ANALYSIS AND STRUCTURE OF AMENDING
LEGISLATION
Table of contents:
1. Introduction ....................................................................................................... 1
2. General explanatory note .................................................................................. 1
3. Long title ........................................................................................................... 2
4. Preamble........................................................................................................... 2
5. Enacting provision ............................................................................................. 3
6. Schedule for repeal / amendment of laws ......................................................... 4
7. Amendments: specimens .................................................................................. 5
8. Interpretation Act, 1957 (Act 33 of 1957) .......................................................... 8
9. Transitional provision ........................................................................................ 9
10. Short title .......................................................................................................... 9
MEMORANDUM ON THE OBJECTS OF THE SHERIFFS AMENDMENT BILL, 2012
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1. Introduction
Statute law is a formal source of South African law. It is written law and is
indispensable to the effective administration and regulation of the state. Judicial
interpretation and directives as to the practical application of its provisions often
determine the way in which a statute obtains. A statute is also aimed at the
promotion of the public interest. This means that a statute ought to pertain to and,
when necessary, be reframed to be heedful of practical circumstances as these may
change. This is no doubt not always attainable.
When a statute stands to be altered, we can speak of an amendment / change /
replacement / repeal / addition, etc. to its provisions. The point is that the statute’s
original text is about to be “tampered” with. Once the amendments have been
included in the text of the statute, such a statute is never the same again.
The extent of an amendment/s of a statute is unlimited. Anything from the name, long
title, headings, preamble, provisions may be amended — and provisions may be
removed / added. Each “change” to a statute has a particular manner / convention /
procedure by which it is formulated. Unfortunately, some Amendment Acts contain
provisions reflecting amendments that are not formulated as they should be. Such
Acts are nevertheless passed and applied. The question arises as to whether the
formulations of amendments are actually prescribed and to what extent a uniform
application should be enforced / followed.
2. General explanatory note
When an Amendment Act is published in the Gazette, the General Explanatory Note
is found on the second page and is given according to the following convention:
GENERAL EXPLANATORY NOTE:
[
_____________
]
Words in bold type in square brackets indicate omissions from
existing enactments.
Words underlined with a solid line indicate insertions in
existing enactments.
It follows from the form of this General Explanatory Note, that it is only used in an
Amendment Act that contains both omissions from and insertions in existing
enactments. The Note is not used in a new Act even if the Act contains provisions
amending other existing legislation. Such amending provisions are usually contained
in a schedule to the new Act.
In cases where the Amendment Act only contains either omissions from or insertions
in existing enactments, the General Explanatory Note is used with only the one
relevant sentence.
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3. Long title
An Amendment Act is no different to a new Act and always has a long title. The long
title indicates the nature of the various amendments contained in the Amendment
Act. The amendments can be omissions from or insertions in existing enactments,
repeals of existing provisions or substitutions of expressions and/or provisions.
In the Housing Amendment Act, 2001, the long title reads (slightly adapted):
To amend the Housing Act, 1997, so as to provide for the abolition of the
South African Housing Development Board; to provide for the publication in
the Gazette of lists of national housing programmes; to substitute an
expression; and to provide for matters connected therewith.
In the Criminal Procedure Amendment Bill, 2012, the long title reads:
To amend the Criminal Procedure Act, 1977, so as to further regulate
applications for condonation, leave to appeal and further evidence; and to
provide for matters connected therewith.
In the Judicial Matters Amendment Bill, 2013, the long title reads (slightly
adapted):
To amend—
● the Magistrates’ Courts Act, 1944, so as to further regulate the jurisdiction of
magistrates’ courts in line with a decision of the Constitutional Court;
● the Criminal Procedure Act, 1977, so as to effect certain textual corrections;
and to further regulate the provisions relating to the expungement of certain
criminal records;
● the Small Claims Courts Act, 1984, so as to further regulate the appointment
of commissioners;
and to provide for matters connected therewith.
In the Sheriffs Amendment Bill, 2012, the long title reads (slightly adapted):
To amend the Sheriffs Act, 1986, so as to substitute certain definitions and to
insert a new definition; to provide for the establishment of Advisory
Committees to assist the Minister of Justice and Constitutional Development in
the appointment of sheriffs; to extend the matters in respect of which
regulations can be made; and to provide for matters connected therewith.
4. Preamble
The preamble is a programme of action and should/can mention any future intention
to be strived at.
In an Amending Bill, the preamble states the circumstances for which the proposed
amendments to the principle Act are to legislate and provide for. Preambles are
optional in amending legislation. Where a preamble is used, its use is generally
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restricted to matters of constitutional or national importance or to explain the
particular circumstances that led to the proposed amendments to the principle Act.
