Peremptory and directory provisions CH 8

Question 1

Peremptory Provisions

Answer 1

1) A statutory provision which requires exact compliance.
2) Failure to comply with a peremptory provision will leave the ensuring act (action or conduct) null and void

Question 2

Van Dyk

Answer 2

The court emphasised that these
categories are merely guidelines: what is important is the
purpose of the provisions in question, as well as the
consequences if the statutory requirements are not strictly
adhered to

Question 3

City of Johannesburg case

Answer 3

The courts generally
follow a text-in-context (purposive) approach to the
interpretation of peremptory and directory provisions

Question 4

Directory Provisions

Answer 4

1) A statutory provision requiring on substantial compliance
2) Non-compliance with a
directory provisions will not result in the ensuing act (action or
conduct) being null and void.

Answer 5

Nkisimane v Santam
Insurance Co Ltd 1978 (2) SA 430 (A) the court held that
the intention of the legislature is always the decisive factor

Question 6

Semanitic Guidelines

Answer 6

1) Based on the grammatical meaning of the language used in the provision
2) A word or words with an imperative or affirmative character indicate a peremptory provision.
3) Does not necessarily indicate a peremptory meaning.
4) Permissive words (such as ‘may’) indicate a discretion and will be interpreted as being directory, unless the purpose of the provision indicates otherwise
5) Positive language suggests that the provision is merely directory.
6) Words in negative form indicate a peremptory connotation.
7) If the provision is formulated in flexible or vague terms, it is
an indication that it is directory

Question 7

Motorvoertuigassuransiefonds v Gcwabe

Answer 7

The court found that the word shall does not necessarily
indicate a peremptory meaning.

Question 8

Must

Answer 8

Has imperative and affirmative character

Question 9

Sutter v Scheepers and Pio v Franklin

Answer 9

1) Certain tests or guidelines were proposed to determine whether
provisions are peremptory or directory.
2) If the wording is positive and there is no penal sanction (punishment) it is an indication of it being merely
directory.

Question 10

Jurisprudential guidelines

Answer 10

Legal principles which have been developed and formulated by the courts

Question 11

Johannesburg City Council v Arumugan

Answer 11

If strict compliance with the statutory provision would lead to injustice or fraud (and there is no express provision providing for it being null and void or a penalty) it is presumed that the provision is directory.

Question 12

Standard Bank v Estate
van Rhyn

Answer 12

On the other hand, the addition of a
penal clause may be an indication that the legislature intended the penalty to be sufficient and that the act should
not be declared null and void as well

Question 13

Bpk v Anderson 1966

Answer 13

If the validity of the act would defeat the purpose of the
legislation, this is an indication that an act (conduct) should be null and void.

Question 14

1) Presumptions about Specific Circumstances

Answer 14

1) Where legislation protects the public revenue, a presumption against nullity
exists, even if a penal clause has been added.

Question 15

2) Presumption

Answer 15

Where the freedom of an individual is at stake, the court will stress the peremptory nature of a requirement.

Question 16

3)Presumption

Answer 16

If a provision requires that a certain act must be performed within a prescribed time, and the court has not been
empowered to grant an extension of the time limit, the requirement is presumed to be peremptory

Question 18

The Constitution itself also contains a number of peremptory
provisions.

Answer 18

1) Section 2 =This Constitution is the supreme law of the Republic and the
obligations imposed by it must be fulfilled.
2) Section 7(2) =The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
3) Section 39(2) = Every court, tribunal or forum must promote the spirit,
purport and objects of the Bill of Rights.