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2.2 Explain how the published version of a statute can be amended or repealed by means of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continuity between a repealed and a new law;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.

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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 law-
makers have the power to formally change the law and which procedure a competent law-
maker must follow to officially or formally amend or repeal the law.

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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

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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 Short title Extent of amendment or repeal

of Act
53 of 1998 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.)

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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

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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.

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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 serves before the court for decision. In principle all cases must be
decided in terms of the law as it stands at the moment of decision. However, strict adherence
to this principle might lead to unfair and impractical or disruptive results. Sometimes it is fair
and practical to apply the law as it was when a cause of action arose as opposed to the law as
it is when the merits of the cause of action is eventually decided.

4.4.1 The temporal application of changes to the law

Take the simplified facts of the Kaknis v ABSA Bank as an example (a copy is included in the
lecture Folder if you are interested to read more but the case is not prescribed). A debt
prescribed (became unenforceable due to lapse of time) but thereafter the debtor admitted
liability and agreed to repay the debt to the bank. This revived the prescribed debt.
Thereafter, the National Credit Act was amended to prohibit banks from collecting revived
debts. The bank (ABSA) argued that when its client acknowledged and so revived the
prescribed debt, the new law had not been in force, and that the bank can continue to collect
the debt even after the amendment of the law. The client (Mr Kaknis) argued that the
amendment also applied to debts that were revived before the amendment came into
operation and that the bank can no longer collect the debt. Did the new version of the law
apply to the revived debt in question? It might be unfair and disruptive to the credit industry
to prevent the bank from collecting the acknowledged debt. However, allowing the bank to
do so might undermine the policy to protect innocent debtors which the amendment
implements.

Or take another example, a bus company applies for a pubic transport permit to the Council.
After 10 months, several objections by rivals, and a week before the hearing, the law is
changed and the power of the Council to grant permits is removed and transferred to the
Board. Can the Council proceed to apply the old law and grant the permit at its next hearing?
The bus company would argue that the new law does not apply to pending applications
before the Council, while its rivals would argue that the Council cannot grant the permit
anymore and that the bus company must start over with a new application before the Board.
Not allowing the Council to proceed will be unfair to the all applicants, but allowing it to do
so might require two parallel processes for some time which will be costly and less that
efficient.

In short: When a change in the law is applicable to existing rights or pending proceedings we
speak in lawyer’s language about the retrospective application of the new law. The
retrospective application of a new law to existing rights claims or pending proceedings, must
be distinguished from the retroactive application of a new law to rights claims that arose and
were decided or proceedings that had already been concluded in the past, and the prospective
application of a new law to rights claims and proceedings that are yet to arise and be decided
in the future.
Consider one last example: An amendment to the Credit Act that reduces the maximum
interest rate from 20% to 10% can be applied retrospectively, retroactively or prospectively.
If the amendment applies prospectively, it will only affect the interest rate of new credit
agreements concluded after the amendment. Sipho’s loan with the bank concluded a year

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before the statute was amended will not be affected at all. If the amended interest rate applies
retroactively, it will be deemed to have been applicable to interest charged and already paid
in the past before the amendment was passed. The bank will have to refund all the excess
interest collected from Sipho in the past. Finally, if the amended interest rate applies
retrospectively, it will affect existing contacts concluded before the amendment but will only
apply to the interest payable after the amendment. Sipho’s interest rate will be reduced to
10% but the interest paid in the past under the old rate will not be affected. In the last instance
we can also say that the new interest rate applies retrospectively to the existing credit
agreement because it adversely affects the bank’s existing (or vested) contractual rights under
the old law.

How do we determine in cases like these which version of the law must be applied?

The answer depends in large part on the legislator itself. The legislator must know that there
would be existing contracts in force and applications pending under the old law, and should
ideally tell us whether the old or the new version of the law apply to these contracts or
proceedings, and if so, under which conditions and for how long. In other words, an
amendment or repeal can be made applicable to rights claims that lie in the past, exist in the
present, or that will arise in the future. This is known as the temporal, as opposed to the
substantive, application of the law. The legislature can regulate the temporal application of
the law by including a special savings or transitional section or schedule in the new law or
new version of the old law.

4.4.2 Statute specific transitional and savings provisions

In addition to policy considerations of equity and fairness, it might simply be impractical and
inefficient to abolish all existing institutions, terminate all current appointments, and cancel
all valid permits in operation under an existing law overnight. Doing so might severely
disrupt the regulation of society and undermine the smooth transition from the old to the new
statutory scheme. In short, the legislature has a constitutional duty, not only to pass new
legislation that amends or repeals existing laws, but also to ensure that the introduction of that
legislation takes place fairy and efficiently, considering the mischief and urgency of the
policy objectives behind the regulatory intervention.

The legislature can manage the transition from the old to the new law and the tension
between legal stability and change by combining an amendment or repeal section or schedule
with a transitional or savings section. The legislator can combine the amendment or repeal
provisions with savings or transitional provisions in the same section or schedule, or in a
special section or schedule designed for this purpose. As we use the terms here, a savings
provision saves existing or vested rights as well as pending cases from being affected by a
change in the law. By contrast, a transitional provision explicitly makes a change in the law
applicable to existing rights and pending applications. A savings or transitional section is a
special operational provision that are enacted in combination with an amendment or repeal
section or schedule. A savings provision expressly limits or excludes the application of a new
law in negative language (‘the amendment or repeal shall not affect or apply to…’). In this
way the provision ‘saves’ the specified categories from the effects of the amendment or
repeal. By contrast, a transitional provision expressly confirms the application of a new law
in positive language (‘the amendment or repeal shall apply to…’).

