IOS 2601 notes .pdf

IOS 2601 Notes Summary Interpretation of Statutes (University of South Africa) Scan to open on Studocu Studocu is not sponsored or endorsed by any college or university Downloaded by Sean De Lange ([email protected])  IOS2601- summary...

IOS 2601 Notes Summary Interpretation of Statutes (University of South Africa) Scan to open on Studocu Studocu is not sponsored or endorsed by any college or university Downloaded by Sean De Lange ([email protected])  IOS2601- summary notes Interpretation of Statutes 202 (University of South Africa) StuDocu is not sponsored or endorsed by any college or university Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected])  INTERPRETATION OF STATUTES SECTION A – GENERAL INTRODUCTION CHAPTER 1 – GENERAL INTRODUCTION Interpretaon of statutes is about making sense of the total relevant legislave scheme applicable to the situaon at hand Denion of interpretaon of statutes by Botha: The body of rules & principles used to construct the correct meaning of legislave provisions to be applied in praccal situaons Statutes cannot be interpreted in a mechanical / rule-like fashion –  Many rules of interpretaon (aka: maxims / canons / presumpons of interpretaon) overlap & cannot be neatly compartmentalised  “Legalese” – language used in legislaon is oen dicult & obscure  Circumstances & contexts in which legislaon must be applied dier  Courts have not developed clear & predictable paern of applicaon for certain rules  All interpreters are inuenced by their own history & background  Interpretaon involves value judgments Interpreter has to determine what the legislaon has to accomplish in the legal order – case law & older sources refer to this as the “intenon of the legislature” – other sources refer to it as “purpose of the legislaon” / “legislave scheme” - However, it’s dicult to picture such a collecve intenon exercised by all members of a legislave body because:  Legislature is composed of a number of persons – all of whom take part in the legislave process;  As part of the democrac legislave process some members of the legislature may oppose the legislaon for various reasons, with the result that the adopted legislaon ulmately reects the “intenon” of only the majority of the legislature;  Some members will support legislaons for the sake of party unity – though they may personally be opposed to a Bill = “intenon” of legislature is subject to what the individual members of legislave body, under pressure from their party assembly, “had to” intend  Parliamentarians are elected policians – they do not necessarily understand the complex & technical legislaon which they adopt;  A Bill introduced in the legislature is not draed by the public representaves, but by legislave draers & law advisers acng on advice of ocials from various state departments; and  Some members of legislave body may even be absent when vong on dra legislaon takes place The correct interpretaon of legislaon does not depend on which term is used – but more importantly, how the purpose (or intenon / legislave scheme / aim of legislaon) is ascertained & construed Botha refers to “correct” answers – however if the rules & principles of statutory interpretaon are as complex & results of interpretaon as unpredictable & from Botha’s own account of the non-mechanical nature of the interpretave process – UNISA has a beer denion = The body of rules & principles that are used to construct & jusfy the meaning of legislave provisions when they are applied in praccal situaons Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected])  THE NEW CONSTITUTIONAL ORDER Before 1994 Interim Const – interpretaon of statutes was based on sovereignty of Parliament –  Parliament as highest legislave body AND was capable of enacng any laws it wished  No court could test substance of parliamentary Acts against standards like fairness / equality Characteriscs of statutory interpretaon before 1994 interim constuon: 1. There was a confusing system of maxims & canons (standards / rules) of interpretaon; 2. It was saddled with the so-called primary, secondary & terary rules; 3. There were misconcepons about structure & meaning of language; and 4. There were dierences of opinion as to how the so-called intenon of the legislature should be ascertained Aer introducon of 1994 Interim Const –  Principle of parliamentary sovereignty was replaced by constuonal supremacy  Interpretaon clause stated that the spirit & purport of fundamental rights had to be taken into account during interpretaon of statutes – courts can no longer ignore value judgments  Rules of statutory interpretaon were inuenced by new constuonal order  Crical quesons asked by academics were no longer theorecal reecons  Correct method of statutory & constuonal interpretaon formed the centre of debate about the protecon of fundamental human rights Aer introducon of 1997 Const – Principles of interim const which transformed statutory interpretaon were retained Interpretaon of statutes was transformed by the following 6 provisions: 1. S1 – the foundaonal provision; 2. S2 – supremacy clause; 3. S7 – obligaon clause 4. S8 – applicaon clause 5. S36 – limitaon clause 6. S39 – interpretaon clause PROCESS OF INTERPRETATION: A TEACHING TOOL Dual nature of statutory interpretaon = a body of law AND a praccal acvity “Statutory interpretaon” means disnguishing btw: 1. Process / acvity of interpreng statutes on the one hand; and 2. The law (body of rules & principles) that regulates that process on the other The legal rules & principles cannot, by themselves, say anything about the acvity / process of interpretaon More is involved in the process than mere knowledge of the rule book (i.e. same disncon applies to acvity of cooking a meal – the process of cooking can & must be disnguished from the study of recipe books (i.e rule books on cooking) – a good cook not only knows many good recipes – she also knows how to cook) Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) Botha divides the process / acvity of interpreng legislaon into 3 phases: 1. Inial phase: Text of legislaon is read to discover its inial meaning – bearing in mind the CL presumpons & a balance btw the text & the context of the parcular legislaon Foll basic principles are used as a point of departure:  Supreme Const in general and the BOR in parcular are the cornerstones of legal order  Most NB principle of statutory interpretaon = to ascertain the purpose of the legislaon & apply it in the light of the BOR 2. Research phase: Purpose of legislaon is determined by studying all the factors & consideraons that may have a bearing on the parcular legislaon:  The legislave text;  Interpretaon Act;  CL presumpons;  Aids outside the legislave text; and  Other contextual factors 3. Concresaon phase: Legislave text, purpose of legislaon & facts of case are harmonised to bring the process to a just, purposive & meaningful end within the framework of the purpose of the legislaon Spirit, purport & aim of the fundamental rights in Const must be promoted SECTION B – THE LEGISLATIVE PROCESS CHAPTER 2 – WHAT IS LEGISLATION? 1 of the 3 formal sources of law in SA (the other 2 are judicial precedent & custom) - Excludes CL Note: the importance of disnguishing btw legislaon & other types of law lies in the fact that rules & principles of interpretaon apply on to the interpretaon of legislaon  Botha explains legislaon (aka “statute law”) as: Wrien law enacted by a body / person authorised to do so by the Const / other legislaon  Du Plessis refers to legislaon as: “Enacted law-text” “Enacted” : adopted/issued/promulgated ito prescribed legal requirements “Law” : has the force of law “Text” : wrien law  According to Interpretaon Act (ss1 and 2 read together) legislaon consists of: o Any law, proclamaon, ordinance, Act of Parliament, all by-laws, rules, regulaons or orders; and o Any other enactment having the force of the law  According to the Const, the legislave menu consists of the following: Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected])  o Naonal and provincial legislaon; o Proclamaons, regulaons & other instruments of subordinate legislaon; o Assigned legislaon; o Old order legislaon (dened in item 1 of Schedule 6 as any legislaon enacted before interim Const of 1994); o Legislaon in the new constuonal order since 1994; and o Municipal laws Note: Interpretaon Act and Const refer to – Legislaon emanang from certain geographical areas (naonal, provincial and local authories); AND A me-line (old order and post-1994 legislaon); AND Hierarchical disncon (i.e. instruments of subordinate legislaon) As such, “legislaon” must be understood, interpreted & applied ito a: (1) horizontal meline; (2) geographical space; and (3) vercal hierarchal authority 3 CATEGORIES OF LEGISLATION 1. CHRONOLOGICAL (HISTORY) Refers to history – legislaon is categorised ito a chronological meline a. Legislaon before 1806 o Statutes of the Staten-Generaal of Netherlands o Placaaten (statutes) of Holland Note: technically classed as legislaon – but became part of SA CL with no formal procedures required for their demise (ending) & they may be abrogated (nullied / abolished) by disuse = the denions of legislaon (statute law) & rules of statutory interpretaon do not apply to them b. Old order legislaon (before 1994 Interim Const) Dened in Item 2 of Schedule 6 of 1996 Const as any legislaon in force before the interim Const took eect in 1994 Divided into 2 historical eras: (1) Pre-Union legislaon (1806 – 1910) Legislaon adopted btw the Brish annexaon of the Cape in 1806 & creaon of Union of SA in 1910 = consists of legislaon of the Brish colonies & the Boer Republics Most of these had been repealed / incorporated into legislaon of the Union (1910 – 1961) & the Republic (since 1961) – however, according to the Department of Jusce and Constuonal Development, on 30 March 2007, some examples of pre-Union legislaon sll in force (and probably in conict with Const & other more recent legislaon) include:  Lords Day Observance Act of 1895;  Sunday Act of 1896; and Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected])   Police Oences Ordinance of 1902 (2) Legislaon btw Union & democrac era (1910 – 1994) Most of exisng SA legislaon – i.e.:  Acts of Parliament  