Advanced Criminal Law

Legislation is that part of the law that is written down, and then published in statute books or on the Internet. Statute books are collections of South African statutes, or Acts. Where all the law relating to a certain area of law for eg., criminal law can be found in legislation, we say that the law in that area is codified (written law).

In the South African legal system, Parliament and the superior courts have the power to make laws. The superior courts include the Constitutional Court, the Supreme Court of Appeal and the High Courts in the various provinces. When Parliament passes and Act or a court makes a judgment, their decisions are binding. The process of passing legislation is called enactment.

A new website www.lawsofsouthafrica.up.ac.za containing free online consolidated South African legislation – with ‘point-in-time’ or historical versions, was launched in 2013.

The database includes point-in-time or historical versions of the Acts and by using this facility you can see what an Act contained at any point-in-time.

Government Gazettes

Sometimes government websites only load the Government Gazette (GG) containing the original Act. Any GG is merely a snapshot of what the Act looked like on that date. The Act is very likely to have been amended subsequently, but there is no way of knowing that unless you search for all the GG relevant to that Act. Even then the Act may have been amended by an Act that has another title or more generic title like ‘General Law Amendment’. This is why it is important to use consolidated legislation.

For GG see www.gov.za – ‘Documents section’ and the Government Printing Works website (www.gpwonline.co.za). There is no charge for the service at the Government Printing Works but you will need to register. Usually, the gazettes are published on the website within a day of their publication.

Open Gazettes South Africa: Making South African Government Gazettes freely available.

Bills

To find out how a Bill becomes an Act see: https://pmg.org.za/bills/explained/. When you read a news article about new legislation, make sure that what the journalist is referring to is indeed an Act and not a Bill. While a Bill might have been passed in Parliament, it might still be awaiting signature by the president – this can take some time. For the status of Bills, see https://pmg.org.za or www.parliament.gov.za under ‘Legislation’.

By-laws

By-laws found on a municipality’s website are not always published with a date and often the website does not say whether the by-law has commenced or not. For a by-law to commence, (as well as other legislation, be it provincial or national), the date of commencement must be gazetted – that is, it must be published in a Government or Provincial Gazette with a commencement date. Beware – even if a by-law is published on a municipality’s website, it does not mean the by-law has commenced. When an Act states under the section ‘Short title and commencement’ ‘… This Act is called the … Act and takes effect on a date determined by the President by proclamation in the Gazette’, this means the date will be published in a GG at a later stage. Otherwise, the Act is assumed to have started on the date of publication of the GG.

Green and white papers

If you are looking for green and white papers see www.gov.za – ‘Documents section’.

Being able to read an Act is an important skill when studying for exams and writing assignments. Let's take a look at the different parts of an Act and their functions for eg. the Citation of Constitutional Law Act 2005.