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An example of a transitional provision is contained in Item 4 of Schedule 3 of the National
Credit Act 34 of 2005. Section 172 of the Act deals with amendments, repeals and
transitional arrangements and provides that the ‘repeal of the laws specified in this section
does not affect the transitional arrangements, which are set out in Schedule 3’. Item 4 of
Schedule 3 then reads in part as follows:

4. Application of Act to pre-existing agreements.

(1) This Act applies to a credit agreement that was made before the [commencement of this Act].
(2) The provisions of this Act referred to in the first column of the following table apply to a pre-existing
credit agreement only to the extent indicated in the second column of the table.

The table then specifies how far the different sections of the Act apply to existing credit
agreements that were concluded before the law on credit agreements was amended.

Savings provisions usually state that despite the repeal of a law, various sections of the old
law, or certain appointments made under the old law, or certain certificates, permits and
licences issued under the old law, or regulations made under the old law, or a right to be
admitted to a profession under the old law, are not affected by the amendment or repeal of
that law. These matters continue to be regulated by the old law for a specified period of time.
To ensure legal continuity, many amendment and repeal provisions are combined with a
general savings provision that preserves the legal force of anything that was done under the
old law, if it can also be done under the new law. A savings provision that combines many of
these features is contained in section 80 of the National Environmental Management: Waste
Act 59 of 2008:

80. Repeal and amendment of laws, and savings.

(1) [The Environment Conservation Act and] the laws set out in Schedule 2 are hereby repealed or
amended to the extent set out in the third column thereof.
(2) Any regulation or direction made in terms of a provision of the Environment Conservation Act
repealed by section (1) and in force immediately before the date of the coming into effect of this Act,
remains in force and is considered to have been made under this Act until anything done under this Act
overrides it.
(3) Anything lawfully done under a provision repealed by subsection (1) remains valid until anything
done under this Act overrides it.
(4) A person operating a waste disposal facility that was established before the coming into effect of the
Environment Conservation Act and that is operational on the date of the coming into effect of this Act
may continue to operate the facility until such time as the Minister, by notice in the Gazette, calls upon
that person to apply for a waste management licence.
(5) Any criminal proceedings instituted under section 19, 19A or 20(1) of the Environment Conservation
Act that have not been finalised on the date of coming into effect of this Act, must be finalised as if those
sections had not been repealed.

Savings and transitional provisions that deal explicitly with pending proceedings are
frequently encountered and of particular importance. Section 80(5) of the National
Environmental Management: Waste Act quoted above provides one example of a savings
provision that saves pending criminal proceedings from the effect of the amendment or repeal
of the old law under which the proceedings were instituted. The section explicitly excludes
the application of the repeal to pending criminal proceedings that were instituted under the
old law. By contrast, a transitional provision can expressly make an amendment or repeal of a
law applicable to pending proceedings under the law. Section 64(6) of the Plant Improvement
Act 11 of 2018 provides a typical example:

Any application which was received by the Registrar on a date before the date of commencement of this
Act and in respect of which a decision has not been made in terms of the Plant Improvement Act, 1976,

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 before the date of such commencement, must be dealt with in all respects as if this Act had commenced
on the date of receipt of such application.

Savings and transitional provisions are crucially important because they allow the legislature
to expressly regulate the transition from one statutory scheme to another.

The legislature is not completely free to decide which rights and proceedings to save and
which to affect. Savings and transitional provisions, like all statutory provisions and
legislative decisions, are subject to judicial review. The savings or transition section must
serve a legitimate purpose, and if a human right is affected the decision must also be
reasonable. Within these constitutional limits, the legislature is free to make its own political
judgment about how best to balance fairness and efficiency or stability and change.

Where the legislature failed to include a savings or transitional provision in amending or

repealing legislation, the common law, the Interpretation Act and the Bill of Rights all
contain generic savings or transitional provisions that must then be applied by default.

4.4.3 The common law savings provision: the presumption against the retrospective
application of changes to the law

Under the common law a change in the law will not be applied retrospectively, which means
the old law will continue to be applied even after its amendment or repeal, if applying the
new law will be substantively or procedurally unfair.

4.4.3.1 The common law presumption against interference with vested rights

Our courts have consistently claimed that it is potentially or presumptively unfair in a society
that is constitutionally committed to the rule of law for the legislature to terminate or
adversely affect the ability to legally enforce all rights acquired under a law when that law is
amended or repealed. Under the common law the courts will presume that an amendment or
repeal does not apply to vested rights. In Veldman v Director of Public Prosecutions 2007 (9)
BCLR 929 (CC) the Constitutional Court explained this as follows (para 26):

That legislation will affect only future matters and not take away existing rights is basic to notions of
fairness and justice which are integral to the rule of law, a foundational principle of our law.

The rule of law implies that the law must be clear and knowable so that people can plan their
affairs according to the law. The corollary is that once a person has planned his or her affairs
according to the law and acquired vested rights in doing so, the legal consequences of those
affairs may not later be determined according to another law or different version of the same
law. This is exactly what the retrospective application of an amendment or repeal does and
why there is a strong incentive for the legislature to expressly limit or completely exclude the
retrospective application of an amendment or repeal.

