Chapter 6 - A practical, inclusive methodology: The five interrelated dimensions of interpretation

Question 1

Basic principles: The initial meaning of text

Answer 1

The text-based approach no longer has any place in statutory interpretation. Of course, the reading of the text is necessary but as has been pointed out, the legislation as a whole and its context play an equally important role in the interpretation process.

Question 2

Basic principles: Every word is important

Answer 2

The principle that a meaning must be assigned to every word derives from the rule that words are to be understood according to their ordinary meaning. Strictly speaking, this is a principle which applies when text is read.

Question 3

Basic principles: No addition or subtraction

Answer 3

It is a basic rule of interpretation that there may be no additions to or subtractions from the words used in the legislation. This is a default setting, based on the separation of powers principle

Question 4

Basic principles: The continuing time frame of legislation: the law is always speaking

Answer 4

If words bear their ordinary meaning-initially at least- the question is whether words in existing legislation should be interpreted according to their present-day meaning, or must they should retain the meaning they had when the legislation was passed.

Question 5

The legislative text in another official language

Answer 5

Prior to the commencement of the interim Constitution, legislation in South Africa was drafted in two official languages, and the text in the other language was used to clarify obscurities

Question 6

The preamble

Answer 6

Although old-order legislation with a preamble is rare, some private Acts, the new generation public Acts (eg. South African Schools Act 84 of 1996) and the Constitution have preambles. The preamble usually contains a programme of action or a declaration of intent with regard to the broad principles contained in the particular statute.

Question 7

The long title

Answer 7

The long title provides a short description of the subject matter of the legislation. It forms part of the statute considered by the legislature during the legislative process.

Question 8

The definition clause

Answer 8

Almost all statutes contain a definition clause. It is an explanatory list of items in which certain words or phrases used in the legislation are defined.

Question 9

Express purpose clauses and interpretation guidelines

Answer 9

While a preamble is formulated in wide and general terms, and the long title is nothing more than a summary of the contents of an Act, the express purpose clause and interpretation guidelines contain more detail and are more focused, and should be more valuable during the interpretation process.

Question 10

Headings to chapters and sections

Answer 10

Headings to chapters or sections may be regarded as introductions to those chapters or sections. Within the framework of text-in-context headings may be used to determine the purpose of the legislation

Question 11

Schedules

Answer 11

Schedules serve to shorten and simplify the content matter of the sections in legislation. The value of a schedule during interpretation depends on the nature of the schedule, its relation to the rest of the legislation, and the language in which the legislation referees to it.

Question 12

Dictionaries and linguistic evidence

Answer 12

In an era in which legislation is becoming ever more technical and highly specialised, courts often use dictionaries during interpretation.

Question 13

Example and footnotes

Answer 13

The use of footnotes in legislation is a new trend, which is used to facilitate better and more streamlined cross-references. Although in which footnotes are used expressly state that they do n to form part of the act, they may be used as external aids during the interpretation process

Question 14

Definitions in the Constitution and the Interpretation Act

Answer 14

There are a large number of definitions in other legislation that expressly have a wider application. For instance, when interpreting old-order legislation, the definitions in item 3 of Schedule 6 of the Constitution will be indispensable.

Question 15

The clock is ticking: computation of time

Answer 15

Lawyers and courts alike ‘clear lines to be drawn in the sand”. One of those lines in the sand is time limits. Legal documents must be filed within a certain time, debt has to be settled or a fine must be paid before a certain date; and so on.

Question 16

Legislation must be read as a whole

Answer 16

Navigating the legislative landscape is neither quick nor easy. An y particular area of the law might include legislation from different eras, areas and hierarchies, all operating under a supreme Constitution.

Question 17

Balance between text and context

Answer 17

The courts had long held the view that if the text of the legislation was clear and unambiguous, effect should be given to it. The context of the legislation was only deemed to be ambiguous.

Question 18

Structure of legislation

Answer 18

Structural aspects such as the table of contents, paragraphing, layout of the text and punctuation could play a meaningful role during the interpretation process.

Question 19

Conflicts with the Constitution and the subsidiarity principle

Answer 19

Legislation which is in conflict with the Constitution is arguably the ultimate example of conflicting legislation. However, when confronted with a possible conflict between legislation and the Constitution, the subsidiarity principle must be adhered to as far as possible.

Question 20

Internal conflicts and the presumption against futile and nugatory legislation

Answer 20

Unless the contrary is clear, it is presumed that the legislature does not intend legislation which is futile or nugatory

Question 21

Conflicts with other legislation

Answer 21

If there is conflicting legislation with the system of cooperative government, the national legislation will most of the time prevail over the provincial legislation, but in some cases, the provincial legislation may actually trump the national legislation.

Question 22

The new constitutional approach to statutory interpretation

Answer 22

The values of the Constitution are very strong, explicit and clearly intended to be considered part of the very texture of the constitutional project

Question 23

UBUNTU

Answer 23

Ubuntu is an indigenous African concept and refers to a practical humanist disposition towards the world, including compassion, tolerance and fairness.

Question 24

Foreign law

Answer 24

In the past South African courts could refer to foreign law and foreign case law during the interpretation of legislation

Question 25

International law

Answer 25

Section 233 of the Constitution is another interpretation clause, but also deals with the relationship between the Constitution and all South African law with public