Study Unit 4:

Demise of legislation:

 In order to initiate the demise of legislation it must either be repealed, or it must

be declared invalid by a court.
o Before 1994-
o courts could only deem delegated legislation as invalid if it did not
coincide with administrative law, as we have a parliamentary
sovereignty
o After 1994-
o as the constitution became enforced courts are now allowed to make
judgments over any legislation and deem them invalid by holding them
accountable against the constitution

 As the constitution is not self-executing,

o thus it cannot do anything by itself it does provide legislation to allow
others to carry out its objectives.
 S2-
o any law or legislation that conflicts with the spirit and object of the
constitution is deemed invalid, however under Schedule 6 item 3, this is
not automatic and thus unconstitutional legislation remains enforce until
they are deemed void.
 Legislation is only amended and deemed void by competent law makers,
o thus bodies vested with law making and amending authorities, such as
high courts.
Original legislation-
 the authority that is able to pass or amend legislation such as parliament are the
one who can deem it void
 For parliament this comes from ss44, 55, 68
 For provincial legislature it is ss 104, 114, 156

Subordinate legislation-
 it depends on the enabling Act, if it allows subordinate law makers the power to
make legislation it also gives them that power to amend or repeal it.
 However, when the Act fails to expressly state this power, there is a common-law
presumption of implied powers that suggest they can do this.
S10 of interpretation Act-
 if a law maker has authority to create law, they can correct, amend and resend
those rules.

Formal amendment:
 Only a competent legislature is able to amend legislation
 The process to amend legislation is time consuming and expensive
 When a court deemds legislation it is still not void as this needs to be done

Types of amendments:
 Textual/ indirect amendment-
o no direct change the language of the Act, instead the amending legislation
describes the extent of changes form the first Act
 Non-textual-
o the actual wording of the initial legislation is changed

 The General Laws Amendment Act allows for many laws to be developed at once
by parliament or a legislative body
 ABC Amendment Act of 2017- when specific legislation is developed by specific
amendments
Courts:
 Courts have the functions of interpreting legislation and applying it to the case at
hand
 They also develop the common law in their decisions
 They are bound by the separation of powers and other legal rules
 They must test the law to see if it meets the constitutional objectives and spirit,
courts may even sometimes amend the legislation when interpreting it, to meet
the purpose of the Constitution and the main legislations aims.

Separation of powers:
 Repeal-
o legislation is removed from the statute book, only done by the legislature
 Invalidate-
o deemed legally unacceptable, done by courts, it is still in the books until a
legislative body remove it

Invalidation of legislation by courts:

 S 172 HC, SCA, CC-
o may declare legislation unconstitutional if it violates fundamental rights or
is in conflict with any object of the Constitution
 S 167 & 172(2) confirmation CC-
o a declaration by a high court has no power unless it is confirmed by the
CC.
Repeal:
 Repeal and replace-
o old legislation is removed, and new legislation is put in place when this
happens. The gap between when the legislation is removed and before
new legislation is enacted, then section 11 of the Interpretation Act, the
repealed provision will be applicable until new Act is enforced.
 Repeal-
o when left absent with no replacement. This impacts impending cases
through S12 of the Interpretation Act, provides that:
 12(2)(a) When an Act is repealed by an Act and that Act is then
repealed, the first Act does not come back into force.