Chapter 1 PDF

1.1 Legislation as source of law In order to understand and apply the rules, principles and canons required to interpret legislation (Part 2), lawyers need to be proficient in the technical ‘black letter’ or ‘nuts and bolts’ aspects of legislation explained in Part 1. These aspects include the vario...

1.1 Legislation as source of law In order to understand and apply the rules, principles and canons required to interpret legislation (Part 2), lawyers need to be proficient in the technical ‘black letter’ or ‘nuts and bolts’ aspects of legislation explained in Part 1. These aspects include the various types and categories of legislation, the structural parts or components of legislation, and the sometimes confusing ‘codes’ used in legislative texts, as well as the challenging interrelationship between existing old order legislation and new post-1994 laws. The law consists of all forms of law (common law, statute law, indigenous (customary) law, case law), while a law is a written statute enacted by those legislative bodies which have the authority to make laws. Legislation (‘enacted law-texts’ or statute law) comprises all the different types of enacted legislation, such as Acts of Parliament, provincial legislation, municipal by-laws, proclamations and regulations. An Act (upper case) refers to a parliamentary statute or the legislation of a provincial legislature. An act (lower case) refers to conduct or action such as the act of a government official or an organ of state. The common law is composed of the rules of law which were not originally written down, but came to be accepted as the law of the land. The common law is made up of the underlying original or basic legal principles. South African common law is known as Roman-Dutch law and most of it originated during the seventeenth century in the erstwhile province of Holland. Common law needs to be distinguished from codifications, which are statutory compilations of all the legal principles relating to a particular branch of the law (eg a criminal Page 4 code). The common law may be changed by original legislation, but if there is no statutory law on the subject, the common law applies. Indigenous law refers to the traditional law of the indigenous black people of South Africa. This may either be unwritten customary law, or codified (statutory compilations). Case law (also referred to as ‘judicial precedent’) is the law as various courts in specific cases before them have decided on it. (For law students, the term ‘case law’ usually refers to those cases they had to read, but did not, and had to discuss in the examination, and could not!) The precedent system (also known as stare decisis) means that judgments of higher courts bind lower courts and courts of equal status. Statute law (legislation) plays an ever-increasing role in common-law legal systems. In the past, legislation may have been viewed as exceptions to the common law, but the rapid changes in modern society have stretched the adaptability of common-law rules to their limits. Since the common law cannot deal with the regulation of new technological and scientific developments such as electronic funds transfers, stem cell research and cross-border human trafficking (to name only a few), more and more legislative intervention is necessary and inevitable. As a result, legislation is the most important source of new law in most modern societies. In South Africa, there is, of course, a more fundamental reason for a thorough understanding of the technical aspects of legislation. In a strictly legalistic sense, apartheid was an ideologically underpinned and public-law driven system, based on a web of interlocking legislation. The dismantling of this legal edifice not only requires an excellent knowledge of statute law, but a great deal of new legislation is needed to remedy the situation in the new constitutional dispensation. 1.2 What is interpretation of statutes? Interpretation of statutes, or perhaps more precisely, the juridical understanding of legislation, deals with those rules and principles which are used to construct the correct meaning of legislative provisions to be applied in practical situations. Du Plessis (2002: 18) explains it as follows: [S]tatutory (and constitutional) interpretation is about construing enacted law-texts with reference to and reliance Page 5 on other law-texts, concretising the text to be construed so as to cater for the exigencies of an actual or hypothesised concrete situation. In other words, it is about making sense of the total relevant legislative scheme applicable to the situation at hand. But why do we need special rules of interpretation? Lawyers all have (or should have!) the necessary language skills to read and understand legislation. You just read the legislation carefully and apply it to the situation at hand. How difficult can it be? Should you encounter an ambiguity in the text, you can always use a dictionary. However, it is not that simple. Interpretation of legislation requires more than a mere reading of the provisions. It is not a mechanical sequence of join-the-dots or paintingby-numbers. For example: During the 1950s Professor Lon Fuller (1958: 664) provided a very interesting hypothetical example to illustrate the inherent difficulties of language (words) in legislation. At the same time, he asked uncomfortable questions about issues such as morality, poverty and power (in other words, value judgements). Suppose a law is passed that states that it is a criminal offence to sleep in any railway station. Common sense tells us that the law is intended to prevent homeless people (vagrants or squatters or tramps) from using railway stations as shelters. Two men appear in court on a charge of contravening the law in question. One man is a regular commuter who sat upright, but dozed off while waiting for the train; the other man, who brought a blanket to the station and settled down for the night on one of the benches, was arrested while still fully awake. How should the court interpret and apply the legislation? 