2020 Lecture 6 Amendment repeal savings provisions PDF

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University of the Western Cape Legal Interpretation LEG221 (2020)Lecture 6Amendments, repeals and savings provisions1. Prescribed materialInterpretation Act: Sections 11, 12(1) and 12(2) Constitution: Section 35(3), 35(3)(m) and 35(3)(n)2. Study objectivesAt the end of the lecture you should be able...

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University of the Western Cape Legal Interpretation LEG221 (2020) Lecture 6 Amendments, repeals and savings provisions 1. Prescribed material Interpretation Act: Sections 11, 12(1) and 12(2) Constitution: Section 35(3), 35(3)(m) and 35(3)(n) 2. Study objectives At the end of the lecture you should be able to: 2.1 List who can amend or repeal a statute after it has been published in the Gazette and discuss with reference to case law whether a legislature can delegate the power to amend original legislation to a regulator? 2.2 Explain how the published version of a statute can be amended or repealed by means of special statutes or special sections or schedules in ordinary statutes and how changes are officially recorded; 2.3 Reconstruct a point in time history of any statute; 2.4 Explain why and how the amendment and repeal sections and schedules in ordinary statutes are often combined with savings and transitional provisions. In doing so explain: 2.4.1 What is the retrospective application of a statute and why must it be regulated? 2.4.2 What is a savings provision? 2.4.3 What is a transitional provision? 2.5 Explain with reference to case law when the default savings provision in section 12(2)(c) of the Interpretation Act applies? 2.6 Explain with reference to case law whether and how the provisions of section 35(3) of the Bill of Rights have changed the common law and section 12(2)(d) by mandating the retrospective application of changes to criminal offences and their sentences; 2.7 Explain with reference to case law how section 11 of the Interpretation Act ensures legal continuity between a repealed and a new law; 2.8 Explain with reference to case law and the provisions of section 12(1) of the Interpretation Act how the repeal of a law affects references to that law in other laws. In doing so explain; 2.8.1 The essential character test with reference to case law; 2.8.2 The difference between static and dynamic references, or incorporation by reference and mere referencing, with an example from case law. 1

3. Basic research question(s) We have reached the second step in our search for the prevailing law. Thus far we have discussed (i) how to determine whether a written document which is said to contain the law on a topic is indeed a statute (Lecture 1), and (ii) whether that statute was validly enacted by a competent law-maker and properly put into operation (Lecture 5). We saw in Lecture 5 that the mere fact that a statute was published in the Government Gazette does not mean that the statute is in operation. The Refugees Laws Amendment Act 33 of 2008 was published in the Gazette on 26 November 2008. Section 34 of the Act read as follows: “Short title and commencement 34. This Act is called the Refugees Amendment Act, 2008, and comes into operation on a date determined by the President by proclamation in the Gazette”.

The Act was only put into operation by the President 12 years later on 1 January 2020! If you are referred to a Gazette in which a statute was published, immediately check whether the statute has ever been properly put into operation. The lawyers in the Aquarius Platinum Mines and Dental Association cases successfully managed to escape the force of a statute by doing exactly that. Thus Lecture 5. Once you have established that the published statute was properly put into operation the next question becomes whether the published version is still in force (or was still in force when the legal issue arose – in more technical language, when the statutory cause of action arose). Two new application problems arise as a result: (i) was the statute amended or repealed at any point, and (ii) should the original version (or any old version) or the amended (or new) version of a law on an issue be applied to a dispute? These questions arise because the doctrine known as the ‘potential perpetuity of legislation’ or the “continuing time-frame’ of legislation provides that a statute will remain in force and continue to apply in its originally promulgated version forever, or until it is eventually formally amended or repealed. The Constitution recognises only two ways in which this can be done. First, a competent legislature can amend or repeal an existing statute by means of a subsequent statute. Second, a competent court can declare a statute invalid and judicially amend a statute by means of a court order. In this lecture we discuss the first possibility and in Lecture 7 the second. In the first part of the lecture we discuss who can officially change a law once it has been published in the Gazette and how a published law can be changed. In the second part of the lecture we discuss how to determine which version of an amended or repealed law must be applied to a set of facts. Generally speaking this will be the law that was in force on the date that the dispute was decided but there are important exceptions where the amended or repealed version of a law continues to apply even after its amendment or repeal. 4. Lecture summary PART ONE The first way in which the published version of a law can be changed is through subsequent legislation (the second is by means of an order of court). We discuss below which lawmakers have the power to formally change the law and which procedure a competent lawmaker must follow to officially or formally amend or repeal the law. 2

