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Summary summaries for themes 4-7 of interps ;)
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- Stellenbosch University (SUN)
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THEME 4: CHANGES TO AND THE DEMISE OF LEGISLATIONAmendment = when legislation continues to exist, some sections
merely amended or changed
Repeal = legislation no longer exists
Repeal and replace = old/previous legislation repealed and provisions
thereof replaced by new legislation
Legislative conflicts = conflicts between two pieces of legislation
(court usually prefers newer piece)
Amendment, repeal and invalidation of legislation
Legislation (unlike CL) not abrogated by disuse
o Can only be amended or repealed by competent legislature
o Still valid even if out of touch
o Must be formally appealed
Schedule 6 of the Constitution → item 2(1): appealed or amended by competent
legislator, if unconstitutional the CC can invalidate
CC, SCA and HC’s can invalidate (if by parliament, CC must confirm)
Who can amend or repeal?
Original legislation
o Provincial or national - Parliament
o Provincial – Provincial legislatures
o Bylaws - Municipal councils
Subordinate legislation
o Powers found: S10(3) Interpretation Act
o Delegated lawmaker can, unless contrary to intention appearing from
original legislator, also revoke, amend or vary legislation
Changes to legislation
Amendments
o Textual – changes actual wording of provisions
, o Non-textual – no direct changes to wording, rathr create general
amendment (e.g. Schedule 6 Item 3(2)(b) Constitution – general
provision: “read administrator as to refer to Premier” instead of having
to find and change all legislation = cumbersome)
o General Laws Amendment Act – act of Parliament that changes
number of laws at the same time
Modificative interpretation by courts
o Change initial meaning of provision to bring inline with purpose thereof
o Generally: courts cannot amend legislation, used when legislation says
A but court says it means B, as B is more inline with purpose
o Tension between ordinary meaning of words and purpose of legislation
Repeal of legislation
Can sometimes create “vacuum” in law
e.g. Example 1:
Does 1960 Act revive?
Effect of repeal (deletion) = removal
from statute books
CONFRIMED by S12(2)(a)
Interpretation Act: repeal does not
revive previously repealed legislation
Thus 1960 Act does NOT revive
Example 2:
A appeared in court on 30 November 2019 on charges of contravening the 1980 Act.
She pleaded not guilty. The Act was repealed on 28 February 2020. On 30 March
2020 A’s legal representative applies to have the charges dropped, as the conduct
that she has been charged with is no longer an offence
LQ: does A have a legal leg to stand on?
ANSWER: Interpretation Act s 12(2): Repeal does not have retroactive effect –
actions, processes, enforcement of rights which have already started by time law is
repealed, must be completed as if legislation is still in force
- A does not have a legal leg to stand on
- Repeal after charges does not mean charges must be dropped, was till an
offence at time of commencement of chargeable act
,Repeal and replace (substitution)
Usually due to oversight of legislature
Seems no legislation will apply
Possible for replacing legislation to net yet be in operation when other
legislation disappears
S11 Interpretation Act: repealed law remains in force until new provisions
come into operation
e.g. The 2020 Act, which repeals the 1980 Act, with effect from 28 February 2020,
also contains provisions which replace the repealed provisions. However, the
replacing provisions, or some of them, will only come into operation on 30 June 2020
- original Act will exist until 29 June and then be replaced on 30 June
Nourse v Van Heerden 1999
- Gynecologist charged with performing illegal abortions
- Trial commenced in 1992, previous abortion legislation repealed in 1997
- Case before court after repeal ad replaced by 1996 Act
- Court rejected following arguments:
1. Legislation abrogated through disuse → cannot fall into disuse
2. 1975 Act is retrospectively unconstitutional → court cannot declare
pre-constitutional Act unconstitutional
Legislative conflicts
e.g. conflict between Act of Parliament v Act of Parliament
o S27(b) refugees Act = entitled to all constitutional rights except reserved
only for citizens vs Housing Act = access o housing only for citizens and
permanent residents
Provincial Act vs Provincial Act
Act of Parliament v Provincial Act
When not clear which Act is to amend or replace the other
Reconcile
CL presumption = legislature did not attend to repeal/modify previous legislation
Implication: courts must try as far as possible to reconcile provisions with each
other
EXCEPT where previously expressly or by necessary implication that previous
Act amended/replaced
S150 of the Constitution
When considering an apparent conflict between national and
provincial legislation, court must prefer any reasonable interpretation
of legislation that avoids conflict, over any alternative interpretation
that results in conflict
, - Courts must harmonize provisions
What if conflict cannot be avoided?
Conflicting provisions at same hierarchical level and same level of generality –
assumption = later legislation implicitly repealed earlier legislation
e.g. RSA v Government of KwaZulu – Ingwavuma land question: Black
Administration Act of 1927 vs Self-Governing Territories Act of 1971
- Certain land taken from KwaZulu homeland
- According to BAA = government could do that without consulting with
government of KwaZulu Natal
- BUT Self-Government Act = only done in consultation
Court: later Act repeals provisions in recent Act,
Presumption= subsequent general legislation does not repeal earlier specific
provisions
o If earlier legislation more specific than new, then new legislation does not
repeal earlier legislation
o Specific triumphs over general
Conflicts between national and provincial legislation
Q1: Does both national parliament and provincial legislature have powers to make
legislation?
– yes, if subject matter falls within Schedule 4 of the Constitution= sets out number
of functional areas over which parliament (national legislature) and provincial
legislature have concurrent legislative powers (e.g. agriculture, health, housing and
consumer protection, etc.)
Q2: If both have authority to make laws and laws are in conflict, which will override
which?
• S146-150 of the Constitution
• S149 Constitution: Decision by a court that legislation A prevails over
legislation B does not invalidate legislation B, but legislation B becomes
inoperative for as long as the conflict remains.
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