Introduction to Law (Graduate LLB): Additional Notes (updated January 2019)

LEGISLATION

The primary sources of South African law are the Constitution, other legislation,
judicial precedent, the common law, custom and customary law.

In practice, legislation is the most important and most prolific source of law in
modern states. Legislation is law made, and usually published in accessible form,
by an official lawmaking body. Legislation is thought to be characteristic of
advanced legal systems, since it cannot exist until the community in question
accepts the idea of a central authority or state that is empowered to lay down
rules for others and entitled to require obedience to those rules.

1. LEGISLATION AS A SOURCE OF LEGAL AUTHORITY

In South Africa, as in other countries, legislation takes various forms and can be
arranged in a hierarchy. The highest-ranking type of legislation is of course the
Constitution. Then come Acts of Parliament (or statutes) and other kinds of
‘original’ legislation made by provincial legislatures and municipal councils. At the
bottom of the hierarchy one finds ‘delegated’ legislation such as regulations.
(These terms are explained below.)

Whatever form it takes, legislation has certain distinguishing characteristics. It is

also thought to have definite advantages when compared with other sources of
law such as precedent.

1.1 Characteristics and advantages of legislation

(a) Legislation is flexible and can be enacted, amended or repealed quickly.

(b) Legislation is usually general (applying to all people or to classes of

people) and prospective (applying to the future, and not the past). It is not
usually concerned with resolving individual disputes, but with
implementing social policies that are intended to advance the public
interest.

(c) Legislation is enacted in terms of a set procedure, and only after debate
(in the case of an elected, deliberative body) or due consideration (in the
case of delegated legislation).

(d) Legislation is published in official newspapers known as the Government

Gazette and the provincial Gazettes (examples will be placed on Sakai).
At common law the general rule is that legislation becomes operative only
 once it has been ‘promulgated’; that is, once it has been published
officially. (On precisely when legislation comes into operation see Humby
et al at 170-172).

Requirements relating to publication can also be found in the Constitution

(s 81 concerning Acts of Parliament; s 123 concerning provincial statutes;
s 162 concerning municipal laws) and in the Interpretation Act 33 of 1957
(s 16 requires delegated legislation to be published).

(e) Legislation often allows for further action from someone. Accordingly, an
Act of Parliament will often enable a government Minister to make detailed
regulations (a type of delegated legislation) in order to flesh out the Act, or
it will allow an official to exercise powers under the Act – for example, to
issue permits or licences.

Owing to these characteristics, legislation has several advantages over other

sources of law such as judicial precedent:

(a) Courts react to individual situations and make rules in an incremental

fashion. Legislators deliberately set out to create rules in advance, making
legislation a more systematic and consistent source of law than precedent.

(b) Courts have to wait until a particular issue comes before them. This
means that judicial lawmaking is largely a matter of chance, and certain
unsettled issues or principles may remain unsettled for years. A legislature
may enact, amend or repeal legislation at any time, so it can respond
relatively quickly to social issues. It is ideal for law reform.

(c) Legislation is enacted at a higher level of abstraction than case law, and is
usually framed so as to apply to a wide range of cases falling within its
scope. Rules made by courts, on the other hand, are responses to
individual cases.

(d) Legislation is generally more accessible than case law. For example, it is
much easier to track down an Act of Parliament than a rule developed in a
series of cases.

Some of these advantages are purely theoretical, however. In practice,

legislation can have serious disadvantages when compared with case law. For
example:

(a) Parliament does not necessarily respond quickly to social problems even
though it has the capacity to do so. For instance, the South African
government was widely criticised for its slow and reluctant response to the
AIDS pandemic, and for its failure promptly to enact legislation to deal with
the problem. Similarly, the Civil Union Act 17 of 2006 was enacted to

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 recognise same-sex unions in South Africa only after the Constitutional
Court declared the common-law definition of marriage and s 30(1) of the
Marriage Act 25 of 1961 to be inconsistent with the Constitution. The
court gave Parliament one year from the date of its judgment to rectify the
matter. (Minister of Home Affairs v Fourie; Lesbian and Gay Equality
Project v Minister of Home Affairs [2005] ZACC 19 (1 December 2005);
2006 (1) SA 524 (CC)).

