THEME 1

Question 1

Why is legislation an important source of law?

Answer 1

Determines rights and responsibilities of individuals and authorities to whom legislation applies

Question 2

What is the difference between original and subordinate legislation?

Answer 2

Original legislation: is authority sources derived directly from the constitution, made by deliberative legislative bodies and is subject only to the constitution.
Subordinate legislation is made by executive authority figures, authorised by original legislation and it must stay within the framework of original legislation, it owes authority and existence to original legislation and if original legislation is repealed subordinate legislation ceases to exist.

Question 3

Discuss the relationship between the constituion, legislation and common law within the context of legal interpretation with reference to the one single system of law principle and the doctrine of subsidiarity

Answer 3

Both legislation and common law derive power from the constitution.
Both should reflect the spirit, purport, and objects of the Bill of Rights (BOR).
Emphasis on harmony among the constitution, legislation, and common law.
Use the principle of subsidiarity to determine applicable laws.
Single system of law principle stresses coherence, consistency, and harmony.
Interpret legislation and common law consistently with the constitution.
Respect separation of powers among government branches.

Question 4

What is the difference between adoption and promulgation?

Answer 4

Adoption is the constitutional stages leading to enactment of legislation. Promulgation is the official publication of legislation in the Government Gazette, putting it into operation.

Question 5

Distinguish between the 2 forms of legislation and discuss their relationship

Answer 5

Original legislation is adopted by deliberate legislative bodies that derive their authority directly from the constitution. Subbordinate legislation is made by ministers for example who derive their authority from original legislation. Subbordinate legislation is easier to adopt and amend and can regulate things in more detail. Subordinate legislation owes existence and authority to the enabling original legislation. Subordinate legislation must remain within the framework of original legislation. If it conflict with enabling legislatio it is invalid. Executive may not amend or repeal original legislation.

Question 6

Explain the single sysem of law principle

Answer 6

In Pharmaceutical Manufacturers, the CC made it clear that there is only one system of law which is shaped by the constitution. All law derives its force from the constitution, and is subject to it.

Question 7

There are two principles of subsidiarity. The first principle:

Answer 7

Courts prioritize applying legislation to give effect to the constitution.
In KwaZulu Natal v Pillay, the CC emphasized applying PEPUDA over Constitution’s Section 9 in a school discrimination case.
In SANDU v Minister of Defence, the CC mandated using Labor Relations Act regulations over Section 23 of the Constitution for a collective bargaining dispute.
These cases highlight the court’s commitment to aligning legislation with constitutional principles.

Question 8

The second principle:

Answer 8

A court must apply legislation to give effect to the constitution rather than the common law.
In Bato Star Fishing v Minister of Environmental Affairs and Tourism the court held that cause of action for judicial review of administrative action arises from the PAJA and not common law. Common law can only be relied on where legislation does not cover that aspect of common law or where common law can be developed to give effect to the constitution.

Question 9

If legislation give effect to the constitution and its constitutionality is not under attack, which source of law should be applied to a case?

Answer 9

PIE, because constitutionality is not under attack.

Question 10

Where a law confers a power to make rules and give notices, when may that power be exercised and for what purposes?

Answer 10

Section 14 of the Interpretation Act provides that where a law confers a power to make rules or give notices, that power may be exercised at any time after the passing of the law for the purpose of bringing the law into operation.

Question 11

What was held in the case of Veldman with regard to a provision amending a courts sentencing and retrospectivity

Answer 11

The presumption against retrospectivity will apply to a provision amending a courts sentencing if it has a substantial impact on a persons rights( the right to a fair trial)

Question 12

If there is a provision in an older and a newer act. In the more recent act is more genarl and the provision in the older act is more specific, which one will prevail?

Answer 12

The older, more specific provision will prevail.

Question 13

What is stated in section 12(2) of the Interpretation Act?

Answer 13

The repeal of legislation does not have a retroactive effect, actions that started by the time the law is repealed must be completed as if the legislation is still in force.

Question 14

The intention of legislature is to induce a detainee to talk, how should it be interpreted when it takes away a detainees reading and writing materials?

Answer 14

The legislature should be interpreted to exclude the rights in question ( personal belongings taken away from him)

Question 15

What does the text based approach with reference to the golden rule of interpretation entail?

Answer 15

Plain meaning of words should be used if it is clear.
The interpreter may deviate from the plain meaning of words if it is vague, ambiguous, or misleading, or would result in absurd results.
Only then may the interpreter look at secondary aids and if they dont suffice, tertiary aids.

