Constitutional interpretation CH 9 SUMMARY

Question 1

Constitutional Interpretation vs Ordinary Statutory Interpretation

Answer 1

Section 39(2) of the Constitution prescribes the filtering of
legislation through the fundamental rights during the ordinary interpretation process.

Question 2

Constitutional interpretation refers to

Answer 2

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

Question 2

S39(1): When Interpreting the Bill of Rights, a court, tribunal or forum

Answer 2

a) Must promote the values which underlie an open and democratic society based of human dignity, equality and freedom;
b) Must consider International Law
c) May consider foreign law.

Note that (a) and (b) are peremptory provisions.

Question 2

Grammatical Interpretation:

Answer 2

1) Although literalism should be avoided when dealing with Constitutional
interpretation, the legislation’s syntax and construction of sentences must be considered.
2) This serves as a starting point for interpretation.

Question 3

Contextual Interpretation:

Answer 3

1) Where uncertainty exists as to the intention of legislation, the whole of the Constitution serves as a contextual guide.
2) Social and political considerations also provide context in interpretation.
3) External documents have also been used.

Question 4

Teleological (value based) Interpretation:

Answer 4

Refer to section 1.
This is the primary consideration in interpretation.

Question 5

Historical Interpretation:

Answer 5

The Constitution must grow along with the nation. It cannot remain fixed.

Question 6

Comparative Interpretation:

Answer 6

Refer to S39(1)(b&c): courts can examine foreign law and International law.

Question 7

Unconstitutional:
The declaration of legislation as unconstitutional requires two simultaneous acts
of interpretation

Answer 7

1) interpretation of the legislation that is being challenged
2) interpretation of the Constitution to identify a conflict

Question 8

How can clashing can be avoided?

Answer 8

Corrective Interpretation

Question 9

Types of Corrective Interpretation

Answer 9

• Reading-In
• Reading-Up
• Severance

Question 10

Factors of Corrective Interpretation

Answer 10

1. Results of reading-in/severance/reading-up must be consistent with the
   Constitution and its values
2. Results must interfere with existing law a little as possible =
3. The courts must be able to define with sufficient precision, the
   modification that is necessary for compliance
4. The court should endeavour to be as faithful as possible to the original
   aim and purpose of the legislation within the constraints of the
   Constitution.
5. The remedy of reading-in ought not be used where the result would be
   unsupportable budgetary intrusion.

Question 11

Reading-down:

Answer 11

Restrictive interpretation that renders otherwise conflicting legislation
constitutional.

Question 12

Reading-up:

Answer 12

Broader interpretation that renders otherwise conflicting legislation
constitutional.

Question 13

Reading-in:

Answer 13

Court inserts additional language into legislation to render otherwise conflicting legislation constitutional.

Question 14

Severance:

Answer 14

Opposite of reading-in, the courts cuts out conflicting parts of legislation.

Question 15

Two step of Severance

Answer 15

1) The unconstitutional part of the legislation must be able to be separated from the rest of the legislation
2) the remaining legislation must still be able to give effect to the purpose of the original legislation.