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In light of government steps taken in terms of the Disaster Management Act 57 of 2002, concerns have arisen within the built environment as to how such steps should be considered under the various standard construction contracts, such as the GCC or JBCC.  Naturally, the question has arisen regarding the Covid-19 regulations and whether these regulations constitute a change in the law or legislation.

 

It is generally understood, even at a basic level, that the hierarchy of law in South Africa begins with the Constitution of the Republic of South Africa (the “Constitution”). The Republic of South Africa being a constitutional democracy means that the Constitution is at the apex of the legislative hierarchy and reigns supreme.  Subordinate to the Constitution is legislation promulgated by Parliament.  In order to give effect and or “flesh” to such law, Parliament may delegate authority to create further rules to another body, such as the executive or a municipality.  These further rules are often referred to as subordinate legislation and take the form of regulations, by-laws, proclamations, or ordinances.  Incidentally, it is worth noting that all legislation is actually subordinate, in the sense that all law must comply with the principles set out in our Constitution. 

 

Subordinate legislation, in this context, however, is also known as delegated legislation because this aspect of rulemaking has been delegated to another body.[1]  Subordinate legislation is effectively an extension of the legislation from which it is delegated.[2]  This is so because the empowering provision is generally found in the statute from which it is born.  More importantly, however, is this delegated legislation carries with it the force of law.[3]

 

The force of law concept was reiterated by the Supreme Court of Appeal in National Police Service Union v Minister of Safety and Security.[4]  Here the court discussed the effect of subordinate legislation upon promulgation.  Similarly, the Constitutional Court tackled regulations made to effect to the pricing system for the sale of medicines in Minister of Health v New Clicks South Africa (Pty) Ltd.[5]  Chaskalson described subordinate or delegated legislation as lawmaking of a generalized character which is both an extension of the legislative process, and an aspect of administration.

 

What this ultimately means for the built environment is that changes in regulations, whether under covid-19 or any other regulation having a material impact on one’s performance, is a change in legislation or law.  Considering this, in light of the built environment contracts, one may then refer to the correct clauses to frame one’s demand.

 

Paul Bellin is an advocate of the High Court of South Africa and an admitted attorney in the United States.  He frequently lectures on contract drafting and writing.

 

[1] See Botha, CJ, Statutory Interpretation (3rd ed. 1998)

[2] See Byers v Chinn 1928 AD 322, where the court held that where an act ceased to exist, so did the regulation created by virtue of that act.  See also Liebenberg NO and others v Bergrivier Municipality 2013 (8) BCLR 863 (CC)

[3] See Byers v. Chinn 1928 AD 322.

[4] (651/97) [2000] ZASCA 17; 2000 (3) SA 371 (SCA) (29 March 2000)

[5] (CCT 59/2004) [2005] ZACC 14; 2006 (2) SA 311 (CC); 2006 (1) BCLR 1 (CC) (30 September 2005) at para 4.