Theme 11 - Judicial law-making during concretisation Flashcards
What is concretisation?
What is concretisation?
- Botha states that during concretization the legislative text and purpose of the legislation, as well as the fact of a particular situation are brought together to reach a conclusion.
- Du Plessis states that concretisation is the final stage in the interpretation process.
- Du Toit states that the essence of successful interpretation lies in the current realisation of the possible meanings of the original legislation. The meaning of the text is tantamount to its application in a given concrete situation.
Discuss the law-making function of the courts.
The law-making function of the courts.
The law-making function of the courts is one of the points of disagreement between textualists and contextualists in statutory interpretation.
The text-based viewpoint.
Explain the text-based viewpoint in terms of the law-making function of the courts.
The law-making function of the courts.
- The clear and unambiguous text of legislation is equated with the intention of the legislature.
- Only if the words seem ambiguous and inconsistent may the court use the secondary and tertiary aids to interpretation.
- The court should interpret legislation only within the framework of the words used by the legislature.
- Any modifications, corrections/additions should be left to the relevant legislature.
- In Engels v Allied Chemical Manufacturers this orthodox viewpoint was explained as: the basic reasoning behind this approach is that by remedying a defect which the legislature could have remedied the court is usurping the function of the legislature and making law, not interpreting it.
The text-in-context viewpoint.
Explain the text-in-context viewpoint in terms of the law-making function of the courts.
The law-making function of the courts.
- Also known as the purposive viewpoint, the contextual approach claims that the court does have a creative law-making function during statutory interpretation.
- However, such a role does not mean that the courts take over the legislative powers of the legislature.
The myth that courts only interpret the law.
Discuss the myth that courts only interpret the law.
The law-making function of the courts.
Modification/adaptation of the initial meaning of the text:
- Involves the exercise of a creative judicial discretion.
- This discretion is nothing more than the authoritative application of legal principle.
- Not an arbitrary expression of personal preferences, but an application of discretion within the boundaries and parameters of the purpose of the legislation.
- The legislature and judiciary are partners in the law-making process.
The myth that courts only interpret the law.
What does Du Plessis point out about the literalist viewpoint?
The law-making function of the courts.
- Points out that the literalist viewpoint that the courts will usurp the powers of the legislative body if and when legislation is interpreted creatively is based on a number of false assumptions.
- They confuse the modification of the meaning of legislation with the literal modification of the text/ language of the legislation.
- However, it must be pointed out that it is not the language of legislation that is modified, but the meaning of the legislation which is ‘adapted’ (reconstructed) to give effect to the legislative purpose.
The myth that courts only interpret the law.
What is the influence of the Constitution?
The law-making function of the courts.
In terms of judicial law-making section 39 of the Constitution (interpretation clause) provides the following role to the courts:
- The courts bear a responsibility of giving specific content to the wide and general values contained in the Constitution.
- In doing so, the courts will invariably create new law.
- Judicial law-making is not unbridled, judicial
officers are accountable and responsible for their actions on three levels.
Factors which support and limit judicial law-making.
Discuss the factors which support and limit judicial law-making during statutory interpretation.
The law-making function of the courts.
- There are important factors that both support and restrict the lawmaking discretion of the courts.
- These should ensure that courts apply their law-making function within the boundaries set by the core principle underlying an interpretation that is modification focused.
- The aim and purpose of legislation within the framework of the Constitution must support the modification.
Factors which support and limit judicial law-making.
Discuss the restrictions on the law-making discretion of the courts.
The law-making function of the courts.
The following factors restrict the law-making discretion of the courts:
- The principle of democracy.
- The principle of seperation of powers.
- The common law presumption that the legislature doesn’t intend to change the existing law more than is necessary.
- The rule of law principle, including the principle of legality.
- Penal provisions or restrictive provisions in the legislation, as well as the presumption against infringement of existing rights.
Factors which support and limit judicial law-making.
On which 3 levels are judges and judicial officers accountable and responsible for the judgement and actions?
The law-making function of the courts.
- Personal responsibility, they have to take personal moral responsibility for their decisions.
- Formal responsibility, consisting of the formal constitutional and other legislative controls over the judiciary.
- Substantive accountability, in that judicial decisions are open to public debate and academic criticism.
Factors which support and limit judicial law-making.
Discuss the factors which support judicial law-making.
The law-making function of the courts.
Factors supporting the law-making discretion of the courts during the interpretation of legislation are:
- The reading-down principle.
