Professional Indemnity Law

The presumption against retrospectivity: elaborating on the distinction between procedural amendments and amendments affecting legislative rights

Posted 23 April 2024

Nicole Dembitzer (Senior Associate)

When amendments to existing legislation come into effect, uncertainty may arise about whether these amendments apply to pending actions, applications or regulatory processes which were initiated before promulgation of the amendments.

An example of this can be found in the Health Professions Council of South Africa’s (‘HPCSA’) application of recent amendments to the procedure prescribed in Regulation 4(7) of its Disciplinary Regulations, effected on 23 June 2023, to disciplinary proceedings which were commenced prior to this date. The amendemnts to Regulation 4(7), in the form of the introduction of Regulation 4A, conferred a right of appeal on a complainant who had laid a complaint with the HPCSA, but whose complaint had been dismissed by the Preliminary Committee of Inquiry. No such right existed in terms of the old Regulation 4(7). It has been noted recently that complaints which were lodged prior to the introduction of the complainant’s right of appeal in terms of Regulation 4A, but dismissed by the Preliminary Committee of Inquiry, are being referred on to the HPCSA’s Appeals Unit. This raises questions about the retrospective application of a  complainant’s right to appeal in terms of Regulation 4A, to disciplinary proceedings lodged prior to the effective date of the amendment.

The presumption against retrospectivity of new legislation is underpinned by the principle of legality and the rule of law. This presumption acknowledges that amendments to legislation should not deprive parties of rights which existed at the time of the commencement of the action, application or process in question. This is so unless the amending statute, by express words or implication, makes it apparent that the amendment is intended to operate retrospectively.

It is trite that the presumption against retrospectivity does not apply to amendments which are of a purely procedural nature, save for where the amended procedure would have a substantive effect on existing rights. In the case of Raumix Aggregates (Pty) Ltd v Richter Sand CC [2019] JOL 45983 (GJ), the court acknowledged that the distinction between amendments which are purely procedural in nature and those which affect substantive rights are often vague, and may be difficult to discern. Elaborating on the parameters of this distinction, it commented as follows:

“New procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases. However, this rule is not always easy to apply in practice.  Procedural provisions may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately”. 

In this case, the court considered amendments to Rule 32 of the Uniform Rules of Court, which came into effect on 1 July 2019. In terms of the amended Rule 32, a plaintiff is permitted to initiate summary judgment proceedings only once the defendant has filed its plea. Prior to the amendments, summary judgment proceedings could be initiated by a plaintiff as soon as the defendant had served its notice of intention to defend. The legislation was silent on whether the amendments to Rule 32 were intended to apply retrospectively, with the result that considerable uncertainty arose regarding application of the amendments to pending summary judgment applications lodged prior to the effective date of the amendments.

As a result of conflicting judgments by the Gauteng courts, the Judge President of the Gauteng Local Division issued a directive ordering that the matter be referred to the Full Court for consideration. Expanding on the legal principles underlying the presumption against retrospectivity, the Full Court, in Raumix, grappled with the question of whether the amendments to Rule 32 ought to be classified as procedural amendments, with retrospective effect, or whether the amendments affected the substantive rights of parties, in which case they ought not to be applied retrospectively.  

The Full Court affirmed the then Appeal Court’s  comments on the practical application of this distinction in  Minister of Public Works v Haffejee NO  1996 (3) SA 745 (A) at 753, where it was held that:

“It does not follow that once an amending statute is characterised as regulating procedure it will always be interpreted as having retrospective effect. It will depend upon its impact upon existing substantive rights and obligations. If those substantive rights and obligations remain unimpaired and capable of enforcement by the invocation of the newly prescribed procedure, there is no reason to conclude that the new procedure was not intended to apply”.

The Full Court also endorsed the position adopted by the Supreme Court of Appeal in Unitrans Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman, National Transport Commission and Others 1999 (4) SA 1 (SCA), where the latter court took a ‘substance over form’ approach, commenting as follows: “to draw a distinction between statutes affecting substantive rights and those affecting procedure was not decisive, as what appears to be a procedural amendment may affect substantive rights” (Raumix at [12]). Instead, it advocated for a more nuanced enquiry, which focuses on the timing of the amendment. Where the amending statute came into effect prior to the commencement of the procedure in question, then the new procedure ought to apply, unless the legislation itself expressly stated otherwise.

The Court in Unitrans effectively recognized that procedural amendments which deprive parties of procedural rights, which existed at the time the procedure was initiated, would extinguish and render abortive all steps which had already been taken. On  this criterion alone, this could be regarded as affecting a substantive right (Raumix at [13]).

In Raumix, the court found that the amended Rule 32, if applied retrospectively, would adversely affect substantive rights, in that it would deprive the plaintiff of the right to have the pending summary judgment application heard, which right existed at the time of the commencement of the application. It also held that Rule 32 did not indicate any intention for the amended provisions to apply retrospectively to pending summary judgment applications. When considering the application of the Interpretation Act to the presumption against retrospectivity,  the court recognized that section 12(2) of this Act “expressly provides that the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed, which includes pending applications before court. Ultimately, however, it depends on the meaning to be ascribed to the new law, and its intended effect, regardless of whether it is labelled an ‘amendment’ or a ‘repeal’ (Raumix at [27]) This, in effect, endorses the application of the presumption against retrospectivity to amendments affecting substantive rights.

The court accordingly found that the amended Rule 32 of the Uniform Rules of Court did not apply retrospectively to pending summary judgment applications.

Applying the principles elucidated in this judgment to the retrospective application of the Health Professions Council’s introduction of Regulation 4A,  it is clear that the presumption against retrospectivity should  apply to disciplinary proceedings lodged prior to the effective date of the amendment. The introduction of a complainant’s right to appeal a decision by the Preliminary Committee of Inquiry affects the respondent’s substantive right to final adjudication by the Preliminary Committee of Inquiry of the complainant’s initial complaint. This right was vested in terms the Disciplinary Regulations which were in force at the time the disciplinary procedure commenced. In addition, the Disciplinary Regulations are silent on the retrospective application of these amendments to existing complaints.

In conclusion, the  Raumix decision provides valuable clarity on the application of the presumption against retrospectivity in cases where amendments which affect substantive rights may masquerade as amendments of a purely procedural nature. It is in the interests of legal certainty and adherence to the rule of law that parties to pending actions, applications or procedures are not deprived of existing substantive rights.