Please enable JavaScript.

Coggle requires JavaScript to display documents.

INTERPRETATION OF STATUES IOS 2601 pg23 complete summary -4. Unit 5…

- - - - deals with the body of rules and principles used to justify the
        meaning of legislative provisions to be applied
        
        in practical situations
      - Interpretation is NOT mechanical process
        
        Reasons why the interpretation of statutes is NOT a rule-like activity
        
        circumstances & sets of facts will differ from case to case
        
        Courts are not of one mind when applying principles
        
        NO clear and predictable patterns for application of rules
        
        The law is not objective, neutral and value-free
        
        All interpreters have particular personal
        attributes which influence their understanding
        
        the spirit & purport of the bill of rights must be promoted during the interpretation
        
        the interpreters must of necessity involve value judgments.
        
        The interpreter has to keep other interrelated issues in mind
        
        Technical ASPECT to keep in mind
        
        Is it in force, amended, provisions, regulations, conflicting law etc
        
        apply the provision within the framework of the supreme constitution
        and the bill of rights.
  - - - interpretation of statutes was an orthodox system of maxims
      - rules for interpretation based on parliamentary sovereignty
        
        Parliament was the highest legislative body
        
        No Court could TEST parliamentary acts vs Fairness and Equality
      - old system was saddled with maxims and canons of interpretation all unnecessary
    - - based on constitutional supremacy
        and the spirit & purport of fundamental rights
        
        thus value
        judgment can no longer be ignored.
        
        According to Devenish
        
        statutory interpretation in a constitutional democracy
        
        courts will be able to test and invalidate legislation
        
        all statute law will have to be interpreted to be compatible with letter and spirit of Constitution
        
        a value-coherent theory of interpretation should become prevalent
        
        a justiciable bill of rights is likely to indicate a new methodology and theory of interpretation
      - Parliamentary sovereignty was dumped and replaced by constitutional supremacy
    - - the interpretation of statutes was transformed by 6 provisions of
        the Constitution
        
        Foundation Provision
        
        Constitutional Supremacy
        
        Obligation Clause
        
        Application Clause
        
        Limitation Clause
        
        Interpretation Clause
      - Factors which have influenced the shift in the mode of statutory interpretation are
        
        Supremacy of the Constitution
        
        Human Rights as considered in the Bill of Rights provision
        
        Constitutionalism & fundamental values
  - - - Refers to legislation: either a parliamentary / provincial statute
    - - Final phase of the interpretation process
        
        process through which the interpreter
        
        moves from the abstract to the practical reality to apply the
        
        particular legislation.
    - - Refers to government in accordance with the Constitution
        
        government derives its powers from and
        is bound by the Constitution.
        
        State where the Law is supreme® government & state authorities = bound by the rule of law
    - - State in which constitutionalism prevails ® Country where the constitution is supreme
        
        constitutional state is underpinned by two foundations
        
        Formal Foundation
        
        includes separation of powers, checks and balances, legality
        
        Material Foundation
        
        refers to a state underpinned by fundamental values: justice, equality
    - - circumstances surrounding something / the situation in which something happens
    - - Process during which legislative text is read, researched within its total context to obtain its purpose
    - - Provisions in a Constitution which can only be altered / amended / repealed with difficulty
        
        Legislation: usually changed by simple majority vote in legislature
        
        50+1
    - - it would entail some / other more difficult procedure
        (2/3 of all members (not only present) of both houses sitting together)
    - - When government organ acts within the scope of the powers conferred on it ® it acts intra vires
    - - Although courts are primarily involved in application of the law® also have secondary lawmaking
        function.
        
        This involves the development of the common law to adapt to modern circumstances
        
        giving form, substance and meaning to particular legislative provisions in concrete
        situations
      - The exercise of a judicial discretion
        
        Judiciary may modify or adapt ordinary meaning of a
        provision to confirm to the purpose.
    - - competency of a particular court to adjudicate on a specific case.
        
        by which court may a case be heard
        
        court's jurisdiction is determined by two factors
        
        The geographical area in which the court operates
        
        the type of case which the court may hear
  - - - a written statute enacted by legislative bodies which have the authority to make
        laws
        
        All Law
    - - Consists of all the different types of enacted legislation
        
        Acts of parliament
        
        provincial legislation
        
        municipal by-laws
        
        proclamations &
        regulations
    - - Rules of law which were not written down originally
        
        made up of the underlying original / basic legal principles
        
        South African common law is known as Roman-Dutch law
    - - Rules of law not written down originally
        
        this may be unwritten customary law or codifications thereof
    - - The law as it has been decided by various courts in specific cases
        
