Introduction to the Terminology of Law¶
What do you understand by the word “law”? It is a word which can have many meanings, but in the language of law publishing, it means a piece of legislation which regulates the way in which things are done or should be done in many spheres of life, especially in public, in order to maintain good order and prevent the growth and flourishing of anarchy.
Law according to the Roman Dutch and British systems has developed over several centuries. A great deal of the language is therefore antiquated and sometimes quite difficult to understand.
This content is adapted with permission from a training guide prepared by Adrienne Pretorius for AfricanLII.
Levels of legislation¶
In South Africa, we have three levels of legislation. These are national, provincial, and municipal. Most jurisdictions have at least two levels: national and local government.
National legislation: This is usually published as Acts and Regulations and/or Rules. See the later sections on publication of an Act.
Provincial legislation: When our nine provinces were established, they already had a number of Ordinances which authorised them to make bylaws at municipal level. In addition to being allowed to retain many of their Ordinances when the changes were made from four to nine provinces, they were allocated certain levels of legislative involvement in respect of which they were granted the power to draft, debate on, pass and eventually publish Acts and Regulations and/or Rules. The old Ordinances were gradually repealed, and very few of them are still in existence today. When provincial legislation originally got under way in the early 1990s, the early provincial Acts used to be called laws, but they are now all called Acts.
Municipal legislation: This is usually published as Bylaws.
As most jurisdictions publish Acts, Regulations and/or Rules, we are going to concentrate on this level of legislation.
From here onwards, any reference to an Act or Acts also applies to other types of legislation. You will learn about some of these later.
Publication of Acts¶
A Gazette is an official newspaper, and in most countries, legislation as well as a large variety of other legal notifications are published in gazettes. In South Africa, Acts are usually published by means of a Government Notice in Gazettes. There are some exceptions. For example, our Public Service Act of 1994 does not have an Act number; it is Proclamation 103 of 1994. This is very unusual in terms of our legal system, which falls into a classification known as Roman-Dutch law. We follow this system because the first colonial settlers were Dutch, and they introduced the same system that they used in their home country of Holland.
A Gazette has a number of important features:
- Firstly, the type of Gazette (national or provincial) is shown clearly on the cover (first page) of the Gazette. Either our national coat of arms or the coat of arms of one of our nine provinces will appear on that page, together with the words “National Gazette” or “Provincial Gazette”.
- Secondly, the date must appear on the first page. This is extremely important. Do you know why? The reason is that the date of commencement of an Act is often linked to the date of publication.
- Thirdly, there will be a Gazette number. This information helps us when we are searching for missing legislation.
- Below those details will be a short paragraph telling us who assented to the Act (agreed that it could be published and made available to the public). This section will include the Government Notice (or Provincial Notice) number and the date on which the Act is promulgated. This is also sometimes referred to as the date on which the Act was signed into law.
- This is followed by the number and year of the Act, as well as its short title.
IT IS IMPORTANT TO NOTE THAT THE FRONT COVER DOES NOT FORM PART OF THE ACT, AND THAT THERE ARE OFTEN ERRORS ON THIS PAGE (THE COVER). NEVER TAKE THE NUMBER, YEAR OR TITLE OF AN ACT FROM THIS PAGE. YOU MUST CHECK AGAINST THE DETAILS INSIDE THE GAZETTE AND IN THE SHORT TITLE OF THE PUBLISHED ACT.
Other information on the first page will usually include the volume number of the Gazette and the place in which the Gazette was printed. In the case of South African Acts, this is often Cape Town, but most of our Gazettes are printed in Pretoria (Tshwane), where the official premises of the Government Printer are situated.
Types of Act¶
Acts fall into a number of categories. The two main categories are principal and amendment Acts. Others include Appropriation Acts and Division of Revenue Acts, which regulate the spending of public money (these are said to be ephemeral – the information which they contain changes on a regular basis).
Principal Acts are by far the most important category of Act. They lay the foundation for court decisions.
Always remember that Statute law and judicial precedent (Court judgments) form the foundation of any justice system.
Amendment Acts and other amending notices¶
It is important to note that it does not matter how many times a principal Act is amended; it will ALWAYS retain its original number (for example, Act 71 of 2008). The only time the Act number may change is in a case where an error has been made in the Statutes books and the Act has inadvertently been incorrectly numbered. I can think of only one instance where this has happened, and it was long before I became a Statutes editor. It is far more likely that the short title will be changed altogether (in other words, the Act is renamed).
In most countries, principal legislation may be amended by principal Acts, amendment Acts, and subsidiary legislation. Some Acts do not provide for this, or provide specifically for amendment only by Act. Remember that principal Acts may also contain at least one repeal, if the Act replaces an existing Act dealing with the same area of law.