In line with their constitutional duty to promote the rule of law, our courts will presume that
the legislature has done so, until the contrary become clear from the further analysis and
interpretation of the statute in question (or as it is often said, the legislature nevertheless
intended the new law to have retrospective effect and to take away vested rights acquired
under the old law). This common law principle of application was formulated as follows in
Du Toit v Minister of Safety and Security 2009 (12) BCLR 1171 (CC) para 36 footnote 23:

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 The principle against interference with vested rights is a component of the presumption against
retrospectivity. No statute is to be construed as having retrospective operation, which would have the
effect of altering rights acquired and transactions completed under existing laws, unless the legislature
clearly intended the statute to have that effect. This stems from the belief that at some point the State, the
parties and third parties are entitled to rely on a common understanding of the nature of rights acquired or
transactions completed.

In other words, the common law contains a presumption that an amendment or repeal does
not affect existing or vested rights, if doing so will undermine basic common law notions of
fairness. However, this is only a presumption and may be trumped by the policy objectives of
the legislature and the importance of the policy change. Where the legislature failed to
provide how the balance must be struck, it is left to the courts to balance the competing
notions when deciding whether to apply a policy change to vested rights. This inevitably
involves a policy or value judgment on the art of the court as the judgment in Kaknis v ABSA
Bank Ltd 2017 (4) SA 17 (SCA) shows.

When the National Credit Act 34 of 2005 came into operation it expressly provided, as we
saw above, that the Act applies retrospectively to credit agreements that were concluded
before the commencement date of the Act. The Act was amended in 2015 to prevent creditors
from re-activating and collecting outstanding debts under a credit agreement if the debt had
previously been extinguished by prescription. The Amendment Act did not again include a
transitional or savings provision. ABSA Bank sought to collect a debt which was reactivated
by an acknowledgment of debt in 2014, long before the amendment. The debtor argued that
the Bank could no longer do so under the new law. The majority of the court ruled in favour
of ABSA Bank that the change in the law did not affect the debt that was revived before the
law became operational. The majority held that the amendment act was silent on the issue and
thus relied on the common law presumption against the retrospective interference with vested
rights to conclude that the amendment did not apply retrospectively and that ABSA Bank
could continue to collect the reactivated debt. The minority reached the opposite conclusion.
It acknowledged the importance of the presumption against retrospectivity but insisted that
the rights and responsibilities of credit providers and consumers must be properly balanced.
To construe the amendment as not applying retrospectively would undermine the purpose of
the amendment and go against the trend in our law to protect the consumer. It would
overemphasise the certainty of commercial transactions, and create different classes of
consumers which might itself undermine the very rule of law which the vested rights doctrine
is seeking to protect. Furthermore, the minority held that the transitional provision in the
original Act continued to apply to the amendment Act.

In your view, which of the two positions adopted towards the retrospective application of the
amendment provides the best understanding of the statute in question?

4.4.3.2 The common law presumption against retrospectivity and procedural fairness

One aspect of the common law presumption against the retrospective application of the law
that gives rise to many misunderstandings is changes in procedure. The common law
presumption that rule changes do not apply retrospectively does not apply if (i) a change in
procedure will not affect the substantive outcome of the proceedings in question (see above),
or (ii) will not be procedurally unfair or impractical. The common law position has been
summarised as follows:

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 A litigant [does not have] a vested right in the forensic procedures which happen to be in force at the
time when his right to claim arose […] the common law recognises no vested right in procedure
simpliciter’.
No one has a vested right in procedure […]; his only right is to have his action heard according to the
course of procedure in force at the time it came into court.

This does not mean, as is often wrongly claimed, that a change in procedure will always be
applied to new or pending matters. In Minister of Public Works v Haffejee 1996 (3) SA 745
(A) 753 F the court clarified that a change in procedure will not be applied to new or pending
matters if doing so will substantive affect the likely outcome of the case:
(I)t does not follow that once an amending statute is characterised as regulating procedure it will always
be interpreted as having retrospective effect. It will depend upon its impact upon existing substantive
rights and obligations. If these substantive rights and obligations remain unimpaired and capable of
enforcement by the invocation of the newly prescribed procedure, there is no reason to conclude that the
new procedure was not intended to apply. Aliter if they are not.

The case involved a vested right to claim compensation based on an expropriation of property
which took place long before the procedural amendment. The amendment required that
claims for compensation must be instituted in the High Court and no longer in the
Compensation Court as was the case when the claim arose. The amendment was clearly
procedural in nature but that was not the decisive issue. The real question was whether the
procedural and forum change would have had any material impact on the substantive
outcome of the case? The court accepted that the change of forum might have some tactical
and cost implications for the applicant but held that these had no material impact on the
ability of the applicant to enforce the claim to compensation. The only effect of the
amendment was that the claim for compensation had to be instituted in a different court
(753F):

There would be no adverse impairment of any pre-existing substantive right to compensation”.

The claim for compensation should therefore have been instituted in the High Court as
required by the new procedure. In short: just as it is presumptively unfair to directly affect
vested rights through changes in the substance of the law (see above), is it presumptively
unfair to affect vested rights indirectly through changes in procedure.

Some courts insist that even in the case of purely procedural changes, a distinction must be
drawn between cases that were pending before the change in procedure occurred and cases
that are instituted after the change in procedure. Here the potential unfairness of the
retrospective application of the amendment is not related to the fact that a substantive right
will be adversely affected but involves independent notions of procedural fairness. Whether a
purely procedural amendment is retrospectively applicable to pending proceedings or not
depends in each case on an assessment of the fairness of implementing the new procedure in
this manner.