4.1 Which legislature or regulator has the power to amend or repeal a law? The power to change the law is implied in the power to make the law. In the case of original legislation, this means that the same legislature which had the legislative competence to enact a national or provincial act or municipal by-law also has the legislative competence to amend or repeal that act or by-law. The legislature can generally not delegate the power to amend original legislation to a subordinate regulator. It is established law that the legislature may not delegate its plenary of full legislative power. To the extent that the power to amend or repeal any provision in an act is to be regarded as an exercise in plenary legislative power, the legislature cannot delegate the power to amend or repeal original legislation to the executive. The issue served before the court in Smit v Minister of Justice and Correctional Services 2019 (2) SACR 516 (WC) para 25. Section 63 of the Drugs and Drugs Trafficking Act 140 of 1992 allowed the Minister, by notice in the Government Gazette, to amend the list of prohibited drugs included in the Schedule to the Act. Setting aside the ministerial amendment of the list the court said the following: In my view, section 63 of the Drugs Act constitutes an impermissible delegation of plenary legislative power to a member of the executive […] Instead of public participation, one minister in consultation with another is entitled to determine which substances are proscribed. […] [T]his offends the manner and form in which legislation is enacted in South Africa’s deliberative constitutional democracy.

In the case of subordinate legislation, section 10(3) of the Interpretation Act confirms that the power of a subordinate regulator to make regulations or issue proclamations includes the power to ‘rescind, revoke, amend or vary’ the regulations or proclamations. 4.2. How can a law be amended or repealed? There is no special procedure prescribed for the amendment or repeal of existing legislation. The ordinary legislative process must be followed. The legislature must clearly identify which statute or statutory provision is being amended or repealed, specify the nature and scope of the amendment or repeal, and declare in express language that the identified law is being amended or repealed. There are at least two different ways in which the legislature can do so. First, the legislature can enact a special statute with the sole purpose of amending or repealing another statute or series of statutes. These special statutes are known as amendment acts, or repeal acts. When an amendment act makes several changes to the same act (also known as the principal act), the amendment act usually refers to the principle act in its short title for ease of reference. The National Credit Amendment Act 7 of 2019 made more than 30 changes to the National Credit Act 34 of 2005 (the principle Act). The Administrative Adjudication of Road Traffic Offences Amendment Act 4 of 2019 made more than 50 changes to the Administrative Adjudication of Road Traffic Offences Act 46 of 1998. When an amendment act makes minor changes to several related acts at the same time, the amendment act is usually referred to as a general laws amendment act. The Electoral Laws Amendment Act 1 of 2019 made changes to three different acts dealing with elections; the Judicial Matters Amendment Act 8 of 2017 made changes to more than 25 other Acts. Second, the legislature might also have to amend or repeal existing legislation as a necessary but incidental consequence of enacting an ordinary new statute. In this instance the new act will usually deal with the amendment and repeal of existing legislation in a special 3

amendment or repeal section inserted towards the end of the statute, under an appropriate heading such as ‘Amendments and Repeals’ or ‘Amendment of Laws’. The amendment section normally stipulates that the legislation mentioned in the section, or listed in an attached schedule, is amended to the extent indicated in the section or schedule. Section 72(1) of the Insurance Act 18 of 2017 provides a good example: Consequential amendments and transitional arrangements. The Acts referred to in Schedule 1 are hereby amended in the manner set out in that Schedule.