The preamble serves as an integral part of the statute which can be used to
determine its purpose.
In the Traditional Courts Bill, 2012, the preamble reads:
PREAMBLE
SINCE the Constitution recognises the institution, status and role of traditional
leadership, including a role in the administration of justice, as well as the application
of customary law, subject to the Constitution;
AND SINCE the traditional justice system, which is based on customary law, forms
part of the legal system of the Republic;
AND SINCE the Traditional Leadership and Governance Framework Act, 2003,
recognises a role for the institution of traditional leadership in the administration of
justice;
AND SINCE it is necessary to transform the traditional justice system, in line with
constitutional imperatives and values, including the right to human dignity, the
achievement of equality and the advancement of human rights and freedoms;
AND SINCE it is necessary to have a single statute applicable throughout the
Republic, regulating traditional courts,
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa,
as follows:—
5. Enacting provision
As with original legislation, the enacting provision in amending legislation also
acknowledges the authority at whose instance the law is enacted. Section 43 of the
1996 Constitution states that the Legislative Authority of the National sphere of
government is vested in Parliament (43(a)), that of the provincial sphere of
government is vested in the provincial legislatures (43(b)), and that of the local
sphere of government is vested in the municipal councils (43 (c)). In Parliamentary
legislation, the enacting provision will read as follows:
BE IT ENACTED by the Parliament of the Republic of South Africa,
as follows:-PARLIAMENT of the Republic of South Africa enacts, as follows:--
Where a preamble is used it is expressed as follows:
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa,
as follows:-PARLIAMENT of the Republic of South Africa therefore enacts, as follows:-BE IT THEREFORE ENACTED by the Provincial Legislature of Gauteng,
as follows:--
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BE IT THEREFORE ENACTED by the Provincial Parliament of the Province
of the Province of the Western Cape, as follows:--
6. Schedule for repeal / amendment of laws
Repeals and amendments of laws are usually done by means of an Amendment Act.
However, when a new Act is passed, it often happens that other existing Acts need to
be amended or repealed. The new Act must simply contain a section that makes
provision for a schedule that contains amendments and/or repeals. The provision will
be formulated as follows:
Repeal of laws
24. The laws mentioned in the Schedule are repealed to the extent
mentioned.
Drafters should be mindful that when repealing an Act that they also amend all other
Acts and sections thereby affected. The conventional way of setting out the repealed
or amended Acts is, where necessary, by way of a schedule.
The following illustration of such a schedule is taken from the Magistrates’ Courts Act
of 1944, (Act 32 of 1944) - note the cross-reference to the enabling section in the Act:
SCHEDULE
Laws Repealed (section 24)
No. and Year
Act No: 32 of
1917
Act No. 13 of
1921
Act No. 39 of
1926
Act No. 17 of
1932
Act No. 46 of
1935
Act No. 21 of
1942
Title
Magistrates’ Courts Act
Magistrates’ Courts Act
Amendment Act
Criminal and Magistrates’ Courts
Procedure (Amendment) Act
Magistrates’ Courts Act
Amendment Act
General Law Amendment Act
Civil Imprisonment Restriction Act
Extent of Repeal
The whole, except the Second
Schedule.
So much as remains unrepealed.
Sections forty-nine to sixty
inclusive.
The whole.
Sections eighty-three to ninetynine inclusive.
Sections one, two and three.
In certain instances, especially where only a single amendment/repeal is required, a
schedule is not necessary and the section in the new Act would look as follows:
Amendment of Public Protector Act 23 of 1994
22. Section 31 of the Public Protector Act, 1994 (Act 23 of 1994), is hereby
repealed.
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7. Amendments: specimens
Amendments are made textually — the text of the existing Act must be changed.
Conventional formulas are used. The terminology to be used is as follows:
Term
Substitution
Insertion
Addition
Delete/Deletion
Repeal
Example
A certain part of the Act, provision, etc, is replaced by other
wording
To cause material to be added. A new part is inserted at a
particular place
A new part is added at the end of a certain provision
To cause material to be removed. A paragraph is deleted but the
rest of the provision remains in operation
A section is repealed
 The substitution of a preamble:
Substitution of Preamble to Act 32 of 1998
1. The following Preamble is hereby substituted for the Preamble to the National
Prosecuting Authority Act, 1998:
" WHEREAS section 179 of the Constitution of the Republic of South Africa,
1996 …".