Legislaon of the “independent homelands” / TBVC States (Transkei / Bophuthatswana / Venda / Ciskei)  Legislaon of former self-governing territories / homelands (Kangwane / Gazankulu / Lebowa / KwaZulu / Kwandebele / QwaQwa)  Provincial ordinances enacted by provincial councils of four “white-controlled” provinces (Transvaal / Cape / OFS / Natal from 1910 – 1986)  Proclamaons issued by administrators of the four “white-controlled” provinces aer the provincial councils were abolished (1986 – 1994)  By-laws enacted by local authories (town councils & municipalies); and  Other exisng delegated (subordinate) legislaon c. Legislaon in the new constuonal order since 1994 All legislaon enacted aer start of constuonal democracy in 1994 – includes:  Interim Const;  1996 Const;  Naonal legislaon (Acts of Parliament & delegated legislaon issued ito thereof);  Provincial legislaon (Acts of the 9 provincial legislatures & delegated legislaon issued in terms thereof;  Other regulaons & proclamaons; and  Legislaon by the new local authories created since 1994 2. HIERARCHICAL CATEGORIES Hierarchical order = 1. Top > Constuon – legislaon in conict with it is invalid 2. Middle > Original legislaon (parliamentary / provincial & municipal legislaon) 3. Boom > Subordinate legislaon (proclamaons & regulaons) Courts may test all legislaon (include new & old order Acts of Parliament) & government acon in light of the Const Note: Const used to be known as Const of RSA Act 108 of 1996 – however – Const CANNOT merely be referred to as an Act because it is: - the highest law in the land & incorporates the rights, aspiraons and values of its people – it is therefore degrading to number such an exalted document as an Act - it was adopted by the Constuonal Assembly & cered by the Constuonal Court (not just by Parliament as all Acts are so adopted) This mistake was corrected by the Citaon of Constuonal Laws Act = no Act number is associated with the Const – any reference to the Const of RSA Act 18 of 1996 in any law in force immediately prior to the commencement of this Act, must be construed as ref to the Const of RSA, 1996 3. STATUS Yields a disncon btw original & subordinate legislaon: Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) a. Original (primary) legislaon Status of original legislaon is based on 2 interrelated principles: (1) Enacted by democracally elected, deliberave (considerate), law-making bodies (they derive their authority to enact legislaon from the Constuon or an Act of Parliament) Middelburg case: status of legislaon is to a large extent determined by the deliberaon (discussions) during the law-making process (2) Law-making powers of above bodies are always founded in the Constuon – but are derived in 2 ways: i. Directly from the Const:  Parliament;  Provincial legislatures; and  Municipalies ii. Indirectly from the Const (assigned by another Act of Parliament / provincial legislature):  Provincial legislatures (addional legislave powers assigned by Acts of Parliament)  Municipalies (addional legislave powers assigned by Acts of Parliament & addional legislave powers assigned by provincial Acts) Acts of Parliament: Parliament is the highest legislave body – it may, subject to the Const, pass legislaon on any maer = courts may review (test) Acts of Parliament against the Const Some Acts of Parliament have a higher status than other original legislaon – however, they always have to be read in conjuncon with the supremacy of the Const & the Const Acts (see examples on pgs 22 – 23 of TB) New provincial Acts: Legislaon enacted by the 9 new provincial legislatures Legislave power is derived directly from:  Const = confers original legislave powers directly on provincial legislatures to pass legislaon for their provinces on maers reered to in Schedules 4 & 5 of Const; and  Acts of Parliament = Const provides for addional legislave powers to be assigned to the provincial legislatures on maers outside Schedule 4 & 5 Premier case: provincial legislature cannot enact legislaon dealing with its own nancial management because the Const does not directly authorise that in Schedules 4 & 5 nor has it been assigned to them by the Financial Management of Parliament Act Courts have power to review provincial Acts in light of the BOR Provincial Ordinances (1961 – 1986): Provincial Government Act of 1961 empowered the then 4 provincial councils (Transvaal / OFS / Natal & Cape) to enact provincial ordinances on maers re their respecve provinces Even though these provincial councils were abolished in 1986 by the Provincial Government Act of 1986, the ordinances were enacted by an elected body & could alter the CL & could even have retroacve force – as such, they represent a category of original legislaon (obviously, the ordinance applies only in the “old” geographical area of the former province) Legislaon of the former homelands: ITO the repealed Self-governing Territories Constuon Act of 1971 – the homelands (self- governing territories) were granted complete legislave capacity re certain specic maers (i.e. health & welfare / educaon / agriculture) = parcular legislave assemblies could enact any legislaon & eve repeal / amend parliamentary legislaon on these maers Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) (The following maers fell outside their legislave competence:  Defence & foreign aairs;  Repeal of the Self-Governing Territories Constuon Act; or  Proclamaons ito the Act which granted self-governing status to a parcular homeland) Legislaon of former TBVC states: Although the legislaon of former “independent” homelands did not form part of SA legislaon – it remains valid in the area where it previously applied because these territories have been reincorporated into the Republic = has the same force of law as provincial Acts, provincial ordinances & legislaon of former homelands in their respecve operaon HC has jurisdicon to test its constuonality against the provisions of the Const like that of any Act of Parliament New municipal legislaon: Const confers original legislave powers on municipal councils directly to pass by-laws for their areas on maers referred to in Schedules 4B & 5B of the Const w/o needing enabling parliamentary / provincial Acts Addional legislave powers may be assigned to municipalies by naonal / provincial legislaon Municipalies cannot delegate the making of a by-law = there is no “subordinate legislaon” category for the local sphere b. Subordinate legislaon Made by instuons (bodies) / funconaries (persons) that derive their power to enact such legislaon from original legislaon Acts of Parliament & other forms of original legislaon are somemes draed in broad terms – subordinate legislaon then adds the esh = because deliberave bodies are not connuously in session to deal with every possible detail in a changing society, they delegate some powers to others (President / Minister / Rules Board / Council of a university) – they are then vested with delegated legislave powers under enabling legislaon Parliament can amend an Act of Parliament only by means of an amending Act of Parliament which is long, expensive & cumbersome – this is something that can rather be changed frequently & quickly ito of subordinate legislaon (See example on pg 26 – 27 of TB re changes in fuel prices) Validity may be reviewed by the courts Scope of subordinate legislaon will depend on the provisions of the parcular enabling (authorising) legislaon Subordinate legislaon ito naonal legislaon: 1996 Const & an Act of Parliament may confer delegated legislave powers on certain persons / bodies (see examples on pg 27 of TB) New & exisng provincial proclamaons & regulaons: Before provincial councils were abolished in 1986 – certain ordinances enabled members of various provincial execuve commiees to issue regulaons & proclamaons (Provincial Government Act of 1986 abolished provincial councils and therefore any elected legislave bodies for the provinces & its accompanying original legislave competency – the legislave authority for the provinces was transferred to the Administrator of each province who enacted / amended / repealed provincial legislaon by proclamaon & could issue regulaons Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected])  under exisng / new parliamentary Acts / provincial ordinances / new proclamaons = as such – old order provincial legislaon consists of both original & delegated legislaon which may have to be read together The new provincial legislators will be able to empower other funconaries (i.e. Premier / members of a provincial Cabinet) to add the esh to provincial Acts through proclamaons / regulaons – these will have to sasfy the requirements & limits set by the enabling Act General notes on subordinate legislaon o During apartheid years – courts could declare subordinate legislaon (i.e. regulaons) invalid – but could not pronounce on the validity of original legislaon o Under the Const – courts can declare any category of legislaon invalid Disncon btw original and subordinate legislaon is sll relevant because: 1. Subordinate legislaon may not be in conict with original legislaon: Persons / bodies authorised to issue delegated legislaon may do so only within the framework of the authority specically bestowed on them by the enabling legislaon – if not – they’ve acted ultra vires (outside the scope of their powers) & the subordinate legislaon could be invalidated by the court 2. Subordinate legislaon owes its existence & authority to its enabling legislaon:  If enabling Act is declared unconst by the court – the subordinate legislaon issued ito such invalidated Act will also cease to exist unless the court orders otherwise  If the enabling Act is repealed – all the subordinate legislaon issued ito the repealed Act will also cease to exist (unless repealing Act expressly provides otherwise) 3. Parliament cannot confer a power on a delegated legislave body to amend / repeal an Act of Parliament 4. Although subordinate legislaon must be read & interpreted together with its enabling Act – the enabling Act may not be interpreted on the basis of the subordinate legislaon made under it APPLYING OLD ORDER LEGISLATION IN THE NEW CONSTITUTIONAL ORDER Item 2 of Schedule 6 of Const = All legislaon that was in force when