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 circumstances? How much of these may the court take into consideration? All of a sudden interpretation of statutes is not that simple and straightforward any more. Page 6 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 life. Does the supreme Constitution guarantee immortality? That is absurd, since we all know that it is a biological impossibility. 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 unconstitutional. Does this decision mean that a person may not be killed in self-defence? Not at all: In Makwanyane and Ex parte Minister of Safety and Security: in re S v Walters 2002 (4) SA 613 (CC) the Constitutional Court held that the existing right to kill a person in self-defence was not abolished by the Constitution. On the other hand, the decision of the Constitutional Court in Soobramoney v Minister of Health, KwazuluNatal 1998 (1) SA 765 (CC) effectively means that the constitutional right to life does not mean the state has a duty to keep all terminal patients alive in all circumstances. Furthermore, in Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) the Constitutional Court linked the constitutional rights to life and the freedom and security of the person to the constitutional duty imposed on the state and all of its organs not to perform any act that infringes these rights. Now the phrase ‘Everyone has the right to life’ does not seem so simple and unambiguous anymore! This simple example makes it clear that there is more to interpretation of legislation than reading and spelling skills, and words, phrases and grammar. The supreme Constitution, the context of legislation, and competing human rights and fundamental values also form part of this process: a very intricate, nuanced and multi-faceted process. Du Plessis (1999: 230) explains this aspect very well: One cannot understand a legal text merely by concentrating on its language. You must also understand how law works and what it seeks to achieve in order to understand how it communicates with you and what it wants to tell you. Page 7 In the British case of Corocraft Ltd v Pan American Airways Inc. 3 WLR 714 732 Donaldson J explained interpretation of legislation as follows: In the performance of this duty the judges do not act as computers into which are fed the statutes and the rules for the construction of statutes and from which issue forth the mathematically correct answer. The interpretation of statutes is a craft as much as a science and the judges, as craftsmen, select and apply the appropriate rules as the tools of their trade. They are not legislators, but finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further processing. The interpretation of legislation is not a mechanical exercise during which predetermined formulae, well-known maxims and careful reading will reveal the meaning of the legislative provision. Technical aspects (eg the structure of the legislation and language rules) must be applied in conjunction with substantive aspects (eg constitutional values and fundamental rights). Apart from the inherent difficulties of language and meaning, the interpreter has to keep a number of other related issues in mind: The provision must be read, understood and applied within the framework of the supreme Constitution and the Bill of Rights. What is the impact of other legislation (eg the Promotion of Access to Information Act 2 of 2000, the Promotion of Administrative Justice Act 3 of 2000 and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000)? Is the legislation that must be interpreted still in force? If still in force, has it been amended since? If, for instance, a provision in an Act of Parliament is to be interpreted, it must be read with the rest of the Act, including its definition section and possibly its schedules as well. Regulations may have been issued in terms of the particular provision, which have to read with the enabling legislation. Are those regulations valid? What is the context (general background or surrounding circumstances) of the legislative text? Other external aids (eg dictionaries or commission reports) may be used to establish the meaning of the legislation. Sometimes the interpreter will be confronted by the results of poor drafting, conflicting provisions or a lack of resources to research the current law. Page 8 Make no mistake: interpretation of legislation is not easy, quick or mechanical. It not only requires excellent language skills, but the interpreter must also have a very good knowledge of the law and where to find it. This means research: reading reported cases (lots of them!), finding and analysing the latest Acts and regulations, and keeping up to date with new developments in the law. Practical example: As has been pointed out, interpretation of statutes is not easy. Take a look at the definition of a ‘firearm’ in section 1 of the Firearms Control Act 60 of 2000: In this Act, unless the context indicates otherwise—... ‘firearm’ means any— (a)device manufactured or designed to propel a bullet or projectile through a barrel or cylinder by means of burning propellant, at a muzzle energy exceeding 8 joules (6 ft-lbs);... What is muzzle energy of 8 joules (6 ft-lbs)? Muzzle energy is the kinetic energy of the bullet when it exits the barrel. To know the muzzle energy, you need to know the muzzle velocity (the speed of the bullet when it exits the barrel), the mass of the bullet, and