In SACR 607 (SCA) , the court explained the difference between retroactivity and retrope of

legislation. Retroactivity (‘true or strong’ retro-effect) In this case the legislation operates as
of a time prior to its enactment, in other words, it operates backwards in time and changes
the law from what it was. For example: The Terrorism Act 83 of 1967 was published on 27
June 1967, but s 9(1) of the Act provided that, with the exception of a few provisions, the Act
was deemed to have come into operation on 27 June 1962. This means the Act was
deemed to have been in force five years before it was adopted and published.
Retrospectivity (‘weak’ retro-effect) In this case the legislation operates for the future only, in
line with the basic principle. The legislation is prospective, but could impose new results in
respect of a past event. It operates forwards, but it ‘looks backwards’ in that it attaches new
consequences for the future to an event that took place before the legislation was enacted.
In other words, it changes the law from what it otherwise would be with respect to a prior
event. The legislation commences for the future from a particular date, but could apply to
new cases and processes (that will start after the commencement), based on earlier facts
and circumstances (that arose prior to the commencement). Bear in mind that there is no
express retroactivity involved here, because there is no commencement and application of
the legislation ‘backwards in time’. However, the problem is that there could be future
application of the new legislation to new cases (with facts and circumstances that originated
before the commencement): in other words, there could be a practical retro-effect. Although
retrospectivity is not as drastic as retroactivity, the most important consideration is still
whether the future application of the legislation to events from the past will be unfair, take
away vested (existing) rights or violate substantive rights. For example: Section 7 of the
Children’s Act of 2005 provides as follows: Page 57 17 Age of majority A child, whether male
or female, becomes a major upon reaching the age of 18 years. [Date of commencement of
s. 17: 1 July 2007.] When s 7 of the Children’s Act commenced, it also repealed the Age of
Majority Act 57 of 1972, which provided that a person reached the age of majority upon
reaching the age of 21 years. After 1 July 2007 a person becomes a major immediately upon
reaching the age of 18. This is normal—the Act operates into the future as expected.
However, what if on 1 July 2007 the person is 19 years old and no longer a ‘child’ (in other
words, already older than 18, but not yet 21)? The person cannot become a major in terms
of the Age of Majority Act (because it had been repealed when s 17 of the Children’s Act
became operational), but the person was already older than 18 when s 17 became
operational. In this case the Act has retrospective effect: as soon as the 19-year-old person
moves into the ambit of s 17 after 1 July 2007, that person will automatically become a
major. The Act is not retroactive: persons who reached the ‘previous’ age of majority of 21
before 1 July 2007 will not be affected, and the effects of their age of majority will not be
‘adjusted’ retroactively to that of 18 somewhere in the past. Enter the deeming clause The
difference between retroactivity and retrospectivity lies • • • in the commencement date of the
legislation in question. In the case of retroactive legislation the commencement date is
before the date of publication. This means that the legislation operates backwards in time, or
history is rewound. Because this kind of ‘legislative time travel’ is physically impossible, the
legislation uses a deeming clause: the legislation is deemed to have commenced on a date
prior to publication date. But what is a deeming clause? In the case of retroactive
commencement it is a legislative exercise in ‘virtual reality’ (or legal make-believe). Since a
commencement date before the enactment of the legislation is impossible in real physical
terms, the legislation creates a legal fiction: the legislation does not change the fact; it
makes-believe that the facts (reality) are otherwise. Page 58 In other words, the deeming
clause creates a presumption, in this case by providing that something is ‘deemed’ to have
happened.