TOPIC 3 – THE COMMENCEMENT OF LEGISLATION –

LECTURE 5

Areas of focus
Adoption and promulgation of legislation

Outcomes
1. Differentiate between adoption and promulgation of legislation
2. Understanding promulgation authority
3. Explain the difference between delayed commencement on a future specified date and unspecified date
 A. ADOPTION AND PROMULGATION OF LEGISLATION

 Adoption of legislation
 refers to the different stages through which legislation has to pass before it is accepted by the relevant
legislative body.
 Constitutionally prescribed processes required for the draft legislation to become law:
o Preparation of draft bill/ Public participation if required/ Committee stages/ voting and assent/ signing
off.
(refer to the Chapters 4 and 5 of the Constitution)
 Promulgation
 When an Act has been adopted/ legally enacted it is yet to be operational until promulgation takes place
which is:
 refers to the process by which legislation commences and takes effect, thus when it is formally put into
operation
 Legislation is promulgated by publication in an official Gazette.
 REQUIREMENT OF PUBLICATION

 In terms of Sections 80 and 123 of the Constitution, Acts take effect when published in an
official Gazette or on a date determined in terms of those Acts. The same applies to
municipal by-laws in terms of Section 162 of the Constitution.

 The underlying principle of publication: Law should be made known to whom it applies.

 Question: Since the Gazette may only appear days after publication in remote areas, does
it then commence on date of publication or when it becomes known?
 In Queen v Jizwa the court held that legislation commences on the date of publication. This has
been critised and it is suggested a period of days (eg. 8) between de facto (actual) publication and
de iure (legal) promulgation of legislation.

 In President of the Republic of South Africa v Hugo the court addressed the issue for the need of
accessibility of the law and held that a person should know the law to conform his/her conduct to the
law.

 In terms of Section 16A of the Interpretation Act, President may prescribe alternative procedures by
proclamation if the Government Printer is unable to print the Gazette for some reason.
 B. COMMENCEMENT OF LEGISLATION
 Who promulgates?
 The enacting provision/clause in the legislation affirms the legislative authority of the particular
lawmaker.
 Act of parliament will state “Be it enacted by the Parliament of RSA, as follows…..”
 A ministerial regulation will state that “The Minister of Labour and Employment has made
regulations……”

 It is the lawmaker who ‘speaks’ the resulting legislation which is promulgated by the lawmaker in
question
 ‘Law’ in Section 13 of the Interpretation Act refers to any law, proclamation, ordinance, Act of parliament
or any other enactment having the force of law.

 This includes delegated legislation and in terms of Section 16 of the Interpretation Act - it must also be
published in an official Gazette.

 In terms of Section 17, a list of proclamations and notices under which delegated legislation was
published must be tabled in parliament.
 . The legislation will commence as follows:
1. Commencement on the date of publication (The default setting)
(i) Unless another date is provided in the particular legislation.
(ii)Publication in the Gazette includes both the Government Gazette and the official Gazette of a
province.
(iii)Day begins immediately at the end of the previous day, being at 00:00 and thus a bit
retrospective as publication is only a few hours later

2.Delayed Commencement: on a date specified in the legislation

Legislation, as published, may prescribe another fixed date for its commencement, which
may be total or partial delay
 3. Delayed Commencement: on an unspecified date still to be proclaimed
Legislation, as published, may indicate that it will commence at a later unspecified date to be proclaimed, which
may be in total or partial.

4. Retroactive commencement
Retroactive Commencement which is when publication of an Act happens on specified date but
has been deemed to have commenced before Publication
e.g. Terrorism Act 83 of 1967
 Assented on 12 June 1967
 Published 27 June 1967
 But section 9(1) provides that, with the exceptions of a few provisions, the Act was deemed to have come into operation on
27 June 1962.
 5. A combination of all the commencement options (specified/unspecified future dates)
 This can be a very confusing combination of possible commencement options
 Can be for various parts of the legislation

NB: Interpreters have to be cognizant as to whether a particular provision is in force or not.

 C. SECTION 14 OF THE INTERPRETATION ACT
 “Where a law confers a power -
(a) to make any appointment; or
(b) to make, grant or issue any instrument, order, warrant, scheme, letters patent, rules, regulations or by-laws; or
(c) to give notices; or
(d) to prescribe forms; or
(e) to do any other act or thing for the purpose of the law,
 that power may, unless the contrary intention appears, be exercised at any time after the passing of the law so far as may be
necessary for the purpose of bringing the law into operation at the commencement thereof: Provided that any instrument, order,
warrant, scheme, letters patent, rules, regulations or by-laws made, granted or issued under such power shall not, unless the
contrary intention appears in the law or the contrary is necessary for bringing the law into operation, come into operation until the law
comes into operation.”
 In simple terms – at times for an Act to effectively operate it requires certain regulatory frameworks to be in place before the Act has commenced
enabling adequate operation of that Act. Section 14 grants power to lawmakers (President/Premier/Mayor/Minister) to put in place, in advance of the
commencement of an Act, measures that make it possible for the Act to be applied fully when it finally becomes in force.
R v Magana, 1961 (2) SA 654 (T) at 655H-656D. dealing with the import of Section 14 of the Interpretation Act, the
court in Cats Entertainment 1995 (1) SA 869 (T) 876E-G). remarked that :

 “Some difficulty is perhaps created initially by the use of the phrase ‘bringing the law into operation’, because a

statute usually comes into operation at the date of its commencement, and it is usually ‘brought into operation’
when it is officially declared to commence. . . .I do not think that ‘bringing the law into operation’ means only
‘effecting its commencement’; it also includes ‘rendering it operative’ from and after the time it commences. In
other words, the whole object of s 14 is to enable the authorised official to take such of the enumerated steps
before the enactment commences as are necessary to render it operative immediately it commences…”.