PART A: CHAPTER 2

Remember that we are still busy with part A of

the course dealing with the ‘black letter’ aspects
of legislation/ statute/enacted-law-text.

In this chapter we introduce you to the object

of the course which is legislation and the
different types of legislation.
 What is legislation?
• Legislation or Enacted-law-text is written law
enacted by a body or person authorised to do
so by the constitution or other legislation.
• See Sec 78(1) of the Constitution
• In Lesotho, supreme legislative Authority vests
in Parliament. (see Sec 70 of the Constitution)
Sec 3- interpretation Act 1977
• Law: (a) an instrument having the force of law
made in exercise of power conferred by law
and
(b) The customary law of Lesotho and any other
unwritten rule of law.
Instrument** includes any publication in the
Gazette having legal effect.
 Question
• Read sec 3 of the Interpretation Act 1977
• Read Section 2 of the Interpretation Act 1957
of South Africa.
• Read the definition of Law in the two
statutes. Identify the similarities and
differences if any, in the two statutes.
 TYPES OF LEGISLATION
• Principal Legislation: is enacted by virtue of a
complete and comprehensive capacity to
legislate, deriving directly form any Act of
Parliament purporting to confer prime
legislative powers.
• Subsidiary Legislation: any proclamation, rule,
regulation, order, resolution, notice, rule of
court, by law or other instrument made under
or by virtue of any Act and having legal effect.
• Sec 2- Interpretation Act 1977
Save where the contrary intention appears either from this
Act or from the context of any other Act, the provisions of
this Act shall apply to this Act and to any other Act in for in
force, whether such Act came or comes into operation
before or after the commencement of this Act, and to any
instrument made or issued under or by virtue of any such
Act.
Sec 3: Act is;
any Act of the Parliament of Lesotho and any Proclamation,
Law, Act or Order continued in force by virtue of Sec 156(1)
of the Constitution of Lesotho.(c) any subsidiary legislation
made under (a) or (b).
(see Interpretation Amendment Act, 1993)
• The Interpretation Act refers to different types of
legislation:
• Act, Proclamation, Law, Order Regulations,
subsidiary legislation.
• Subsidiary Legislation and regulations**- any
proclamation, rule, order, resolution, notice, rule
of court, by law, or any instrument made under
or by virtue of any Act and having legislative
effect. (see Interpretation Amendment Act, 1993)
 Principal Legislation
• Made by the legislature it generally lays down
principles.
• These include any Act of Parliament of Lesotho.
• Any proclamation
• Law
• Act
• Order in force by virtue of sec 156(1) of the
Constitution
 Subsidiary legislation
• Contrary to Principal legislation, subsidiary
legislation is made by government and it
generally sets out the details of
implementation. i.e it gives practical effect to
the provisions of the primary legislation.
• It is variously styled ‘subordinate’, or ‘ancillary’
or ‘secondary’.
• Subordinate legislation must be consistent
with the principal legislation.
 Consolidating legislation
• Consolidation consists of the integration in a
legal Act of its successive amendments. It
provides more transparency and easier access
to Law. Several legal texts published in
different issues are combined in one easy to
read document.
 Hierarchy of legislation
• (1)The Constitution
Constitution: it is at the apex and it is followed
by legislation.
See Sec 2 of the Constitution of Lesotho.
• 2) Original Legislation (Principal Legislation)
• (3) Delegated Legislation
 Validity of Legislation
• Test by the courts:
(i) It must have been competent for the who delegated
the authority to legislate, to do so.
• This test does not apply if the body in question is
the Parliament.
(ii) subordinate legislation must not be in conflict with
original legislation.
(iii) Prescribed procedures, if any, must have been
observed by the subordinate legislature in enacting
the legislation.
 Test Continued…
• (iv) the legislative instrument employed must
not be vague and obsure. i.e delegated
enactments ought to be reasonably clear and
certain.
• (v) the enactment must be intra vires and, in
instances where legislative capacity is limited
territorially, the enactment must also- on a
reasonable construction thereof operate intra
territorially.
 Test contd…
• (vi) unless expressly authorised, by the empowering
enactment, delegated enactments not be
unreasonable, inequitable, discriminatory or
retroactive in their operation.
• (vii) in pursuance of the maxim delegatus delegare
non potest, sub delegation is not acceptable. The
body of person vested with the capacity to legislate
is usually specified in the empowering enactment
itself, and must, as a rule, therefore exercise such
powers him or itself.
 Please note
• The abovementioned tests are applied with
circumspection.
• Invalidity is not readily concluded. The exact
nature and scope of delegated legislative
capacities, is determined by way of a proper
understanding of empowering enactments ie
through the application of the rules and
presumptions of statutory interpretation in
construing empowering enactments.