Const took eect connues to be in force, subject to any amendment / repeal & consistency with the Const Old order legislaon that remains in force connues to be administered by the authories that administered it when the Const took eect, unless the Const spulates otherwise =  Majority of legislave enactments (i.e. those of the previous 4 former provinces / racially segregated local government structures / certain legislaon of the former homelands & TBVC states) are sll in the statute book but were replaced by 9 provinces & 283 municipalies – each of the new provinces has its own provincial legislature & execuve, generang new original & delegated legislaon – oen the new provincial boundaries overlap with old ones & somemes neighbouring local authories have been amalgamated – ALSO – in the apartheid era, local government was structured on a racial basis  The new authories at naonal, provincial & local level have to contend with both exisng & new legislaon, applicable to old & new areas of jurisdicon  Some of the old order legislaon has been repealed fully or only in part – while the greater part of exisng legislaon remains in force to enable the new structures & authories to govern &services to connue Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) New Acts of Parliament have to be read together with other exisng original legislaon as well as a vast amt of subordinate legislaon to keep the system going Ynuico case: CC held that “laws” in the Interim Const (which also provided for old order legislaon to remain in force unl it was amended / repealed / invalidated) is not limited to primary legislaon, but includes subordinate legislaon Exisng old order legislaon cannot simply disappear – legislaon has to be repealed / declared unconst by a competent authority = a new province (i.e. North West) will sll administer exisng provincial (i.e. Transvaal) ordinances in those provinces (i.e. North West) areas which are part of the new province (i.e. Transvaal) before 1994 See example on pg 30 – 33 of TB “LAW OF GENERAL APPLICATION” ito S36 OF CONST includes all forms of legislaon, as well as CL and indigenous law WHAT IS NOT LEGISLATION? Legislaon comes into operaon aer it has been published in the Gazee = however, not everything published in the Gazee constutes legislaon Not everything published in an ocial Gazee is legislaon – before any doc can be classied as legislaon, it needs to comply with all the constuonal & other legal requirements re authority, adopon & publicaon Texts not classied as legislaon:  CL rules & rules of indigenous law – they are not enacted as legislaon by an authorised lawmaker  Case law – made by judges & not issued by lawmakers  Policy documents (i.e. Green & White Papers, interpretaon notes, explanatory memoranda & pracce notes) – they were not enacted by lawmakers [Akani: laws, regulaons & rules are legislave instruments, but policy determinaons are not – policy determinaons cannot override / amend / be in conict with legislaon, otherwise the separaon btw legislature & execuve will disappear] Note: some of these may be used during interpretaon / may even be part of legislaon in the future (i.e. Green & White Papers & dra Bills)  Internal departmental memos & policy guidelines on how government departments apply legislaon  “Administrave quasi-legislaon” (departmental memos & direcves) – although enforceable in some instances, these do not constute subordinate legislaon  Legal noces & adversements published in the Gazee STRUCTURE OF LEGISLATION List of amendments If applicable - before the long tle = list of Acts that have amended the Act (see eg on pg 35 of TB) List of regulaons If applicable - aer the list of amendments = list of regulaons issued in terms (see eg on pg 35 of TB) of the Act Preamble Usually placed aer the long tle (see eg on pg 36 of TB) Integral part of legislaon Explains circumstances of; background to & reasons for the legislaon Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected])  Always used in private Acts Used in ordinary Acts if legislaon is of constuonal / naonal importance Long tle Short descripve summary of subject maer (see eg on pg 36 of TB) Part of the statute tabled for adopon by Parliament & always ends with an open-ended phrase, i.e. “…and maers incidental thereto” Enacng provision Acknowledges constuonal authority of body that is enacng the (see eg on pg 37 of TB) primary legislaon  naonal legislave authority is vested in Parliament  provincial legislave authority is vested in the provincial legislatures  municipal legislave authority is vested in the municipal councils Table of contents “Road map” – provides quick reference to where to nd parcular (see eg on pg 37 of TB) provisions & give an inial overview of the legislave scheme Denions Usually found at beginning of the Act, but can also be placed at the (see eg on pg 38 of TB) end / other parts of the Act Serves as an “internal diconary” Purpose & interpretaon Frequently included in post-1994 legislaon (see eg on pg 38 of TB) Gives an immediate overall picture of what the Act wants to achieve Helps explain purpose of the Act & how it should be interpreted Regulaons & ministerial powers See example (see eg on pg 39 of TB) Repeal / amendment of legislaon Made by means of another Act (see eg on pg 39 of TB) When a new Act is passed, other exisng Acts may need to be amended / repealed - new Act must contain a secon that provides for amendments and/or repeals – convenonal way of dealing with repealed / amended Acts is with a schedule at the end of the Act Short tle & commencement Usually the last secon in an Act (see eg on pg 40 of TB) Title of the Act Schedules Deal with technical details that will otherwise clog up the main body of an Act Also used when several Acts / parts of Acts are repealed / for a large number of amendments Numbering in legislaon Tradional number system used in primary legislaon is illustrated (see eg on pg 40 + 41 of TB) on pg 40 of TB Where an addional secon is inserted into an Act through an amendment Act – secon to be inserted takes the number of the secon aer which it is to be inserted & gets a capital leer aer it – [note: this is necessary, otherwise the whole Act would have to be re-numbered by an amendment Act – re-numbering in pracal terms is impossible because every cross-reference in other legislaon would have to be amended as well, but references to the previous number in case law & textbooks cannot be changed In older legislaon the inserted secons were numbered bis / ter / quat / etc. (see eg on pg 41 of TB) When part of legislaon (i.e. chapter / secon / paragraph / etc.) is repealed – the number of the repealed provision remains as a placeholder to avoid wholesale numbering (see eg on pg 41 of TB) General explanatory note Usually included on the 2nd pg when an amendment Bill is published (see eg on pg 41 of TB) in the ocial Gazee for public comment Legislave “codes” Amendments (including inserons & deleons) are indicated clearly (see eg on pg 42 of TB) in square brackets aer the relevant provisions in the amended Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected])  version of an Act Help the interpreter of the Act by: Indicang a parcular date of commencement of the provision; Serves as a historical paper trail should a lawyer have to use the previous versions of the legislaon (for pending cases / as an aid to interpreng the amended provisions) [note: although an amendment Act is a separately enacted law-text in its own right, the amendments in an amending Act will later be incorporated into the inial Act – the legislave “codes” serve as a rout map / cross-reference to the amending Acts = the “codes”, the list of amending Acts at the beginning of the Act and the amending Acts themselves should correlate] RELATIONSHIP BTW LEGISLATION & COMMON LAW  Prior to 1994 (before new constuonal dispensaon) – courts invoked CL rules when interpreng legislaon - CL presumpons are examples of such rules  Although the courts can apply CL presumpons – they have to be consistent with the Const Carmichele: CC held that court is obliged to develop the CL in view of the Const Pharmaceucal: there is only 1 system of law & it is shaped by the Const which is the supreme law, and all law, including the CL, derives its force from the Const & is subject to constuonal control Although we sll have Roman-Dutch common law, African customary law, legislaon & all various sources of law & legal cultures – since 1994, legislaon AND CL are overruled by the supreme Const CL may be overruled by legislaon (Note: CL is not repealed by legislaon, but overruled) = if legislaon overrules a rule of CL & that legislaon is itself later repealed, the CL rule will revive again Somemes new legislaon provides expressly that it will operate side-by-side with exisng CL rules Certain CL rules – i.e. presumpons – are used to interpret legislaon =  Courts & other interpreters may sll rely on these CL maxims & presumpons in so far as they are not in conict with the values of the Const  Before the BOR in 1994 – presumpons were a rebuable “common-law bill of rights” (principles of jusce, fairness & individual rights were always part of our law – but were rebued / banished / corrupted / ignored during the era of parliamentary sovereignty) = the role & character of presumpons of statutory interpretaon have been fundamentally changed by the new Const – many values underpinning the presumpons of interpretaon are now incorporated in the BOR – & because fundamental rights are entrenched in the Const, it must be accepted that some of the presumpons will be applied to an increasingly lesser extent in the future, possibly even disappearing as a result of disuse SECTION C – THE INTERPRETATION PROCESS CHAPTER 5 – HOW LEGISLATION IS INTERPRETED THEORIES OF INTERPRETATION 1. Orthodox text-based approach (AKA: “textualist”) Primary rule: If the meaning of the text is clear (the plain meaning), it should be applied & equated with the legislature’s intenon Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) Because ordinary cizens may rely on the everyday meaning of legislaon – the courts may not proceed beyond the plain meaning of the text (interpretave quesons must rst, and as far as possible, be seled by the diconary) Golden rule: If the plain meaning of the words is ambiguous / vague / misleading / if a strict literal interpretaon would result in absurd results = then the court may deviate from the literal meaning Court will then turn to the “secondary aids” to interpretaon found both in: other parts of the legislave text beyond the wording of the specic secon in queson (“internal aids”) outside the legislave text as a whole (“external aids”) Only when it’s not clear from the wording of the legislave provision itself what the legislature intended – can the court look at the internal aids contained in the rest of the legislaon (the tle, long tle, preamble, chapter, headings, etc) to determine what the intenon of the legislature was Only where the legislaon as a whole sll does not provide an answer – can the court consult the external aids (commission reports, parliamentary debates, memorandums) Only in cases where the language (the primary indicator of legislave meaning) is unclear / absurd & the internal & external aids (the secondary indicators) cannot resolve the uncertainty / absurdity – then the court can turn to a set of CL presumpons (terary aids / indicators) to resolve the uncertainty – in these cases court in eect concedes that it cannot determine what the legislature actually intended & that it will therefore make an assumpon re what the legislature intended (the CL assumpons are CL ideals of the good legislature that we simply ascribe to our actual legislature in cases of doubt) Public Carriers Associaon case: Recent example of the textual approach & one of the last authoritave statements of the textual approach by the AD before intro of the new constuonal order Judgement also suggested that the purpose of the legislaon could solve interpretaon problems as a last resort when textual approach could not (i.e. when language / secondary aids & CL presumpons could not resolve the uncertainty / absurdity) Court thus parally recognised the value of the purposive / text-in-context approach, but restricted its applicaon to cases where textual approach had failed Case provides a bridge btw old textual approach & new contextual approach & serves as good example of textual approach Facts: Poron of N3 was declared a toll road ito Naonal Roads Act Secon of the Act provided that a toll road shall not be declared unless “an alternave road to the intended toll road, along which the same desnaon(s) may be reached” is available to road users Alternave road overlapped the toll road for 79kms but by-passed all the toll gates, thereby enabling motorists travelling along it to avoid paying toll charges Associaon of public road carriers challenged the new toll road on grounds that a proper “alternave road” had not been made available as required ito the Act & claimed that “an alternave road” means an alternave roadway & not an alternave route & argued that for there to be an alternave road, 2 physically separate roadways must exist for the motorist to choose from & since use of alternave road involved travelling 79 kms along the toll road – it was not an “alternave road” as required Toll road operators argued that “alternave road” means “an alternave route” = 2 roads (or routes) are alternave roads, even though parts of them are common to both Judgement: Court decided in favour of toll road operators – Applied rules of textual approach & stated that the primary rule is to ascertain the intenon of the legislature & held that: Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) Must rst give words their ordinary grammacal meaning – unless to do so would lead to an absurdity so glaring that the legislature could not have contemplated it – no problem would normally arise where the words in queson were only suscepble to one meaning: eect had then to be given to such meaning Aer consulng a diconary – court discovered “an alternave route” are not linguiscally limited to a single ordinary grammacal meaning as the phrase could mean either “a dierent roadway” or “a dierent route” – because both were linguiscally feasible the court turned to the secondary aids Court found that none of the recognised internal / external aids helped to indicate which one of the 2 meanings of “road” was intended by the legislature – court then turned to CL presumpons However – none of the presumpons helped to indicate which of the 2 possible meanings of “road” we should accept as the legislave intenon Textual approach therefore did not provide any soluon Court then decided to look @ the purpose of the provision & held that it must be accepted that the literal interpretaon principle is rmly entrenched in our law & court did not seek to challenge it – but where its applicaon results in ambiguity & one seeks to determine which of more than 1 meaning was intended by the legislature, one may have regard to the purpose of the provision to achieve such objecve Court stated that purpose of the Act was to ensure that road users who wished to do so could reach their original desnaon w/o paying the new toll fees – that being the primary object of the Act – court held that “an alternave road” meant “an alternave route” and not “an alternave roadway” Was not necessary to provide a wholly separate roadway in order to achieve the object of the Act All that was required was a route that by-passed the toll gates Declaraon of relevant poron of N3 as a toll road was valid Cricism against textual approach: The normave role of the CL presumpons during the interpretaon process is reduced to a mere “last resort” to be applied only if the legislave text is ambiguous Exaggerated emphasis on legislave text = Words (their literal meaning) are regarded as the primary index to legislave meaning – however – the main object should be to ascertain the true intenon of the legislature Other NB internal & external aids which could be applied to establish the meaning of text-in-context are ignored = context of legislaon is only used if text is not clear – unless textual meaning is ambiguous / unclear, interpreter will not have recourse to the wide range of aids to interpretaon at his disposal = as a result, the intenon of the legislature is ulmately dependent on how clear the language used in the legislaon may be to the parcular court Very few texts are so clear that only 1 nal interpretaon is possible Leaves very lile room for judicial law-making – courts may only interpret the law & not make it = courts have no law-making capacity re legislaon, except in very exceponal cases where courts deviate from the literal meaning of the legislaon to apply some sort of correcve interpretaon Prior to 1994 = in the absence of a jusciable BOR under apartheid rule, the clear, plain meaning of obnoxious legislaon became the juscaon for execuve-minded decisions by the courts and was used as a convenient excuse for avoiding inconvenient moral dilemmas 2. Purposive (Text-in-context) approach (AKA: “contextualist”) Before 1994 – purposive approach was applied by the courts from me to me Prevailing factor: Purpose / object of legislaon (the legislave scheme) Context of legislaon, including social & polical policy direcons, is also taken into acc to establish the purpose of the legislaon Mischief rule is the forerunner – Rule acknowledges applicaon of external aids: CL prior to enactment of legislaon; Defects in the law not provided for by the CL; and Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) Whatever new remedies the legislature provides & the true reason for these remedies To nd the purpose of legislaon you need to adopt a purpose-orientated approach which recognises the contextual framework of the legislaon right from the outset (not only in cases where a literal, text-based approach has failed) Provides a balance btw grammacal & overall contextual meaning Interpretaon process cannot be complete unl the object & scope of the legislaon (i.e. its contextual environment) are taken into acc = in this way the exibilies & peculiaries of language & all the intra- textual & extra-textual factors, are accommodated in the connuing me-frame within which legislaon operates Jaga: One of the rst concrete eorts to ulise the wider context to move beyond the plain grammacal meaning to ascertain the legislave purpose - aer this case – a few courts were more prepared to interpret the text of legislaon in the light of the wider contextual framework Facts: In 1950’s Jaga was caught selling unwrought gold & sentenced to 3 months prison suspended for 3 years The Act read “any person who has been sentenced to imprisonment for any oence commied by the sale of unwrought precious metal & who is deemed by Minister to be an undesirable inhabitant of the Union, may be removed from the Union under a warrant Minister declared Jaga an undesirable inhabitant of the Union & a warrant for his deportaon to India was issued Jaga challenged his deportaon on the basis that he had not been sentenced to imprisonment Minister argued that a suspended sentence of imprisonment is sll as sentence of “imprisonment” within the ordinary meaning of the Act Jaga argued that “imprisonment” mean actual (as opposed to merely potenal) imprisonment “Sentenced to imprisonment” thus meant to be sentenced to be actually & physically held in prison, which he was not (his sentence was merely suspended & he was allowed to go home) Finding: Majority of court adopted textual approach & held “sentenced to imprisonment” was not further dened / qualied by the legislature – the lain meaning should be determined & applied – “imprisonment” in plain language meant that the sentence imposed on the oender contained a period of imprisonment (suspended / no) as an element – warrant was legally issued as Jaga did receive a sentence of imprisonment Minority (judge Schreiner) adopted a contextual / purposive approach (this judgment is extremely NB & has been cited with approval by the CC) – held: interpreng words & expressions in light of their context is just as NB as eing interpreted acc to their ordinary meaning – 2 NB points in this regard= 1. “the context” as used here is not limited to the language of the rest of the statute & is regarded as throwing light of a diconary kind on the part to be interpreted (oen of more NB is the maer of the statute, its apparent scope & purpose & within the