(b) Legislation can be too rigid, or perhaps badly drafted, and can wreak
injustice in individual cases. Case law, on the other hand, is ideal for
dealing with individual cases, and judges are often better at formulating
rules than legal draftsmen.

(c) As regards accessibility, the pervasiveness of legislation can sometimes

make it difficult to find out exactly what the law is on a particular point. One
may have to wade through reams of regulations in order to discover the
law relating to some aspect of licensing, for instance. By contrast,
textbooks and published indexes to law reports can make the task of
tracking down judicial precedent much simpler.

1.2 ‘Original’ and ‘delegated’ legislation

‘Original’ legislation is made by bodies that have ‘original’ lawmaking powers,

which means simply that their lawmaking powers are conferred directly by the
Constitution. Section 43 of the Constitution confers original legislative authority
on lawmakers in all three spheres of government. Thus Parliament is empowered
to make law for the entire country; the nine provincial legislatures make law for
the respective provinces; and at the local level, municipal councils (well over 200
of them) make law for their communities. (In Fedsure Life Assurance v Greater
Johannesburg Metropolitan Council 1999 (1) SA 374 (CC) the Constitutional
Court confirmed that municipalities exercise original lawmaking powers.)

However, original lawmakers cannot be expected to make all the legislation that
is needed to keep a modern country running. This is especially true of national
parliaments, which are usually far too busy to legislate on every conceivable
aspect of a particular matter dealt with by them.

The result in many countries, including South Africa, is that Acts of Parliament
are relatively brief, skeletal and general; and in them Parliament inevitably
delegates some of its lawmaking authority to various other organs. These
organs, such as the President and Cabinet Ministers, then flesh out the Act of
Parliament by means of proclamations and regulations. Such legislation is
termed ‘delegated’ legislation. There are many other kinds of delegated
legislation, including rules, orders, directives, determinations, decrees,
declarations and schemes. (Some illustrations will be placed on Sakai.)

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1.3 Acts of Parliament: An outline of the national legislative process

You will learn more about the national, provincial and local legislative processes
(set out in Chapters 4, 6 and 7 of the Constitution) in courses such as
Constitutional Law. In this course we deal only with the national legislative
process, details of which are set out in ss 73-82 in Chapter 4 of the Constitution.

In terms of ss 42 and 46 of the Constitution, the national legislature (Parliament)

comprises a National Assembly (NA) of no fewer than 350 and no more than 400
persons; and a National Council of Provinces (NCOP) consisting of ten delegates
from each province.1

The process usually begins when the Cabinet or an individual Minister (or more
rarely, some other member of Parliament) decides that there is a need for new
legislation. In many cases the relevant Minister’s department will work on the
proposed reform, usually producing first a Green Paper (an initial discussion
document) and later a White Paper which sets out the government’s policy in
relation to the proposed new law.

Alternatively, the South African Law Reform Commission may be asked by the
Minister of Justice to conduct an investigation and to produce draft legislation
based on its recommendations. The Law Commission usually releases three
separate documents during an investigation: an Issue Paper, a Discussion Paper
and finally a Report containing draft legislation. The Report is presented to the
Minister of Justice for consideration.

A draft statute is known as a Bill. The relevant Minister submits the Bill to the
Cabinet for discussion. Once the Cabinet is happy with the proposed Bill, the
Minister introduces it in Parliament. Bills affecting the provinces are usually
introduced in the NCOP, while other Bills usually start off in the NA. Money Bills,
which are Bills that impose taxes or appropriate money, have to be introduced in
the NA.