Amendments of any kind cannot be made if the amending provisions are not in operation. Always check before you start updating, and also check for whether certain provisions commence on different dates from the rest of the Act.
It is also important to know that amendment Acts do not always amend only one Act. The short title may therefore not be a guide as to which Act is amended. For example, a Revenue Laws Amendment Act may amend several Acts or every Act dealing with revenue (State income), or only one or two, and it may also amend other Acts.
Components (parts) of an Act¶
A law or Act is usually made up of a number of different components or parts. Some of these are:
- The title, usually called the “short title”, which is the name by which the Act is known. The short title often has a reference to the date of commencement (see the later section dealing with dates of commencement)
- Details with regard to the date of promulgation (publication); who assented to (approved) the legislation; which language was signed (in multilingual countries/jurisdictions); and what the date of commencement is
- The long title, which explains briefly why the Act was made
- An Arrangement of Sections (this is not part of the law, but assists in navigating through an Act or other piece of legislation, especially lengthy documents)
- Chapters or Parts, identified by their headings (these are subdivisions used to arrange the information in an Act or other piece of legislation. In some countries, especially those which were once under British rule, the Acts are known as Chapters or by a Latin abbreviation, “Cap”)
- A number of sections/regulations/rules (according to the nature of the legislation)
- Side headings to the various sections (as with the Arrangement of Sections, these are not part of the law, but assist in navigating through an Act or other piece of legislation)
- A section containing definitions (the meaning of words as used in the particular Act. This is a very important section, because words have different meanings in different contexts; and in law, we very often have to look at other Acts to see what a certain word means in context)
- Subsections/subregulations/subrules (as above)
- Paragraphs (usually (a), (b), and so on)
- Subparagraphs (usually identified by small Roman numerals: (i), (ii), (iii), and so on)
- Tables and diagrams.
The short title is the commonly known name of a law or Act, as it is called in most countries. It usually includes the number of the Act and the year in which it belongs. Many years ago, Acts were always passed in the year to which they were allocated. For example, all Acts passed in 1984 were printed and published before the end of 1984. As the years have gone by, parliamentary sessions have become longer and less orderly, and as a result, less legislation is passed in each year.
However, Acts which have not been promulgated and published in the year in which they are allocated will be passed in a subsequent year, but will still retain the original year in the number. For example, we are still waiting for the Protection of State Information Act 41 of 2013 (known commonly in South Africa as the “Secrecy” Act) to be published. The number has been allocated, but the Act has not yet been promulgated. Even if it is published only in five years’ time, it will still be Act 41 of 2013. In some cases, Acts which are awaiting promulgation are repealed (removed from the Statutes book) without ever being made available to the public except in Bill form.
- A reference to “the Statutes book” refers nowadays to the computerised record of all principal and amendment Acts published and still operative in terms of South African law. Many years ago, this was a physical book (or rather, a very large set of books) containing these records, and a repeal entailed physically removing the record of the particular Act from the official book.
- A Bill is a preview of what an Act will contain. Some Bills are passed after their first version has been published, while others may go back time and again for further revision by the various Parliamentary committees.]
The long title is a summarised breakdown of what the purpose of the Act is. It may be presented in only a few words, in some cases, while in others, particularly financial measures, it can run to several pages.
The Arrangement of Sections/Regulations/Rules is an aid to navigating through a document, especially a very long one. It does not form part of the law, and in fact, many Acts have no Arrangement of Sections. If you are ever involved in law revision and consolidation, you will probably be asked to insert an arrangement of Sections wherever there isn’t one.
Chapters and Parts are subdivisions in South African Acts. There is no set pattern as to how these are applied in an Act. Sometimes there are Chapters only, and sometimes Parts only. In some cases, Chapters are divided into Parts. So there is no hard-and-fast rule regarding the use of Chapters and Parts in South African legislation. In some countries, a reference to a “Chapter” is a reference to an Act, and is usually abbreviated to “Cap”, as mentioned above.
Sections are the “meat” of an Act. They flesh out the provisions relating to the subject matter of an Act. They are numbered in sequence, but insertions are often made at a later stage, modifying the original numbering section by inserting, for example, a new section 13A.
The side headings to sections (also referred to sometimes as “marginal notes”) do NOT form part of the law, and can be edited and/or replaced when revising and consolidating legislation. In an ordinary revision service, it is not wise to change these side headings, because people tend to refer to a particular section by that side heading as well as the number of the section.
Paragraphs, subparagraphs and items are further subdivisions in an Act (and are sometimes even further subdivided), but they depend on a higher level of the hierarchy of the Act (see the section below on the hierarchy of the components of an Act) – they will usually not be found standing independently in an Act.
