study unit 4 IURI 213

• Housekeeping Rules


  • Always attend classes
  • Prepare before attending the contact sessions
  • Familiarise yourself with module outcomes
  • Participate in the sessions
  • Use study guide as a reference when studying and preparing
• Preparation for the next Lecture

  Read Botha Statutory Interpretation Chapter 4 and consult the study unit 4 in the SG
• Module outcomes


  • Detailed knowledge and understanding whether the legislation is still in force, and if so, had it since been amended
  • Detailed knowledge and understanding of the presumption that legislation does not intend to change the existing law more than is necessary
  • Ability to gather information on the question whether the legislation is still in force, and if so, had it since been amended
  • The ability to analyse and evaluate the question whether the legislation is still in force, and if so, had it since been amended
  • Ability to provide accurate and coherent written and verbal communication on the question whether the legislation is still in force, and if so, had it since been amended
  • An ability to use appropriate resources to ensure successful realization of the outcomes of this study unit
• Is it still in force?


  Study Unit 3 asked if legislation is still in force. This Study Unit will ask if it is still in force. If so, has it since been amended?
• Legislation does not simply disappear even if it is not regularly used
• If legislation is to be withdrawn from force, it must be repealed by a competent authority or declared invalid by a court
• Under constitutional supremacy, the courts must test all legislation, including Acts of Parliament, against the Supreme Constitution
• Legislation that is inconsistent with the Constitution will not automatically be unconstitutional and invalid
• To remove unconstitutional legislation


  A competent body must either amend or repeal it, or a competent court must declare it unconstitutional
• Types of amending legislation

  • Non-textual (indirect) amendment
  • Textual(direct) amendment
• Non-textual amendment


  There are no direct changes to the initial legislation's wording, but the amending legislation merely describes the extent of the changes in the law with reference to the provisions that will be affected
• Textual amendment


  The actual wording of the initial legislation is changed
• Informal judicial 'amendment' (modificative interpretation by the courts)


  Courts have a secondary function of law-making. They develop common law and give form, substance and meaning to legislative provisions in concrete situations. Courts may also modify the initial meaning of legislative provisions in a way that conforms to the purpose or aim of the legislation.
• The powers of judicial law-making must always be based on legal rules and principles
• Courts can attempt to save legislation during constitutional review by employing corrective techniques such as reading-in and reading-down
• Only under exceptional circumstances may courts modify the initial meaning of legislative text to reflect the purpose and object of the legislation
• Repeal


  A process where legislation is deleted, removed from statute book
• Invalidation


  When legislation is declared to be legally unacceptable. This legislation may not be applied anymore, but it remains in the statute book until removed by competent lawmakers
• Courts do not repeal legislation - they invalidate it
• Grounds for invalidation of legislation by the courts

  • Unconstitutional provisions
  • Invalid subordinate legislation
• Unconstitutional provisions


  S172 of the Constitution states that HC, SCA or CC may declare legislation unconstitutional if it violates fundamental rights in the Bill of Rights or is in conflict with another constitutional requirement
• Invalid subordinate legislation


  A court may invalidate delegated legislation if it does not comply with the requirements of administrative law
• Repeal of legislation by a competent lawmaker

  • Substitution
  • Repeal
• Substitution


  S11 of the Interpretation Act was enacted to deal with cases where one enactment is repealed, but the replacement enactment is not yet operational—the repealed will remain in force until the replacement is in place
• Repeal


  Removed from statute books. No replacement.
• Terminology


  • Repeal
  • Implied repeal
  • Sunset clause
• 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
• Sunset clause


  A provision in the legislature which terminates repeal(repeals) all or portions of the law after a specific date. A sunset clause is a date-bound repeal for the future
• Suspension of legislation already in force


  Legislation may be temporarily suspended. Suspension means it is still in force, but its operation is halted for the time being until some or other condition or requirement is complied with.
• When legislation X conflicts with Y, the operation of X is suspended until the conflict is resolved. X is not invalidated, but merely suspended for the duration of the legislative standoff.