Once it has been introduced, a Bill is referred to a parliamentary committee,

which will usually be a Portfolio Committee in the NA or a Select Committee in
the NCOP. The committee in question will discuss the Bill in detail at its
meetings. If there is a lot of public interest in the Bill, the committee will often
decide to hold public hearings too. When the committee is happy with the Bill, it
finally goes to Parliament to be read and debated. The Bill will start off either in

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In terms of s 46, the electoral system used for the election of the NA must result 'in general' in
proportional representation. A party-list system has been used in all the national democratic
elections so far, and s 46 effectively prevents South Africa from opting for a purely majoritarian
system such as first-past-the-post, which was used in the pre-democratic era. In terms of this
system, a candidate wins a seat if he or she gets a simple majority of the votes in a constituency.

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the NA or in the NCOP, but (with some exceptions) the Bill has to be passed by a
majority vote in both houses.

A Bill that has been passed by Parliament becomes an Act, and therefore law,
only once it is signed by the President and published in the Government Gazette.
Note, however, that the law might not come into force immediately – it depends
on what the Act itself says on this subject.

Section 74 of the Constitution lays down special rules for Bills amending the
Constitution. In particular, a Bill amending Chapter 2 (the Bill of Rights) has to be
passed by the NA with a supporting vote of at least two thirds of its members,
and by the NCOP with a supporting vote of at least six provinces. A Bill
amending s 1 (the founding provisions) or amending s 74 itself has to achieve a
75% vote in the NA and have the support of at least six provinces.

1.4 Why and how delegated legislation is made

The following examples show why delegated legislation is necessary. They

indicate how delegated legislation fleshes out original legislation and makes it
work in practice.

(a) An example given by Du Plessis2 is the National Road Traffic Act 93 of

1996. Section 58(1) of the Act makes it an offence for people to ignore
road traffic signs, but does not actually tell us what those signs are.
Instead, s 56(1) of the Act delegates to the Minister of Transport the power
to make regulations (a form of delegated legislation) about what the traffic
signs should look like, what they mean and how they should be erected. It
is easier and more appropriate for the Minister to do this than for
Parliament to spend its time working out all this detail. Significantly, this
delegation of power means that Parliament does not have to convene
every time a new road traffic sign is felt to be necessary.

(b) Section 2A of the Public Holidays Act 36 of 1994 leaves it to the President
to declare new public holidays throughout the Republic or in any part of it.
Again, this is a much quicker and easier option than getting hundreds of
members of Parliament together to amend the Act in order to declare a
new holiday.

(c) Similarly, s 2A of the National Parks Act 37 of 1976 enables the Minister of
Environmental Affairs and Tourism to declare state land to be a national
park.

It is often said that delegated legislation is less important than original legislation.
This is true in some ways. In the first place, delegated legislation is always
subordinate to original legislation. It is enabled by original legislation, and may
2
Lourens du Plessis Re-Interpretation of Statutes (2002) 38.

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not be in conflict with the original legislation. Another point is that delegated
lawmaking powers are always limited. For instance, the Constitutional Court
declared invalid a section of the Local Government Transition Act 209 of 1993 in
Executive Council, Western Cape Legislature v President of the Republic of
South Africa 1995 (4) SA 877 (CC). The section purported to give the President
the power to amend the statute; but the court reasoned that Parliament is not
entitled give up its lawmaking responsibility by delegating such wide lawmaking
powers to the President. Delegating so much power is not permitted under our
democratic Constitution.

On the other hand, delegated legislation is much more prolific than original
legislation. In a busy year Parliament may produce in the region of 80 or 100
statutes; but delegated legislators will produce literally thousands of regulations,
proclamations, rules, orders and other sorts of delegated legislation.

1.5 Legal significance of the distinction today

In the past the distinction between original and delegated legislation was of
crucial importance. While original legislation could only be reviewed by the courts
on procedural grounds, delegated legislation was in addition subject to
substantive review on the two administrative-law grounds of vagueness and
unreasonableness. Under the 1996 Constitution the distinction has lost much of
its importance, for all legislation may now be reviewed both for procedural
correctness and for constitutionality in terms of the Bill of Rights. Furthermore,
the Constitutional Court has indicated that all legislation, whether original or
delegated, must be clear and not vague; it must be capable of guiding those
bound by it (see eg President of the Republic of South Africa v Hugo 1997 (4) SA
1 (CC) para 102 and Investigating Directorate: Serious Economic Offences v
Hyundai Motor Distributors (Pty) Ltd 2001 (1) SA 545 (CC) para 24).

