by Adv. Rita Felgate
The Local Government: Municipal Systems Act, No. 32 of 2000 (as amended by the new Act 7 of 2011) has secret aspect to its life, stretching from 5th July 2011 until around the week ending Friday 26th July 2011.
Why?
In terms of Section 81 of The Constitution of the Republic of South Africa Act, 1996, a Bill assented to and signed by the President becomes an Act of Parliament, must be published promptly, and takes effect when published or on a date determined in terms of the Act.
As Act 7 of 2011 does not determine a date of its commencement, its date of commencement, and ipso facto the date of c0mmencement Act 32 of 2000 (as amended by Act 7 of 2011), is the date of publication of Act 7 of 2011.
The presumption is, that the date of publication of an Act is the date on the face of the Gazette within which the Act was published. Act 7 of 2011 was published in Gazette No. 34433 dated 5th July 2011. Therefore, the presumption is that Act 7 of 2011, and hence Act 32 of 2000 as amended by Act 7 of 2011, commenced on 5th July 2011.
However, here’s a conundrum: Although Gazette No. 34433 was dated 5th July 2011, it was not made available until sometime during the week ending Friday 26th July 2011, around two or three weeks later. Mr and Mrs Ordinary would not have known of its existence until then.
We can draw one of two, tenable, conclusions: Either that Act 7 of 2011 (and hence Act 32 of 2000 as amended by it) must be regarded as having been commenced but secret between 5th July 2011 and the week ending 26th July 2011, or they were only commenced when published during the week ending Friday 26th July 2011 and all actions taken between 5th July 2011 and that date by anyone believing them to be commenced, were invalid.
Which option would you choose? Secret law? Or uncommenced law presumed commenced, making actions taken in terms of the law by those in “the know” of it invalid.