Study unit 3 :

commencement of legislation

Adoption:
 process where drafted legislation becomes a law.
 drafting and introduction of a bill into parliament, public participation, voting on
the bill and assented. (national legislation assented by president, provincial
legislation assented by premiere of province)
Promulgation
 When an act is published in the Government Gazette, once this happens a law is
legally in force.
 A day begins 00:00 when a law becomes of force

Requirements of publication
 S81 and 123
 Legislation takes effect on the day of publication 00:01
 Act can stipulate that it can take force of a specific date in the future
 Act can take force if act stipulates that it will take force on an unspecified date in
the future
 Parts of the act can be in force now and the rest of the act at a later time
 Can be enacted retrospectively
 A person with delegated authority can later put the legislation into operation
through proclamation

Retroactive and retrospective legislation

 Active
o is a strong retro effect (it is as if legislation has travelled back in time)
legislation can be enforced to change the law from what it was
 Spective
o (weak retro effect) it operates forward, but it looks backwards actions and
it creates a different interpretation/ consequeses of the future.
Acceptance and promulgation

Acceptance
 It refers to the various constitutional prescribed and other legal stages, lectures
and processes through which the draft law must be approved and approved by
the body concerned, including the preparation of a draft bill, the submission of
the legislative act and public participation , as well as the committee stages,
voting and approval
o Constitutionally prescribed (Chapters 4 & 6)
o Bill, draft bill, public participation, committees, vote, ratified.
o confirmation
o Once Parliament has passed a bill, the law must be signed by the
President.
o In provincial legislation, the prize of that province must sign the law
o Once signed = Obtain formal status of legislation
o Law becomes correct (ss 81 & 123)
o Confirmed - Not in operation

Promulgation
 Legislation must be promulgated to come into force
 refers to the process whereby government is officially and legally enforced and
operational power is obtained
publication
 Publication in the Gazette (promulgation)
 Section 81 & 123 Constitution
 Parliamentary laws
 Provincial laws
 S 162
 Municipal regulations, by-laws may only be enforced by publication in
Provincial Gazette
 S 101 (3)
  Proclamations, regulations and adner tools of subordinate legislation must be
publicly accessible
 Sec 13 & 16 Interpretation Act
 Subordinate legislation must be published before it enters into force
 S 2 Interpretation Act
 "Government Gazette" - Government Gazette of the Colony in which that Act
was in force and in the case of legislation published after 31 May 1910, the
Government Gazette of the RSA or the Provincial Gazette

Principle of publication
 Must be made public to whom it will be applicable
 Date of publication?
 Or when do you know?
 Queen v Jizwa –
o Decides that legislation comes into force on the day it is formally
published, regardless of whether it has become known to all
 RSA v Hugo
o Person must know of right, apply behavior
 If printer is not printing
o S 16A of Interpretation Act - Proclamation of President for Alternative
Procedures
 Executive Committee has the power to issue delegated legislation
 S 17 of Interpretation Act –
o List of proclamations and notices in Parliament

Who promulgates?
 "Therefore, be determined by the Parliament of the Republic of South Africa, as
follows ..."
 As legislator speaks, legislation that results from the legislative process is
promulgated by that legislator
 Not possible = Delegate powers to executive power
When in operation? (5 Ways)
 Date publication –
o Sec 13 (1) if legislation does not prescribe a date of commencement,
legislation will automatically enter into force on the date of publication in
Government Gazette
 Future Specific Date –
o Sec 13 (1) may publish legislation as published for a date
 Unspecific day to be proclaimed –
o Sec 13 (3) If a law provides for entry into force on a date to be proclaimed
by the President or Premier, there may be different dates of entry into
force for different provisions in that law ( only proclamation is required for
entry into force)
 Retrospective Entry into force –
o publication at a certain date, but the legislation is deemed to have been
in operation on a date prior to the publication of the legislation
 Combination of the above
o When begins a "day" - Sec 13 (2) immediately after the previous day
(after 00:00)

S14 Interpretation Act

 Presidential proclamation –
o Can also bring in operation
 Act not yet in force –
o delegate powers
 Person has the power to act in law, that power may be exercised at any time
after the legislation has been accepted for the specific purpose of implementing
that legislation.
 Practical application
 o The enforcement of a Act is based on a regulatory framework that must
be in place when the act enters into force
 Subordinate badly in operation when the original is operational
 S 14 allows those structures to be in place.
 Catz Entertainment CC v Minister of Justice
o application of Interpretation has been considered

Presumption: Application in the future

 General principle
o Legislation only applicable to future (supremacy of law)
 Common law suspicion:
o the legislature is intended to regulate future matters only
 Prevent injustice
o Promotion of rule of law and legality principle
 Individuals must know what is correct. - Behavior adjusted
 Legislation only applies to cases or transactions that occur after the legislation
has come into effect
 Fixed rights are not taken away
 S v Mhulungu –
o Prevent infringement of rights
 Veldmann v DPP –
o Common law suspicions have constitution

Retrospective effect:
 Legislation for the future only means that legislation will not have a retrospective
effect
Retroactively
 legislation in force from date of acceptance, function backwards and change the
right of what it used to be
Retrospective
 operate ahead of the legislation ahead of the future in line with the general
principles. Legislation is prospective, but may bring new results
 For example, majority

What prevents retroactivity?

 Common law suspicions
 New offenses, higher penalties
 Other constitutional rights

Exceptions to the rule

 If Provision is made
 If the benefit of the person concerned is beneficial

 Constitution - itself not retroactively

 Item 2 of Schedule 6 of Const - All legal provisions in force when the GW entered
into force, still in force until amended, repealed or declared unconstitutional
 Item 17 of Schedule 6 of Const-Law continues
 Item 5 of Schedule 6 of Const - all unfinished work in Parliament, however,
continued in accordance with GW 1996 and must be completed