Note: The whole preamble must be substituted even though only a part of the text is
amended. The substituted preamble is not underlined.
 If an Index should be inserted into an existing Act it would take the following
form:
Insertion of Index to Act 32 of 1998
2. The following Index is hereby inserted after the Preamble to the principal Act:
“ Index
Part I
Introductory Provisions
Chapter 1
Definitions and
interpretation
Definitions
Interpretation of Act "
Note: This insertion is long but needs to be underlined. The first and the last row can
be underlined, and a line can be drawn vertically down the right hand side of the
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insertion.
 An illustration of where a schedule is not necessary and a few amendments
to the same Act exist:
Repeal of section 31 of Act 38 of 1994
22. Section 31 of the General Intelligence Act, 1994 (hereinafter referred to as the
principal Act) is hereby repealed.
Note: The words between brackets indicate that the full name of the Act being
amended is not repeated throughout.
 Multiple amendments relating to definitions:
Amendment of section 1 of Act 90 of 1986, as amended by section 1 of Act 74 of
1998, section 12 of Act 55 of 2003 and section 10 of Act 31 of 2008
1. Section 1 of the Sheriffs Act, 1986 (Act No. 90 of 1986) (hereinafter referred to as
the principal Act), is hereby amended—
(a) by the substitution for the definition of ‘‘auditor’’ of the following definition:
‘‘ ‘auditor’ means a person registered as an accountant and auditor in terms
of the [Public Accountants’ and Auditors’ Act, 1991 (Act No. 80 of 1991)]
Auditing Profession Act, 2005 (Act No. 26 of 2005);’’;
(b) by the insertion after the definition of ‘‘building society’’ of the following
definition:
‘‘ ‘Department’ means the Department of Justice and Constitutional
Development;’’;
(c) by the substitution for the definition of ‘‘Minister’’ of the following definition:
‘‘ ‘Minister’ means the [Minister of Justice] Cabinet member responsible for
the administration of justice;’’; and
(d) by the substitution for the definition of ‘‘superior court’’ of the following
definition:
‘‘ ‘superior court’ means a [provincial or local division of the Supreme Court
of South Africa] High Court contemplated in section 166 of the Constitution of
the Republic of South Africa, 1996;’’.
 Insertion of a definition
Amendment of section 1 of Act 38 of 1994, as amended by section 1 of Act 74
of 1998
2. Section 1 of the principal Act is hereby amended by the insertion after the
definition of ‘Director’ of the following definition:
' “ Directorate of Special Operations” means the Directorate ...;‘.
Note: The word defined must be inserted alphabetically and underlined to include
inverted commas in front of and after the word defined, and a semi-colon. Section 1
deals with all the definitions and therefore the section as such must be amended.
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 Substitution of a definition:
Amendment of section 1 of Act 38 of 1994, as amended by section 1 of Act 74
of 1998
2. Section 1 of the principal Act is hereby amended by the substitution for the
definition of ‘Director’ of the following definition:
' “Director” means the Director of ...;‘.
Note: The word defined must be inserted alphabetically and underlined to include
inverted commas in front of and after the word defined, and a semi-colon.
 If the extent of the amendment should be a substitution or replacement, the
amendment would take the following form:
Amendment of section 40 of Act 38 of 1994
23. Section 40 of the principal Act is hereby amended by the substitution for
subsection (1) of the following subsection:
“(1) The Minister may publish green [and blue marked] cards as examples
in the Gazette.”.
Note: place deletions in bold and between square brackets, and underline insertions.
Only one subsection of the section is affected. Therefore the section is amended, but
the whole subsection affected must be substituted (replaced) even though only a part
of the text is amended by means of a deletion and/or an insertion of more words.
Only the subsection affected and substituted needs to be shown and underlined.
 If the extent of the amendment should be an addition it would take the
following form
Amendment of section 50 of Act 38 of 1994
23. Section 50 of the principal Act is hereby amended by the addition after
subsection (8) of the following subsection:
“(9) The markets must be advertised.”.
Note: Underline additions from the number of the section/subsection etc. and include
the full stop at the end of the sentence. An addition is made when there is no other
existing subsection after the one added. In this case the section is amended because
something new must be added at the end. Only the new part added needs to be
shown and underlined.
 If the extent of the amendment should be an insertion it would take the
following form:
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Amendment of section 44 of Act 38 of 1994
25. Section 44 of the principal Act is hereby amended by the insertion after
subsection (8) of the following subsection:
“(8A) The markets must be advertised.”
