Chapter 8 - Peremptory and directory provisions

Question 1

Semantic guidelines: Peremptory Provision

Answer 1

1. A word or words with an imperative or affirmative character indicate a peremptory provision. The inference is that the strong language of these words indicates an obligation. Eg. words like must or shall indicate a peremptory provision
2. Words in the negative form indicate a peremptory provision. By the virtual nature of these words, it is in indication that something is not allowed.

Question 2

Semantic guidelines: Directory Provision

Answer 2

1. Permissive words such as may indicate discretion and will be interpreted as being directory, unless the purpose of the provision indicates otherwise
2. The use of positive language in a provision indicates a directory provision. Positive language is more permissive, and may thus once again indicate an element of discretion.
3. A provision formulated in flexible or vague terms is an indication the provision is directory.

Question 3

Jurisprudential guidelines : Peremptory provision

Answer 3

1. Adding a penalty to a prescription or prohibitin is a strong indication that the provision is peremptory
2. If the validity of the act would defeat the purpose of the legislation, this is an indication that the act will be null and void.

Question 4

Jurisprudential guidelines: Directory provision

Answer 4

1. If the wording of the provision is in positive terms, and no penal sanction is included for non-compliance with the requirements, it is an indication that the provision in question should be regarded as being merely directory.
2. If strict compliance with the provisions would lead to injustice and even fraud, it is presumed that the provision is directory.

Question 5

Presumptions about specific circumstances : Peremtotry provision

Answer 5

1 Where legislation confers a right, privilege or immunity, the requirements are
peremptory and the right, privilege or immunity cannot be validly obtained
unless the prescribed formalities are fully complied with. Where the freedom
of an individual is at stake the court will stress the peremptory nature
of a requirement.

2. If a provision requires that a certain act must be performed within a prescribed
   time and the court has not been empowered to grant an extension of the
   time limit, the requirement is presumed to be peremptory.

Question 6

Presumptions about specific circumstances: Directory provision

Answer 6

1. Where legislation protects the public revenue, a presumption against nullity exists, even if a penal clause has been added.
2. If other provisions in the legislation could become superfluous when non-compliance with prescribed requirements results in the nullity that the requirements are merely directory.