        Precedent system (stare decisis)- judgments of higher courts bind lower courts and courts of equal status.
  - - - The government must act within the letter and spirit of the law
      - The term 'Legality' is given different meanings by different writers
        
        may mean nothing more than formal compliance with the letter of the law
        
        conformity with the principles of
        reasonableness and justice with due regard to the public interest
  - - - Collective name for these laws = legislation
  - - - the level of acceptance of a constitution, government and legal system by the citizens of a
        country
      - the faith of the population in a system
  - - - determines whether a person has a right to be heard by the court
      - Constitution has considerably widened the base for approaching a court to hear a matter
        when a fundamental right has been infringed (see s38
  - - - parliament the highest legislative body
      - enacting any laws it wishes
      - no court may test the substance of parliamentary Acts against
        standards such as fairness or equality.
      - This was the system of government which operated in South Africa before the 1993
        
        also referred to as a “Westminster system
  - - - and comes into operation by publication an
        official gazette.
    - - which deals with the formal enactment procedures
  - - - parliament remains the highest legislative body in a system of government
        
        however any law or act of any government body (including Parliament
        
        which is in conflict with the CONSTITUTION will be ruled invalid
    - - courts are also subject to the Constitution
        
        merely act as the final guardians of the
        values and principles embodied in the Constitution.
  - - - Reviewed or
        tested by the court
        
        done by measuring the legislation against the provisions of the Constitution and
        decides whether the legislation is valid or invalid.
  - - - It acts outside the scope of its powers
  - - - Initial phase
        
        basic principles
        
        supreme Constitution & BoR are the cornerstones of the legal order
        
        Most important principle of statutory interpretation
        
        ascertain & apply the purpose of the
        legislation in the light of the BoR;
        
        legislative text is read to find the initial meaning
        
        common law presumptions are borne in mind
        
        balance between the text & the context of particular legislation
      - Research phase
        
        purpose of the legislation is determined
        
        The Interpretation Act, presumptions, intra-textual aids and extra textual aids
        
        s39 of the Constitution obliges the interpreter to use the research phase fully
      - Concretisation phase
        
        legislative text, the purpose of the legislation and the facts of the particular case are
        harmonised
        
        During this process the spirit, purport and the aim of the fundamental rights in the Constitution
        must be promoted.
- - - - at or after the commencement of this Act
        
        in the Republic or any portion thereof
        
        and to the
        interpretation of all by-laws, rules, regulations or order made under the authority of any such law
        
        unless there is something in the language or context of the law, by-law, rule, regulation or order
        repugnant to such provisions or unless the contrary intention appears therein
  - - - National Legilsation
        
        In the Constitution, unless the context indicates otherwise 'national legislation' includes
        
        Subordinate legislation made in terms of an Act of parliament
        
        Legislation that was in force when the Constitution took effect
        
        administered by the national government
      - Provincial Legislation
        
        Subordinate legislation made in terms of a provincial Act
        
        legislation that was in force when the Constitution took effect
        
        administered
        by a provincial government
  - - - History (Chronological)
        
        Before 1806
        
        Old Dutch Placaaten (Statutes).
        
        Viewed as common law.
        
        No formal procedure required
        
        Old order legislation enacted before constitution took effect
        
        Pre Union Legislation (1806-1910)
        
        Between the Union and Democratic era (1910-1994)
        
        Legislation in the New Constitutional order 1994 and beyond
      - Hierarchy
        
        Deals with status of legislation
        
        1st = Constitution
        
        Supreme law of republic and any law/conduct inconsistence is invalid
        
        2nd Original legislation
        
        Acts of Parliament
        
        New Provisional Act from 1994 onwards
        
        Provincial Ordinances (1961 – 1986)
        
        Legislation of former homelands
        
        Legislation of former TBVC States
        
        Transkei, Botswana, Venda, Ciskei not part of SA legislature
        
        Municipal Legislation
        
        3rd Delegated Legislation
        
        Can only be done within the framework delegated – can’t amend or repeal
        
        Existing Provincial proclamations & regs (1968‐1944)
        
        New Provisional proclamations & regs(1994)
        
        Other proclamations & regulations
        
        Subordinate legislation is also known as delegated legislation
        
        then adds the flesh
        
        legislature may find it necessary to delegate some of its powers to other persons, bodies
        or tribunals.
        
