RVW Flashcards
R v Detody
Legislation cannot be abrogated by disuse
In order for legislation to “disappear” it must:
Be repealed by a competent body; or
Declared invalid by a court
Who may amend/repeal?
Competent body must:
* Amend
* Repeal
A court must declare it invalid.
What are competent bodies?
Parliament
Provincial Legislatures
Municipalities
Who provides for powers to amend and repeal
Enabling Act may provide for powers to amend and repeal.
In absence of an Enabling Act, which common law principle provides power to amend and repeal?
Common Law Principle of
Implied Powers
Section 10 of the Interpretation Act
Power to enact includes power to repeal or amend, unless the contrary can be found from the wording of the
enabling Act.
What Legislation may be amended by which competent legislator?
1)Parliament can amend a Parliamentary Act with another Parliamentary Act.
2)Provincial Legislature can amend Provincial Legislation
3)Municipalities can amend municipal regulations/laws
What are the Two Types of Amending Legislation?
Non-Textual (indirect) – Wording of original is not changed but
explained.
Textual (direct) – original legislation wording actually changed.
What are the Functions of the Court?
Primary-Application of Law
Secondary- Law-making function
What are the Attempts to save legislation during Constitutional Review?
1)Courts may be asked to test legislation against the Constitution.
2)Courts may rule it unconstitutional which Creates a vacuum.
3)So instead, courts may try to interpret it to keep it in line with the
Constitution and prevent a vacuum.
What are the Modifications of the Legislative Meaning during interpretation?
Courts may modify (in exceptional circumstances) the initial
meaning of legislative text to ensure it reflects the purpose and
object of the legislation.
Definition of Repeal?
Refers to the process whereby the legislation is deleted, in
other words, removed from the statute book.
Definition of Invalidation?
When the legislation is declared to be legally unacceptable.
Courts can only declare legislature invalid on the basis of?
Constitutional grounds
Non-compliance with administrative law requirements
What happens when law is declared invalid?
Law remains on the statute book but cannot be applied
What is Section 172?
High Court, SCA or
Constitutional Court may declare legislation unconstitutional.
What is Section 172(1)?
Court must declare legislation inconsistent with the Constitution as unconstitutional.
What are Section 172(2) and Section 167(5) ?
If High Court or SCA declares it unconstitutional, it has no force until confirmed by the
Constitutional Court.
Types of Repeal?
1)Substitution (repeal or replace)
2)Repeal (deletion)
Substitution
1)When repealing Act (A) with Act (B), there might be the
possibility that Acts (A) is repealed and Act (B) is not yet in force at that time.
2)Meaning there’s no law to govern the situation.
3)To prevent the repealing legislation may expressly provide for a suitable transitional period.
What if there is no express transitional period?
Section 11 of the Interpretations Act
What is Section 11 Interpretations Act?
Where a law repeals wholly or partially any former law and substitutes provisions for the law so repealed, the
repealed law shall remain in force until the substituted
provisions come into operation.
* Basically: The repealed law remains active until the new
law meant to replace it becomes forceful.
What is Repeal (deletion)?
1)Repeal is the revocation of legislation by the relevant competent
lawmaker.
2)It is not changed or substituted; it is deleted.
What is Section 12(1) of Interpretation Act?
If provision X is repealed and later re-enacted as Y, all references to X in other existing legislation must be
interpreted as references to Y.
What is Section 12(2) of Interpretation Act?
Transitional provision, which provides that a repealed Act does not regain the force of law if the repealing Act itself is repealed.
What is Repeal of legislation incorporated by reference?
If Act (A) repeals Act (B) the provisions of Act (B) which were incorporated into other Act’s by reference are NOT also repealed, unless Act (A) expressly provides for that repeal.
What are Sunset Clauses?
A provision in legislation which terminates all or portions of the law after a SPECIFIC DATE.
It is a date-bound repeal and essentially provides for a limited lifespan.
What are Implied Repeal?
1)Where 2 different enactments clash, the newest enactment prevails.
2)Therefore, there is a presumption that the legislature intended for the newest enactment to repeal the older
enactment.
What are the 2 enactments for this presumption to apply?
1)Be on the same hierarchical level
2)Be on the same level of generality.
What is Suspension of
Legislation?
1)Legislation can also be temporarily suspended.
2)It remains in force; but
3)Its operation is halted for the time being or until some other
condition or requirement is met.
What is Schedule 4?
