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 ...
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
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