limits, its background 2. the approach to the work of interpreng may be along either of 2 lines – by spling the inquiry into 2 parts & concentrang rstly on nding out whether the language to be interpreted has / appears to have one clear ordinary meaning, conning a consideraon of the context only to cases where the language appears to admit to more than 1 meaning; or one may from the beginning consider the context & language to be interpreted together (minority adopted this version) Judge insisted that very few words have a natural / ordinary meaning in the sense that their meaning is enrely independent of the context in which they are used Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) Q is thus what words mean, not only in the context in which they are used in the legislave text, but also in the context of the purpose of the legislaon & the mischief that it was designed to remedy Text & context must be balanced, otherwise the context may be given such an exaggerated NB that the language used becomes strained, or otherwise the text may be given such an exaggerated NB that verbalism & consequent failure to further the aims of the legislaon might result Real impact of this judgment = willingness to accept that “sentenced to imprisonment” did have the clear & ordinary meaning which majority claimed it had – even so – Judge insisted the broader context & purpose of legislaon overrode that clear meaning – purpose of provision was to create an objecve test for idencaon of undesirable persons who should be removed from society by deportaon – however, the suspension of prison sentences has the opposite aim – a suspended sentence is a means of keeping an oender within society while aiding his rehab – to included suspended sentences in the meaning of “sentence of imprisonment” would not serve the purpose of the legislave provision – deportaon warrant was thus illegally issued as Jaga had not been sentenced to imprisonment for the purposes of the Act Judge held that even the textual approach, if it was correctly applied, should have led to the same conclusion – this cricism of the majority approach sheds light on the inner working & limits of the textual approach – According to Judge, the ordinary meaning of “sentenced to imprisonment” is ambiguous since it could not mean both “being physically removed to prison” or “being sentenced where the sentence includes imprisonment” - because of this ambiguity the secondary aids had to be applied – since there were no secondary aids available in the case which could resolve the choice btw the 2 meanings, the terary aids had to be applied – One CL presumpon is that legislave provisions must be interpreted in favour of individual freedom – it must therefore be presumed that the legislature intended the deportaon of persons only where these persons were uncondionally sentenced to imprisonment – to hold otherwise, as the majority did, would subject an unnecessarily large range of oenders to the very drasc nature of deportaon – it would thus fail to protect the value of individual freedom The above cricism es in closely with some of the cricisms levelled against the textual approach – NB is the fact that majority failed to give CL presumpon in favour of individual freedom any role in its judgment – they simply resolved the case with an appeal to the apparent clarity of the words that were used by the legislator (same as Botha’s cricism) – however the meaning of the words used was not so clear to the other members of the court (also same as Botha’s cricism) Court provided foll guidelines: Right from the outset the interpreter may take the wider context of provision (eg its ambit & purpose) into acc with the legislave text in queson Irrespecve of how clear / unambiguous the grammacal meaning of the legislave text may seem to be, the relevant contextual factors (eg praccal eects of dierent interpretaons, as well as the background of the provision) must be taken into acc Somemes the wider context may even be more important than the legislave text Once the meaning of the text & context (language in context) is determined, it must be applied, irrespecve of whether the interpreter is of the opinion that the legislature intended something else Judiciary has inherent law-making discreon = Role of the courts is more exible & not limited to mere textual analysis & mechanical applicaon Discreon is qualied by the prerequisite that modicaon of the meaning of the text is possible (and admissible) only if & when the scope & purpose of the legislaon is clear & supports such modicaon This law-making funcon is not an infringement of the legislature’s legislave funcon – it’s merely a logical extension of the powers of the court during the interpretaon & applicaon of legislaon in each praccal instance Use of CL presumpons as well as various aids of interpretaon, are very NB tools in the quest for the scope & purpose of legislaon Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) 3. The inuence of the supreme Constuon Since 27 April 1994 the debate re a text-based approach versus a text-in-context approach to statutory interpretaon has become irrelevant S39(2) of Const = statutory interpretaon has to be conducted within the value-laden framework of the supreme Const which is the highest law of the land In addion to S39(2), interpretaon of statues was transformed by 6 provisions of the Const: 1. S1 (Foundaonal clause): RSA is one, sovereign, democrac state founded on the foll values: (a) human dignity, achievement of equality & advancement of human rights & freedoms (b) non-racialism & non-sexism (c) supremacy of the const & the rule of law (d) universal adult surage, a naonal common voters roll, regular elecons & a mul-party system of democrac government, to ensure accountability, responsiveness & openness 2. S2 (supremacy of the Const): Const is supreme law of RSA – law / conduct inconsistent with it is invalid & the obligaons imposed by it must be fullled 3. S7 (Obligaon clause): BOR is the cornerstone of SA democracy – state must respect, protect, promote & full the rights in the BOR 4. S8(applicaon clause): S8(1) = BOR applies to all law & binds legislature, execuve, judiciary & all organs of state S8(2) = BOR applies to natural & jurisc persons (s237 also states that all const obligaons must be performed diligently & w/o delay) If all these provisions are read together one principle is indisputable – the Const is supreme & everything & everybody are subject to it = Const cannot be interpreted in light of the Interpretaon Act / RD CL / tradional customary law – everything & everybody, all law & conduct, all cultural tradions & legal dogmas & religious percepons, all rules & procedures, and all theories, canons & maxims of interpretaon are inuenced & ulmately qualied by the Const 5. S36 (the limitaon clause) 6. S39 (interpretaon of statues): S39(1) deals with interpretaon of BOR – however, this secon is also relevant to the interpretaon of ordinary legislaon for the following reasons: Provides that BOR should be interpreted in light of foundaonal provisions of our open & democrac constuonal order = those democrac values are found in the preamble to the Const & par 1 – once could say these democrac values reect the spirit of the BOR – however, s39(1) says nothing directly re interpretaon of ordinary legislaon – however, s39(2) says that the spirit of the BOR must be promoted when ordinary legislaon is interpreted – in order to understand what the spirit of BOR is, we thus have to turn to s39(1) when interpreng ordinary legislaon = when the 2 secons are read together, a purposive / contextual approach to ordinary legislaon is required – the leer of the law must now, in all cases, be subject to the democrac spirit of the law Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) S39(2) deals with interpretaon of legislaon other than the BOR - provides that when interpreng any legislaon & when developing the CL / customary law – every court, tribunal / forum must promote the spirit, purport & objects of the BOR Const does not expressly prescribe a contextual (purposive) approach to statutory interpretaon – however, s39(2) is a peremptory provision = all courts, tribunals & forums must review the aim & purpose of legislaon in light of BOR – plain meanings & so called clear, unambiguous texts are no longer sucient Even before a legislave text is read – s39(2) forces the interpreter to promote the values & objects of the BOR All the above means that the interpreter is consulng extra-textual factors before the legislave text is even considered = factors & circumstances outside the legislave text are immediately involved in the interpretaon process = The interpretaon of statutes starts with the Const & not with the legislave text Bato case: Facts: Concerned the allocaon of quotas in the shing industry – amt of sh that may be caught by a deep-sea shing trawler is limited by way of a quota system The quota which each trawler is allowed to catch is determined by the Minister of Environmental Aairs and Tourism ito the Marine Living Resources Act – s2 of the Act list the objecves of the Act, including to achieve sustainable development, to further biodiversity & to restructure the shing industry in order to achieve equity – state that the Minister must “have regard to” these objecves when he allocates quotas S18(5) deals specically with the allocaon of shing quotas – it again states that the Minister must make allocaons that will achieve the objecve contemplated in s2 Bato was allocated a quota for 1 year – it complained the quota was too small & approached court to have allocaon set aside – case turned on Q whether Minister did “have regard to” the objecve of achieving equity in the shing industry SCA asked what the ordinary meaning of “have regard to” was – court looked at way phrase has been applied by courts which made it clear that it mean no more than “taking into consideraon” / “taking into account” / “not to overlook” This meant that when granng quotas – Minister had to take principle of equity into consideraon, but did not have to make it his special concern Clear form the facts that Minister took need to transform shing industry into account when quotas were allocated – quotas were therefore validly