Theoretical foundations CH5

Question 1

The General Principles of Hermeneutics

Answer 1

The science of understanding, or more specifically, as the theory of the interpretation of texts.

Question 2

Exegesis and Hermeneutics

Answer 2

Exegesis -Relates to biblical interpretation Hermeneutics Statutory interpretation

Question 3

Similarities Between Exegesis and Hermeneutics

Answer 3

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

Question 4

Picasso’s painting analogy

Answer 4

Text + Context = Understanding

Question 5

The Influence of Critical Theories in General

Answer 5

Critical legal scholars reject the formalist position that law is
rational, objective and neutral.

Question 6

Structuralism.

Answer 6

claims that the meaning of language can be ascertained and pinned down from its grammatical structure,
thereby supporting literal interpretations and positivism.

Question 7

Deconstruction

Answer 7

a text can never acquire a fixed final
meaning, because the meaning depends on the set of codes,
social and cultural and political.

Question 8

The Linguistic turn

Answer 8

Meaning is not discovered in a text but is made in dealing with
the text.

Question 9

The Literal approach

Answer 9

If the meaning of the text is clear it should be applied and,
indeed, equated with the legislatures intention.

Question 10

The Golden Rule of Interpretation

Answer 10

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

Question 11

Tertiary Aids

Answer 11

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).

Question 12

Adoption of the textual approach in South Africa
De Villiers v Cape Divisional Council

Answer 12

This was a shift because the Roman-Dutch rules favoured the
purpose-orientated or functional approach.

Question 13

R v Kirk

Answer 13

Words come before context

Question 14

Criticism of the Textual Approach

Answer 14

1) Presumptions and context is ignored.
2)The approach is too narrow
3) The literal approach is inherently subjective and depends on the
interpreter’s understanding of the words.
4) Very few legislative texts are so clear that only one interpretation
is possible.
5) The textual approach leaves very little room for judicial law
making, as courts are only allowed to interpret.

Question 15

The Maxim

Answer 15

It is the function of the court to interpret and not to make
law.

Question 16

The Text-in-Context Approach

Answer 16

The purpose or object of the legislation is the prevailing
factor in interpretation.

Question 17

The Mischief Rule

Answer 17

This rule acknowledges the application of external aids. (Questions)

Question 18

Jaga v Dönges

Answer 18

1) From outset, interpreter can take wider context of the
provision into consideration.
2) Regardless of the clarity of the language, the wider contextual
factors must be considered.
3) Sometimes this wider context may be more important.
4) Once the meaning of the text and context is determined, it
must be applied.

Question 19

S v Zuma

Answer 19

1) The importance of words in constitutional interpretation was
stressed.
2)There is no primary, secondary or tertiary hierarchical order
of importance of aids.

Question 20

University of Cape Town v Cape Bar Council

Answer 20

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.

Question 21

Constitutional Supremacy

Answer 21

1) Prior to 1994-Textual Approach
2)Post 1994
3)Textual Approach removed using:
Section 1, Section 2, Section 7, Section 8, Section 36, Section 39

Question 22

The Interpretation Clause

Answer 22

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.

Question 23

S v Makwanyane

Answer 23

Preamble provides for democratic values, social justice and
fundamental human rights.
Courts must protect these values.

Question 24

Foundations to a Constitutional State

Answer 24

1) Formal Foundation (Separation of Powers, Checks and Balances,
Principle of Legality)
2) Material or Substantive Foundation (Fundamental values such as
justice and equality)

Question 25

The Language Aspect

Answer 25

It acknowledges importance of the role of the language of the legislative text.

Question 26

Structure and context: The systematic aspect

Answer 26

This method is concerned with the clarification of the meaning of a
particular legislative provision in relation to the legislative text as a
whole.

Question 27

Teleological Interpretation: The value-based aspect

Answer 27

It emphasizes the fundamental constitutional values and a value
orientated interpretation

Question 28

Historical Aspect

Answer 28

This method refers to using the historical context of the legislation.

Question 29

Comparative Aspect

Answer 29

The process during
which the court examines the interpretation of similar legislation by
foreign courts, as well as international law.

Question 30

Bato Star Fishing v The Minister of Environmental Affairs and
Tourism

Answer 30

The Ngcobo Judgment
1) Concurred with the judgement but sought to emphasize the
importance of transformation.
2) Argues that the Constitution is the Supreme Law of the
Republic.