CHAPTER 4:

IS IT STILL IN FORCE?

CHANGES TO AND THE DEMISE OF LEGISLATION

TABLE OF CONTENT
4.1 Introduction
4.2 Changes to legislation
4.2.1 Formal amendment of legislation by a competent legislature
4.2.2 Modificative interpretation by the courts
4.3 The demise of the legislation
4.3.1 Invalidation of legislation by the courts
4.3.2 Repeal of a legislation by a competent lawmaker
4.4 Suspension of legislation already in force
4.5 The presumption that legislation does not intend to change the existing law more than is
necessary
4.1 Introduction

• In the previous chapter, the commencement of legislation was discussed and the
question was: is it in force?
• Now the question is: Is it still in force, if so, has it since been amended?
• This chapter explains the ways in which legislation may be changed or come to an end.
• Common law rules can be abrogated/abolished by disuse, but this cannot happen to
legislation.
• For example, Malema was charged with Rioutus Assemblies Act of 1956. Until this Act is
repealed it continues to operate.
• – it needs to be repealed by a competent body or declared invalid by a court.
• NB – All legislation in force when the Constitution took effect remains
in force until it is amended or repealed, or is declared
unconstitutional.
NB A Potentially unconstitutional legislation is amended or repealed by
a competent body or a competent court must declare it
unconstitutional.
4.2 Changes to legislation
4.2.1 Formal amendment of legislation by a competent legislature:

• Parliament may amend an Act of Parliament by means of another Act of Parliament.

• A provincial legislature may amend provincial Acts, and so on.
• In practice there are two types of amending legislation
1) Textual (direct) amendment
2) A non-textual (indirect) amendment
Non-textual (indirect)

• - occurs where there are no direct changes to the actual wording of the initial
legislation, but the amending legislation merely describes the extent of the
changes in the law with reference to the provisions that will be affected.
For example: Item 3(2)b) of schedule 6 of the Constitution provides that a
reference to old legislation to “administrator’ as referring to the Premier of the
province.
Textual (direct)

• – Occurs where the actual wording of initial legislation is changed with

additions, changes to the wording ect.
• Specific legislation will be amended by means of specific amending
legislation.
NB -If a number of Acts are amended at the same time, this will usually be done
by means of a General Laws Amendment Act.
NB Specific legislation will be amended by means of a specific amending
legislation. For example, Birth and Deaths Registration Amendment Act 1 of
2002 amended only the Births and Deaths Registration Act 51 of 1992.
4.2.2 Modificative interpretation by the courts:

• Although the courts are primarily involved in the application of the law, they also have a
secondary, law-making function.
• This involves giving form, substance and meaning to particular legislative provisions in
concrete situations.
• This also means that the judiciary may modify (change or adapt) the initial meaning of a
legislative provision in such a way that it conforms to the purpose or aim of the legislation.
• So, this is an exception to the principle of separation of powers which requires legislatures
to make legislation and the courts to interpret legislation.
• NB although judicial law making involves a creative judicial discretion, it must be based on
legal rules and principles.
NB Modificative interpretation of legislation by the courts involves an attempt to
save legislation during constitutional review and modification of the legislative
meaning during interpretation:
(a) Attempts to save legislation during constitutional review:-
• Testing legislation (review) refers to the process whereby legislation which is
alleged to be in conflict with the Constitution is reviewed or tested by the court.
• The court therefore measures the legislation against the provisions of the
Constitution and decides whether the legislation is valid or invalid.
• If a court does declare legislation unconstitutional (invalidating it), the legislation
cannot be applied anymore and could create a vacuum in the legal order.
So, a competent court may therefore try to, if possible, to modify or adapt the
legislation to keep it constitutional and alive by means of so called corrective techniques
or remedial correction of legislation in an attempt to keep the legislation in question
valid.
For example, instead of declaring COIDA unconstitutional, the CC read in the words
“domestic workers” in the definition of an employee in terms of COIDA in the case of
Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24;
2021 (1) BCLR 1 (CC); [2021] 2 BLLR 123 (CC); (2021) 42 ILJ 269 (CC); 2021 (2) SA
54 (CC) (19 November 2020).

