Theme 9 - A practical and inclusive method of interpretation-history Flashcards
1
Q
Preamble to the Constitution.
Discuss the preamble to the Constitution.
The historical dimension.
A
- The Preamble should not be dismissed as a mere aspirational and throat-clearing exercise of little interpretive value.
- It connects up, reinforces and underlies all of the text that follows.
2
Q
Prior legislation.
Discuss prior legislation.
The historical dimension.
A
- In Morake v Dubedube it was held that if legislation had been partially repealed, the remaining provisions had to be interpreted in their context, which included the repealed provisions.
- Although the repealed provisions can no longer be applied, they may be used as part of the context of the remaining legislation.
3
Q
Preceding discussions.
Explain preceding discussions.
The historical dimension.
A
- Discussions about a specific Bill before Parliament, the debates and report of the various committees which form part of the legislative process and the reports of commissions of inquiry.
- One should distinguish between debates during the legislative process and commissions of inquiry after the passing of legislation.
4
Q
Preceding discussions.
Discuss the debates during the legislative process.
The historical dimension.
A
- The use of debates has not been accepted by the courts.
- In Bok v Allen and Mathiba v Moschke, the use of preceding discussions was rejected outright, although the court a quo in the Moschke case had taken preceding discussions into account.
- The ‘dislike’ against the inclusion of debates may be disappearing, in De Reuck v Director of Public Prosecutions, Witwatersrand Local Division the court referred to parliamentary debates, reports of task teams and the view of academics in interpreting an Act.
5
Q
Preceding discussions.
Discuss commission reports.
The historical dimension.
A
- In Hopkins v Bloemfontein District Creamery the court held that the prevailing law prevented the use of a commission report on the Companies Act.
- But in Rand Bank v De Jager the court decided that the report by the one-man commission of inquiry, which was largely responsible for the Prescription Act, was an admissible aid to interpretation of the Act.
6
Q
The mischief rule.
Discuss the mischief rule.
The historical dimension.
A
- The historical context of legislation is used to place provisions in perspective.
- The rule was laid down by Lord Coke in the famous Heydon case, which forms the cornerstone of the contextual approach.
- It poses four questions that must be answered to establish the meaning of legislation.
- In 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.
7
Q
The mischief rule.
What are the four questions that must be answered to establish the meaning of legislation?
The historical dimension.
A
- What was the legal position before the legislation was adopted?
- What was the mischief (defect) not provided for by existing legislation or common law?
- What remedy (solution) was provided by the legislature to solve this problem?
- What was the true reason for the remedy?
8
Q
Contemporanea expositio.
Discuss contemporanea expositio.
The historical dimension.
A
- Is an exposition (description) of the legislation at the time of its adoption or shortly thereafter.
- The marginal notes, punctuation, division into paragraphs and the first application may all serve as such.
- The implication is that the exposition was probably given by persons who were involved in the adoption of the legislation/shortly afterwards during its first application.
9
Q
Subsecuta observatio.
Discuss subsecuta observatio.
The historical dimension.
A
- Refers to the established use/custom which may originate at any time after the adoption, which may be in conflict with the contemporanea expositio.
- The long-term use of a measure may be the deciding factor where more than one interpretation is possible.