We refer later to “lists” of legislation in Acts. This means any sequential arrangement of information, so it could refer to the sections, paragraphs, and so on, as well as what are generally known as “lists” (see the section below on the hierarchy of the components of an Act, where there is a list of words).
Schedules fall into many different categories. The majority of them will contain amendments and/or repeals of legislation. However, many of them contain provisions supplementary to the text of the Act in which they appear. For example, an Act dealing with the establishment of a new council may contain the constitution, functions and duties of the council and its members. The South African Labour Relations Act 66 of 1995 contains a Code of Dismissal in one of its numerous Schedules. Acts relating to the Defence Force or Police or other protective bodies often have their regulations in a Schedule following the text of the Act. The South African Criminal Procedure Act 51 of 1977 has schedules relating to various categories of crime according to how severely these offences are punishable.
Whatever form it may take, a Schedule to an Act always contains supplementary information of importance in meeting the objectives of the Act. There is usually an indication of the section which governs the Schedule, and by referring to that section number, you will be able to see what the purpose of the Schedule is. A Schedule may also be governed by a number of sections.
Tables and diagrams can cause problems. It may not always be possible to position insertions of this kind exactly where they appear in the Gazette. For this reason it is advisable not to refer to tables, illustrations or diagrams by page number or by phrases such as “the diagram below”. Each individual table, illustration or diagram should be given a specific label.
Hierarchy of various features forming part of an Act¶
The words below show the parts into which an Act is usually divided, and how we name those parts:
- Subitem (or sub-item)
- Sub-subitem (or sub-sub-item)
We usually abbreviate the terms above when annotating. Always check Acts already in the database before you start annotating to ensure that your abbreviations match those already in the publication, if abbreviations have been used.
When doing any type of law revision, it is important to decide exactly which legislation is to be included in the update. Once you have collected all the new legislation, go through all of the notices carefully and arrange them in chronological order. The date of the last notice which is in operation should be set as the cut-off date, unless you work specifically within monthly, quarterly or half-yearly periods. It is good practice not to change the date continually, but it also pays to be flexible sometimes. If a really important piece of legislation is passed after the cut-off date, the value to your subscribers/clients of including that notice should be weighed against working strictly to schedule and excluding legislation published after the cut-off date.
Identifying under which title an Act belongs¶
It is useful to classify published legislation under a number of different titles rather than searching through a large database with no subdivisions. This is usually done by seeing which Acts are controlled by the same Minister (for example, the Minister of Agriculture). Most Acts contain a definition indicating which government department or Minister (or MEC or other person or organisation) controls the provisions of that Act. If there is no specific Minister or department named, it is sometimes possible to find this information by knowing where to look for clues. The first page of Gazettes containing Acts will usually indicate who has assented to the Act. While this is usually the head of the government, it may in fact be the relevant Minister, provided that the Act allows for that contingency. Nowadays, various government websites contain legislation relating to particular portfolios (areas of responsibility). So a search on Google will often provide the answer you need. If necessary, or when you are unsure, you should contact the legal drafting section of your Legislature and ask them for clarity. This applies only if you classify your information as outlined above. Some countries prefer not to do so.
Determining the date of commencement¶
No amendments can be made to legislation if the amending provisions are not in operation.
When no indication of the date of commencement is given in the short title or a section dealing exclusively with commencement, the date of commencement is usually the date of the Gazette.
However, THIS IS NOT ALWAYS THE CASE.
Before you enter a date or dates of commencement, you need to consult the Interpretation Act of the particular country or jurisdiction. In most cases, it is made clear that the date of commencement is the date of the Gazette if no other indication is made. But sometimes, the date of commencement is defined differently. For example, section 13 of our Interpretation Act 33 of 1957 (commencement of laws) provides as follows:
“(1) The expression ‘commencement’ when used in any law and with reference thereto, means the day on which that law comes or came into operation, and that day shall, subject to the provisions of subsection (2) and unless some other day is fixed by or under the law for the coming into operation thereof, be the day when the law was first published in the Gazette as a law.
“(2) Where any law, or any order, warrant, scheme, letters patent, rules, regulations or by-laws made, granted or issued under the authority of a law, is expressed to come into operation on a particular day, it shall be construed as coming into operation immediately on the expiration of the previous day.”
In other words, if the date of commencement is 18 May 2015, the piece of legislation will commence as the clock strikes midnight on the night of 17 May 2015.
“(3) If any Act provides that that Act shall come into operation on a date fixed by the President or the Premier of a province by proclamation in the Gazette, it shall be deemed that different dates may be so fixed in respect of different provisions of that Act.”
The word “deemed” means “considered” or “understood”.
Note that there may be many different dates of commencement in any given Act. If this is done, the short title or the provision regarding commencement should allow for different dates to be applied. However, the Interpretation Act has provided for cases where the draftspersons have not included this provision in an Act (see subsection (3) in the quotation above).
