* First of all the interpreter has to determine whether the legislation is actually in force.

Transcription

1 1 CHAPTER 3 COMMENCEMENT OF LEGISLATION * First of all the interpreter has to determine whether the legislation is actually in force. 3.1 Adoption and promulgation of legislation It is important to distinguish between the adoption (passage) and promulgation of legislation. Adoption: refers to the different stages, readings and processes through which the particular legislation has to pass before it is accepted by the relevant legislative body. When parliament has passed (adopted) a Bill, the Act then has to be signed by the President. (Provincial Act Premier). Once signed, such an Act becomes a law. - Although such an Act is now legally enacted legislation, it is not yet in operation. For legislation to become operational, it needs to become promulgated. - Promulgation refers to the process by which the legislation commences and takes effect; when it is formelly put into operation. - It is promulgated by publication in the Government Gazette. 3.2 Requirement of publication Ito S 80 and S 123 of the CON, Acts of parliament / provincial Acts - takes effect when published, or - on a date determined in terms of those Acts.

2 2 Acts of Parliament / provincial Acts must be published in the Government Gazette / Provincial Gazette of the relevant province. - Ito S 162 of the CON municipal by-laws may be enforced after they have been published in the Gazette of the relevant province. Principle underlying the requirement that legislation must be published: it should be made known to whom it applies. - Problem: the fact that the Gazette only appears days after publication in remote areas. - Does the particular legislation commence * on the date of publication, or * at the time when it becomes known throughout the the country? - Queen v Jizwa: Court held that legislation commences on the date of publication, irrespective whether it has come to the knowledge of everybody. Steyn criticises this as an arbitrary application of the rule. - He suggests that there should be a period (eg 8 days) between the de facto (actual) publication in the Gazette and the de iure (legal) promulgation of the legislation. - Why is accessibility of the law an issue? - In President of the RSA v Hugo the CC gave the following answer: It can be seen that several concerns underlie the interpretation of prescribed by law. The need for accessibility, precision and general application flow from the concept of the rule of law. A person should be able to know of the law, and be able to conform his or her conduct to the law. If, for some reason beyond its control, the Government Printer is unable to print the Gazette, the President, ito S 16A of the Interpretation Act, may by proclamation, prescribe alternative procedures for the promulgation of legislation.

3 3 3.3 Commencement of legislation Read S13 of the Interpretation Act on p 31 of the textbook. Ito S 24 of the Interpretation Act the state is bound by this provision. - The reference to law in S 13 refers to any law, proclamation, ordinance, Act of parliament or any other enactment having the force of law. - This means that delegated legislation is covered by S 13, - but S 16 also stipulates that any delegated legislation has to be published in the official Gazette. When the President (etc) has the power to issue delegated legislation, a list of proclamations and notices must be tabled in parliament (S 17 of the Int/Act) Commencement on the date of publication S 13(1) stipulates that unless the particular legislation itself provides another date, it commences on the day of its publication in the Gazette. - S 2 of the Int/Act includes both the Government and the Provincial Gazette. - Ito S 13(1) day begins immediately at the end of the previous day (ie immediately after midnight at 00.00). - This is retrospective commencement; by the time the Gazette is published, the legislation would have been in force for a few hours.

4 Commencement on a date specified in the legislation Legislation automatically commences when it is published. - However, ito S 13(1) the legislation as published in the Gazette may prescribe another fixed date for its commencement. - It may be total or partial (ie the whole Act or specific sections only) Commencement on an unspecified date still to be proclaimed The published legislation may expressly indicate that it will commence at a later unspecified date to be proclaimed. - Some provisions of the Road Traffic Act were put into operation nearly eight years after the promulgation of the rest of the Act. - There could be a combination of commencement on a fixed date; and - commencement of individual provisions at a date still to be announced. - This means that interpreters have to be very careful as to whether a particular provision is in force. 3.4 THE PRESUMPTION THAT LEGISLATION ONLY APPLIES TO THE FUTURE General * Unless the contrary appears either expressly or by necessary implication it is presumed that the legislator intends to regulate future matters only. - Transnet Ltd v Ngcezula.

5 5 * According to case law, this rule is based on the prevention of unfair results. * Curtis v Johannesburg Municipality : the court declared that legislation applies to the future so that vested rights are not taken away. * Principal Immigration Officer v Purshotam: It is therefore presumed that the legislation applies only to cases or transactions occurring after the coming into operation of the Act in question. * Katzenellenbogen Ltd v Mullin: Unless a retrospective intention is clear, it is presumed that legislation applies to the future and not to the past Express retrospective application An enactment may provide expressly that it has retrospective force. - S 35 of the CON deals expressly with retrospective operation of legislation. - S 35(3)(l): a new offence may not be created retrospectively. - S 35(3)(n): an accused person has the right to the benefit of the least severe of the prescribed punishments if the prescribed punisment for the offence has been changed between the time that the offence was committed and the time of sentencing. This means that offences cannot be created, and punishment may not be increased, retrospectively. - These parts of the presumption, which prohibit retrospective offences and increased punishment, are now entrenched as fundamental rights in the CON. - In all other respects the presumption will apply as in the past.

