Chapter 7 - Judicial Law-Making During Concretisation

Question 1

What is concretisation

Answer 1

Concretisation is the final stage in the interpretation process. The legislation is realised. During concretisation, the legislative text and purpose, as well as the facts of a particular situation are brought together to reach a conclusion. Synonyms for concretisation are correlation, harmonisation and actualisation.

Question 2

The text-based viewpoint

Answer 2

The classic formulation of literalism insists that the clear and unambiguous text of legislation is equated with intention of the legislature.

Question 3

The purposive point

Answer 3

The text in context school claims that the court does have a creative law-making function during statutory interpretation.

Question 4

The myth that courts merely interpret the law

Answer 4

Modification or adaptation of the initial meaning of the text involves the exercise of creative judicial discretion. This discretion is nothing more than the authoritative application of legal principles, but the exercise of a legal discretion with in the boundaries and parameters of the purpose of the legislation. The courts are confronted with the exercise of discretion on a daily basis when they have to deal with criminal jurisdiction and the evaluation of evidence, as well as with judge-made law as a result of the ongoing development of the common law.

Question 5

Factors which limit judicial law-making during statutory interpretation

Answer 5

1. The principle of democracy
2. The important principle of separation of powers
3. The common law presumption that the legislature does not intend to change the existing law more than is necessary
4. Judicial officers are accountable and responsible for their actions on three levels, personal morality, formal and substantive accountability.
5. Penal provisions or restrictive provisions in the legislation

Question 6

Factors which limit judicial law-making during statutory interpretation

Answer 6

1. The reading down principle of the interim Constitution provided that if legislation is on the face of it unconstitutional, but is reasonably capable of a more restricted interpretation which would be constitutional and valid, such restricted interpretation should be followed.
2. During the interpretation the courts must try to reconcile the aim and purpose of the legislation with provisions of the Constitution in general, and the Bill of Rights.
3. The Bill of Rights is the cornerstone of the South African democracy and the state must respect, protect, promote and fulfil the rights in the Bill of Rights
4. The Constitution is the supreme law of the land
5. The common law presumption that the legislation does not intend futile, meaningless and nugatory legislation
6. The judiciary is independent

Question 7

Modification of the meaning is necessary

Answer 7

Modificative interpretation occurs when the initial meaning of the text does not correspond fully to the purpose of the legislation