        then vested with subordinate legislative powers under enabling legislation
        
        subordinate legislative enactments are known as legislative administrative acts
        
        can be reviewed by the courts
        
        scope of the subordinate legislation will depend on the provisions of the
        particular enabling (giving the authority to act) legislation
        
        Subordinate legislation is legislation by the administration
      - *Status (Original - Subordinate)
  - - - the common-law and
        indigenous law (Du Plessis v De Klerk
  - - - all law in force when constitution took effect is still in force
        unless amended or repealed
  - - - must be published in the official gazette before it takes effect
        
        however the Gazette does not only publish legislation
        
        Legislation (especially delegated legislation) should be distinguished from what Baxter refers to as
        “administrative quasi-legislation”.
        
        administrative quasi-legislation is NOT legislation
        
        memos & directives
        
        Common Law is NOT legislation
        
        indigenious Law is NOT leglistion
        
        Case Law is Not legislation
      - Before any document can be classified as legislation
        
        it must comply with all the constitutional and
        other legal requirements dealing with authority, adoption and publication
  - - - Long title
      - Preamble
      - Enacting Proision
        
        acknowledges the authority of the body that is enacting the legislation
      - Definitions
      - Purpose & interpretation
      - Repeal / amendment of legislation
      - Short title & commencement
      - Schedules
      - Numbering in legislation
        
        Section 1; subsection (1); paragraph (a); subparagraph (i); item (aa); sub item (AA).
        
        Section 1(1)(a)(i)(aa)(AA)
      - Amendments
  - - - Carmichele v Minister of Safety and Security,
        
        The Constitutional Court held that a court is
        obliged to develop common law in view of the Constitution
      - Pharmaceutical Manufacturers Association of SA
        
        common-law was clearly put in a
        constitutional framework as it is not a body of law separate and distinct from the Constitution
        
        There is only one system of law shaped by the Constitution and all law derives its force
        from the Constitution.
    - - Legislature does not intend to alter the common law more than necessary
        
        however
        express legislation overrides the common law
        
        whereas the constitution overrides both legislation and
        common law.
        
        since 1994, both legislation & the common-law are trumped by the supreme
        Constitution.
  - - - all existing legislation will remain in force until amended or repealed.
    - - Each new province → own provincial legislature
      - new original legislation & delegated legislation
  - - - However not everything published in Gov Gaz is legislation
        
        NOT LEGISLATION
        
        Legal notices
        
        Reports
        
        Draft Bills
        
        Policy documents (Green Papers, White Papers)
        
        Policy guidelines on how government departments apply legislation
        
        administrative quasi-legislation
        
        Departmental memos & directives → are enforceable but not delegated legislation.
        
        Unwritten law (common-law, indigenous law) is not legislation = a source of SA law
        
        Sometimes, they are codified and then become legislation.
- - - - National
        
        When parliament passes (adopted) a Bill
        
        the Act then must be signed by the President.
        
        Once signed → becomes law but it is not yet in operation.
        
        Needs to be promulgated: the process by which legislation commences and takes effect.
        Promulgated by publication in an official gazette.
      - Provincial
        
        When provincial legislature passes a Bill
        
        the premier of the province signs the Act
        
        Once signed → becomes law but it is not yet in operation.
        
        Needs to be promulgated: the process by which legislation commences and takes effect.
        Promulgated by publication in an official gazette.
  - - - Acts take effect when published, or on a date determined in terms of those Acts
        
        If unable to print gazette, President can prescribe alternative procedure
      - Principle underlying publication
        
        legislation should be made known to whom it applies
        
        legal Problem / Question
        
        Since the Gazette may only appear days after publication in remote areas → Does it then commence on date of publication or when it becomes known?
        
        Answer =Queen v Jizwa Court held→ on date of publication
        
        Criticised as arbitrary approach → Steyn suggests period of days (8) between publication and the law becoming Known
  - - - Refers to all law, delegated legislation, Acts, Ordinances, proclamation
      - Delegated legislation must be published
      - A list of proclamations & notices under which delegated legislation was published must be tabled in parliament
    - - Commencement on date of publication
      - Commencement on specified date
      - Commencement to be proclaimed
  - - - Express retrospective application
        
        An enactment may provide expressly that it has retrospective force
        
        Section 35 of the Constitution deals expressly with retrospective operation of legislation
        
        S 35(3)(1):
        
        A new offence may not be created retrospectively
        
        S 35(3)(n):
        
        An accused has the right to the least severe of prescribed punishments
        
        if it has
        been changed since offence was committed and time of sentencing.
        
