Judicial Lawmaking and Statutory Interpretation
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What is the principle of Iudicis est ius dicere sed non dare?

  • The court and legislature have equal powers.
  • The court's role is limited to interpreting the law, not making it. (correct)
  • The legislature has the power to interpret the law.
  • The court has the power to make laws.

    • What is the orthodox viewpoint in statutory interpretation?

  • The court and legislature have equal roles in statutory interpretation.
  • The court has a creative law-making function.
  • The legislature has the final say in statutory interpretation.
  • The court's role is limited to interpreting the law, without making any changes. (correct)

    • What is the main argument against the court's creative law-making function?

  • The court does not have the necessary expertise.
  • The court is not accountable to the people.
  • The court is usurping the function of the legislature. (correct)
  • The court is not elected by the people.

    • According to Pass and Prosper 57 v Du Plessis, what does the court's creative role not mean?

    <p>The court takes over the legislative powers of the legislature.</p> Signup and view all the answers

    What is the theoretical foundation of the court's law-making role, according to Labuschagne?

    <p>The court has a peripheral and subordinate law-making role.</p> Signup and view all the answers

    What is the result of the court applying the legislation, according to Labuschagne?

    <p>The legislation becomes real and completely functional.</p> Signup and view all the answers

    What is the primary goal of statutory interpretation within the framework of the Constitution?

    <p>To uphold the aim and purpose of the legislation</p> Signup and view all the answers

    What is the role of the Courts in terms of the Constitution?

    <p>To give specific content to constitutional values and principles</p> Signup and view all the answers

    What is the result of the Constitution providing flexibility to the courts?

    <p>The courts have more flexibility in statutory interpretation</p> Signup and view all the answers

    What is the core principle underlying modificative interpretation?

    <p>The aim and purpose of the legislation must support the modification</p> Signup and view all the answers

    What is one of the factors that restricts judicial law-making during statutory interpretation?

    <p>Democracy</p> Signup and view all the answers

    What is the purpose of considering factors that support and limit judicial law-making during statutory interpretation?

    <p>To ensure that the core principle underlying modificative interpretation is upheld</p> Signup and view all the answers

    What is the principle that assumes the legislature does not intend to create futile legislation?

    <p>Common-law presumption</p> Signup and view all the answers

    What occurs when the initial meaning of a text does not fully correspond to the purpose of the legislation?

    <p>Modificative interpretation</p> Signup and view all the answers

    What is the purpose of Restrictive Interpretation?

    <p>To reduce the scope of the legislation to align with its purpose</p> Signup and view all the answers

    What does the maxim 'Cessante ratione legis, cessat et ipsa lex' mean?

    <p>If the reason for the law ceases, the law itself also falls away</p> Signup and view all the answers

    What is the outcome when the reason for a law ceases to exist?

    <p>The law remains in force until repealed by the legislature</p> Signup and view all the answers

    What was the outcome of the case R v Detody?

    <p>The common-law rule that adultery is a crime was abolished</p> Signup and view all the answers

    What is the basis for extending legislation to unspecified instances?

    <p>Sameness of reason</p> Signup and view all the answers

    What is the court's stance on supplying an omission through interpretation by analogy?

    <p>It cannot be supplied through interpretation by analogy</p> Signup and view all the answers

    What is the limit of the judiciary's discretion in modifying the meaning of legislation?

    <p>It is limited to the frame of reference of the purpose</p> Signup and view all the answers

    What happens when the court cannot modify the meaning of legislation?

    <p>The court will apply the legislation as it reads</p> Signup and view all the answers

    What is the consequence of failing to harmonize the text, purpose, and particular facts of a legislation?

    <p>Concretisation is defective</p> Signup and view all the answers

    What was the applicant's request in the Ex Parte Dow case?

    <p>To declare his marriage null and void</p> Signup and view all the answers

    What did the plaintiff fail to prove?

    <p>That there was another reasonably practicable method of cleaning the dam</p> Signup and view all the answers

    How is the Legislature's intention determined?

    <p>By evaluating how rights and duties will be exercised</p> Signup and view all the answers

    What happens when the use of legislation results in damage to a person's rights or property?

    <p>It is clearly the intention of the legislature that it should occur in that way</p> Signup and view all the answers

    Why did the plaintiff's claim fail?

    <p>Because the plaintiff did not prove there was another reasonably practicable method of cleaning the dam</p> Signup and view all the answers

    What is the tone of the disclaimer?

    <p>Apologetic and humble</p> Signup and view all the answers

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