Insertion of section 2A in Act 90 of 1986
3. The following section is hereby inserted in the principal Act after section 2:
‘‘Allowances payable to members of Advisory Committees
2A. A member of an Advisory Committee referred to in section 2(1), who is
not in the full-time employment of the State, may be paid such allowances in
the performance of his or her functions in terms of this Act, as the Minister
may determine with the concurrence of the Minister of Finance.’’.
Note: Underline insertions as with additions. An insertion is made when there is
another existing subsection after the one inserted. This means that the insertion must
be numbered but that the existing subsections keep their numbers. Sections are
numbered consecutively and are not renumbered due to an insertion.
If a new section is inserted, for example between sections 14 and 15, its number will
be 14A. Should section 14A consist of several rows, all the rows must be underlined.
Alternatively, the first and the last row can be underlined, and a line can be drawn
vertically down the right hand side of the section.
 If the extent of the amendment should be a deletion it would take the
following form:
Amendment of section 45 of Act 38 of 1994
26. Section 45 of the principal Act is hereby amended by the deletion of paragraph
(d) of subsection (1).
Note: a deletion of a full paragraph is not placed in bold square brackets. The
paragraph number will remain in the text but with no wording, for example: “(d) …".
8. Interpretation Act, 1957 (Act 33 of 1957)
It is essential that the drafter be aware of section 11 of the Interpretation Act, 1957,
which provides that –
When a law repeals wholly or partially any former law and substitutes
provisions for the law so repealed, the repealed law shall remain in
force until the substituted provisions come into operation.
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Amendments must fit properly into the principal Act and in sequence. The contents of
the principal Act must still be workable and understandable after the amendments
are done. Amendments usually affect other provisions and other laws. This must be
traced and suitably amended.
Section 12 is equally important for the drafter. It deals with the effect of the repeal of
a law:
12. Effect of repeal of a law
(1) Where a law repeals and re-enacts with or without modifications, any provisions
of a former law, references in any other law to the provision so repealed shall, unless
the contrary intention appears, be construed as references to the provision so reenacted.
(2) Where a law repeals any other law, then unless the contrary intention appears,
the repeal shall not
(a) revive anything not in force or existing at the time at which the repeal takes
effect; or
(b) affect the previous operation of any law so repealed or anything duly done or
suffered under the law so repealed; or (c) affect any right, privilege, obligation or
liability acquired, accrued or incurred under any law so repealed; or (d) affect
any penalty, forfeiture or punishment incurred in respect of any offence
committed against any law so repealed; or (e) affect any investigation, legal
proceeding or remedy in respect of any such right, privilege, obligation, liability,
forfeiture or punishment as is in this subsection mentioned,
and any such investigation, legal proceeding or remedy may be instituted continued or
enforced, and any such penalty, forfeiture or punishment may be imposed, as if the
repealing law had not been passed.
9. Transitional provision
The amending Act could contain an amendment of a provision in the principle Act
that affects, for example, a particular procedure. It would then be advisable to add a
transitional arrangement to provide for matters that need to be completed in terms of
the “old” provision.
10. Short title
We need to distinguish between two situations because our legislation is divided into
ordinary legislation and the supreme Constitution.
Ordinary legislation

As in the case of a new Act, the short title of an Amendment Act provides no more
than the name of the statute as it is referred to.
Short title
14. This Act is the Housing Amendment Act, 2001.
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
Where the Act is a second amendment Act passed during the same year and
parliamentary session, the short title reads as follows:
Short title
14. This Act is the Housing Second Amendment Act, 2001.
Note: Certain amendment Acts are referred to simply as Amendment Acts, and
others are given a number, for example, Third Amendment Act. The reason is that if,
for example, the Fruit Act was passed in 1997 and was amended in 1998, the
amending Act is simply the Fruit Amendment Act, 1998. If it is again amended during
the same parliamentary session, it becomes the Fruit Second Amendment Act, 1998.
If still a further amendment follows during the same parliamentary session then this
would be the Fruit Third Amendment Act, 1998, and so on. If the Fruit Act is again
amended, but in the following parliamentary session, then it would revert to being
simply the Fruit Amendment Act, 1999.

Where the Amendment Act is to have a commencement clause, the section reads
as follows:
Short title and commencement
17. This Act is the Sheriffs Amendment Act, 2012, and comes into operation on a
date fixed by the President by proclamation in the Gazette.
Short title and commencement
24. This Act is the Traditional Courts Amendment Act, 2013, and comes into
operation on 29 June 2012 or on such earlier date fixed by the President by
proclamation in the Gazette.