However, the distinction between original and delegated legislation still has legal
meaning. The most important features of delegated legislation are as follows.

(a) Delegated legislation is subordinate to original legislation (and of course to

the Constitution). This means that it may not be in conflict with original
legislation or go beyond the parameters specified in the original legislation.
If it does, it will be ultra vires. For example, if an Act of Parliament
empowers the Minister of Health to make regulations concerning hospitals,
then the Minister would not be entitled to make regulations concerning
schools. Any such regulations would be beyond the Minister's powers and
unlawful.
Delegated lawmakers must also follow any instructions laid down in the
original legislation for making the delegated legislation; otherwise they will
be acting unlawfully. For example, s 2A of the National Parks Act 37 of
1976 says that the Minister of Tourism may declare state land to be a

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 national park – but only with the agreement of the Minister of Minerals and
Mining.

(b) In terms of our common law subdelegation, or further delegation by a

delegated lawmaker, is not usually permitted unless the original legislation
authorises it expressly or impliedly: delegatus delegare non potest. Thus a
Minister holding delegated legislative powers may not, in his turn, delegate
those powers to someone else (typically an official in his department)
unless there is express or implied authority for such a further delegation.
Section 238 of the Constitution, which allows further delegation by
executive organs of state, may seem to override the common-law
presumption but probably has no real effect on it. This is because s 238
allows further delegation only where it is consistent with the original
legislation in question.

(c) Delegated legislation seems to qualify as ‘administrative action’ for the

purposes of s 33 of the Bill of Rights, whereas original legislation definitely
does not (Fedsure, supra). This means that the rights to just administrative
action in s 33 will apply to delegated legislation, but certainly not to original
legislation.

2. CONFLICT BETWEEN PIECES OF ORIGINAL LEGISLATION

We have seen that there are three sources of original legislation in South Africa.
These are Parliament, which has the power to make laws for the Republic as a
whole; the provincial legislatures of the nine provinces, which have power to
make statutes for their respective provinces only; and municipalities, which have
power to make laws for their local areas. Conflicts can sometimes arise,
particularly between national and provincial legislation dealing with the same
subject matter.

Provincial legislatures are, in terms of s 104(1) of the Constitution, restricted to

legislating on matters specified in Schedules 4 and 5 of the Constitution.
Schedule 4 deals with matters over which Parliament and the provincial
legislatures have ‘concurrent legislative competence', which means that both
Parliament and the provinces are entitled to make law on these matters. They
include agriculture, casinos and gambling, primary and secondary education,
health services, housing, nature conservation, road traffic, tourism and welfare.
Schedule 5 deals with matters in respect of which the provinces have exclusive
legislative competence, such as abattoirs, liquor licences, provincial libraries and
museums.

A provincial legislature seeking to legislate on a matter not listed in one of the

schedules will be acting beyond its powers (ultra vires), and the legislation will

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have no effect. For example, a province does not have the power to make law
about tertiary education.

Since Parliament and the provincial legislatures have concurrent legislative

competence in certain areas, it is possible that their respective statutes may
conflict with each other. Such conflicts are resolved in terms of s 146 of the
Constitution. Section 146(5) says that the provincial legislation will prevail over
national legislation unless there is a reason to the contrary, for example where
the matter requires uniformity across the nation; where the national legislation is
necessary for maintaining national security or economic unity; or where the
national legislation is necessary for the protection of the environment (see ss
146(2) and (3)).

Think about the following situations. Do you think the provincial or the national
legislation would prevail in each case? Why?