a lot of mathematics! Muzzle energy (in ftlbs) is calculated as follows: Muzzle velocity (in feet per second)2 ÷ 450240 x bullet weight in grains. One grain =.064789 gram, and one ft-lb muzzle energy = 1.356 joule. Did the legislative drafters know or understand this definition? Do you think the prosecutors, legal practitioners and the judiciary understand the definition? To cut a long story short—there is more to interpretation of legislation than merely glancing through the words in the text! Legalese Bad drafting and legalese is another problem. ‘Legalese’ refers to the perplexing and specialised language (or social dialect) used by lawyers in legal documents, incomprehensible to the non-lawyer. Somebody once defined it as ‘the language of lawyers that they would not use in ordinary communications but for the fact that they are lawyers’. It is characterised by wordiness, Latin expressions, passive verbs, lengthy sentences Page 9 and legal doublets (stringing together two words to convey a single legal concept such as null and void, fit and proper, perform and discharge and terms and conditions). Why do drafters use verbose language? Maybe it is part of a professional mystique, compelling lawyers to write in a complicated and learned style in order to maintain an aura of profound importance. Lord Radcliffe (1950: 368) explained the use of legalese as follows: It seems to me that a sort of hieratic language has developed by which the priests incant the commandments. I seem to see the ordinary citizen today standing before the law like the laity in a medieval church: at the far end the lights glow, the priestly figures move to and fro, but it is in an unknown tongue that the great mysteries of right and wrong are proclaimed. Yet, despite the efforts of the advocates of more understandable plain language in legal drafting, interpreters still have to deal with convoluted language in legislation. Just imagine you have to interpret the following provisions: Section 1 of the Orange Free State Civil Protection Ordinance 10 of 1977 was a somewhat ridiculous attempt to define a ‘disaster’: In this Ordinance, unless the context otherwise indicates—‘disaster’ means a disaster or a state which is not a state of emergency or a state of disaster and which, in the opinion of the Administrator or of the local authority concerned, is a disaster, as defined in section 1 of the Act, or is likely to develop into such a disaster; Or even worse, another potential tongue-twister was section 1(4) of the previous Labour Relations Act 28 of 1956: The definition of ‘unfair labour practice’ referred to in subsection (1), shall not be interpreted either to include or exclude a labour practice which in terms of the said definition is an unfair labour practice, merely because it was or was not an unfair labour practice, as the case may be, in terms of the definition of ‘unfair labour practice’, which definition was substituted by section 1(a) of the Labour Relations Amendment Act, 1991: provided that a strike or lock-out shall not be regarded as an unfair labour practice. 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 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 legislation 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 legislation 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—... (b)reducing and ameliorating any disadvantages experienced in accessing any supply of goods or services by consumers—... (iv)whose ability to read and comprehend any advertisement, agreement, mark, instruction, label, warning, notice or other visual representation is limited by reason of low literacy, vision impairment or limited fluency in the language in which the representation is produced, published or presented; What is in a name: purpose or intention? As explained earlier, interpretation of statutes is about the juridical understanding of legislation. The interpreter has to determine what the legislation has to accomplish in the legal order. Case law and most of the older sources refer to this as Page 11 the ‘intention of the legislature’. Other sources prefer the terms ‘purpose of the legislation’ or the legislative scheme, and so on. The term ‘intention of the legislature’ is closely linked to the principle of sovereignty of parliament. Parliament was the sovereign lawmaker in the Republic and legislation reflected a parliamentary legislative intention. As one of the influential proponents of the intention theory, Steyn (1980: 1) defined statutory interpretation as the process during which the will or thoughts of the legislature are ascertained from the words used by the legislature to convey that will or thoughts. But it is difficult to picture such a collective intention exercised by all the members of a legislative body: The legislature is composed of a large number of persons, all of whom take part in the legislative process. As part of the democratic legislative process, 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 legislature. Some members will support legislation for the sake of party unity, though they may be personally opposed to a Bill. This means that the intention of the legislature is subject to what the individual members of the legislative body, under pressure from their party caucus, had to intend! Parliamentarians are elected politicians, and they do not necessarily understand the complex and technical legislation which they adopt. 