        1 more item...
        
        legislature may expressly enact retrospective legislation (other than penal provisions
        
        courts will have to ‘test’ such against the Bill of Rights to ensure that the effects of the
        retrospective application don’t violate one of the other fundamental rights.
      - Retrospectivity by necessary implication:
        
        Presumption rebuttable if it appears legislature intended retrospectivity
        
        Implication can be inferred if result of applying legislation would be absurd/unfair
        
        Brown v Cape Divisional Council: Held → of their original legislative powers, provincial councils can enact retrospective ordinances.
        
        Bell v Voorsitter van die Rasklassifikasieraad Court took common-law view that a retrospective Act will not affect transactions that were brought to a close during a repealed Acts existence.
        
        Kruger v President Insurance Co: Court held → It is easier to decide that legislation is retrospective by necessary implication if
        
        1 - Vested rights will not be effected
        
        Purpose is to grant benefit / evenhandedness in the operation of the law.
        
        (i) If the enactment deals with procedure:
        
        A general rule: Presumption will not apply if it deals with rules of procedure & evidence unless expressly provided for.
        
        Distinction between procedural rules & substantive rights is fine: Courts will apply with caution.
        
        It must first be determined whether existing rights and obligations will be effected
        
        if they are enforceable by means of the new procedures.
        
        ii) If retrospectivity favours the individual
        
        It will apply
        
        If person will receive a benefit without a vested right being taken away, presumption will be unnecessary.
        
        In line with s 35(3)(n).
        
        (iii) If retrospectivity does not benefit the individual
        
        The presumption will apply if the amendment places the person in a worse position than before
        
        R v Mazibuko: Court held
        
        If penalty is increased by amending Act, the presumption applies.
    - - Court held → legislation presumably applies to the future so vested rights are not taken away.
- - - - Common-law rules can become abrogated (cancelled) by disuse
      - legislation must be repealed by a competent body.
        
        All legislation in force when the Constitution took effect
        
        remains until amended, repealed or declared invalid.
        
        Before 1994
        
        Courts could only invalidate legislation that did not comply the common-law rules of administrative law
        
        After 1994
        
        Courts can test all legislation against the supreme Constitution
    - - 1) Amendment by a competent legislature
        
        If  Act amended at the same time: General Law Amendment Act
        
        Specific legislation usually amended by specific amending legislation
      - 2) Modificative interpretation by the courts:
        
        Under certain circumstances the courts may change legislation (or meaning).
        
        Doctrine of separation of powers legislature makes law however there is judge-made law
        
        a) Reading down:
        
        To avoid invalidation courts will try keep legislation constitutional & alive
        
        - s 35 (2) and 232 (2) of the interimConsti provided that if legislation is unconstitutional
        
        but is reasonably capable of a more restricted interpretation such a method should be followed (reading down).
        
        This was not repeated in the final Consti but is still used
        
        Reading in:
        
        A more drastic remedy to change legislation in order to keep it constitutional
        
        Will “read” something into a provision
        
        Applied with caution as the courts then change legislation. (Exceptional circumstances).
        
        National Coalition for Gay & Lesbian Equality v Minister of Home Affairs: CC laid down principles to consider before “reading in” or severance is applied:
        
        1) The result must be consistent with Constitutional values
        
        2) Result to interfere with law as little as possible
        
        3) Courts must define how meaning is to be modified with precision.
        
        4) Courts to endeavour to be faithful to purpose.
        
        5) Remedy not granted if budgetary intrusion.
        
        Severance:
        
        The opposite of reading in
        
        the court will cut off the offending part of the provision to keep the remainder constitutional.
      - b) Modification of the meaning during interpretation:
        
        Courts may under exceptional circumstances change / adapt the initial meaning of the text
        
        to ensure it reflects the purpose of the legislation.
    - - 1) Unconstitutional provisions:
        
        Section 172 Consti :
        
        HC, SCA & CC may declare legislation unconstitutional
        
        may have immediate effect / suspended effect to give legislature opportunity to correct it.
        
        If parliamentary / provincial Act declared unConsti by HC / SCA
        
        → Declaration must be confirmed by CC
        
        If local legislation is declared unCONSTI by HC / SCA
        
        need not be confirmed by CC
        
        If enabling Act declared unCONSTI
        
        delegated legislation in terms of that Act will also be unCONST
        
        1 more item...
      - 2) Invalid delegated legislation
        
        Delegated legislation may invalidated by a court (note not repealed) if non compliance with administrative law requirements.
        
