Constitutional Interpretation Principles

Study Notes

Courts should try to keep legislation constitutional and valid as far as possible.
The principle of "reading in" is used to change legislation to make it constitutional.

A more drastic remedy used by courts to change legislation to keep it constitutional.
The court "reads" something into a provision to rescue it or a part of it.
Should be applied with caution, as the court changes the legislation.

The court laid down principles to be considered before "reading in" or severance:
- Results must be consistent with the Constitution and its values.
- Results must interfere with the existing law as little as possible.
- Courts must define with sufficient precision how the legislative meaning should be modified.
- Courts should be faithful to the legislative scheme within the constraints of the Constitution.
- The remedy should not result in an unsupportable budgetary intrusion.
The court held that the constitutional defect in Section 25(5) of the Aliens Control Act can be cured by "reading in" the words "or partner, in a permanent same-sex life partnership" after the word "spouse".

The opposite of "reading in", where the court tries to rescue a provision from being unconstitutional by cutting out the offending part.
The goal is to keep the remainder of the provision constitutional and valid.

The High Court, Supreme Court of Appeal, or Constitutional Court may declare legislation unconstitutional in terms of Section 172 of the Constitution.
Legislation cannot be abrogated by disuse and remains in force until repealed or declared unconstitutional.

Legislation should be interpreted in a way that is in accordance with existing law, changing it as little as possible.
The legislature is free to change the common law, but must do so in a way that leaves no doubt that the new legislation has replaced the old common law.
If the legislature does not clearly indicate a change, the presumption applies and legislation must be interpreted in the light of the common law rules.