6 6 - Although the legislature may expressly enact retrospective legislation (other than penal provisions) the courts will have to test any retrospective legislation against the Bill of Rights in the Constitution Retrospectivity by necessary implication The presumption may be rebutted if it appears that the legislature intended the legislation to be retrospactive by necessary implication. Lek v Estate Agents Board: Such a necessary implication could be inferred if the legislation would result in absurd or unfair results should it not be retrospective. In Brown v Cape Divisional Council it was found that provincial councils could also enact retrospective ordinances because of their original legislative powers. In Bell v Voorsitter van die Rasseklassifikasieraad the court took the common law view, that unless the contrary appears, an Act expressly retrospective in nature will not affect actions already brought to a close during a repealed Act s existence. Kruger v President Insurance CO Ltd: it is easier to decide that legislation is in fact retrospective by necessary implication is: - vested rights will not be affected by the retrospectve operation of the legislation; or - the purpose of the legislation is to grant a benefit or - to effect even-handedness in the operation of the law.

7 7 (i) If the enactment deals with procedure The presumption does not apply if the retroactive legislation deals with procedure. New rules of procedure apply to future cases, the facts of which may date from the past. The new Act is retrospective only in that the new procedural rules apply, even in the case of claims or disputes which arose before the new rules came into effect. Generally rules of procedure do not infringe upon vested rights. In Euromarine International of Mauren v The Ship Berg it was held that a provision in the relevant Act not only created a new remedy, but also imposed a new obligation on persons who had no previous legal obligations. This is therefore an example where substantive (and not merely procedural) rights are involved, and retrospective operation is therefore excluded. In Minister of Public Works v Haffejee the court cautioned that, when a provision introduces new rules of procedure, it does not necessarily mean that the provision is retrospective. - It must be determined whether existing rights and obligations are affected by it, - and whether those rights and obligations are enforceable by means of the new procedures.

8 8 * Grand Wholesalers v Ladysmith Metal Industry: The retrospective operation of an enactment was in issue in this case. The appellant (Grand Wholesalers) was the defendant in an action instituted in the magistrates court by the respondent (Ladysmith Metal Industry). The respondent (Ladysmith Metal Iindustry) claims R from Grand Wholesalers. The amendment to the Magistrate s Court Act which increased the monetary jurisdiction of the Magistrates Court to R5000, had only come into effect after the pleadings had been closed. Grand Wholesalers raised the defence that the Magistrates Court had no jurisdiction since the claim exceeded the monetary jurisdiction of the court. The magistrate found that he did have jurisdiction: since the amendment was only procedural, it did have retrospective force. On appeal: - The amendment was not retrospective, since it was not merely procedural. - The legislature could not have intended to deprive the defendant of a valid defence. - The magistrates court did not have jurisdiction. - The appeal was allowed.

9 9 (ii) If retrospectivity favours the individual * If the retrospective operation of legislation will benefit the individual, the presumption does not apply. * The reason for the presumption against retrospectivity is to avoid unfair results. If a person will receive a benefit, and no vested rights are taken away, the retrospective application of the legislation will be beneficial and the presumption becomes unnecessary. * This rule is fully in line with S 35(3)(n) of the CON: a person is entitled to the benefit of the least severe of two prescribed punishments if - the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing. R v Sillas : * The amending Act reduced the existing penalty - after the accused had commited the crime, but - before sentence was passed. * Court found that the presumption against retrospectivity had in this instance been rebutted by other considerations. * Amendment was applied retrospectively and the new more lenient penalty imposed. * The principle that the penalty applicable at the time of the commission of the crime is decisive, applies only to amendments which increase the penalty. * In respect of amendments which reduce the penalty, - the time when sentenced is passed is decisive - in determining whether amended penalties apply to an accused or not.

10 10 (iii) If retrospectivity does not benefit the individual * In the past, if an amendment Act places the individual in a worse position than before, the presumption against retrospectivity will apply. R v Mazibuko: * If the penalty provided for in an Act is increased by an amending Act, - the presumption against retrospectivity applies. * The appellant appealed against the death sentence imposed for robbery. * The relevant Act was amended after the crime had been committed, but before sentence was passed. * The court applied the presumption against retrospectivity and found that the legislature had not intended making the increased penalty applicable retrospectively. * The earlier, more lenient penalty was therefore imposed. * Under the supreme CON and the B/R, it is not even necessary to apply the presumption against retrospectivity to avoid an increased punishment. * S 35(3)(n) of the CON provides that an accused person has the right to the benefit of the least severe of the prescribed punishments - if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.

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