- Section 39(2) of the Constitution.
- The Bill of Rights is the cornerstone of the South African democracy and the state must respect, protect, promote and fulfil the rights in the Bill of Rights.
- Constitutional supremacy.
- The common-law presumption that the legislature doesn’t intend futile, meaningless and nugatory legislation.
- The independence of the judiciary.
Discuss the possibilities during concretisation.
Possibilities during concretisation.
- The concretisation has to be constitutional.
- Modificative interpretation (restrictive and extensive interpretation) may be applied only if it is permitted by the purpose of the legislation.
No problems with correlation.
Explain no problems with correlation.
Possibilities during concretisation.
There are no difficulties applying the provision to the facts within the framework of the purpose and the prescribed constitutional guidelines, and the process is completed.
Modification of the meaning is necessary.
Explain modification of the meaning is necessary.
Possibilities during concretisation.
- Modificative interpretation occurs when the initial meaning of the text doesn’t correspond fully to the purpose of the legislation.
- If the purpose indicates that modification is necessary (and possible), there are only 2 possibilities, either the initial meaning of the text is reduced (restrictive interpretation) or the initial meaning is extended (extensive interpretation).
Modification of the meaning is necessary.
When and why may the courts modify the initial meaning of the text?
Possibilities during concretisation.
- If it appears that the initial meaning of the text will not give effect to the aim and purpose of the legislation.
- Therefore, the purpose of the legislation in question must be determined in each case, even if the initial meaning of the text seems to be clear.
- The initial textual meaning must always be compared with the purpose of the legislation to ensure that effect will be given to the aim of the legislation concerned.
Modification of the meaning is necessary.
Discuss restrictive interpretation.
Possibilities during concretisation.
- Is applied when the words of the particular legislation embrace more than its purpose.
- Restrictive interpretation comes in 2 forms.
Cessante ratione legis, cessat et ipsa lex and Eiusdem generis.
Modification of the meaning is necessary.
Explain cessante ratione legis, cessat et ipsa lex.
Possibilities during concretisation.
- This maxim literally means that if the reason
for the law ceases (falls away), the law itself also falls away. - This rule cannot apply in our legal system in its current form.
Modification of the meaning is necessary.
Explain eiusdem generis.
Possibilities during concretisation.
- The meaning of words is qualified by their relationship to other words.
- Apart from the general requirements to be met before the initial meaning of the text may be modified, other prerequisites for the application of this rule must also be satisfied.
Modification of the meaning is necessary.
What are the other prerequisites for eiusdem generis that must also be satisfied?
Possibilities during concretisation.
- Can only be applied if the specific words refer to a definite genus/category.
- The specific words must not have exhausted the genus.
Modification of the meaning is necessary.
Discuss extensive interpretation.
Possibilities during concretisation.
The meaning of the text is extended to give effect to the purpose of the enactment.
Modification of the meaning is necessary.
Explain interpretation by implication.
Possibilities during concretisation.
- Interpretation by implication involves extending the textual meaning on the ground of a reasonable and essential implication which is evident from the legislation.
- Express provisions are thus extended by implied provisions.
Modification of the meaning is necessary.
What are the grounds of a reasonable and essential implication?
Possibilities during concretisation.
- Interpretation ex contrariis, implications arise from opposites.
- Ex consequentibus, if legislation demands or allows a certain result or action, whatever is reasonably necessary to bring about that express result or action may be implied.
- Ex accessorio, if a principal thing is forbidden/permitted, the accessory thing is
also forbidden/permitted. - A natura ipsius rei, implied inherent relationships.
- Ex correlativis, if a particular result is prohibited by legislation, it by implication prohibits all indirect means by which such a result can be achieved.
Modification of the meaning is necessary.
Explain interpretation by analogy.
Possibilities during concretisation.
if legislation applies to certain mentioned instances
and its purpose can apply equally to other unspecified instances, the legislation can be extended to such other instances on the basis of sameness of reason.
No modification of the meaning is possible.
Discuss no modification of the meaning is possible.
Possibilities during concretisation.
- The discretion of the judiciary to modify the initial meaning of the text is limited.
- If modification of the meaning is not possible, the court will have to apply the legislation as it reads.
- If legislation isn’t clear or doesn’t support a
modification of the initial meaning, the legislature has to rectify it. - If the court cannot supply an omission in the particular legislation, the common law may be used, if necessary, to complete the concretisation process.
