards in that it attaches new consequences for the future to an event that took place before the legislation was enacted.

Question 14

The difference between retroactivity and retrospectivity.

Explain the deeming clause.

The presumption that legislation only applies to the future.

Answer 14

• In the case of retroactive legislation, the commencement date is before the date of publication.
• Because this kind of ‘legislative time-travel’ is impossible, the legislation uses a deeming clause: the legislation is deemed to have commenced on a date prior to the publication date.

Question 15

What prevents legislation from applying with retro-effect?

What prevents legislation from applying with retro-effect.

The presumption that legislation only applies to the future.

Answer 15

• This time-honoured principle is not an absolute rule.
• In terms of South African law, three legal obstacles must be removed before legislation may apply with retro-effect.

Question 16

What prevents legislation from applying with retro-effect?

Explain the common-law presumption.

The presumption that legislation only applies to the future.

Answer 16

• The common-law presumption that legislation legislation only applies to the future was the only legal obstacle that stood in the wat of laws with a retro-effect.
• However, legislation trumps common law, which means that the legislature could trump the presumption either expressly/necessary implication.

Question 17

What prevents legislation from applying with retro-effect?

Explain new offences and higher penalties.

The presumption that legislation only applies to the future.

Answer 17

Section 35(3)(I) of the Constitution provides that a person may not be convicted for an act that wasn’t an offence at the time it was committed.

Question 18

What prevents legislation from applying with retro-effect?

Explain other constitutional rights.

The presumption that legislation only applies to the future.

Answer 18

Should the first two obstacles have been circumvented successfully, the retroactive/retrospective application of the legislation may still be prevented by other provisions in the supreme Constitution.

Question 19

No harm done: exceptions to the rule.

Discuss the exceptions to the principle that legislation only applies to the future.

The presumption that legislation only applies to the future.

Answer 19

There are two instances when the principle that legislation only applies to the future will not apply: where the legislation changes procedure/grant benefits.

Question 20

No harm done: exceptions to the rule.

Discuss what happens if the enactment deals with procedure.

The presumption that legislation only applies to the future.

Answer 20

• If substantive rights and obligations remain unimpaired and capable of enforcement by using the newly prescribed procedure, then the general principle doesn’t apply.
• However, if the new procedure violates substantive rights, the general principle will apply and the three ‘obstacles’ come into play.

Question 21

No harm done: exceptions to the rule.

Discuss what happens if the retro-effect favours the individual.

The presumption that legislation only applies to the future.

Answer 21

If a person will receive a benefit, and no vested rights are taken away, the retroactive/retrospective application of the legislation will be beneficial and the presumption becomes unnecessary.