A good example of the unfairness of applying a new procedure to a pending matter is

provided by the judgment in Unitrans Passenger (t/a Greyhound) v Chairperson, National
Transport Commission 1999 (4) SA 1 (SCA). An application for a road transport permit was
pending before the National Road Transport Commission when an amendment divested the
Commission of the power to grant such permits and transferred the power to do so to
Provincial Transport Boards. When the matter resumed after the amendment the Commission
held that it no longer had to power to consider the application and that the application had to

12
be reinstituted anew before the relevant Board. Even assuming that the forum change would
not affect the substantive outcome of the application in the end, the real issue was the ‘gross
injustice and impracticability of applying the amending legislation’ to the pending
application. In this regard the court considered whether (i) the retrospective application of the
forum change to the pending application would render abortive the steps taken in the past and
extinguish there and then the ability to proceed with the application (yes); (ii) provision is
made for the applicant to be refunded or otherwise compensated for expenses incurred in the
terminated process to date (no); and (iii) provision is made for pending application to be
amended, rectified, supplemented or transferred(no). In the circumstances the court
concluded that there was no indication at all, express or implicit, that it was or could have
been the intention of the Legislature that the procedural change should be applied to a
pending application with the effect of preventing it from proceeding.

The opposite result was reached in a pending matter in Nkabinde v Judicial Service
Commission 2016 (4) SA 1 (SCA). A complaint of judicial misconduct was submitted to the
Judicial Services Commission. The Commission investigated the claim and found no cause
for further action. This finding was subsequently set aside on review and the matter referred
back to the Commission. By then a new complaints procedure had entered into force and the
question was whether the pending claim had to be reconsidered according to the old or the
new procedure? The complainants objected to the new procedure being followed and claimed
that under the common law procedural changes do not apply to pending proceedings. The
court rejected this argument and concluded that the retrospective application of the new
procedure to the pending complaint would not affect any vested rights, and was ‘the most
sensible, fair and just method of proceeding’. The pending claims had to be resolved
following the newly amended procedure.

4.4.4 The generic savings provision in section 12(2) of the Interpretation Act

In addition to the common law, section 12(2) of the Interpretation Act also contains a generic
savings provision that must by default be read into every amending or repealing statute,
unless the contrary appears from a proper interpretation of the statute. Section 12(2) is the
statutory version of the presumption against the retrospective application of a change in the
law. The default savings provision in section 12(2) reads as follows:

Where a law repeals any other law, then unless the contrary intention appears, the repeal shall
not-
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any law so repealed or anything duly done or suffered under
the law so repealed; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any law
so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed
against any law so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege,
obligation, liability, forfeiture or punishment as is in this subsection mentioned, and any such
investigation, legal proceeding or remedy may be instituted, continued or enforced, and any
such penalty, forfeiture or punishment may be imposed, as if the repealing law had not been
passed.

Sections 12(2)(a) and (b) contains a statutory presumption against the retroactive application
of a repeal. These sections confirm that everything that was legally concluded under a law in
the past is not affected when the law is later amended or repealed. For example, laws that

13
were repealed when a statute commenced do not revive when the statute is later repealed; nor
may proceedings that were concluded under a statute be reopened when the statute is later
repealed.

The rest of the discussion focuses on sections 12(2)(c) and (d) read with (e). These sections
contain a statutory presumption against the retrospective application of repeals (and
amendments). Any right acquired or accrued under a law, or any liability incurred under a
law, or any offence committed under a law, or punishment incurred under a law, may still be
legally enforced after the repeal (and amendment) of that law, regardless of whether legal
proceedings had already been instituted when the law was repealed or not. This is a broad
savings provision that applies where a statute does not include its own savings provision.

The application of section 12(2)(c) involves a two-stage inquiry. In the first stage the
question is whether the claim in question involves a right that ‘accrued’ or was ‘acquired’
under the now amended or repealed law. In the second stage the question is whether this
accrued or acquired right survived the amendment or repeal, that is, whether the legislation
nevertheless applies to and adversely affects these vested rights? Dys v Dys 1979 (3) SA 1170
(O) provides a textbook example of the two-stage inquiry under section 12(2).

Between 1966 and 1971 Mrs Dys paid for certain household expenses but never claimed any
of the money back from her husband. However, during her divorce in 1979 she relied on the
version of section 3 of the Matrimonial Affairs Act 37 of 1953 that was in force between
1966 and 1971 to claim the full amount she had contributed. The problem was that, because
of its obvious unfairness, the section had been amended in 1976 to limit claims under the
section to the amount the married woman had paid above her share of the household
expenses. The amendment act did not include a savings or transitional provision to indicate
whether the new limitation also applied retrospectively to payments that were made before
the amendment became law. The savings provision in section 12(2)(c) thus found application.

