Critically discuss the application of old order legislation in the new constitutional order provide case laws related to this matter
The concept of old order legislation refers to laws that were enacted prior to the establishment of a new constitutional order or legal framework. These laws may have been drafted under a previous regime, colonial rule, or outdated legal principles. As a country transitions to a new constitutional order, there may be a need to address the application and relevance of old order legislation in the new legal framework.
One key issue that arises is whether old order legislation should be automatically repealed or invalidated when a new constitution is adopted. Some argue that these laws should be considered void ab initio, as they may not be consistent with the values and principles enshrined in the new constitution. Others argue that certain provisions of old order legislation may still be applicable and relevant in the new constitutional order.
In the context of South Africa, the Constitutional Court has grappled with the application of old order legislation in the post-apartheid era. In the case of Minister of Home Affairs v National Institute for Crime Prevention and the Reintegration of Offenders (NICRO), the Court considered the validity of the Immorality Act of 1957, which criminalized certain sexual acts between consenting adults. The Court held that the Act was inconsistent with the new constitutional order and declared it invalid.
Similarly, in the case of Johannesburg City Council v Randfontein Estates Gold Mining Co Ltd, the Court considered the Land Act of 1913, which prohibited the ownership of land by black South Africans. The Court held that the Act was unconstitutional and ordered that it be repealed.
Overall, the application of old order legislation in the new constitutional order requires careful consideration and analysis. While some provisions may be outdated and incompatible with the new constitutional principles, others may still be relevant and applicable. It is important for courts to carefully evaluate each case and determine the compatibility of old order legislation with the values and principles of the new constitutional order.