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 departments. Some members of the legislative body may even be absent when voting on draft legislation takes place. To put it another way: the intention of the legislature refers to the fictional collective intent of the majority of the legislative body present at the time when the vote took place, expressing their will within the constraints of the voting guidelines laid down by the caucus of the ruling party in the legislature, and voting for draft legislation—formulated by legal drafters on the advice of bureaucrats from a government department—which had been approved earlier by the state law advisors! In the final analysis, the correct interpretation of legislation does not depend on which term is used. What is important, Page 12 though, is how that purpose (or intention or legislative scheme or aim of legislation) is ascertained and construed. The correct way to interpret legislation is discussed in greater detail in Part 2 of this book. 1.3 The new constitutional order For many years statutory interpretation was the Cinderella of South African jurisprudence. During the late 1970s and the 1980s, in particular, the unsystematic application of the rules and principles of statutory interpretation was criticised by academics. Traditionally, interpretation of statutes in South Africa was saddled with unnecessary (and unacceptable) baggage: a confusing system of maxims and canons of interpretation, tentative principles, a golden rule, overriding principles, so-called primary, secondary and tertiary rules, manifest and clear meanings, rules of Roman-Dutch law influenced by English law, misconceptions about the structure and meaning of language, exceptions to the rule, as well as differences of opinion about how the so-called intention of the legislature should be ascertained. The acceptance and legitimacy of the new supreme Constitution may have been compromised if the application of the fundamental rights was hampered by the orthodox interpretation of ‘ordinary’ legislation. A supreme constitution is the highest law (lex fundamentalis) in the land. Although parliament remains the highest legislative body in a system of government with a supreme constitution, any legislation or act of any government body (including parliament) which is in conflict with the constitution will be invalid. However, constitutional supremacy does not imply judicial supremacy. The courts are also subject to the constitution and merely act as the final guardians of the values and principles embodied in the constitution. Traditionally, the South African rules of statutory interpretation were based on the sovereignty of Parliament. In such a system, Parliament is not only the highest legislative body, capable of enacting any laws it wishes, but no court may test the substance of parliamentary Acts against standards such as fairness or equality. This was the system of government which operated in South Africa before the interim Constitution took effect. In 1992 Devenish (1992: 290–291) articulated the need for a new method of statutory interpretation in a constitutional democracy as follows (emphasis added): Page 13 The constitutional doctrine of parliamentary sovereignty, the jurisprudence of positivism, and the political hegemony of Afrikaner Nationalism have greatly influenced the methodology and theory of interpretation in South Africa. Steyn’s advocacy of the subjective or intention theory of interpretation facilitated a sympathetic interpretation of apartheid and draconian security legislation... [T]he demise of the apartheid state and the emergence of a new political and legal order involving a negotiated and legitimate constitution with a entrenched and justiciable bill of rights must of necessity influence the process and theory of interpretation. The courts will be able, in the new constitutional and political dispensation, (which will of necessity be cleansed of all race discrimination laws) to exercise their powers to test and invalidate legislation. In order to do this all statute law will have to be interpreted to be compatible with the letter and the spirit of the constitution. This means that a value-coherent theory of interpretation should become increasingly prevalent. In effect the introduction of a justiciable bill of rights is likely to herald a new methodology and theory of interpretation of statutes. On 27 April 1994, the Constitution of the Republic of South Africa 200 of 1993 (hereafter ‘the interim Constitution’) came into operation. Apart from its constitutional implications and political ramifications, it also changed the interpretation of statutes as we knew it. Not only was the principle of parliamentary sovereignty replaced by constitutional supremacy, but the interpretation clause stated that the spirit and purport of the fundamental rights had to be taken into account during the interpretation of statutes. In other words, the courts can no longer ignore value judgements. Since the commencement of the interim Constitution, even the rules of statutory interpretation have been influenced by the new constitutional order. The critical questions asked by academics were no longer theoretical reflections. Suddenly the correct method of statutory and constitutional interpretation formed the centre of the debate about the protection of fundamental human rights! On 4 February 1997, the Constitution of the Republic of South Africa, 1996 (hereafter ‘the Constitution’) came into operation. Those principles of the interim Constitution which transformed statutory interpretation were retained in the Constitution of 1996. Apart from the constitutional values, the interpretation of statutes was transformed by six provisions of the Constitution Page 14 in particular: section 1 (the foundational provision); section 2 (the supremacy clause); section 7 (the obligation clause); section 8 (the application clause); section 36 (the limitation clause) and section 39 (the interpretation clause). These provisions, as well as the constitutional values, are discussed fully in later chapters.