The first question was whether the right of Mrs Dys to be repaid in full had ‘accrued’ to her
before the right was abolished in 1976. Mr Dys argued that Mrs Dys had not acquired a right
to be repaid in full before the repeal, because she had not done anything from her side to
claim the money back from him or to institute proceedings to do so. The court rejected this
argument and ruled that the right to reclaim the expenses had automatically accrued by law to
Mrs Dys at the moment that she paid for the household expenses a decade before the
amendment. Under section 12(2)(c) it must thus be presumed that the right to claim her
expenses in full survived the repeal and could still be enforced three years after the repeal
during the divorce proceedings in 1979. Unless the contrary intention appeared. This brings
us to the second stage of the inquiry. Considering the reason for the amendment, and
adopting a purposive interpretation of the provision, the court concluded that the purpose of
the amendment was to abolish the right of all married women to reclaim household expenses
in full, including the vested rights of Mrs Dys:

If the mischief is considered that the repeal of section 3 had to remedy then there is no reason to think that
the intention of the legislature could have been that the rights acquired under section 3 should be preserved
after the repeal. […] When deciding whether a law operates retrospectively, ‘we must look to the general
scope and purview of the statute, and at the remedy sought to be applied, and consider what was the former
state of the law, and what it was that the Legislature contemplated.’ […] Given that it is clear that the
legislature wanted to bring an end to the unfair consequences of section 3, it is inconceivable that the
legislature nevertheless wanted these consequences to persist in the case of marriages concluded before
1976. […] The legislature could not have intended section 12(2)(c) to apply to the repeal of section 3.

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4.4.5 Section 35(3) of the Bill of Rights and criminal proceedings after a change in the
law

Section 12(2)(c) has a sister provision in section 12(2)(d) which applies to criminal matters.
The section ‘preserves the right of prosecution and of punishment in respect of any
contravention of the repealed statute prior to the repeal’. How has the introduction of the right
to a fair trial in section 35(3) of the Bill of Rights altered this aspect of the statutory default
presumption?

The operation of section 12(2)(d) before the advent of democracy is illustrated by R v

Sutherland 1961 (2) SA 806 (AD). After the Sharpville massacre on 21 March 1960, the
apartheid government imposed a state of emergency and issued regulations that criminalised
certain conduct during the state of emergency. The accused violated these regulations by
publishing what was defined as a ‘subversive’ statement in a newspaper. On 31 August 1960
the state of emergency ended and the regulations were withdrawn. The accused was thereafter
served with a summons and a criminal trial started on 17 October 1960, more than two
months after the offence in question had been repealed. The accused argued that the
prosecution could not be launched after the repeal but in response the state successfully relied
on section 12(2)(d) to initiate and complete the clearly politically motivated prosecution. The
political abuse of the section aside, the savings provision seems to rest on the sound principle
of the rule of law that the lawfulness or not of conduct depends on the state of the law on the
date that the conduct occurred. In Du Plessis v De Klerk 1996 (3) SA 850 (CC) para 19
Kentridge AJ remarked that the Constitution might require a qualification to this principle, at
least when a criminal offence has been repealed or invalidated on constitutional grounds:

At common law the statutory abolition of a criminal offence did not ordinarily affect a prosecution for an
offence committed before the abolition. Under the Constitution different policy considerations may
apply. The state may possibly be precluded from prosecuting for an offence which has by reason of the
Constitution ceased to exist. The state cannot be said to have vested rights which will be affected, nor is
any other person adversely affected and it may be said that to punish a person for an offence which has
ceased to exist is an infringement of one or other of his protected fundamental rights. It is unnecessary
and would be undesirable to express any view on these arguments.

In spite of this obiter comment, the court in Nourse v Van Heerden 1999 (2) SACR 198 (W)
continued to apply section 12(2)(d) without raising any concerns about its compatibility with
either section 35(3) of section 12(1) of the Bill of Rights. Mr Nourse was charged with
performing abortions between 1987 and 1992 when doing so was an offence under the
Abortion and Sterilisation Act 2 of 1975. His criminal trial commenced on 27 November
1992. On 1 February 1997 the Choice on Termination of Pregnancy Act 92 of 1996 entered
into force and repealed the old offence. The new Act was silent about the effect of the repeal
on pending criminal trials. On 24 October 1997 the applicant asked the court to terminate the
protracted trial on the basis that the offence had been repealed on constitutional grounds. The
prosecution invoked section 12(2)(d) and the court held that the pending trial was not affected
by the repeal of the statutory offence.
Considering the obiter remark by Kentridge AJ, do you think that Nourse still accurately
captures the state of our law on the issue? Does the state have a vested right to institute or
proceed with a prosecution after the repeal of an offence?
While this question might be open to debate, it is uncontested that the justiciable right
entrenched in section 35(3)(n) of the Bill of Rights has replaced section 12(2)(d) of the

15
Interpretation Act as far as changes to the sentence of an offence is concerned. The section
provides as follows:
Every accused person has a right to a fair trial which includes the right to the benefit of the least severe of
the prescribed punishments if the prescribed punishment for the offence has been changed between the
time that the offence was committed and the time of sentencing.

This right has changed the law in two ways. First, section 35(3)(n) contains a transitional
provision which explicitly makes an amendment that introduces less severe punishments
retrospectively applicable to offences committed prior to the amendment. Section 35(3)(n)
compels the court to retrospectively apply the less severe sentence. The sentence as it existed
at the time of the offence is no longer saved from amendment or repeal as it was under
section 12(2)(d) of the Interpretation Act or the common law.

4..4.6 Ensuring continuity between and old and new law: section 11 of the
Interpretation Act

In the previous section we discussed under which circumstances an old law continues to be
applicable after its amendment or repeal to matters that arose before the amendment or
repeal. It is also possible for the old law to continue to apply to matters that arise after the
change in the law. The new law should ideally regulate the ongoing application of the old
law. Where the legislator fails to do so, section 11 of the Interpretation Act provides another
generic or default savings provision:
When a law repeals wholly or partially any former law and substitutes provisions for the law so repealed,
the repealed law shall remain in force until the substituted provisions come into operation.