Question 16

What are the criticisms of the text based approach?

Answer 16

1. Interpreter is unable to use a wide range of aids
2. The intention of the legislature becomes dependant on how clear the language is to that specific court
3. There is little room for judicial law making as courts are reduced to mechanical interpreters of law.

Question 17

What is retrictive interpretation?

Answer 17

A way of interpreting legislation that limits its scope, this is to avoid giving legislation a meaning beyond what was intended by the legislature.The maxim cessante ratione legis, cessat et ipsa lex means that when the reason
for a law ceases to exist, the law itself also ceases to exist. This can be used to justify restrictive interpretation.
The euisdem generis rule states that general words following specific words are presumed to apply to the same things the specific words entails.
Such as in the case of S v Makwanyane the CC used restrictive interpretation with the Criminal Procedure Act to limit the death penalty to only be used in the most serious crimes such as murder.
In the case of National Coalition for Gay and Lesbian Equality v Minister of Home Affairs the CC used restrictive interpretation with the Immigration Act, making it only to apply to heterosexual couples, otherwise it would be given a meaning broader than what was intended by legislature.

Question 18

Question about asylum seekers and refugees main points

Answer 18

Such as in Saidi v Minister of Home Afffairs:
The right to asylum includes the right to have an asylum application considered fairly.
The government cannot exercise its powers in a way that violates the fundamental rights of asylum seekers.
The court must apply the principle of proportionality which means that the government should use its least restrictive means possible to reach its objectives.
The detention of asylum seekers is not proportionate to the objective of protecting the integrity of its boarders.

Question 19

what does the apartheid time judgement of Rossow v Sachs reveal about the idea of the intention of the legislature as a guide to the interpretation of legislation?

Answer 19

The court in Rossouw v Sachs adhered to a strict literal interpretation of legislation, emphasizing the importance of the ordinary grammatical meaning of the words used. This approach led to a limited view of the rights of detainees during the apartheid era.
The judgment suggested a presumption that legislation does not grant new rights and that any existing rights are to be interpreted restrictively. In the context of apartheid, this approach potentially contributed to the erosion of individual rights.
The court’s decision occurred during an era of parliamentary sovereignty, where Parliament’s power to make any law was considered supreme. The judgment reflected an acceptance of the limitations imposed by legislation, aligning with the government’s restrictive approach to individual rights during that time.
The court did not adopt a dynamic approach to statutory interpretation that would adapt to a shifting social, political, or legal landscape.
The court in did not adopt a purposive approach to interpretation, which involves considering the broader purpose and objectives of legislation. Instead, it focused on a literal reading of the statutes without delving into the underlying goals of the laws in question.

Question 20

What is retrospective legislation?

Answer 20

Applies to past events or actions.
Changes the legal consequences of actions that were legal when committed.
Individuals can be held accountable for actions that were legal at the time but are now illegal.
Deals with events that have already occurred.

Question 21

What is retroactive legislation?

Answer 21

Applies to future events or actions.
Does not impact the legal consequences of past events.
Deals with events that have not yet taken place.

Question 22

What is retrospective legislation?

Answer 22

Laws enacted with the intention to apply to events in the past.
Changes the legal consequence of past legal actions.
Individuals can be held accountable for crimes that were legal at the time they were committed but are now illegal.

Question 23

In which decision did the Appellate decision of the High Court remove coloureds from common voters roll?

Answer 23

Collins v Minister of the Interior

Question 24

Apartheid time judgement of Rossouw v Sachs

Answer 24

Apartheid-era case exploring legislative intent in depriving an interrogative prisoner of writing and reading materials.
The court focused on the circumstances of legislation enactment.
Concluded that legislative intent was to induce satisfactory answers, not to provide comforts.
Revealed parliamentary supremacy; courts bound to rule on procedures or legislative intent, not substance.

Question 25

Clerk to judge, give advice involving eviction of occupiers from the land they live on.

Answer 25

High Court case involving eviction, parties relying on Constitution, PIE Act, and common law.
Advised judge to apply the doctrine of subsidiarity.
Doctrine emphasizes consulting lower norms before higher ones.
Constitution as a broad framework; legislation more specific.
Recommended applying PIE Act first, respecting legislative role in transformation.