allocated Bato appealed to CC claiming that the SCA had interpreted “have regard to” incorrectly – argued that “had regard to” equity not only meant equity should be “taken into account” (as ordinary meaning of words suggest) but that equity should be “promoted as the overriding concern” = this alternave meaning is suggested by the context in which phrase operates – CC agreed CC expressed concern about the textual method of interpretaon followed in SCA – agreed that ordinary meaning of “have regard to” was “to take into account” but insisted that it is no longer the ordinary meaning of words that must be applied, but that purpose of legislaon & values of the Const – referred to minority judgement in Jaga with approval & held that meaning of phrase must be determined by context in which it occurs – context is the statutory commitment to redressing the imbalances of the past & const commitment to achieving equality Phrase must be construed purposively to promote the spirit, purport & object of the BOR – technique of paying aenon to context in statutory construcon is now required by the Const, in parcular, s39(2) – Court held further it is troubled by any interpretave approach that pays too much aenon to the ordinary language of “have regard to” Conrmed the primary & golden rules of textual interpretaon do not apply in our law any more CC held that the Const is the starng point in interpreng any legislaon: Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) First – the interpretaon that is placed upon the statute must, where possible, be one that would advance at least an idenable value enshrined in the BOR; and Second – the statute must be capable of such interpretaon The emerging trend in statutory construcon is to have regard to the context in which the words occur, even where the words to be construed are clear & unambiguous Hyundai case: Judge explained const foundaon of this “new” interpretaon methodology & held: S39(2) means that all statutes must be interpreted through the prism of the BOR – all law-making authority must be exercised in acc with the const – the const is located in a history which involves a transion from a society based on division, injusce & exclusion from the democrac process to one which respects the dignity of all cizens, and includes all in the process of governance – as such, the process of interpreng the Const must recognise the context in which we nd ourselves & the Const goal of a society based on democrac values, social jusce & fundamental human rights – this spirit of transion & transformaon characterises the const enterprise as a whole Constuonal values: 3 core values on which Const rests: (1) freedom; (2) equality; and (3) human dignity Spirit, purport & objects of BOR have to be promoted during the process of statutory interpretaon = Courts are guardians & enforcers of values underlying the Const Courts will have to make certain value judgments during the interpretaon & applicaon of all legislaon Interpretaon of legislaon is an exercise in balancing conicng values & rights – this is because the values underlying the Const are not absolute Interpretaon of statutes can no longer be a mechanical reiteraon of what was supposedly “intended” by Parliament – but is rather what is permied by the Const Impact of constuonalism: A constuonal state (which has a supreme const) is underpinned by 2 foundaons: 1. Formal (instuonal power map of the country – i.e. separaon of powers / checks & balances on the government / principle of legality) 2. Material / Substanve (state bound by a system of fundamental values such as jusce & equality) Makwanyane case: Const retains from the past only what is defendable & represents a decisive break from, and a ringing rejecon of, that part of the past which is disgracefully racist, authoritarian (strict / severe), insular (narrow-minded), and repressive & a vigorous idencaon of & commitment to a democrac, universalisc, caring & which aspires towards something of a democrac character, expressly arculated in the Const Although the Const does not expressly refer to a constuonal state, the foll provisions imply a constuonal state: Preamble refers to a society based on democrac values, social jusce & fundamental human rights S1 states that SA is a democrac state founded on the supremacy of the Const & the rule of law S7 entrenches the BOR as the cornerstone of the democracy Const is a value-laden document that is underpinned by a number of express & implied values & norms – these fundamental principles are the ideals to which SA society has commied itself & form the material (substanve) guidelines which must regulate all the acvies of the state - the spirit of the BOR is a reecon of these fundamental principles These values are also found in various sources – i.e. Principles of internaonal human rights law & foreign case law re similar constuons Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) African concept of Ubuntu Our CL heritage Quzeleni case: Judge explained the demands of the supreme Const on statutory interpretaon – For the Const to full its purpose it needs to become, as far as possible, a living document, and its contents a way of thinking, for all cizens of this country Establishment of a culture of constuonality can hardly succeed if the Const is not applied daily in our courts, from the highest to the lowest 4. Praccal, inclusive method of interpretaon 5 praccal interrelated techniques for constuonal interpretaon – form the basis of a praccal, inclusive method of interpretaon (developed by Du Plessis) This method of interpretaon is not really new / radical – it merely brings together all the dierent aspects / techniques necessary for interpretaon Not just another template for a mechanical applicaon of words & phrases with passing reference to values & context – rather it is: a total, integrated framework with which (and within which) interpretaon of statutes as a process should take place; and a praccal, all-encompassing methodology to deal with complexies & nuances (degrees) of statutory interpretaon The components listed below are complementary & interrelated, and should be applied in conjuncon with one another: 1. Words & phrases: the language aspect: Focuses on linguisc & grammacal meaning of words, phrases, punctuaon, sentences & other structural components of the text & on the rules re order of words in a sentence Does not imply a return to literalism & orthodox text-based interpretaon – it merely acknowledges the NB of the legislave text in the complex process of interpretaon 2. Structure & context: the systemac aspect Concerned with claricaon of the meaning of a parcular legislave provision in relaon to the legislave text as a whole AKA “holisc approach” = words, phrases & provisions cannot be read in isolaon Emphasis on “wholeness” is not restricted to the other provisions & parts of the legislaon, but also takes into acc all other contextual consideraons (i.e. social & polical environments) in which legislaon operates 3. Teleological interpretaon: the value-based aspect: Emphasises fundamental const values & value-coherent interpretaon Aim & purpose of legislaon must be ascertained against the fundamental const values (i.e. s39(2)) Fundamental values in Const form foundaon of a normave, value-laden jurisprudence during which legislaon & acons are evaluated against (and ltered through) those const values 4. Historical aspect: Refers to use of historical context of legislaon Includes factors such as the circumstances which gave rise to adopon of legislaon (mischief rule) & legislave history (prior legislaon & preceding discussions) Historical perspecve cannot be decisive on its own 5. Comparave aspect: The process (if possible & necessary) during which court examines interpretaon of similar legislaon by foreign courts, as well as internaonal law Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected])  CHAPTER 6 – BASIC PRINCIPLES RULES & PRINCIPLES APPLICABLE TO THE INTIAL / FIRST READING OF THE LEGISLATIVE TEXT: The meaning of the text – 4 rules / principles applicable to the rst reading of the legislave text = 1. The inial meaning of the text  The interpretaon process starts with the reading of the legislaon concerned  The ordinary meaning must be aached to the words - interpreter should not aach an arcial meaning to the text  However – the context of the legislaon (incl. all factors inside & outside the text) which could inuence & qualify the inial meaning of the provision, has to be taken into account right from the outset  In the case of technical legislaon which deals with specic trade / profession – words that have a specic technical meaning in that eld which is dierent from the ordinary everday meaning have to be given that specialised meaning 2. Every word is important  No word / sentence is regarded as redundant (superuous / unnecessary)  Somemes it’s impossible to assign a meaning to every word because unnecessarily repeve provisions are oen added as a result of excessive cauon = the purpose of the legislaon should be the deciding factor in determining if a word is superuous / not – this relates to the presumpon that legislaon does not contain useless / unimportant provisions Secretary case: the principle that a meaning should be assigned to every word is not absolute 3. No addion / subtracon  Words may not be added / subtracted from the legislaon – this is based on separaon of powers principle  The courts may not supply omissions in legislaon at will – if, however, the purpose of the legislaon is clear, the court is the last link in the legislave process, and should ensure that the legislave process reaches a just & meaningful conclusion 4. The connuing me-frame of legislaon: the law is always speaking Queson of whether words in exisng legislaon should be interpreted according to their present-day meaning, or whether they should retain the meaning they had when the legislaon was passed? Courts used to follow the general rule in Finbro case: AD held that unless later legislaon expressly provided otherwise, words in legislaon had to be construed acc to their meaning on the day on which the legislaon was adopted Finbro judgment was conrmed in Water Aairs case: intenon of legislature had to be determined in view of meaning