Section 11 regulates the period immediately after repeal and aims to ensure that no gaps arise
where one law replaces another and legal continuity between the old and new law must be
preserved. For this reason, the section only applies where one law is repealed and
‘substituted’ with another law.
The court considered the effect of section 11 in S v Koopman 1991 (1) SA 474 (NC). Section
146 of the Cape Road Traffic Ordinance 21 of 1966 provided that the licence of a convicted
traffic offender may be endorsed. The old law was repealed as a whole by section 153 of the
Road Traffic Act 29 of 1989 when the latter Act came into operation on 1 June 1990.
Sections 54 to 56 of the new Act provide for the endorsement of licences but these provisions
were not put into operation with the rest of the Act on 1 June 1990 (recall the provisions of
section 13(3) of the Interpretation Act). Mr Koopman was shortly thereafter convicted under
the new law of driving under the influence of alcohol. Could his licence still be endorsed
under the old and repealed law? Mr Koopman argued that section 146 of the old law had been
repealed and that sections 54 to 56 had not yet commenced. There was thus no law in force at
that time under which his license could be endorsed. The prosecution argued successfully that
the endorsement provisions of the old law remained in force in terms of section 11 of the
Interpretation Act, and that the licence could still be endorsed under section 146 of the old
law.
4.5 The application of references in third statutes to amended or repealed provisions
The South African statute book is littered with cross-references between statutes. For
example, the key terms used in a new statute [hereafter law B] are often defined in the
interpretation section with reference to the definition of the same term in another statute

16
[hereafter law A]. Look at the Disaster Management Act again. How many cross-references
to other statutes can you find in section 1 alone? Here is one example:

“integrated development plan”, in relation to a municipality. means a plan envisaged in section 25 of the
Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000);

The substantive provisions of the Act also contain several references to other statutes. Can
you find any in the Disaster Management Act? Here is an example from section 2(1):

This Act does not apply to an occurrence falling within the definition of “disaster” in section 1 if, and
from the date on which, a state of emergency is declared to deal with that occurrence in terms of the State
of Emergency Act. 1997 (Act No. 64 of 1997).

Helpful as they are, the use of cross-references cause problems when the law to which
reference is made [law A] is later amended or repealed [by law C]. How should the reference
in law B to law A be interpreted after the amendment or repeal of law A by law C? Assume,
for argument’s sake, that section 25 of the Local Government: Municipal Systems Act 32 of
2000 is repealed by the City Act 11 of 2020 [law C] which replaced “integrated development
plans” with “sectoral development agendas”. How must the original reference to “integrated
development plans” in the Disaster Management Act be interpreted after the repeal of the
Municipal Systems Act?
Once again, the position should ideally be regulated by the legislator in the amending or
repealing law [law C]. Section 25(2) of the Legal Aid South Africa Act 39 of 2014 provides
an example. The Act repealed the Legal Aid Act 22 of 1969 and includes the following
provision:
Any reference to “the Legal Aid Act, 1969 (Act No. 22 of 1969)” [what we called law A above] in any
law [law B] must, with the changes as may be required by the context, be construed as a reference to “the
Legal Aid South Africa Act, 2014” [law C].

Where the amending or repealing law does not prescribe how references to the amended or
repealed law must be understood, the Interpretation Act provides a generic answer in section
12(1):

Where a law [law C] repeals and re-enacts with or without modification, any provision of a former law
[law A], references in any other law [law B] to the provisions so repealed [law A] shall, unless the
contrary intention appears, be construed as references to the provisions so re-enacted [law C].

This section has three implications:

(i) Where law C simply repeals the provisions of law A to which law B refers, then the
reference in law B is also repealed and falls away (section 12(1) does not apply because law
A has not been re-enacted by law C).
(ii) Where law C repeals the provisions of law A to which law B refers but re-enacts the same
or similar provisions, then the reference in law B is automatically updated to refer to the new
provisions (section 12(1) applies; the reference is dynamic and can be updated).
(iii) Where law C repeals the provisions of law A to which law B refers, but the intention of
the legislature was to incorporate the provisions of law A into the text of law B (as one would
do when copying and pasting part of one document [document A] into another [document B]
before deleting the first document), then the reference in law B is not affected by any
subsequent amendment or repeal (section 12(1) does not apply because a contrary intention

17
appears either from the referencing act [law B] or the repealing or amending act [law C]; the
reference is static or fixed and cannot be updated).

Whether a reference in one statute to another is static (irreplaceable) or dynamic (replaceable)

or not, depends on (a) whether the referenced provisions have been re-enacted by the
repealing law, and (b) what the intention of the legislator is, that is, whether we are dealing
with what is known as an incorporation by reference.