Schedule 1, of which a short extract appears below, is located at the back of the statute and contains a list of amendments and repeals: Schedule 1 LAWS AMENDED No. and year of Act 53 of 1998

Short title

Extent of amendment or repeal

Short-term Insurance Act

[…] 7. The amendment of section 8 – […] (d) by the deletion in subsection (2) of paragraph (c); and (e) by the substitution for subsection (4) of the following subsection: ‘‘(4) Subsections (2) and (3) shall not apply in the case of a short-term reinsurance policy unless and to the extent that the Authority so determines”.

As can be seen from this short extract, several standard expressions are used in amendment sections, schedules and acts to effect legal change. The legislature can substitute the provisions of another law (‘amendment by substitution’), add a new provision to another law (‘amendment by insertion’ or ‘amendment by addition’), strike out a provision of another law (‘amendment by deletion’), or simply repeal another provision or statute without replacement. Item 7(d) and (e) of the Schedule amends section 8 of the principal act by means of a deletion and substitution respectively. 4.3 How are changes to a law officially recorded? Before you can rush along and apply the full published version of a statute you must check whether the original version has been changed at any point in time. This is necessary because the full version of a statute is by convention only published once. This outdated convention dates back to the time when statutes had to be typed and reproduced by hand and it was impractical and costly to republish the complete amended version of a statute. In this world of paper documents, the convention developed to only include the changes in subsequent amendment or repeal sections, schedules or amendment or repeal statutes. In the era of digital documents and online publication this convention no longer makes sense but it is still firmly in place. As a result, you must first take the full version of the statute as published in the Gazette and then make all the changes to the text published in later Gazettes. This can be a daunting task if the statute has been amended many times. Let’s look at an example and do a practical exercise. Find the Magistrates’ Court Act 32 of 1944 on the website of the Government (www.gov.za; Documents; Acts; etc) or simply Google the Act and then select the link to the website of the Government (https://www.gov.za/documents/magistrates%E2%80%99-courts-act-19-may-1944-0000.) 4

If you open the link to the Act, you will find the original version published on 19 May 1944 in the name of the King of England. Why is this old and outdated version of the statute on the website? Why not the most up to date version of the statute? The answer is that no more up to date full version of the statute has been published in the Gazette. This is so in spite of the fact that the Act has been amended many times. Look at the list of amendments on the homepage of the Act on the website. How many are there? On no occasion has a full version of the Act been published again. The same applies to all other statutes as well. Instead, we find the following in the most recent amendment: Amendment of section 12 of Act 32 of 1944, as amended by section 9 of Act 40 of 1952, section 25 of Act 94 of 1974, section 5 of Act 66 of 1998, section 4 of Act 31 of 2008 and section 3 of Act 19 of 2010 2. Section 12 of the Magistrates’ Courts Act, 1944, is hereby amended— (a) by the substitution for subsection (6) of the following subsection: ‘‘(6) Only a magistrate of a regional division [whose name appears on the list referred to in subsection (7)], designated by the magistrate at the head of a regional division, may adjudicate on civil disputes contemplated in section 29(1) or 29(1B), in accordance with the criteria set out in subsection (8).’’; (b) by the deletion of subsection (7); and (c) by the substitution for subsection (8) of the following subsection: ‘‘(8) [The Magistrates Commission] A magistrate at the head of a regional division may only [enter the name of] designate a magistrate [on the list in terms of subsection (7)] contemplated in subsection (6), if one or more places have been appointed in terms of section 2(1)(iA) within the regional division in respect of which the magistrate in question had been appointed for the adjudication of civil disputes […].

This is the 6th time section 12 of the Act has been changed. The previous changes are also listed. What you must do is take the original text from 1944 and then find each of the acts listed in the section (from 1952, 1974, 1998, 2008 and 2010) and make the changes in the correct order up to and including the 2017 changes. In this way you can reconstruct a complete point in time history of the section up to its current version. There have been seven different versions of the section in force at different points in time. Drafting convention requires that where one law formally amends another, words omitted from the existing provision in the principal act must be identified in the text of the amending act in bold type in square brackets; while words inserted into an existing provision must be underlined with a solid line. Can you make the changes to section 12 of the Magistrates’ Court Act of 1944 required by section 2 of the Amendment Act quoted above? Try another example. Section 7 of the Performing Animals Protection Amendment Act 4 of 2016 provides as follows: Amendment of section 8 of Act 24 of 1935, as amended by section 5 of Act 7 of 1972, section 2 of Act 54 of 1983, section 4 of Act 20 of 1985 and section 7 of Act 7 of 1991. 7. The following section is hereby substituted for section 8 of the principal Act: ‘‘Penalty. 8(1) Any person contravening the provisions of this Act or any regulation made thereunder for which a penalty has not been prescribed or any condition of a licence [or certificate shall be] is guilty of an offence and liable on conviction to a fine not exceeding [R4 000] R20 000 or to imprisonment for a period not exceeding [twelve months] five years.

