IURI 213

Statutory Interpretation
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 3 and consult the
study unit 3 in the SG
Module outcomes
 On completion of this study unit, you should be able to demonstrate:
 detailed knowledge and understanding whether a piece of legislation is in
operation and whether it may be applied;
 detailed knowledge and understanding of the principle that legislation should
only apply to the future;
 ability to analyse and evaluate gathered information on a piece of legislation
and apply conclusions/research to a given context;
 ability to analyse and evaluate gathered information on the principle that
legislation should only apply to the future;
 ability to provide accurate and coherent written and verbal communication
on the question whether a piece of legislation is in operation and whether it
may be applied;
 ability to provide accurate and coherent written and verbal communication
of the principle that legislation should only apply to the future;
 an ability to use appropriate resources to ensure successful realization of the
outcomes of this study unit.
Adoption and legislation
 Distinguish between the two.
 Adoption: The legislative body follows constitutionally prescribed and
other processes required to pass the bill into law, including:
 Preparing draft bill;
 Introducing bill to Parliament, NCOP or Municipal Council;
 Public participation processes;
 Voting and assenting.
 Once assented to and signed, Act becomes law.

 STOP…….. The Act is law. However, it is not in operation yet.

Awaiting promulgation.
 Promulgation: the process of putting legislation officially and legally
into operation.
Promulgation
 Legislation promulgated by publication in Government Gazette.
 Sections 81 and 123 of the Constitution read with section 13 of the
Interpretation Act. Acts of Parliament and provincial Acts take effect
when published in the Government Gazette or on the date
determined in the Act.
 Section 162 of the Constitution: Municipal bylaws enforced after
publication in the provincial Gazette.
 101(3) of the Constitution: no express mention of publication of
subordinate legislation. However, “subordinate legislations,
regulations and proclamations must be accessible to the public”. See
sections 13 and 16 of the Interpretation Act, which require
publication.
 NB…..Not everything published in a Government Gazette is
legislation.
 Purpose for publication? Making the Act known to the public.
Promulgation……continue
 Controversy: What happens if Act appears days after publication in
most remote areas of the country?
 Queen v Jizwa 11 SC 387: Commences on the date of publication,
irrespective of whether it has come to the knowledge of everyone.
 President of the Republic of South Africa v Hugo 1997 6 BCLR 708
(CC) para 102

 For noting: The President may prescribe alternative procedures for

publication of the Act.
 Certain regulations or proclamations may have to be furnished to
parliament/NCOP or Municipal Council before publication.
Who promulgates?

 In principle: the legislative authority of a particular lawmaker.

 However, this is not always the case with Acts of Parliament or
provincial Acts. Promulgation can be delegated to the executive
branch of government.
When is it in force?

 Default setting: on the date of publication

 Delayed commencement: legislation published in government gazette
may provide another fixed date for commencement.

 Danger? Not realising that new legislation had in fact commenced.

 Delayed commencement: On an unspecified future date still to be
proclaimed.
When is it in force? …….continued
 Retroactive commencement. Legislation deemed to have commenced
before publication.

 A combination of the above.

 A mixed bag of dates
 Different provisions of the Act commence on different days
 When does a day start?
 Section 13(2) of the Interpretation Act
 00:01. Immediately when the other day end.
Section 14 dilemmas
 If a person has the power to put legislation into operation, the power
may be exercised at any time after the legislation was passed
(adopted) with the view to put it into effect.
 Appointments and making of subordinate legislation may occur
provided that these are not effective before the enabling Act is
operational. Therefore, preparations may be done and structures put
in place pending operation of enabling Act.
 See Cat Entertainment CC v Minister of Justice 1995 1 SA 869 T.
The presumption that legislation
applies only to the future
 General rule: Legislation applies only to the future.
 Common law presumption: legislation intends to regulate future matters,
not the past.
 Case law: rule generally aimed at (1) preventing unfair results; (2) prevent
unreasonable results; (3) prevent predictability and legality. Individuals
must know what the law is and to adapt their conduct accordingly.
 Ensures that vested rights are not taken away.
 S v Mahlangu: prevents invasion of rights
 Veldman v Director of Public Prosecutions, Witwatersrand Local Division
2007: legislation should not be interpreted as taking away existing rights
and obligations. Why? Principles of fairness and justice are integral to rule
of law, which is a founding principle of the Constitution.
Retroactive and retrospective

 Retroactively: legislation operates at a time prior to enactment.

 Retrospectively: legislation operates for the future only. However,
could impose new results in respect of past events.
 Operates forward but looks backwards
 Applies to new cases and processes based on old facts and circumstances.
 Retrospective is not as drastic as retroactively. An important consideration
is still whether the future application of legislation on events from the past
will be unfair, take away vested (existing) rights or violate substantive
rights.
 Enters the deeming clause: In retroactive legislation, creates a make-
believe event where something is believed to have happened.
What prevents legislation from
applying with retro-effect?
 Retro-effect is not absolute.
 Three obstacles must be removed before legislation may apply with
retro-effect.
 The common law presumption;
 New offences and higher penalties;
 and other constitutional rights (S v Ndiki)
No harm done: exceptions to the
rule
 Two instances where the principle that legislation only applies to the future
will not apply:
 If the enactment deals with procedure
 If the retro-effect favours the individual (R v Sillas)

 Retroactivity and other constitutional issues:

 Law in force when the Constitution took effect remains in force, subject to
amendments and repeals and consistencies with the Constitution;
 Proceedings pending before a court when the Constitution took effect must be
finalized as if the new Constitution had not been enacted unless the interest of
justice requires otherwise.
 However, the legislative process started in terms of the interim Constitution but was
not finalized when the Constitution 1996 took effect. Must be finalized in terms of
the Constitution, 1996.