4.5.1 About requirement (a): Modifying the old law

The reference to a repealed law can be updated only if the repealing law contains the same or
a similar provision. The referenced provisions must be “re-enacted with or without
modification”. Because the repealing law need not reproduce the referenced provision word
for word it is often open to interpretation and a question of degree whether the new provision
can still be regarded as a modification of the old provision. The test is whether the “essential
nature and character” of the provision remained the same. The test was formulated and
applied, in my view in a dubious manner, in D v Minister of the Interior 1962 (1) SA 655 (T).
A foreign national, known only as Ms D, supplied an undercover policeman with the contact
details of a sex worker. Ms D was arrested, charged and convicted of contravening of law C
or section 10(a) of the Immorality Act 23 of 1957 (‘procuring or attempting to procure any
female to have unlawful carnal intercourse with any person’). Ms D was sentenced to
imprisonment. Shortly before her release she was served with a deportation order issued in
terms of law B or section 22(1)(a) of the Immigrants Regulation Act 22 of 1913. This section
allowed the deportation of non-citizens who had been sentenced to imprisonment for a
contravention of law A or section 13 of the Immorality Ordinance 46 of 1903 (‘procuring any
girl or woman not being a common prostitute or of known immoral character to have
unlawful carnal connection with any other person’). The Immorality Ordinance was repealed
in total by the Immorality Act. Ms D disputed the validity of the deportation. She pointed out
the obvious fact that the Immigrants Regulation Act referred to a contravention of section 13
of the Immorality Ordinance of 1903, while she had been convicted of another offence
altogether, namely section 10 of the Immorality Act of 1957. The Minister of Home Affairs,
who ordered the deportation, relied on section 12(1) of the Interpretation Act to argue that the
reference in the Immigrants Regulation Act to section 13 of the Immorality Ordinance (law
A) must be updated and read as a reference to section 10 of the Immorality Act (law C). Ms
D responded that section 12(1) could not be invoked because section 10 of the new law did
not re-enact the old offence but created a completely new criminal offence. The old offence
did not include the procurement of sex workers (‘common prostitutes’) or people with “a
known immoral character”. The offence was to corrupt innocent girls and to procure them for
the sex trade. Had she been charged under the Immorality Ordinance she would not have
been convicted and would not have faced deportation. In short, Ms D argued that because
section 10 contained a much broader offence than section 13 of the Immorality Ordinance,
section 10 could not be regarded as a modification of section 13 within the terms of section
12(1). The Court agreed with Ms D that the application of section 12(1) is limited to cases
where one law modifies another, but rejected the argument that a modification must always
limit or restrict the scope of the referenced law. According to the court, the modification of
the referenced provision may broaden or narrow its scope, even in the case of a criminal
offence, as long as the ‘essential nature or character’ of the repealed provision is not changed.
Comparing the Immorality Ordinance and the Immorality Act, the court reached the
questionable conclusion that the differences between the two offences ‘did not warrant a

18
suggestion that [section 10] was not a re-enactment of [section 13]’. The Court accordingly
confirmed the deportation of Ms D.

4.5.2 About requirement (b): Incorporating provisions by reference

The ‘essential nature and character’ test is merely the first of two requirements for the
application of section 12(1). Whether a cross-reference (in law B) to a repealed provision
(law A) will be automatically updated or left unaffected also depends on whether a ‘contrary
intention appears’. Where the contrary intention appears, the cross-reference (in law B) does
not fall away, nor is it automatically updated, but it remains unaffected by the amendment or
repeal of the referenced law (law A). In technical language we say that law B had
incorporated the provisions of law A by reference. The English law principle was first
adopted as part of South African law in Solicitor General v Malgas 1918 AD 489 491 which
explains the principle of incorporation by reference as follows:

It is no doubt a rule of interpretation in England that where the provisions of one statute [law A] are
incorporated by reference in another [law B], the repeal of the earlier measure [law A] does not operate
to repeal the incorporated provisions [law B]. That of course is logical and correct whenever the intention
to incorporate by reference is clear; because the provision referred to [law A] become part of the second
statute [law B]. They have, in effect, been enacted twice as separate Acts, and the repeal [by law C] of
the one [law A] does not affect the operation of the other [law B].

Incorporating by reference (or as we would say today copying and pasting) provisions from
one statute into another is recognised as a valid drafting technique by the South African
legislature, and has been described as a sensible ‘short cut in practical legislation’ by the
court. Ideally the legislature should make clear whether the provisions of the referenced
statute is incorporated into the referencing statute or not. For example, the legislator could
state that the provision of Chapter 3 of Law A is hereby incorporated by reference into
Chapter 4. The legislator might also state that the provisions of Chapter 3 of Law A applies
mutatis mutandis (literally after changing (mutating) what must be changed (mutated)) under
Chapter 4 of Law B.

It is often difficult to distinguishing between a mere reference (a dynamic reference) and an

intention to incorporate provisions by reference (a fixed or static reference). The reference
might look exactly the same but the difference lies in the intention or purpose of the
reference. The problem is illustrated by the judgment in End Conscription Campaign v
Minister of Defence 1993 (1) SA 589 (T). During the final years of apartheid, all men
between the ages of 17 and 65 were conscripted in terms of the Defence Act 44 of 1957 to do
military service. Section 2(1)(b) of the Act exempted females and persons who were not
white persons ‘as defined in Section 1 of the Population Registration Act 1950’. It is
impossible to tell by looking at the language of the section alone whether this is a static or a
dynamic cross-reference. The question became pertinent when the Population Registration
Act was repealed by the Population Registration Repeal Act 114 of 1991. Because the Repeal
Act did not re-enact the definition of a ‘white person’, the consequence of the repeal was not
regulated by section 12(1) of the Interpretation Act.