Question 26

S 10 of Act 40 of 2022 provides that the Act will come into operation on a date determined by the president. On 15 July 2022 the president determines a proclamation in the government gazette that the Act will come into operation on 30 September 2022. The presidents proclamation is invalid since the act of parliament in terms of which it was made has not come into operation yet.

Answer 26

False. Section 14 of the Interpretation Act provides that where a law confers a power to make rules or give notices, that power may be exercised at any time after the passing of the law for the purpose of bringing the law into operation.

Question 27

The Constitutional Court held in Veldman v Director of Public Prosecutions, Witwatersrand Local Division 2007 (3) SA 210 (CC) that the presumption against retrospectivity does not apply to statutory provisions that amend a court’s sentencing jurisdiction.

Answer 27

False. The Court in Veldman held that the presumption against retrospectivity will apply to a provision amending a courts sentencing jurisdiction if it has a substantial impact on a persons rights.

Question 28

In cases of potential conflict between provisions of two Acts of Parliament, theprovisions in the more recent Act will always prevail over those in the older Act.

Answer 28

False. If the provision in the more recent act is of a general nature and the provision in the older act is more specific, the older more specific will prevail.

Question 29

Your client, A, is charged with an offence in contravention of Act 10 of 1998 which was allegedly committed on 30 December 2021. The Act is repealed with effect from 8 April 2022. A is entitled to have the charges against her dropped, as the legislation in terms of which she is charged is no longer in operation.

Answer 29

False. S 12(2) of the Interpretation Act provides that the repeal of legislation does not have a retroactive effect, and actions that started by the time the law was repealed must be completed as if the legislation is still in force.

Question 30

The Appellate Division in Rossouw v Sachs 1964 (2) SA 551 (A) held that a prisoner or detainee is entitled to all the personal rights that are not expressly taken away by an Act of Parliament.

Answer 30

False. The court held that even though the legislation did not expressively take away the detainees right to reading and writing materials, the intention of legislature was to induce the detainee to talk. So the legislation had to be interpreted to exclude the rights in question.

Question 31

3 Criticisms of the golden rule of interpretation?

Answer 31

The ordinary meaning of words is regarded as the primary index of legal meaning, but words dont always have a ordinary meaning which can lead to ambiquities.
Contextual aids to interpretation are overlooked.
Leaves little room for judicial law making and courts are forced to play a mechanical role in applying the ordinary meaning of words.

Question 32

What is a permeptory provision and what are the consequences of not complying with such a provision?

Answer 32

Legal provision that requires strict commpliance, consequences can be severe like invalidity of the stransaction.

Question 33

What is a derectory provision and what are the consequences of non compliance?

Answer 33

A legal provision hat provides guidance on how to proceed but does not require strict compliance, contract may still be valid but party that failed to comply may be subject to consequences.

Question 34

What is the deciding factor to determine whether a provision is peremptory or derectory?

Answer 34

The intention of the legislature.Courts will consider the language of the provision, the purpose of the provsion and the consequences for non compliance.

Question 36

In which decision did the accused use the trial to put government on trial for its apartheid policy , using the court as a site for political change?

Answer 36

The State v Nelson Mandela and Others

Question 37

Which Constitution did away with the principle of parliamentary supremacy?

Answer 37

Interim Constitution of 1993

Question 38

In which doc does the phrase “South Africa belongs to all who live in it” which can be found in the preamble to the Constitution, has its origin?

Answer 38

Freedom Charter

Question 39

Why was the 2 stage transitioning process agreed on

Answer 39

There was differences between main negotiating parties as to who should draft a final constitution
NP wanted it to be unelected MPNF, ANC was of the opinion that MPNF was not a credible body

Question 40

What is meant by horizontally, affirmative state duties, social rights and substantive concept of equality?

Answer 40

Horizontally:Liberal constitutions only protect citizens from unlawful state interference, SA alos protects individuals from unlawful private interference.
Affirmative state duties: Liberal Constitutions prevent state from taking away social goods, property etc.
Social rights and substantive concept of equality: Power of the community must be used to achieve the goal of substantive equality.

Question 41

What is representative democracy?

Answer 41

Idea that decision saffecting the political community must be made by people empowered by the people to do so

Question 42

4 characteristics of the South Africa Act of 1909, The Union Constitution?(and a description)

Answer 42

1. Unitary system
2. Leader of the majority party becomes Prime Minister, executive head of government
3. There is a symbolic head of state, government general representing the crown
4. Parliament consists of 2 houses: the House of Assembly and the Senate, legislation has to be passed by both houses.