CH 9 Constitutional Interpretation

Question 1

Ordinary Statutory Interpretation
Sec 39(2)

Answer 1

Prescribes the filtering of
legislation through the fundamental rights during the ordinary
interpretation process.

Question 2

Du Plessis & Corder
Differences

Answer 2

1) The differences between constitutional and ordinary interpretation must not be over emphasized.
2) Both deal with the interpretation of legislative instruments, and
because they are interrelated, it is preferable that both are
members of the same broad interpretative family.
3) difficult to reconcile a purpose
approach to Constitutional Interpretation and a direct approach to ordinary interpretation.

Question 2

Constitutional interpretation refers to:

Answer 2

The authoritative interpretation of the supreme Constitution
2) by the judiciary during judicial review of the constitutionality
of legislation and government action in terms of section 172 of the Constitution.

Question 3

Matiso v Commanding Officer, Port Elizabeth Prison Case

Answer 3

Explained the difference between constitutional and ordinary
1) The interpretation of the Constitution will be directed at
ascertaining the foundational values inherent in the Constitution.
2) the interpretation of the particular legislation will be directed at ascertaining whether that legislation is capable of an interpretation which conforms with the fundamental values or principles of the Constitution.

Question 4

De Ville Theory

Answer 4

Inspires the interpretation of the
Constitution should also inform statutory interpretation. The principles for the interpretation if statutes are to be derived from the Constitution.

Question 5

Le Roux – Reinforcement of Text-Based Approach

Answer 5

Argues that the distinction between ordinary interpretation of legislation [Section 39(2)] and constitutional
review [in terms of Section 172] will reinforce the traditional
text-based approach

Question 6

The Supreme Constitution

Answer 6

1) The status of the supreme Constitution in the legal order us the main reason for the difference between constitutional interpretation and ordinary interpretation.
2) It is the Lex Fundamentalis and it embodies the values of society

Question 7

Constitutional state consists of two foundations:

Answer 7

1) Formal Foundation: Includes the Separation of Powers, Checks
and Balances and the Principle of Legality.
2) Substantive Foundation: Refers to a state bound system of fundamental values such as justice and equality

Question 8

Karpen:
Describes the difference between the foundations

Answer 8

1) The value orientated, concerned with intensely human and
humane aspirations of personality, conscience and freedom.
2) The structure-orientated, concerned with vastly more
mundane and mechanical matters like territorial boundaries,
local government and institutional arrangements.

Question 9

The Constitution as a Formal Power Map

Answer 9

1) Type of State and Government (Unitary or Federal etc)
2) The Powers and Functions of the various persons and institutions
3)The different Branches and Tiers (Separation of Powers)
4) Checks and Balances
5) The Electoral System
6) Symbols of the Country (Flag and National Anthem)
7) Elections and Appointments
8) Financial Arrangements
9)The Judicial System
10)Security Forces
Form part of constitutional law, administrative law,
and local government law

Question 10

Prior to 1994

Answer 10

South African Constitutions provided for formal power maps, because it did not permit for constitutional
review by the courts.

Question 11

Post 1996 the Constitution provides for an extensive power map
dealing with practical institutional arrangements of government
for instance:

Answer 11

Chapter 3 – Co-operative Government
Chapter 4 – Parliament
Chapter 5 – The President and Executive
Chapter 6 – The Provinces
Chapter 7 – Local Government
Chapter 8 – The Judicial System
Chapter 9 – Institutions Supporting Democracy
Chapter 10 – Public Administration
Chapter 11 – Security Services
Chapter 12 – Traditional Leaders
Chapter 13 – Finance
Schedules – National Symbols, Elections and Areas of
National and Provincial Legislative Powers.

Question 11

Supreme Constitution

Answer 11

1) It contains a material or substantive foundation, which includes a justiciable bill of rights.
2) The State is bound by a system of fundamental values such as
justice and equality
3) The Preamble refers expressly to the Republic as a Constitutional
State.

Question 12

Mureinik

Answer 12

Describes the Constitution as a bridge in a divided society, between a culture of authority (Parliament Sovereignty) to a culture of justification (Constitutional Supremacy).

Question 13

Du Plessis

Answer 13

Points out that the Constitution both a monument which celebrates and a memorial that commemorates.

Question 14

S v Acheson

Answer 14

1) Justice Mahomed referred to the Constitution as a mirror.
2) It does not simply mechanically define the structures of
government and the relations between the government and the
governed.
3) It is a mirror reflecting the national soul (the ideals and
aspirations).

Question 15

Section 7(2)

Answer 15

1) The State must respect, protect, promote and fulfil the rights in
the Bill of Rights.
2) Thus, the Constitution is both a shield against abuse and a positive instrument to transform society in view of the fundamental rights and values

Question 16

The General Principles of Constitutional Interpretation
Nyamakazi v President of Bophuthatswana

Answer 16

A purposive interpretation of the Constitution is necessary, since it enables the court to take into account
more than legal rules.

Question 17

S v A Juvenile

Answer 17

the court stressed the fact that the Constitution, as the supreme
law of the land, has bestowed on the court the sacred trust of
protecting human rights.