Recall the three options mentioned above? Option (ii) above was ruled out. The question was
whether options (i) (the exemption fell away and all men became conscripted) or option (iii)
(the exemption was not affected by the repeal and remained in place) applied. The ECC
argued that the reference to the now repealed definition fell away and that the exemption of
‘non-whites’ therefore ceased to apply. The court held that the definition of a ‘white person’

19
had been incorporated into section 2(1)(b) by reference. The court could not find any
indication in the Repeal Act that the legislature intended to introduce conscription of all men
in the absence of a clear statement to that effect. In short, it could not have been the intention
of the legislature when it repealed the Population Registration Act to also repeal the reference
to the Act and its definition of a white person in the Defence Act. This meant that the
repealed definition continued to apply for the purposes of the Defence Act, even after the
repeal.

6. Conclusion

The law covered by this lecture is highly technical but important. There are more laws being
amended by Parliament every year than newly made. It is important to know how to find out
whether the originally published version of a law in the Government Gazette is still in force.
Given the frequency with which laws are being updated and refined by legislatures and
regulators (consider how many times the Covid-19 regulations and directives had already
been amended) it is unlikely that the originally published version of a statute would still
reflect the prevailing law after a few years. When a statute is amended the full version of the
statute is not published again. Lawyers must edit and make the changes to the 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.

This history will become relevant again later in the module when we discuss how changes in
a law can shed light on the interpretation or meaning of the law. In this chapter we said that
the point in time legal history can be used in most cases to determine which version of a law
was in force and should thus be applied at the point in time that a legal issue or cause of
action arose (eg, the deportation order was issued, the call-up instructions for military service
was received, the contract was concluded, etc). In fact, researching or finding the prevailing
law on an issue involves reconstructing the point in tie history of the law.

However, the point in time history does not always provide the answer to the question which
version of a law is or was applicable at a given point in time. Some laws continue to apply
after the date of their repeal. The application of these laws is “saved” from the effects of the
amendment or repeal by various savings provisions. In the second part of the lecture we
looked at several savings provisions contained in specific statutes, the common law, the
Interpretation Act and the Constitution and some of the difficulties involved when
determining which version of a law should be applied to a set of facts.

Because of the technical nature of the law of savings and transitional provisions you might
have to go over the lecture more than once. Recall that savings provisions are secondary legal
rules that regulate which primary legal rules should be applied to a dispute after the
amendment or repeal of the primary law. By its nature this is unfortunately a technical issue.

This concludes our lecture. In Lecture 7 we continue the discussion of the reasons why the
Gazetted version of a law may no longer reflect the applicable version of the law when we
look at the power of the Court to amend and repeal statutes.

Test your self

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1. Go to the homepage of the Judicial Matters Amendment Act 8 of 2017 on the website of
the Government. Open the Act and then answer the following questions:

1.1 When did section 2 of the Act (quoted above) commence? How did you determine
this date? [These sections commenced on publication of the Gazette in terms of section
81 of the Constitution and 13 of the Interpretation Act. This was 2 August 2017. This is
the default position if the legislature does not say anything else, which it did not as far as
these sections are concerned. Although the Act contains a commencement section, the
section does not regulate the commencement of section 2 which means that the default
position applies.]

1.2 On which date did section 20 of the Act commence? How did you determine this
date? [It has not commenced yet. No Gazette in which the commencement date has been
determined is listed on the home page of the Act on the website of the Government.]

1.3 On which date did section 35 of the Act commence? How did you determine this
date? [On 31 January 2020, according to Gazette 41987 of 31 January 2020, listed on the
home page of the Act on the website of the Government.]

1.4 Look at section 4 of the Amendment Act. Rewrite the current version of section
18(h) of the Criminal Procedure Act 51 of 1977. How did you arrive at this version of the
wording? [By deleting the words in bold between square brackets and inserting the
underlined words the following is the current version of the section: (h) any
contravention of section 4, 5 or 7 and involvement in these offences as provided for in
section 10 of the Prevention and Combating of Trafficking in Persons Act, 2013 (Act No.
7 of 2013);’’

2. Under lockdown level 5 of the Regulations published under the Disaster Management Act
of 2002 to combat the spread of the Covid-19 virus, it was a criminal offence to travel to a
funeral. Sipho was stopped in a road-block on the way to the funeral of his mother. When he
started arguing with the police officer he was arrested and appeared in the local Magistrates’
court later that afternoon charged with a contravention of the Regulations. The trial has since
been postponed several times and Sipho must appear in court again next week. In the interim
the Regulations have been amended several times. Lockdown level 5 no longer applies and it
is no longer a crime to travel to funerals. Can the criminal trial against Sipho nevertheless
still be concluded even after the offence he is changed with has been repealed? Does the
repealed offences and penalties still apply to Sipho and other people who contravened the
Regulations while they were in force? If so, which sentence can Sipho receive? Discuss with
reference to the Regulations, the common law, the Interpretation Act and the Constitution.
[Check whether the amendment to the Regulations contains a savings or transitional
provision that deal with the effect of the amendment on pending criminal cases. If the
amendment does not contain anything on the issue, then the default positions of the common
law, the Interpretation Act and Constitution must be considered. Under the common law and
section 12(2)(d) of the Interpretation Act the prosecutions may continue (see the judgment in
Nourse v van Heerden). However, it might be arguable that it is unfair under section 35(3) of
the Bill of Rights to proceed with the prosecution. The issue is debatable and there is no
express provision in the Constitution that prevents the state from proceeding with the
prosecutions. The state might argue that it is necessary to do so to ensure compliance with the
Regulations when the second and further waves of the pandemic occurs. Under section
35(3)(n) of the Bill of Rights it might be argued that since there is no loner any prescribed

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sentence for the offence that an accused may be convicted and get a criminal record but
cannot be sentenced.]

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