Legislation & Legal Processes

• One might think that as soon as a court declares something to be against the Constitution and invalid, that it immediately will come into effect. This is not always the case and the judgment must be carefully read to get clarity.
• The High Court and Supreme Court of Appeal can declare something to be against the Constitution. However, the Constitutional Court must first confirm such a declaration before it comes into effect.
• This means that although the High Court can declare something as unconstitutional today, it will only come into effect if the Constitutional Court confirms it.
• Even if the Constitutional Court confirms the invalidity or makes an order itself, there can still be limitations to when it will come into effect. For example, the judgment can be suspended for a certain period to allow legislation to be amended accordingly.

There are many steps and procedures that must be followed before any new law can come into effect. Below is a brief summary of the steps that are generally taken when making new laws:

• First step: a proposed law, which is also known as a Bill, is drafted mainly by government departments under the guidance of the relevant minister.
• Second step: when the Bill has been drafted, it needs to be introduced to either the National Assembly or the National Council of Provinces (“NCOP”).
• Third step: once the Bill has been introduced, it is then referred to the relevant Committee.
• Fourth step: the Bill will then be published in the Government Gazette for comments by any relevant party or member of the public.
• Fifth step: once the Committee accepts the Bill, it will be debated in the National Assembly and also sent to the NCOP for further considerations.
• Sixth step: once considerations have been made by the National Assembly and NCOP, the final version of the Bill is sent to the President.
• Seventh step: once the President signs the Bill, it then becomes an Act of Parliament and a law of South Africa

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