This amendment section makes clear that section 8 of the Performing Animals Protection Act 24 of 1935 (‘the principal Act’) is amended by substitution. The heading tells us that this is already the fifth time that the section is amended. The wording of the old and new versions of the section appears next to each other for reference purposes as the drafting convention applicable to amendment provisions requires. It is up to the reader to unscramble the wording of the old and new versions of the section. The wording of the amended version of the statute 5

can be reconstructed by deleting the words in bold between square brackets, and inserting the underlined words. The new version of the section therefore reads as follows: Any person contravening the provisions of this Act or any regulation made thereunder for which a penalty has not been prescribed or any condition of a licence is guilty of an offence and liable on conviction to a fine not exceeding R20 000 or to imprisonment for a period not exceeding five years.

Following the same drafting convention, the legislature can amend the principal act by inserting additional items, paragraphs or sections. Section 3 of the Films and Publications Amendment Act 11 of 2019 provides as follows: Amendment of section 2 of Act 65 of 1996, as substituted by section 2 of Act 34 of 1999 and section 2 of Act 3 of 2009. 3. Section 2 of the principal Act is hereby amended (a) by the deletion of the word ‘‘and’’ at the end of paragraph (b); (b) by the substitution for the full-stop at the end of paragraph (c) of a semi-colon; and (c) by the addition of the following paragraphs: ‘‘(d) criminalise the possession, production and distribution of child pornography; and (e) create offences for non-compliance with this Act.’’

The newly added paragraph 2(d) is underlined as required by the drafting convention and inserted into the principal act immediately after the existing paragraph 2(c). New additions must be added to the principal act without disrupting the existing numbering of the other provisions. Where necessary a capital letter is added after the number of the new provision. For example, section 8(b) of the Judicial Matters Amendment Act 8 of 2017 inserts a new paragraph (underlined and numbered ‘hA’) between paragraphs (h) and (i) into section 18 of the Criminal Procedure Act 51 of 1977: Section 18 of the Criminal Procedure Act, 1977, is hereby amended by the insertion of the following paragraph after paragraph (h): “(hA) trafficking in persons for sexual purposes by a person as contemplated in section 71(1) or (2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007”

The drafting conventions illustrated above allow the legislature to amend or repeal existing legislation with great precision, down to the level of single punctuation marks. They also allow anybody working with the statute to reconstruct the complete point in time history of the law, including the exact wording and commencement dates of each of the different versions of the statute since it was first promulgated. When a statute is amended, the full version of the statute is not published again in the Gazette. Lawyers must edit and make the changes to the originally published text after each amendment (or subscribe to a commercial statutory updating service such as Lexis Nexis, Jutastat or Sabinet to do so on their behalf). In the first part of the lecture we explained how to do so and, in the process, to reconstruct a point in time legal history of a statute. PART TWO This very outdated and highly technical way of dealing with changes to laws plays a key part in researching the current law. It should now be fairly easy to check which version of a law was in force at the point in time when any particular issue or cause of action arose. It is this version of the law, and not necessarily the current version of the law, that must be applied when the dispute is resolved. Disputes often arise about which version of a law should be applied to a set of facts. Why these disputes arise and how to resolve them are discussed next. Out key concern is to find our when the old version of a law must still be applied after its amendment or even its repeal. 6

4.4 If a law has been changed, which version of a law must be applied to a cause of action? One an amendment or repeal has entered into force it will generally apply to every legal dispute that thereafter s...