Short title and commencement
12. This Act is called the Criminal Procedure Amendment Act, 2012, and is deemed
to have come into operation on 10 September 2010.
Short title and commencement
49. (1) This Act is called the Judicial Matters Amendment Act, 2013.
(2) Sections 10 and 11 are deemed to have come into operation on 1 April 2010
and section 48 is deemed to have come into operation on 20 September 2010.
(3) Sections 35, 38 and 45 come into operation on a date fixed by the President by
proclamation in the Gazette.
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Laws amending the Constitution
The Citation of Constitutional Laws Act, 2005 (Act 5 of 2005), changed the manner of
referring to the laws amending the Constitution of the Republic of South Africa, 1996.
The short title of a law amending the Constitution will not have an Act number.
Before the commencement of the Citation Act, the title of an Act amending the
Constitution would be as follows:
“Constitution of the Republic of South Africa Amendment Act, 35 of 1997”
This has changed and the current method is illustrated as follows:
Short title
4. This Act is called the Constitution First Amendment Act of 1997.
Short title
4. This Act is called the Constitution Sixth Amendment Act of 2001.
Note: The words “of the Republic of South Africa” are not included in the short title.
The word “Act” is followed by the word “of” and not by a comma as with ordinary
legislation.
Each new amendment of the Constitution is given the next number, notwithstanding
the year in which the amendment is passed. Amendments of the Constitution are
therefore not numbered in the same manner as ordinary legislation.
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MEMORANDUM ON THE OBJECTS OF THE SHERIFFS AMENDMENT BILL, 2012
1. BACKGROUND
Certain challenges in the sheriffs’ profession, relating to the functioning and composition of
the South African Board for Sheriffs (the Board), as well as the functioning of, and entry into,
the sheriffs’ profession, have been identified. The Sheriffs Amendment Bill, 2012 (the Bill),
seeks to address those challenges in the interests of the administration of justice.
2. OBJECTS OF THE BILL
2.1 The objects of the Bill are to amend a number of sections of the Sheriffs Act, 1986 (Act
No. 90 of 1986) (the Act), that have been identified as giving rise to challenges in the sheriffs’
profession. The Bill strives to transform the sheriffs’ profession which will enhance access to
justice, with particular reference to the functioning of, and entry into, the sheriffs’ profession.
2.2 The provisions of the Bill can be summarised as follows:
2.2.1 Ad clause 1
Clause 1 substitutes the definitions of ‘‘auditor’’, ‘‘Minister’’ and ‘‘superior court’’ to bring them
in line with existing legislative provisions, and inserts a new definition of ‘‘Department’’.
2.2.2 Ad clause 2
Clause 2 amends section 2 of the Act that deals with the appointment of sheriffs so as to
provide that the Minister of Justice and Constitutional Development (the Minister) may, after
considering the report of an Advisory Committee, appoint a person as a sheriff. Furthermore,
since sheriffs fulfil a crucial function in the administration of justice, provision is made that the
Minister may, on the conditions that may be prescribed in terms of the regulations made
under the Act, only appoint ‘‘fit and proper’’ persons as sheriffs.
…
2.2.17 Ad clause 17
Clause 17 provides for the short title and commencement of the Act.
3. DEPARTMENTS/BODIES/PERSONS CONSULTED
The relevant stakeholders, including the Board, the South African Institute for Sheriffs, the
South African National Association of Progressive Sheriffs, the South African Sheriffs
Association and the Law Society of South Africa were consulted.
4. FINANCIAL IMPLICATIONS FOR STATE
The financial implications for the State (i.e. the Department) which will result from clauses 3
and 7, read with clause 10, which, respectively, envisage the payment of allowances to
members of the Advisory Committees, who are not in the full-time employment of the State,
and to the departmental official who is designated by the Minister as a member of the Board,
will be minimal. It is, however, not possible to estimate the additional expenditure for the
State as it will depend, among others, on the number of meetings held by the Board,
committees of the Board and Advisory Committees and where such meetings are held.
5. PARLIAMENTARY PROCEDURE
5.1 The State Law Advisers and the Department of Justice and Constitutional Development
are of the opinion that the Bill must be dealt with in accordance with the procedure
established by section 75 of the Constitution since it contains no provision to which the
procedure set out in section 74 or 76 of the Constitution applies.
5.2 The State Law Advisers are of the opinion that it is not necessary to refer this Bill to the
National House of Traditional Leaders in terms of section 18(1)(a) of the Traditional
Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003), since it does not
contain provisions pertaining to customary law or customs of traditional communities.
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