1)Provides for concurrent law-making powers of parliament and provincial legislatures.
2)Where there are conflicts between national and provincial legislation, the national legislation will sometimes prevail over the provincial.
What is Section 149?
Where a court rules that one piece of legislation prevails over
another, the other legislation is not invalidated. Rather, it is
suspended as long as the conflict remains.
What are the Methods of Suspension?
1)Suspension by Courts
2)Application of the cessante ratione legis, cessat et ipsa lex rule.
3)Formal amendment (with a sunset clause for example)
What are Context and Interpretation?
Picasso painting analogy
Text + Context = Understanding
What are The Influence of Critical Theories in General?
Critical legal scholars reject the formalist position that law is rational, objective and neutral
Define General Principles of Hermeneutics?
1)The science of understanding, or more specifically, as the theory of the interpretation of texts.
2)The understanding and explanation of texts to reveal their inherent meaning.
What is the Difference between exegesis and hermeneutics?
Exegesis =Relates to biblical interpretation
Hermeneutics = Statutory interpretation
What are Similarities between Exegesis and Hermeneutics?
1)Interpret established authoritative texts with regard to current concrete situations
2)Both have an existential urgency
3)Interpreter must deal with demands of changing situations
4) Interpretation is influenced by history
What are Differences between Exegesis and Hermeneutics?
Legislations has a distinct style
Biblical text is “closed” = Complete/Finished.
What are The Critical Legal Studies Movement?
It originated in reaction to the inability of liberalism to solve
social problems such as poverty, racism, pluralism,and oppression
What is Deconstruction?
In deconstruction a text can never acquire a fixed final meaning, because the meaning depends on the set of codes, social and cultural and political.
What is The Linguistic turn?
1)Meaning is not discovered in a text but is made in dealing with the text.
2)Meaning is never at any given time, fixed and stable. 3)The possibilities for the meaning are boundless.
What are two main approaches to statutory interpretation?
1)The literal (text-based) approach
2)The purposive (text-in-context) approach
What is the Literal Approach?
The interpreter should concentrate primarily on the literal meaning of the provision to be interpreted, and the interpretation
process should proceed along a set of clear steps.
Define Primary Rule of Interpretation?
If the meaning of the text is clear it should be applied and, indeed, equated with the legislatures intention.
Define The Golden Rule of Interpretation?
1)If the plain meaning of the words is ambiguous, vague or
misleading, or if a strict literal interpretation would result
in absurd results, then the court may deviate from the
literal meaning to avoid such an absurdity.
2)This is where the court turns to secondary aids
Define Tertiary Aids?
Where the secondary aids prove insufficient to ascertain the intention, the courts will have recourse to so-called tertiary aids to construction (common law presumptions)
De Villiers v Cape Divisional Council
Adoption of the textual approach in South Africa
Define Mischief Rule?
This rule acknowledges the application of external aids
R v Kirk
The legislature has a specific intention and the ordinary, grammatical meaning of the text is decisive in determining it.
S v Zuma
1)The importance of words in constitutional interpretation was stressed.
2)There is no primary, secondary or tertiary hierarchical order
of importance of aids.
University of Cape Town v Cape Bar Council
The court has to examine all the contextual factors in
ascertaining the intention of the legislature, irrespective of
whether or not the words of the legislation are clear and unambiguous.
Mjuqu v Johannesburg City Council
contextual approach, virtually the entire spectrum of available aids.
Constitutional Supremacy post 1994
Textual Approach removed using 6 provisions
What are the two underpinning foundations?
1)Formal Foundation (Separation of Powers, Checks and Balances,
Principle of Legality)
2)Substantive Foundation (Fundamental values such as
justice and equality).
The Interpretation Clause
1)Forces interpreter to consider the Bill of Rights when interpreting.
2)Causes the consultation of extra textual factors.
3)Factors outside the text are immediately involved in the Interpretation process.
S v Makwanyane
1)Explains the need to use values in the Constitution during interpretation.
2)Preamble provides for democratic values, social justice and fundamental human rights.
3)Courts must protect these values.
The Language Aspect
1)It acknowledges importance of the role of the language of the legislative text.
2)It focuses on the linguistic and grammatical meaning of words and phrases, punctuation, sentences and other structures.