        Before 1994 → This was the only review of legislation by the courts.
    - - Section 11 of Interpretation Act.
        
        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.
      - 4.5 EFFECT OF REPEAL
        
        Section 12 of Interpretation Act. (Read)
    - - legislation should be interpreted in accordance with existing law
        
        changes existing law as little as possible.
      - Common Law
        
        Interpret statute in conformity with the common law except where legislation is clear on altering the common law. (Rebuttable presumption)
      - Legislation
        
        Assumed when interpreting subsequent Acts, the legislature did not intend to repeal / modify earlier Act
        
        any repeal or amendment must be expressly or by necessary implication
        
        Attempt to read earlier & subsequent legislation together to reconcile them.
        
        If reconciliation is impossible
        
        → it is presumed by necessary implication the subsequent provision prevails
        
        resulting in the amendment or repeal of the earlier one
        
        rule applies if the conflicting provisions are in pari material (essentially the same).
        
        The court will accept legislative repeal by implication only if the subsequent legislation manifestly contradicts the earlier
        
        In terms of the rule of generalia specialibus non derogant
        
        It is presumed a provision in a subsequent general Act does not repeal an earlier specific provision.
        
        CASE LAW
        
        Government of Republic of South Africa v Government of KwaZulu 1983
        
        Natal Provincial Division declared the proclamation of the government of the Republic null and void
        
        (Proclamation: taking away the Ingwavuma territory in terms of the Self-Governing Territories Constitution Act 1971). (The Black Administration Act 1927).
        
        The Appelate Division heard the appeal and found that the two Acts had conflicting provisions and could not be reconciled, it was presumed that the unrestricted powers conferred by the 1927 Act had, by necessary implication be repealed by the specific provisions of the 1971 Act).
      - Constitutional influences
        
        S 149
        
        If subsequent parliamentary legislation seems to be in conflict with prior provincial legislation
        
        & a court declares the latter prevails
        
        the prior is not repealed but suspended until conflict is resovled.
        
        Aim of s 149: to facilitate co-operative government between the three spheres
        
        → Where it is possible to apply reading in, down or severance → the common-law presumption cannot block these methods of judicial intervention.
- - - - Statutory interpretation lacked a single theoretical starting point
        
        Resulting in the application of conflicting rules & principles.
    - - The Constitution now prescribes a single theoretical starting point
        
        the contextual approach.
    - - The Text-Based Approach
        
        English law
        
        1) Primary rule
        
        If meaning of the words is clear → apply that meaning
        
        settled by the dictionary
        
        Reason: citizens rely on everyday meaning
        
        2) Golden rule
        
        If plain meaning vague or strict literal interpretation result is absurd
        
        court may deviate & turn to secondary aids: internal aids (long title, headings, text in other language)
        
        3) If secondary aids insufficient
        
        turn to tertiary aids: external aids
        
        common-law presumptions, commission reports, memorandums)
        
        Introduced into SA legal system from English law
        
        De Villiers v Divisional Council 1875:
        Decided legislation after British had taken over interpreted in accordance with English rules
        
        Over the years courts regard the clear literal meaning as the intention of the legislature
        
        Criticism of the text-based approach
        
        The common-law presumptions reduced to a last resort
        
        Narrow approach
        
        words - their literal meaning regarded as primary index to legislative meaning
        
        Important internal & external aids are ignored unless the textual meaning is unclear
        
        The intention of the legislature is dependant on how clear the language may be to a court
        
        Few texts are so clear that only one interpretation is possible
        
        Leaves little room for judicial law-making. (Courts seen as mechanical). Strict adherence to trias politica.
        
        Principle that no addition or subtraction from the legislative text is possible is a misunderstanding of the separation of powers doctrine.
      - The Purposive Approach
        
        purpose of legislation is central to interpretation.
        Context, social factors, political policy directions
        
        Mischief rule
        
        Acknowledges application of external aids:
        
        common law prior to enactment of legislation
        
        defects in the law not provided
        for by the common law
        
        new remedies provided by legislation
        
        true reason for remedies
        
        Balance between literal meaning and overall contextual meaning.
        
        Common-law presumptions and aids of interpretation are central.
        
        A court may modify / adapt the initial meaning
        
        to harmonise with the purpose of the legislation.
        
        Court’s role more flexible.
        
        Courts have inherent law-making discretion
        
        but is qualified: Modification of the text is possible only if the scope & purpose are absolutely clear.
        
        Power to modify is not an infringement of trias politica but a logical extension of powers.