Adoption
When relevant legislative body refers to constitutionally prescribed and other legal processes and procedures required for draft legislation to become law
- preparation of draft Bill
- introduction of Bill to legislature
- public participation, committing stages, voting and assent
Passing
Initial legislative process where enactments is created, wording is finalised, legislative body consents to legislation
S81 and 123 of Constitution
Once assented to and signed, Act becomes law
Promulgation
Process of putting legislation officially and legally into operation, process in which law after being adopted is formally made public and operational
S162 of Constitution
Municipal by-laws may be enforced after they have been published in Gazette of relevant province
S101(3) of Constitution
Proclamations, regulations and other instruments of subordinate legislation must be accessible to public
S13 and 16 of Interpretation Act
Requires subordinate legislation must be published in order to commence
Queen v Jizwa
Legislation commences on date of publication, irrespective of whether it has come to knowledge oof everybody in remote areas
President of RSA v Hugo
Concerns:
- need for accessibility, precision and general application flow from concept of rule of law
S16A of Interpretation Act
If Government Printer cannot print Gazette, President may by proclamation prescribe alternative procedures for promulgation of legislation
S17 of Interpretation Act
When President/ minister/ premier/ member of executive committee of province has power to issue delegated legislation, list of proclamations and notices under which such types of delegated legislation must be tabled in Parliament
Ex Parte Minister of Safety and Security:in Re S v Walter’s
Power conferred by legislature on President to fix date to commencement is public power and must be exercised lawfully for purpose of such power
- power may not be used to block/ veto implementation of new law
S13(1) of Interpretation Act and S81 and 123 of Constitution
- If legislation does not prescribe date of commencement, it automatically commences on day of its publication in Gazette
- Legislation as published in Gazette may provide for another fixed date for comencement
S13(3) of Interpretation Acr
If Act provides for commencement on date to be proclaimed by President/ Premier of province, there may be different commencement dates for different provisions of Act
S13(2) of Interpretation Act
‘Day’ begins immediately at end of previous day (retroactive commencement)
S14 of Interpretation Act
- If person has power to put legislation into operation, that power may be exercised at any time after legislation was passed with view to be put into effect
- Subordinate legislation cannot come into effect before original legislation, although some original legislation requires enactment of subordinate legislation to provide for frameworks in which original legislation can function
Provides for making of appointments and subordinate legislation by relevant functionaries, provided that appointments/ subordinate legislation cannot be effective before Act is in force
Cats Entertainment CC v Minister of Justice
Not unlawful and in line with S14 as election of Board was needed for operation of Act (nominations for candidates for Lotteries and Gambling Board)
Transnet Ltd v Chairman National Transport Commiddion
Presumption that legislation should only apply to future is one of basic foundations of legal system based on rule of law
S v Mhlungu
Presumption not intended to exclude benefits of rights sanctioned by new legislation but rather to prevent invasion of rights
Veldman v Director of Public Prosecutions, Witwatersrand Local Division
Well-established common law presumption given express constitutional backing
National Directors of Public Prosecution v Carolus and Others
There is presumption against retrospectivity of statutes unless Legislature clearly intends for it to have such effect- presumption based on considerations of fairness, ensuring individuals have opportunity to know law and conform their conduct accordingly
Retroactive
Legislation operates as of time prior to its enactment
Retrospectivity
Legislation operates for future only, in line with basic principle