The value-based aspect
1)The aim and purpose of the legislation must be ascertained against
the fundamental constitutional values [s 39(2)]
2)The fundamental values in the Constitution form the foundation of a normative (regulating)
The systematic aspect
1)This method is concerned with the clarification of the meaning of a particular legislative provision in relation to the legislative text as a
whole.
2)This is known as the holistic approach.
Historical Aspect
This method refers to using the historical context of the legislation.
Comparative Aspect
This aspect refers to the process (if possible and necessary) during
which the court examines the interpretation of similar legislation by foreign courts, as well as international law
Bato Star Fishing v The Minister of Environmental Affairs and
Tourism
The provisions of Section 39(2) impose a two-fold proposition
(1) The interpretation that is placed upon a statute must,
where possible, be one that would advance at least an
identifiable value enshrined in the Bill of Rights; and
(2) The statute must be reasonably capable of such interpretation.
Keyter v Minister of Agriculture
The court’s function is to give effect to every word, unless it is absolutely essential to regard it is unwritten.
Internal Language Aids to Interpretation
1)The legislative text in another official language
2) The Preamble
3)The Long title
4)The Definition Clause
5)Express Purpose Clauses
Volschenk v Volschenk
The most important rule of interpretation is to give words
their ordinary, literal meaning.
Sigacu v Sigacu
The court argued that ‘ordinary meaning’ includes the ordinary grammatical meaning.
External Language Aids to Interpretation
1Dictionaries and Linguistic evidence
2)Example and Footnotes
3)Definition in the Constitution and the Interpretation Act
4)The clock is ticking Computation of Time
What are Dictionaries and Linguistic evidence?
1)Only a guideline
2)Requires further context
What are Example and Footnotes?
1)New trend
2)Not part of Act but can be used as an external aid
The Holistic
Dimension
1)Intra-textual context (unique structure + legislative ‘codes’)
2)Extra-textual context (Existing law and contextual considerations)
The clock is ticking Computation of Time
1)Calculate days including the last day
2)Unless a Sunday or Public Holiday, then next work day
What is the Structural wholeness of the enactment?
Interpretation should be within the 4 corners of the Act
Conflicting Legislation
1)Subsidiarity Principle
2)Subsidiary vs Avoidance
3)Avoiding Unconstitutionality
R v Njiwa
1)It is a grammatical fact that punctuation can affect the meaning of the text.
2)Held, that the punctuation must be taken into consideration
during interpretation.
What is the Subsidiarity Principle?
Where it is possible to solve an issue without reaching a constitutional issue, the issue must be solved in that way
Subsidiary vs Avoidance
S v Mhlungu
The Constitution is not ignored, it just means the courts must first try to solve an issue without it.
Avoiding Unconstitutionality
1)Competent courts involved in constitutional review may try remedial correction of legislation to try keep the
legislation constitutional
Internal Conflicts and the Presumption against futile and nugatory
legislation
Unless the contrary is clear, it is presumed that the legislature doesn’t intend legislation which is futile or nugatory.
Pressumption: The King can do no Wrong
1)It is presumed that the government bodies are not bound by their
own legislation, unless the legislation expressly or by necessary implication provides otherwise.
2)This is not lawlessness of government, but a provision so that the government’s operations are not hampered by legislation
Evans v Schoeman
State will not be bound:
1)If the state would be rendered subject to the authority of or
interreference by its own officials
2) If the state would be affected by penal provisions
Principle of Legality Explained
It seems central to the conception of our constitutional order that the Legislature and Executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them
by law. (Ultra viras)
The Teleological
Dimension
It is used to ascertain what the
particular constitutional provisions must accomplish in the legal order.
Sidumo v Rustenburg Platinum Mines Ltd
Text and values work together in integral fashion to provide the protections promised by the Constitution.
The Historical
Dimension
1)The Preamble of the Constitution
2) Prior Legislation
3)Preceding Discussions
The Preamble of the Constitution
1) Connects up, reinforces and underlies all of the text that follows.
Prior Legislation
Legislation had been partially repealed, the remaining provisions had to be interpreted in their context, which included
the repealed provisions.
Preceding Discussions
Bills are discussed and debated before parliament and various committees also report on them. The question is whether the content of these reports, debates and discussions can be used for interpretative purposes.
Debates during the legislative process
The use of preceding discussions has not been accepted by the courts.
Commission Reports
In some earlier cases the court did not accept the use of a
commission report and in some it was accepted only if a
clear link exists between the recommendations and the
provisions
Hopkins v Bloemfontein District Creamery
The court held that the prevailing law prevented the use of a commission report on the Companies Act.
