PEREMPTORY AND DIRECTORY PROVISIONS Flashcards
1
Q
DISTINGUISH BETWEEN PEREMPTORY AND DIRECTORY PROVISIONS?
A
- peremptory has exact compliance
- directory has substantial compliance
2
Q
What is the purposive approach to interpreting peremptory and directory provisions?
A
- language of the provision is read in context and relevant aids are utilised to assist in determining the purpose of the provision
3
Q
WHAT IS SEMANTIC GUIDELINES?
A
- It is based on the grammatical meaning of the language in a provision
- includes peremptory which include words in negative formulation
- includes directory provisions which include words in positive formulation
4
Q
WHAT ARE JURISPRUDENTIAL GUIDELINES?
A
- these tests based on legal principles that have been developed and formulated by the courts
- considered more influential than semantic guidelines
- involve an examination of the consequences of the interpretation of provisions
5
Q
EXAMPLES OF JURISPRUDENTIAL GUIDELINES
A
- If the wording of the provision is formulated in positive terms and no penal sanction is included for non compliance with the provision, it indicates that the provision should be viewed as directory
- if strict compliance with the provisions results in injustice, possibly also fraud , and no penalty is attached to non compliance, then the provision is construed as directory
- sometimes, the historical context of the legislation (mischief rule) could not indicate if the provision is peremptory or directory
- if a penalty is added to compliance , this is a strong , indication that the provision is peremptory
- if the validity of the conduct would defeat the purpose of the legislation, the conduct should be treated as null and void
6
Q
WHAT ABOUT PRESUMPTIONS ABOUT SPECIFIC CIRCUMSTANCES?
A
- courts have developed some presumptions to aid in determining whether provisions are peremptory or directory
- presumptions could be rebutted if the purpose of the legislation suggests otherwise