• Gauteng makes a law saying that pupils in this province need only pass five
matric subjects instead of six. The national law says that pupils have to pass
six subjects.

• In the interests of tourism the Eastern Cape province makes a law allowing
people to drive vehicles on all its beaches and sand-dunes. The national
law, on the other hand, prohibits driving on beaches and sand-dunes.

• The national law relating to number-plates specifies a particular size for the
plate. KwaZulu-Natal makes a law requiring bigger number-plates for all cars
registered in that province.

3. REFERENCING LEGISLATION

3.1 The Constitution

As law students you will often need to refer to either the 1996 or the interim
Constitution. The first time you refer to the Constitution, give the full reference:
Constitution of the Republic of South Africa, 1996. (In terms of the citation of the
Constitution, no Act number is to be associated with the Constitution of South
Africa, 1996.) Thereafter you may simply call it ‘the Constitution’ or ‘the 1996
Constitution’. The full reference for the interim Constitution is Constitution of the
Republic of South Africa, Act 200 of 1993. Thereafter you may abbreviate to ‘the
interim Constitution’.

You do not generally need to refer to the chapters of the Constitution; usually you
will simply cite the sections. The one exception is the Bill of Rights, contained in
Chapter 2 of the 1996 Constitution. Chapters in the Constitution and other
legislation may be abbreviated to chap (plural: chaps).

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Use the abbreviations s (in small letters) for a section or ss for sections of the
Constitution. For example:

In s 28(3) of the South African Constitution a child is defined as a person

under the age of 18.

The preamble and ss 1 and 2 of the Constitution provide for constitutional

supremacy in South Africa.

If the sentence starts with a reference to a section (or sections) of the

Constitution, then write Section (or Sections) in full with a capital letter at the
beginning of the sentence.

3.2 Ordinary legislation

When first referred to in an essay, Acts of Parliament are cited by their short title
followed by their number and their year of adoption without punctuation: for
instance, the Judicial Service Commission Act 9 of 1994. You need not repeat
the number and year if you refer to the same Act again, but simply employ
variants such as ‘the Judicial Service Commission Act’, ‘the Act’, or ‘Act 9 of
1994’.

Note that the title of an Act is not underlined or italicised.

The various divisions of an Act are called sections, subsections, paragraphs and
subparagraphs. All divisions except sections are written in brackets. So to cite
subparagraph (ii) of paragraph (b) of subsection (2) of section 2 of the
Interpretation Act 33 of 1957, one would write s 2(2)(b)(ii).

As with the Constitution, if one starts a sentence with a section number then one
writes ‘Section’ in full.

Acts in the process of adoption are called Bills and are cited as follows: the
Human Rights Commission Bill 8 of 1994. Note that Bills are divided into clauses
and not sections.

Regulations (issued by a Minister of the Cabinet) are printed in numbered

Government Notices in the Government Gazette and can be cited in terms of the
number and date of that notice. So regulations made by the Minister of Basic
Education in terms of the South African Schools Act 84 of 1996 and published in
Government Notice 1102 in Gazette number 39406 of 13 November 2015 would
be cited as follows: GN 1102 GG 39406 of 13 November 2015.

Proclamations (issued by the President) can be cited as follows: Proc R58 GG

40346 of 14 October 2016.

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QUICK QUIZ ON LEGISLATION

1. Name two characteristics of legislation.

2. Name two advantages of legislation.

3. What is the difference between original and delegated legislation?

4. Why is delegated legislation necessary?

5. Which would you say is more important – original or delegated legislation?

Explain your reasoning.

6. Apart from Parliament itself, which other legislative organs make original
legislation in South Africa?

7. Name four kinds of delegated legislation.

8. The distinction between original and delegated legislation still has some
significance – but in what respects? Explain two of them.

9. If Parliament and a provincial legislature make conflicting law on the same

topic, which piece of legislation will prevail and why?

10. How should one give the first reference to a statute made in 1953 whose
number is 7 and whose short title is the Wills Act? And subsequent
references?

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