Judicial law-making during concretisation CH 7

Question 1

Concretisation

Answer 1

1) The final stage in the interpretation process
2) The legislation is realized (it actually becomes applicable).
3) Correlation, harmonization and actualization

Answer 2

Exhausted and applies all external aids

Question 3

Engels v Allied Chemical Manufacturers

Answer 3

Established the orthodox viewpoint.

Question 4

The Text-in-context viewpoint

Answer 4

Holds that the court does have a creative law-making function
during statutory interpretation.

Question 5

The myth that courts only interpret the law

Answer 5

Legal discretion
Boundaries
Language has limits (Delegation)
Modification (NB)
The Constitution allows flexibility

Question 6

Legal discretion

Answer 6

Modification or adaptation of the initial meaning of the text involves the exercise of a creative judicial discretion.

Question 7

Boundaries

Answer 7

The exercise of legal discretion must take place within the
boundaries and parameters of the purpose of the legislation

Question 8

Language has limits (Delegation)

Answer 8

There are inherent limitations to language, and thus the Legislature delegates the specific final application of law to the judiciary for this purpose.

Question 9

Zimnat Insurance Co Ltd v Chawanda

Answer 9

Judges have freedom in interpreting and applying the law
Judges do not merely discover the law but they make the law

Question 10

, Du Plessis (1986: 37) points out that the orthodox

Answer 10

viewpoint prohibiting any form of
Page 163
modification could result in an incorrect and unjustifiable form of judicial law-making

Question 11

Modification

Answer 11

1) Also referred to as corrective interpretation.
2) It is not the modification of the language.
3) The provision is not amended and repromulgated by the court, because that may only be done by the competent legislative body.
4) The language remains the same, but the meaning is modified
only for that specific, concrete situation

Question 12

The Constitution allows flexibility
Matiso v Commanding Officer, Port Elizabeth Prison

Answer 12

The Constitution thereby provides even more flexibility to the courts.

Question 13

Factors that Restrict

Answer 13

1) Democracy
2) Separation of Powers
3) Common-law presumption
4) Rule of law
5) Judicial officers accountable (on three levels)
6) Penal Provisions

Question 14

Factors that Support

Answer 14

1) Reading-down
2) S 39(2)
3) Bill of Rights
4) Constitution (Supremacy)
5) Common-law presumption
6) Independence of the Judiciary

Question 15

Modification of the meaning is necessary

Answer 15

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

Question 16

Restrictive Interpretation

Answer 16

When initial words of legislative text are wider than its purpose courts reduce a wider initial meaning to match the meaning

Question 17

Green v Fitzgerald

Answer 17

the court found that the
common-law rule that adultery is a crime no longer applies
in South Africa. In this case the cessante ratione rule was
not applicable, because it dealt with common law, not statute
law.

Question 18

R v Maleka 1929 OPD 171
t

Answer 18

the court found that the object of the Act (ie compensation) had been complied with, and that
the compensatory fine was unnecessary

Question 19

Cessante ratione legis, cessat et ipsa lex

Answer 19

1) If the reason for the law ceases, the law itself also falls
away
2) R v Detody= Law remains in force until repealed by the legislature
concerned
3) Green v Fitzgerald=The court found that the common-law rule that adultery
is a crime no longer applying in South Africa.
4) The Cessante ratione rule was not applied because the case dealt with common law and not statute law.

Question 20

Eiusdem Generis

Answer 20

1) Means “of the same kind”.
2)The meaning of words is qualified by their relationship to
other words.

Question 21

Eiusdem Generis Prerequisites

Answer 21

1) Can only be applied if the specific words refer to a definite genus or category
2) The specific words must not have exhausted the genus.

Question 22

Colonial Treasurer v Rand Water Board

Answer 22

the court referred to such a genus as a ‘common quality’ or ‘common denominator’

Question 23

Interpretation by implication

Answer 23

1) Ex Contrariis
2) Ex consequentibus
3) Ex accessorio eius de quopverba loquutur
4) Anatura ipsius rei
5) Ex correlativis

Question 24

Ex Contrariis

Answer 24

Here the implications arise from opposites. If the legislation
provides for a particular circumstance, it by implication provides that contrary provision for the opposite circumstance

Question 25

Ex consequentibus

Answer 25

If legislation demands or allows a certain result or consequence, everything which is reasonably necessary to bring about that result or consequence may be implied.

Question 26

Bloemfontein Town Council v Richter

Answer 26

the court found that where a municipality has a statutory right to contain a river for the purposes of water supply, it also, by implication, has a right to remove washed-up silt from the dam

Question 27

Ex accessorio eius de quopverba loquutur

Answer 27

If a principal thing is forbidden or permitted, the accessory
thing is also forbidden or permitted.

Question 28

Anatura ipsius rei
(correlates with Common of implied powers)

Answer 28

1) This refers to implied inherent relationships.
2) For example, the power to issue a regulation implies the
power to withdraw it.

Question 29

Ex correlativis

Answer 29

This arises from mutual or reciprocal relationships.

Question 30

Interpretation by Analogy

Answer 30

This method of interpretation involves extending legislative provisions expressly applicable to particular circumstances to other
analogous cases not expressly mentioned.

Question 31

Joint Liquidators of Glen Anil
Development Corporation Ltd

Answer 31

the court confirmed that an
omission may not be supplied through interpretation by
analogy

Question 32

No modification of meaning is possible

Answer 32

If no modification of the meaning is possible, the court will have to
apply the legislation as it reads.

Question 33

Ex Parte Dow

Answer 33

1) If the literal application of the law leads to harmful results or
results that are not in line with the intention of the legislature,
then it is not applied.
2) This is an example of modificative interpretation.