A date of commencement may be applied retrospectively. This means that a date of commencement may be earlier than the date of the Gazette. This is done for various reasons, which are not important at this point.
Meaning of “promulgation” and “proclamation”¶
The word “promulgation” means making known to the public. A word which is often used in the same sense is “proclamation”. However, in law, promulgation of an Act must take place before a proclamation made under that Act can be issued. The new Act may make provision for a proclamation to be made determining the date or further dates of commencement. Sometimes a “notice” is referred to. In South Africa this is usually a Government Notice.
The date on which an Act commences is not necessarily the first date which is proclaimed. While that date certainly applies, if it brings only a few provisions into operation, the actual date of commencement will be one when most of the provisions not yet in operation are brought into force. In cases like this, you will use the first date of commencement, until it becomes clear that that date is not appropriate. You will then need to insert the correct date of commencement, and add the words “(unless otherwise indicated)”, then annotate the sections which came into operation earlier (see the section on annotating). Do you see above how many different expressions can be used in connection with dates of commencement? You’ll eventually become familiar with all of them, even if it seems confusing at first.
Consolidating and annotating¶
This kind of work involves two very important concepts: consolidating and annotating.
If you are busy with a law revision, consolidation is a very large part of what you have to do. It is accompanied by annotation, the purpose of which is to ensure that the history of what has happened to a particular piece of legislation is shown fully. Annotations are usually added below the part of an Act which is amended, although there are exceptions. As they are interventions by the editor (they are not part of the original text), they should be in square brackets.
Consolidation of legislation is usually done to simplify legislation which has been frequently amended. All superfluous or obsolete provisions are removed, and the Legislature and the Courts will now have a relatively “clean” piece of legislation with which to work, showing all changes which have occurred to the Act since it was first published except for the ones which are no longer of value in the eyes of the law or which had previously been repealed.
As you will probably not be involved in consolidating legislation for a law revision (which is usually done by experts in the field), we won’t spend too much time on that right now. We’ll look at updating (which is part of consolidation) and annotating.
You will often be asked to add or insert provisions, and it is important to differentiate between the two functions. Even legal draftspersons occasionally confuse them, so be very careful when reading instructions in amending legislation. Inserted provisions are usually quite easy to identify. They will most often have a capital A, B, and so on after the section or subsection (or paragraph) number (for example, “section 5A”, or “subparagraph (ivD)”, or other similar expressions). However, you may have a section in an amendment Act which requires you to insert provisions, but these are purely and simply subsequent numbering, for example, “insert paragraphs (d) and (e) after paragraph (c)”. It is quite clear that these paragraphs are not being inserted; they are being added, and you can reflect that in your annotations:
[Para (d) added by …]
Similarly, if the instruction requires you to add subsection (3A), it is more likely that (3A) is being inserted:
[Subsection (3A) inserted by …]
You may wonder why we are allowed to change these words to suit what is actually done instead of following what is in the Gazette. The reason we can do so is that they are in the editor’s annotations, which do not form part of the law.
Occasionally, you will find that something had previously been deleted (repealed), and you are re-inserting it. It does happen from time to time, and you need to annotate it exactly as if it is a brand new insertion.
You may also occasionally find that you are asked to delete or repeal something which has previously been annotated as having been deleted or repealed. In a case like that, simply update the annotation. If you put in a date of commencement, it will make what has happened clearer to subscribers and clients, but that kind of enhancement must be part of your updating style – it must be applied consistently.
If you feel uneasy about that remedy, contact legal drafting and discuss the problem with them.
Changing of punctuation after adding or inserting¶
Sometimes you will be asked to add something at the end of an existing series of entries. For example, if you look at the instruction to “insert paragraphs (d) and (e) after paragraph (c)” (you will actually be adding them), the chances are that (c) has a full stop at the end. If it does, you will need to change that to a semi-colon or comma (more often a semi-colon – check what has been used previously in the listed series), add (not insert) and annotate the two new paragraphs, and ensure that the last one in the series has the same punctuation as (c) originally had.
LRO (Law Revision Order) or Revision Service number¶
If your legislation is printed, only parts which have changed will be updated (see the section on loose-leaf updating – loose-leaf is the most cost-effective way of publishing a print update). The Attorney-General or President/Prime Minister or head of the legislative drafting services will issue a notice at some point which will proclaim or determine the cut-off date, or mention that the legislation has been updated from the day after the previous service up to the cut-off date for the current service. This notice is usually referred to as the LRO for the update, and the LRO number will be the identifying number for the service. It must be reflected on all pages which have been replaced during the update. In countries where the LRO system is not used (for example, South Africa), this number will be referred to as the Revision Service (or merely Service) number.