of provision at the me when it was enacted However – seems that courts might in future be less rigid= Golden China case: the general purpose of an Act suggested that the denions in that Act were to be interpreted exibly in order to deal with new technologies on a connuous basis, rather than to interpret the provisions narrowly, forcing the legislature periodically to update the Act Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) Fourie case: an updated interpretaon should be given to “ongoing Acts” (legislaon that will connue to apply in the future), except in the case of those rare statutes intended to be of unchanging eect (“xed- me Acts”) All legislaon has to be interpreted so as to promote the spirit & scope of the BOR – a supreme Const (and the values underpinning it) is not stac – Nyamakazi: a supreme const must be interpreted in the context & seng exing at the me when a case is heard, and not when the legislaon was passed, otherwise the growth of society will not be taken into acc An enactment cannot auto be reinterpreted to keep up with changes in society – the rule of law principle means that the courts must balance the dimension of futurity with legality issues such as oences, penales & vested rights, as well with legal certainty Balance btw the text & context – Note: it’s not enrely true to argue that, prior to 1994, the courts subscribed only to the literal approach to interpretaon – in Jaga case (1950) the NB of contextual framework during interpretaon was emphasised This does not mean that the legislave text is no longer signicaon – the text has to be anchored to the context in queson Zuma case: CC conrmed that the text of the Const is of paramount importance in spite of the fact that s39(1) prescribes a purposive / contextual approach to const interpretaon – the same applies to statutory interpretaon The meaning of the words of the text should be weighed up against the context of the legislaon From the outset the legislaon as a whole, the surrounding circumstances, const values & text have to be considered to ascertain the purpose of the legislaon Stellenbosh Farmers case: court must give regard – on the one hand: meaning to words used – and on the other hand: contextual scene which involves considering the language of the rest of the statute & the maer of the statute, its apparent scope & purpose and within limts, its background – court must strike a proper balance btw these various consideraons & then ascertain the will of the legislature Supporters of orthodox text-based approach accuse supporters of text-in-context approach of indulging in “free-oang” methods of interpretaon which ignore the text of the legislaon – this is not true because the fact that there needs to be a balance btw the text & context does not mean that the legislave text may be ignored – aer all, the context has to be anchored to the parcular text in queson Legislaon must be read as a whole – To interpret a text in its context includes:  The intra-textual context: the enactment as a whole, including its unique structure & legislave “codes”  The extra-textual context: the rest of the exisng law & other contextual consideraons that might be applicable To see the bigger picture means that the interpreter must study the legislaon as a whole – apart from the legislaon to be construed – the bigger picture includes the Const & all other relevant law (including old order legislaon & the CL) In CL this is known as interpretaon ex visceribus actus = “within the four corners of the Act” / “from the insides of the Act” Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) (See praccal examples on pg 128 & 130 – 131 of TB) Presumpon that legislaon does not contain fule (useless) / nugatory (irrelevant) provisions – This presumpon encapsulates the basis of the most NB principle of interpretaon: the court has to determine the purpose of the legislaon and give eect to it This presumpon is an acknowledgement that legislaon has a funconal purpose & object If there are 2 possible interpretaons – the court must try, if it’s reasonably possible, to adopt an interpretaon that will render the legislaon eecve Forlee case: F was found guilty of contravening Act 4 of 1909 for selling opium – on appeal his lawyer argued that F had not commied an oence because the Act in queson prescribed no punishment Court relied on presumpon against fulity & found that a specic oence had been created by the legislature – the absence of a prescribed penal clause did not render the Act ineecve because the court had discreon in imposing such a suitable form of punishment as it deemed t Decision raised widespread cricism because the rule nulla poena sine lege (if there is no penalty, there is not crime) was not adhered to – although the presumpon and the nulla peona sine lege rule applied in this case, the nulla poena sine lege rule forms an essenal part of the principle of legality which aims to prevent the arbitrary punishment of people & to ensure that criminal liability & the imposion of punishment are in line with exisng & clear rules of law – this rule should have trumped the presumpon against fule results Prins case: P was charged ] with contravening Criminal Law (Sexual Oences & Related Maers) Amendment Act – he objected to the charge arguing that neither the Act itself, nor any other provision of the Act, provides for a penalty for the oence created by the Act SCA held that s276 of CPA has a general empowering provision authorising courts to impose sentences in all cases, whether in terms of the CL / legislaon, where no other provision governs the imposion of sentence & consequently the Act did not violate the principle of legality by not prescribing the penales for those oences 2 other aspects of the decision must be noted: 1. the CL presumpon against fule & nugatory legislaon was never raised; 2. case is a good example of reading dierent sets of legislaon together in order to solve an interpretaon problem Presumpon enables courts to try to interpret legislaon in such a manner that evasion of its provisions is prevented Presumpon applies only if there’s more than 1 possible interpretaon – it cannot be used by a court to reinterpret legislaon at will Presumpon also applies to subordinate legislaon – Maxim ut res magis valeat quam pereat applies = an interpretaon which will not leave the subordinate legislaon ultra vires (and invalid), but rather intra vires and valid must be preferred – this maxim applies only where 2 interpretaons of a provision are possible Presumpon cannot be used to rescue an administrave act (conduct) which is defecve & invalid from the outset - consequently, any subordinate legislaon in conict with the enabling Act (or any other legislaon) will also be invalidated CHAPTER 7 – RESEARCH: ASCERTAINING THE LEGISLATIVE SCHEME Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) Even if the meaning of a legislave provision seems obvious & clear aer the rst reading of the legislave text – the purpose behind the words must sll be determined The interpreter must establish whether the plain meaning of the text in fact reects the actual purpose of the legislaon (or, as our courts sll frequently say, the real intenon of the legislature) Purpose of legislaon is established through research (aka “contextualisaon of the text”) 2 categories of material: 1. Internal aids = contains things that we nd inside the text of the legislaon as a whole – i.e.  the tle;  its preamble; and  its chapter headings 2. External aids = contains things that we nd outside the legislave text itself - i.e.  parliamentary debate about the legislaon;  surrounding circumstances at the me the legislaon was adopted; and  other legislaon such as the Interpretaon Act Textualists refer to internal & external aids as “secondary aids” & allow interpreters access to these aids only when the text of the legislave provision itself is unclear / when its plain meaning leads to absurd consequences in the circumstances Contextualists encourage the use of all these aids in all circumstances as their aim is to achieve a proper balance btw the text & its purpose Before 1994 the courts were not consistent in their approach to the use of internal aid The dierence of opinion btw the literalists & contextualists as to when the interpreter may invoke these aids has nally been seled by s 39(2) of the Const = prescribes a contextual approach to statutory interpretaon = the interpreter should use all the available aids at his disposal to ascertain the purpose of legislaon INTERNAL AIDS (a) The legislave text in another ocial language Before the interim Const, legislaon in SA was draed in 2 ocial languages & the text in the other language was used to clarify obscuries – aka “statutory bilingualism” Original legislaon The following principle was expressly included in the 1961 & 1983 Const & the Interim Const: Old order legislave texts were signed alternavely (in turn) in the languages in which they were draed & the signed text was enrolled for record at the AD. In case of irreconcilable conict btw the various legislave texts, the signed one prevailed 1996 Const does not refer to irreconcilable conicts btw texts of other legislaon S240 states that the English text will prevail if there’s inconsistency btw di texts S82 & s124 state that the versions of all new naonal & provincial legislaon which have been signed by the President / a provincial premier has to be entrusted to the CC for safekeeping The signed version will be conclusive evidence of the provisions of that legislaon The signed version of the legislave text does not carry more weight simply because that is the one which was signed – Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) The signed version is conclusive only when there is an irreconcilable conict btw the versions – the signed version is used as a last resort to avoid a stalemate (deadlock) If one version of the text is wider than the other (i.e. one versions prescribes a penalty of imprisonment & a ne; and the other only a ne) then the common-denominator rule is followed, and only a ne will be imposed – the texts are read together to establish the common denominator If the versions dier but there is no conict, the versions complement one another & they have to be read