Theme 7 - A practical and inclusive method of Interpretation-structures and context Flashcards
Legislation must be construed within the total legal picture.
Explain legislation must be read as a consistent whole.
The holistic dimension.
To interpret a text in its context includes the intra-textual context (the enactment as a whole,
including its unique structure and legislative ‘codes’), as well as the extra-textual context (the
rest of the existing law and other contextual considerations that might be applicable).
Balance between text and context.
Discuss the balance between text and context.
The holistic dimension.
- In Jaga, Schreiner rejected the view that only when the language of the legislation was deemed to be ambiguous should the context of the legislation be taken into account.
- From the outset the purpose of the legislation, the statute as a whole and the surrounding circumstances should all be taken into account, together with the words of the provision.
Structure of legislation.
Discuss the structure of legislation.
The holistic dimension.
- It is a grammatical fact that punctuation can affect the meaning of the text.
- In R v Njiwa it was held that the punctuation must be taken into consideration during interpretation.
Conflicting legislation.
Discuss conflicts with the Constitution and the subsidiarity principles.
The holistic dimension.
- The subsidiarity principle refers to where it is possible to solve an issue without reaching a constitutional issue, the issue must be solved in that way (without recourse to constitutional argument).
- In an attempt to avoid unconstitutionality, competent courts involved in constitutional review may try, if reasonably possible, to employ a number of corrective techniques/remedial correction of legislation to try keep the legislation constitutional.
Conflicting legislation.
Discuss internal conflicts and the presumption against futile and nugatory legislation.
The holistic dimension.
- The presumption is that unless the contrary is clear, it is presumed that the legislature doesn’t intend legislation which is futile/nugatory.
- This forms the basis of the most important principle of interpretation: court must determine the purpose of legislation and give effect to it.
- Since statutory interpretation is a purposive activity, this presumption constitutes its very essence.
Conflicting legislation.
Discuss conflicts with other legislation.
The holistic dimension.
If there is conflicting legislation with the system of co-operative government, the national legislation will most of the time prevail over the provincial legislation, but in most cases, the provincial legislation may actually trump the national legislation.
The king can do no wrong.
Discuss the presumption that government bodies are not bound by their own legislation.
The holistic dimension.
- As a general rule, it is presumed that the government bodies are not bound by their own legislation, unless the legislation expressly/by necessary implication provides otherwise.
- This is not lawlessness of government, but a provision so that the government’s operations are not hampered by legislation.
The king can do no wrong.
Explain the principle of legality.
The holistic dimension.
Fedsure Life Assurance Ltd v Greater Johannesburg Metropolitan Council explains it as follow: the legislature and executive in every sphere is constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law.
The king can do no wrong.
What position does Botha propose?
The holistic dimension.
Government agencies and organs of state should always be bound by their own legislation, unless they can prove that they would be hampered in the execution of their duties and functions is bound by the legislation.
