Module 6 Flashcards
What else is legislation called?
Legislation is often called a Statue and when written down an Act.
How do you write sections in a legislation?
When writing a section of an Act, the only the subsection and the corresponding subsections are in brackets (Section 2(b)(i))
What are the theoretical approaches of interpreting law?
Theoretical approaches:
- Literal approach
- Purposive approach
- Transformative approach
What is the literal approach of interpreting law?
The literal approach was used as an interpretation tool to ascertain the intentions of the legislature. This is done when Statues are clear and not ambiguous. If it is ambiguous or has absurd results then the court would take a secondary approach and look at the aim of the legislation and apply its context. It is a robotic and structured way to interpret the law, that is informed by legal positivists. It was an apartheid era interpretation.
What is the purposive approach of interpreting law?
The Purposive approach puts the legislation in context. The purpose of the legislation is critical and it doesn’t assume the clear and plain meanings of words reflects the purpose of the text. The purpose of the Act is always important no matter the legislation and judges take this into account.
What is the transformation approach in interpreting law?
The transformative approach looks at social and economic circumstances. It also looks at the factual issue requiring a solution and the Constitution, purpose and context play important roles
How dose South Africa judiciary interpret law?
They do this by:
- Considering the context in every matter
- Promoting the spirit and purport of the Constitution
- Advancing identifiable rights in the Constitution
What section of the Constitution deals with the Judiciary interpreting laws?
In South African judiciary interprets the law according to section 39(2) of the Constitution, in the interpretation the spirit and objects of the Bill of Rights must be promoted.
What are the five practical approaches as highlighted in Lourens du Plessis?
- Grammatical- Meaning of the words are considered
- Systematic- Considers the whole Act by contextualising the meaning of words in the Act. A useful aid is the Interpretation Act
- Teleological- Delves into the deeper meaning of the statue, in light of constitutional values
- Historical- Looks at the history of the Legislation and the matter it was trying to address (the mischief rule). It further also examines previous legislations on the matter
- Comparative- Section 39(1) of the Constitution. Look at other jurisdictions interpretation
What is the mischief rule?
The mischief rule states that a judge should read a statute in light of the problem that prompted the state
What does presumptions in law mean?
Presumptions is a ruling of common sense applied consistently and has obtained the statute of presumed truth.
What are presumptions in the interpretations of law?
Interpretation of statutes presumptions:
- Legislation does not unduly change law
- Legislation does not contain aimless provisions
- Unfair and unreasonable results are not the aim
- Statues have prospective and not retrospective application
What is the main functions of the legislature?
- Consideration, amendment and passing of bills
- Election of the President from among its members of the majority party
- Oversight of the executives
- Provides a national forum for consideration of important issues
