Explaining Statutory Interpretation Flashcards
To understand what the law is and how statute is interpreted.
What is law?
The law is all forms of normative rules or all forms of law, including common law, statute law, case law, customs, and customary law.
Statutes are parts of law written and enacted by legislative bodies with the authority to make laws. In South Africa, the two houses of Parliament (National Assembly and National Council of Provinces) are entrusted with making and enacting Statutes.
What is interpretation of statutes?
Interpretation is the process of explaining, clarifying, or assigning meaning to something such as words, symbols, actions, or texts. It is understanding and making sense of information in a manner that is logical, accurate, and contextually appropriate.
Statutory interpretation is the body of rules and principles used to construct and justify the meaning of legislative provisions to be applied in practical situations.
Why do we need these rules of interpretation and how are they structured?
*First part of the question not answered yet
There are important phases.
1. Initial phase: During this phase, basic principles are used as a point of departure. The Constitution and Bill of Rights are the cornerstones of legal order. They are used to work out and apply the purpose of legislation. And text is read to find initial meaning bearing common law presumptions and a balance between text and context in mind.
- Research phase: All factors and considerations possibly having a bearing on the particular legislation are studied to determine the purpose.
- Concretization phase: Legislative text, the purpose of the legislation, and the facts of the particular case are harmonised and the spirit, purport, and aim of fundamental rights must be promoted during this process.
What does the concept of ‘the intention of the legislature’ refer to and why is it problematic?
The intention of the legislature refers to the fictional collective intent of the majority of the legislative body that was present when the vote took place. This majority expressed their will within the constraints of the voting guidelines laid down by caucus of the ruling party in the legislature.
This concept of the intention of the legislature is problematic for multiple reasons.
- The legislature is composed of a large number of persons. *
- Some may oppose, thus reflecting the intention of the majority. *
- The intention is subject to pressure from a specific political party.
- Parliamentarians are politicians, not legislative drafters.
- Bills are often drafted by legislative drafters on the advice of bureaucrats and not public representatives.
- Some members of the legislative body may be absent when voting takes place.
Which constitutional provisions are particularly important for statutory interpretation?
Section 1: Foundation provision
Section 2: The Supremacy of the Constitution
Section 7: The obligation clause
Section 8: The application clause
Section 36: The limitation clause
Section 39: The interpretation clause
