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The ______ barked
dog
The ______ meowed
cat
South African common law is known as ______ law
Roman-Dutch
Common law needs to be distinguished from ______, which are statutory compilations of all the legal principles
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Indigenous law refers to the traditional law of the indigenous black people of ______ Africa
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Case law is also referred to as 'judicial ______'
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The precedent system is also known as ______
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Statute law plays an ever-increasing role in common-law legal ______
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One man is a regular commuter who sat upright, but dozed off while waiting for the train; the other man, who brought a ______ to the station and settled down for the night on one of the benches, was arrested while still fully awake.
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Surely the court cannot read the legislation in a literal sense. If not, why not? After all, the words are clear—or are they? What about the historical background and other surrounding ______? How much of these may the court take into consideration?
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All of a sudden interpretation of statutes is not that simple and ______ any more.
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Another example, closer to home: Take section 11 of the Bill of Rights in the Constitution as an example. It reads: Everyone has the right to ______. Does the supreme Constitution guarantee immortality?
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But, then, what does section 11 mean? Since the right to life forms part of an enacted law-text (the Constitution), how do the courts interpret it? In S v Makwanyane 1995 (3) SA 391 (CC) the Constitutional Court held that the right to life means that the state may not take a person’s life in retribution, and the death penalty was declared ______.
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Does this decision mean that a person may not be killed in ______?
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Some members of the legislature may oppose the legislation for various reasons, with the result that the adopted legislation ultimately reflects the intention of only the majority of the ______
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Some members will support legislation for the sake of party unity, though they may be personally opposed to a ______
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Parliamentarians are elected politicians, and they do not necessarily understand the complex and technical legislation which they ______
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A Bill introduced in the legislature is not drafted by the public representatives, but by legislative drafters and law advisers acting on the advice of bureaucrats from various state ______
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Some members of the legislative body may even be absent when voting on draft legislation ______
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The legislature is composed of a large number of persons, all of whom take part in the legislative ______
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In an almost desperate attempt to make sense of section 22(1)(d) and section 22(1)(bb) of the Compulsory Motor Vehicle Insurance Act 56 of 1972 (as amended several Page 10 times), Botha JA in Santam Insurance Ltd v Taylor 1985 (1) SA 514 (A) 523B and 526E expressed himself as follows on the confusion: In an attempt to escape from the prolixity which disgraces this piece of ______ I shall take a number of short cuts when referring to its provisions...In my opinion the man in the street would be at least as perplexed by the language used by the legislature as is the man on the Bench who is writing this judgment.Clearly, the judge was not impressed with the standard of drafting and the legalese used in the ______ which it had to interpret.As Botha & Bekink (2007: 34) point out, it is not always easy to use so-called ‘plain language drafting’ in ______ and other legal documents.However, even in South Africa, legislative drafters, legislatures and lawyers are becoming more aware of the need to draft legal documents in more understandable language.Practical example: Section 3(1)(b)(iv) of the Consumer Protection Act 68 of 2008 is a good example of an express legislative acknowledgement of the link between understandable language and access to justice: 3 Purpose and policy of Act (1) The purposes of this Act are to promote and advance the social and economic welfare of consumers in South Africa by—...
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Botha JA in Santam Insurance Ltd v Taylor 1985 (1) SA 514 (A) 523B and 526E expressed himself as follows on the confusion: In an attempt to escape from the prolixity which disgraces this piece of legislation I shall take a number of short cuts when referring to its provisions...In my opinion the man in the street would be at least as perplexed by the language used by the legislature as is the man on the Bench who is writing this judgment.Clearly, the judge was not impressed with the standard of drafting and the legalese used in the __________ which it had to interpret.
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As Botha & Bekink (2007: 34) point out, it is not always easy to use so-called ‘plain language drafting’ in __________ and other legal documents.
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However, even in South Africa, legislative drafters, legislatures and lawyers are becoming more aware of the need to draft legal documents in more understandable __________.
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Practical example: Section 3(1)(b)(iv) of the Consumer Protection Act 68 of 2008 is a good example of an express legislative acknowledgement of the link between understandable __________ and access to justice: 3 Purpose and policy of Act (1) The purposes of this Act are to promote and advance the social and economic welfare of consumers in South Africa by—...
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In an attempt to escape from the prolixity which disgraces this piece of legislation I shall take a number of short cuts when referring to its __________...
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Study Notes
Legal Terminology and Concepts
- Common law distinguishes from statute law, which consists of statutory compilations of legal principles.
- Indigenous law encompasses the traditional legal systems of indigenous black people in Southern Africa.
- Case law, also known as judicial precedent, is essential in shaping legal interpretations and outcomes.
- The precedent system governs how prior rulings influence future legal decisions, establishing a consistent framework for interpretation.
Courts and Legislative Interpretation
- Courts face challenges in interpreting legislation that appears clear, often considering historical context and surrounding circumstances.
- The right to life is a fundamental aspect of the Constitution, as highlighted in the S v Makwanyane case, where the death penalty was declared unconstitutional.
- Legislative bodies may represent diverse views; however, adopted legislation may only reflect the majority's intent, leading to potential discontent among minority lawmakers.
Drafting and Complexity of Legislation
- Legislative drafters and law advisers, often with bureaucratic assistance, create Bills, indicating a divide between lawmakers and the drafting process.
- Legislative processes involve numerous participants, which can complicate the creation and voting of draft legislation.
- Legal language in legislation is often criticized for its complexity, making it difficult for the public and even judges to interpret effectively.
The Importance of Plain Language
- The call for plain language in legal writing aims to improve access to justice and understanding among the public.
- The Consumer Protection Act highlights the importance of comprehensible language in legislation to promote consumer welfare.
- Judicial remarks emphasize the need for clearer drafting to enhance transparency and interpretation of legal texts.
Summary on Legislative Drafting
- Legal documents suffer from prolixity, leading judges and the public alike to struggle with comprehension.
- There is a growing recognition of the need for understandable legal language in South Africa, fostering a movement toward clearer drafting practices.
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