The Mischief Rule
4 Questions to establish meaning
1)What was the legal position before the legislation was adopted?
2)What was the mischief (defect) not provided for by existing
legislation or common law?
3)What remedy (solution) was provided by the legislature to solve
this problem?
4)What was the true reason for the remedy
Santam Insurance Ltd v Taylor
The court was obliged, on account of ambiguous language used
in the Act, to examine the historical background of the Act to
ascertain its purpose.
Contemporanea Expositio
1)Is an exposition (description) of the legislation at the time of its
adoption or shortly thereafter.
2)refers to when a person involved in
the adoption of legislation, gives an explanation of it.
Subsecuta Observatio
1)Refers to the established use or custom which may originate at any
time after the adoption, which may be in conflict with the contemporanea expositio
2)The long-term use of a measure may be the deciding factor where
more than one interpretation is possible.
The Comparative Dimensions
Refers to the process (prescribed by section 39(1) of the
Constitution) during which the court examines international law
and the constitutional decisions of foreign courts.
International Law
1)S231 =States that an international treaty becomes South African
law when it is enacted into law by national legislation.
2)S232 Provides that customary international law is law unless it
is inconsistent with the Constitution or an Act.
3)S233 Constitutional confirmation of the common law presumptions that legislation does not violate international law.
Courts should prefer a reasonable interpretation that does not
contravene international law.
Concretisation
1) The final stage in the interpretation process.
2)The legislation is realised
3 Things needed to reach a conclusion
1)The legislative text
2)The legislative purpose
3)The facts of a particular situation
S v Zuma
The principles of international human rights and foreign law must be applied with due regard for the South African context.
Factors that restrict judicial law-making
1)Democracy
2)Separation of Powers
3)Common-law presumption
4)Rule of law
5)Judicial officers accountable
6)Penal Provisions
Rule of law
Principle of legality
Du Plessis v De Klerk
The function of the courts is:
1) To ensure legislation does not violate fundamental rights.
2) To interpret legislation in a manner that furthers the values expressed in the Constitution.
3) To ensure that common law and custom outside of the legislative sphere is developed in such
a manner as to harmonise with the Constitution
Common-law presumption
That the legislature does not intend to change the existing
law more than is necessary.
Judicial officers accountable
1)Personal Responsibility
2)Formal Responsibility
3) Substantive Accountability
Factors that Support Judicial Law-making
1)Reading-down =S 35(3) and S 232(3)
2)S 39(2)Courts must reconcile the aim and purpose of the legislation
with the provisions of the Constitution
3)Bill of Rights
4)Constitution (Supremacy)
5)Common-law presumption:The legislature does not intend futile, meaningless and nugatory legislation.
6)Independence of the Judiciary
Restrictive Interpretation
Applied when the words of the particular legislation embrace more than its purpose.
Two possibilities
1)Restrictive Modification
2)Extensive Interpretation
Modificative interpretation
The initial meaning of the
text does not correspond full to the purpose of the legislation.
Restrictive Interpretation in General
Although there is usually only two specific forms, any
interpretation that reduces a wider initial meaning is
restrictive.
Cessante ratione legis, cessat et ipsa lext
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
Eiusdem Generis
The meaning of words is qualified by their relationship to other words.
Prerequisite: Can only be applied if the specific words refer to a
definite genus or category.
Extensive Interpretation
Results in interpretation by implication, which involves extending
the textual meaning on the ground of a reasonable and essential
implication which is evident from the legislation.
Extensive Interpretation
1)Ex Contrariis
2) Ex consequentibus
3) Ex accessorio eius de quopverba loquutur
4)Anatura ipsius rei
5)Ex correlativis
Ex Contrariis
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.
Ex consequentibus
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.
Ex accessorio eius de quopverba loquutur
If a principal thing is forbidden or permitted, the accessory
thing is also forbidden or permitted.
Anatura ipsius rei
implied inherent relationships
Ex correlativis
This arises from mutual or reciprocal relationships.
No modification of meaning is possible
1)Clearly the discretion of the judiciary to modify or adapt the initial
ordinary meaning of the text is limited.
2)If no modification of the meaning is possible, the court will have to
apply the legislation as it read
Interpretation by Analogy
This method of interpretation involves extending legislative
provisions expressly applicable to particular circumstances to other
analogous cases not expressly mentioned.