together – an aempt should be made to reconcile the texts with ref to the context & purpose of the legislaon Even the unsigned version of the legislave text may be used to determine the intenon of the legislature Because statutes are signed using alternave languages, amendment Acts may create a prob – i.e. Afrikaans version of a statute was signed but the English version of the amendment Act was signed – which one of the signed versions of the amendment Act will prevail in case of an irreconcilable conict? There are conicng answers to this queson, but the most acceptable soluon was put forward in Silinga case: court suggested that the amendment Act be regarded as part of the original statute – the version of the statute signed originally will prevail in the case of an irreconcilable conict Subordinate legislaon There are no statutory / constuonal rules re conicng language versions of subordinate legislaon – in pracce all versions of subordinate legislaon will be signed & the signed text cannot be relied on to resolve conicts btw texts If texts do dier, the must be read together If there’s an irreconcilable conict btw the various texts, the court will give preference to the one that benets the person concerned = this approach is based on the presumpon that the legislature does not intend legislaon that is fule / nugatory If the irreconcilable conict leads to subordinate legislaon that is vague & unclear, the court may declare it invalid Cricism: All versions of legislave text should be read together from the outset, as they are all part of the structure of the same enacted law-text The arbitrary manner of conict resoluon (i.e. that the signed version automacally prevails) is merely a statutory conrmaon of a text-based approach, because the purpose of the legislaon is ignored if there is an irreconcilable conict btw the 2 versions of the legislave text - it could well be that the unsigned version reects the true purpose of the provision, and that the signed text is the incorrect one = in following the signed version “blindly”, the purpose of the legislaon could be defeated by the court In light of the interpretaon clause in s39(2) of Const, as well as the principle that legislaon should as far as possible be interpreted to render it constuonal, the following soluon is suggested: In the case of an irreconcilable conict btw versions of the same legislave text, the text which best reects the spirit & purport of the BOR must prevail The rules explained above will apply to old order legislaon = if the exisng Act was published in Afrikaans & English – all future amendment Acts will sll have to be adopted & published in Afrikaans & English (because those amendments will eventually be incorporated into the Act) Furthermore, in theory at least, subordinate legislaon issued ito an enabling Act originally published in Afrikaans & English will also need to be in Afrikaans & English Since 1998 new Acts of Parliament have been promulgated only in English S59(1)(a) of Const obliges Parliament to facilitate public involvement in the legislave & other processes – one way of doing this is to publish translaons of Bills introduced in Parliament The Joint Rules of Parliament require that a translated version of a Bill that has been adopted must be submied together with the Bill to be signed into law = in praccal terms this means that new Acts of Parliament are promulgated only in English Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) (b) The preamble Preamble usually contains a programme of acon / declaraon of intent re the broad principles contained in the parcular statute Preamble may be used during interpretaon of legislaon since the text as a whole should be read in its context Although a preamble on its own can never provide the nal meaning of the legislave text, post-1994 preambles should provide the interpreter with a starng point – it’s the key that unlocks the rst door in the process of statutory interpretaon Jaga – court considered preamble to be part of the context of the statute In numerous recent cases the courts acknowledged the unqualied applicaon of the Constuon’s preamble Seevnarayan – court rejected the argument that a preamble may be considered only if the text of the legislaons is not clear & ambiguous as an outdated approach to interpretaon (c) The long tle The long tle provides a short descripon of the subject maer of the legislaon It forms part of the statute considered by the legislature during the legislave process Role played by long tle in helping to ascertain the purpose of the legislaon will in each case depend on the info it contains Courts are entled to refer to the long tle of a statute to establish the purpose of the legislaon (d) The denion clause The denion secon always starts with “In this Act, unless the context indicates otherwise…” This is an explanatory list of terms in which certain words / phrases used in the legislaon are dened A denion secon is an internal diconary for that Act only – denions in other legislaon do not apply A denion in the denion secon is conclusive, unless the context in which the word appears in the legislaon indicates another meaning – in that case the court will follow the ordinary meaning of the word Oudtshoorn Municipality: it was held that a deviaon from the meaning in the denion clause will be jused only if the dened meaning is not the correct interpretaon within the context of the parcular provision (See example on pg 119 + 120 of TB) (e) Express purpose clauses & interpretaon guidelines Contain more detail & are more focused & should be more valuable during the interpretaon process However, by itself none of them can be decisive – to take such a view would merely create a new & sophiscated version of text-based interpretaon The interpreter must sll analyse the legislave text (as a whole) together with all internal & external aids (See examples on pgs 120 – 121 of TB) (f) Headings to chapters & secons May be regarded as introducons to those chapters / secons Within the framework of text-in-context, headings may be used to determine the purpose of the legislaon In the past the courts held the literal viewpoint that headings may be used by the courts to establish the purpose of the legislaon only when the rest of the provision is not clear Turontein Estates: court pointed out that the value aached to headings will depend on the circumstances of each case (See example on pg 121 – 122 of TB) (g) Schedules Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) Schedules serve to shorten & simplify the content maer of secons in legislaon The value of a schedule during interpretaon depends on: the nature of the schedule; its relaon to the rest of the legislaon; and the language in which the legislaon refers to it The general rule is that schedules, which expound secons of an Act, should have the same force of law as a secon in the main Act Schedules have to be consulted when interpreng provisions in the main part of the Act In the case of conict btw the schedule & a secon in the main legislaon – the secon prevails - one notable excepon to this rule was s 232(4) of the 1993 Const which stated that for all purposes the schedules were deemed to form part of the substance of the 1993 Const In certain cases the parcular schedule will state that it is not part of the Act & that it does not have the force of law, in which case it is an external aid & it may be considered as part of the context The names & types of legislaon can be confusing – somemes a schedule is a type of subordinate legislaon, and not part of the Act (as primary legislaon) (h) Paragraphing & punctuaon Customarily, punctuaon was not considered to be part of the legislaon – however, it is a grammacal fact that punctuaon can aect the meaning of the text Njiwa – court held that punctuaon must be taken into acc during interpretaon Yolelo: AD held that an interpretaon based on the purpose of the legislaon prevails over an interpretaon based only on the division into paragraphs Skipper: court held that since the punctuaon was considered by the legislature during the passing of the legislaon, it must be considered during the interpretaon EXTERNAL AIDS (a) The Constuon The Constuon, being the supreme law, is the most NB aid to interpretaon. No argument about plain meanings & clear texts could prevent the Constuon from being used / referred to during interpretaon. It prescribes how other legislaon must be interpreted, contains the BOR & is the repository of fundamental values. S39(2) of Const contains a provision dealing with ordinary statutory interpretaon When interpreng any legislaon, therefore, the Const, as the supreme law of the land, should be consulted The Const in general & the BOR in parcular is the most NB external aid to statutory interpretaon (b) Preceding discussions The following constute preceding discussions: 1. Debates about a Bill before Parliament; 2. Debates & reports of the various commiees which form part of the legislave process; and 3. Reports of commissions of inquiry Queson as to whether the courts may use such preceding discussions in construing legislaons & to what extent, has been the subject of lively debates in recent years. Before the advent of the new constuonal dispensaon, the courts were reluctant to seek guidance in the debates which preceded the passing of the legislaon in queson. However, in recent decisions the courts have invoked these aids. Downloadedby Downloaded byLelow Sean Jaguar De Lange ([email protected]) ([email protected]) As far as the reports of commissions of inquiry are concerned, the picture looks considerably beer, in that the courts have shown some willingness to consult the reports of commissions of inquiry One should disnguish btw debates during the legislave process on the one hand and reports of commissions of inquiry which preceded the passing of legislaon on the other  Debates during the legislave process Some academic writers believe that debates preceding the acceptance of a Bill are important in establishing the intenon of the legislature, especially when this is not evident from the wording of the legislaon However, in the past the use of debates was not accepted by the courts: Bok: the use of preceding discussions in the interpretaon process was rej