Acts “as amended” vs Acts “in force”

At any moment, the letter of the law is as it stands, like a handful of sugar grains thrown into the air, frozen in time.

In terms of section 81 of the Constitution of the Republic of South Africa, 1996, the pattern of national legislative law stands changed each time the South African President signs an Act into being.

The moment the President signs an Act into being, it comes into existence as part of the body of South African law, and any Act it amends stands anew, in its new version, within that body of law.

Whether the Act is commenced, or not, does not affect its status as law.  All that a commencement of an Act or of a section of an Act does, is to define the date of implementation of the letter of the law as it stands within the Act or the sections commenced. It does not definition the letter of the law itself.

By extension, the text of an Act, whether unamended or amended, cannot be understood by considering only its commenced sections, mish-mashed together into some imaginary version of the Act that the legislature may never have considered.

However, it is a common assumption that an Act stands as commenced, rather than as amended.

Unfortunately, because the quagmire that results from making this assumption is only apparent when one considers the law as amended, rather than as commenced, this is an assumption that is not easily dispelled.

Imagine that section 1 of Act A (as amended by Act B) contains a new definition of a word used in section 2 of Act A (as unamended), and that section 2 of Act A (as unamended) has commenced, but not section 1 of Act A (as amended by Act B).

Are we to understand the meaning of the word in section 2 of Act A (as unamended) by reference to its unamended, or its amended, definition in section 1 of Act A?

If we consider the text of Act A in piecemeal fashion, commenced section by commenced section, we would not even be aware that section 1 of Act A (as amended), as yet uncommenced, contains a new definition of that word.

If, on the other hand, we consider Act A version by version, we would be in a far better positionm because we would know that the definition of that word in section 1 of Act A had in fact been amended. This knowledge may well, for instance, prevent us from being blind-sided by that amendment on its commencement, or could put us in the position of being able to prepare for the need to comply with the Act as amended prior to its commencement, or it may even allow us to plan ahead so as to minimize possible negative impacts which the Act may have on us. It could also allow us to monitor whether the President is properly carrying out his (or, in future, maybe her) duty in commencing amendments, or whether he is building up a smorgasbord of uncommenced legislation from which he is able to pick and choose to suit his personal or party-political objectives.

Unfortunately, although most suppliers of legislative texts make the commencement date of an Act or its sections clear, they do not make the relationship between the text of an Act and its versions clear.

A unique approach has been adopted by LegalB, in which the version information of an Act has been integrated with the commencement details of the Act, in a timeline table, and in which the annotated text below each section of the Act reflects commencement information within a sequencial version-related events list.

The advantage of adopting this approach is that it has necessitated the extra-textual annotation of Acts by LegalB, in the form of commentaries, which focus on the impossibilities, discrepancies and contradictions between versions of the Acts, and between commencements of versions of the Acts, which are identified using this methodology.

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