b) Modification of the legislative meaning during interpretation:-

• Courts may under exceptional circumstances modify the initial meaning of the
legislative text to ensure that it reflects the purpose and object of the legislation.
4.3 THE DEMISE OF THE LEGISLATION
4.3.1 Invalidation of legislation by the courts
a) Unconstitutional provisions
• happens when the legislation is declared to be legally unacceptable and may no longer be
applied.
• In terms of s 172 of the Constitution, the High Court, Supreme Court of Appeal or the
Constitutional Court may declare legislation unconstitutional which is inconsistent with the
Constitution.
• Legislation may be declared unconstitutional if it violates a fundamental right or if it is in
conflict with another constitutional requirement.
• A declaration of unconstitutionality of legislation by a High Court of the Supreme Court of
Appeal has no force until such a declaration has been confirmed by the Constitutional
Court.
b) Invalid surbodinate legislation

• Delegated legislation may be invalidated by the court if it does not

comply with the requirements of administrative law.
4.3.2 Repeal of a legislation by a competent lawmaker
a) Substitution (repeal and replace)
• Substitution is when a lawmaker substitutes (repeals and replaces)
legislation with another enactment.
NB there might be a possibility that the replacing law is not in force
when the other legislation departs from the scene and create a “gap” in
the legislation.
• This problem could be overcome in two ways:
1) the repealing legislation could expressly provide for the following suitable
transitional measure:
e.g item 9 schedule 5 (‘Transitional Arrangements’) of the Companies Act of 2008
provides as follows;

Continued application of previous Act to winding-up and liquidation

Despite the repeal of the previous Act, until the date determined in terms of sub-item
(40, Chapter 14 of that Act continues to apply with respect to the winding- up and
liquidation of Companies under this Act as if that Act had not been repealed.
The Minister by notice in the Gazette may determine a date on which this item ceases
to have effect.
2) where a legislation in question does not provide for express transitional
arrangements, s 11 of the Interpretations Act deals with those unfortunate “gaps”:
• s 11: “when a law repeals wholly or partially any former law and substitutes
provisions for the law so repealed, the repealed law shall remain in force until the
substituted provisions come into operation.”

b) Repeal (deletion)
• = refers to the process whereby the legislation is deleted / removed from the
statute book by a competent lawmaker.
• In the case of individual provisions of original legislation, all that remains will be
the numbering (as placeholders) and the legislative codes of the repealed
legislation.
NB Sunset clause –is a provision in legislation which terminates(repeals) all
portions of the law after a specific date.
NB A sunset clause is a date-bound repeal for the future.
• In effect this means that the legislature has adopted and repealed the
same legislation at the same time.
• NB This can only happen if the legislation has a very specific expiry date.
NB Implied repeal –
where two different enactments dealing with the same matter clash, it is
presumed that the relevant legislature, by implication, intended that the
later enactment repeals the earlier enactment.
4.4 SUSPENSION OF LEGISLATION ALREADY IN FORCE
• Legislation can also be temporarily suspended: in other words, it remains in
force, but its operation is halted for the time being until some or other
condition is met or requirement complied with.
• An example of legislation temporarily halted is suspension by a court.
• The system of co-operative Government is one of the unique features of the
South African constitutional structure which affirms a concurrent legislative
powers of the national legislation and provincial legislation.
• Where there are conflicts, the national legislation will sometimes prevail
over the provincial legislation and in other cases the provincial legislation
may trump the national legislation.
• Section 149 of the Constitution provides for an interesting variation on
the demise of legislation:
• This section provides that a decision by a court that legislation prevails
over other legislation does not invalidate that other legislation, but that
other legislation becomes inoperative for as long as the conflict remains.
• So: when legislation X conflicts with legislation Y, the operation of
legislation X is suspended until the relevant legislature deals with the
conflict.
• Legislation X is not invalid, but merely suspended for the duration of the
legislative standoff.
4.5 THE PRESUMPTION THAT LEGISLATION DOES NOT INTEND TO CHANGE THE
EXISTING LAW MORE THAN IS NECESSARY
This means that legislation should be interpreted in accordance with the existing
law( legislation, common law or customary law) and changes it as little as possible.
• With regard to legislation, the presumption means that in interpreting a subsequent
Act it is assumed that the legislature did not intend to repeal or modify the earlier
Act.
• In other words, an attempt should be made to read an earlier Act together with a
subsequent Act in an effort to reconcile them.
• However, If it is impossible to do so, it is presumed by necessary implication that the
later of the two provisions prevail, resulting in the amendment or repeal of the
earlier one.