Theme 6: A Practical, Inclusive Methodology: The 5 Dimensions: PDF

Pass and Prosper 44 THEME 6: A PRACTICAL, INCLUSIVE METHODOLOGY: THE 5 DIMENSIONS The Language Remember Generally Dimension v Basic language principles dictate that the ordinary meaning should be given to the words of legislation. v However, this is only the starting point of the interpretation proc...

Pass and Prosper 44 THEME 6: A PRACTICAL, INCLUSIVE METHODOLOGY: THE 5 DIMENSIONS The Language Remember Generally Dimension v Basic language principles dictate that the ordinary meaning should be given to the words of legislation. v However, this is only the starting point of the interpretation process. v The context of the legislation, including factors inside and outside the text which could influence the meaning of the text must be taken into account from the outset. The Four Rules (NB – Memorise BOLD, read over descriptions) v The initial meaning of the text (1) Ø S v Mack § Attach the ordinary meaning to words. Ø The textual approach no longer has a place in statutory interpretation, but the basic language principles remain the starting point. Ø Every word must be given a meaning: § Words à Ordinary Meaning § Technical Words à Technical meaning Ø The legislation as a whole and its context play an important role in the interpretation process. § The purpose of the legislation will still qualify the meaning of the text. § In totality it will be the purpose of the legislation viewed against the fundamental rights in the Constitution which will qualify the meaning of the text. § The interpretation process does begin with reading the legislation concerned and attaching the ordinary meaning of words. Ø Volschenk v Volschenk § The most important rule of interpretation is to give words their ordinary, literal meaning. Ø Sigacu v Sigacu § The court argued that ‘ordinary meaning’ includes the ordinary grammatical meaning. Ø Association of Amusement & Novelty Machine Operators v Minister of Justice § Further held that ‘ordinary meaning’ means colloquial speech. Ø Natal Joint Municipal Pension Fund v Endumeni Municipality § The language aspect as the departure point was correctly explained as: The inevitable point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document. Ø Savage v CIR Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 45 § Pointed out the danger of elevating the ordinary meaning of a word to a fundamental principle of interpretation What seems a clear meaning to one man, may not seem clear to another. v Every word is important (2) Ø Legislation should be interpreted in such a way that no word or sentence is regarded as redundant. Overlapping language and repetition can be omitted (R v Herman). Ø The principle that a meaning must be assigned to every word derives from the rule that words are to be understood according to their ordinary meaning. Ø Keyter v Minister of Agriculture § The court’s function is to give effect to every word, unless it is absolutely essential to regard it is unwritten. Ø Secretary for Inland Revenue v Somers Vine § The court stated clearly that the principle that a meaning should be assigned to every word is not absolute. v No addition or subtraction from the words used in the legislation (3) Ø It is a basic principle that there may be no addition to / subtractions because, in the final analysis, the purpose of the legislation is the qualifier of the meaning of the text. v The continuing time-frame of legislation: the law is always speaking (4) Ø Finbro Furnishers (Pty) Ltd v Registrar of Deeds § Initially, the ordinary meaning given when the text was enacted remained had to be give effect to, unless the later legislation expressely provided otherwise. Ø Golden China TV Game Centre v Nintendo Co Ltd § However later the courts became less rigid. § It was held that the purpose of the Act were to be interpreted flexibly in order to deal with new technologies on a continuous basis rather than to interpret it narrowly forcing the legislature to periodically update the act. Internal Language Aids to Interpretation v The legislative text in another official language Ø Statutory Bilingualism Ø Use the other official language to clarify obscurities Ø Original Legislation § In the final constitution, the English version will prevail in the event of inconsistencies between the texts. § If one is wider than the other, the common denominator is applied. § If they differ but do not conflict, read together and attempt to consolidate using context. § Zulu v Van Rensburg Context is used in interpreting the Constitution. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 46 § v v v v v v Signing of legislation is part of the prescribed procedure during the passion of original legislation. Old order legislative texts were signed alternatively in the different languages in which they were drafted and the signed text is enrolled for record at the Appellate Division. With the 1961, 1983 and 1993 Constitutions, the signed version prevailed. Constitution (1996) à Section 240 provides that, in the event of an inconsistency, the English text will prevail. Ø Subordinate Legislation § There are no statutory or constitutional rules about conflicting language versions of subordinate legislation. In practice the process is: Read together; or Give effect to the one that better benefits the person concerned (if irreconcilable). § In past: There were no constitutional guidelines with regard to conflicting texts of delegated legislation. § In practice: All the versions of delegated legislation will be signed and the signed text cannot be relied on to solve conflict between the texts. The Preamble Ø Program of Action; or Ø Declaration with regard to the broad principles of statute. The Long title Ø Provides a short description of subject matter of the legislation The Definition Clause Ø Internal Dictionary Ø Only ignored on the basis of context and purpose Express Purpose Clauses and Interpretation Guidelines Ø Same as Preamble with more detail Ø Bigger role in interpretation than preamble Ø Is not decisive, as it would create a new literal interpretation Headings to Chapters and Sections Ø In past, used to determine purpose of the legislation only when the rest of the provision was unclear. Ø Headings used to determine purpose in contextual approach. Schedules Ø Value depends on the nature of the schedule Ø General Rule: Schedule which explain sections of an Act should have the same force of law. Ø Conflict between schedule and section à Section prevails External Language Aids to Interpretation v Dictionaries and Linguistic evidence Ø Only a guideline Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper The Holistic Dimension 47 Ø Requires further context v Example and Footnotes Ø New trend Ø Not part of Act but can be used as an external aid v Definition in the Constitution and the Interpretation Act Ø Section 2 of IA will apply definitions unless expressly provided otherwise. v The clock is ticking Computation of Time Ø Section 4 of the IA Ø Prescribed periods must be complied with and failure to do so may affect the rights of parties. Ø Calculate days including the last day § Unless a Sunday or Public Holiday, then next work day. Legislation must be read as a whole v Legislation must be read as a consistent whole Ø Intra-textual context (unique structure + legislative ‘codes’) Ø Extra-textual context (Existing law and contextual considerations) v Structural wholeness of the enactment (Du Plessis) Ø Interpretation should be within the 4 corners of the Act v Nasioneale Vervoerkommissie v Salz Gossow Transport Ø The court stated clearly that when interpreting cetain provisions, a statute must be studied in its entirety. Ø This principle also applies to the Constitution Balance between text and context v Context was initially only considered when there was ambiguity. v In Jaga, the contextual framework was emphasised and now context is considered from the outset with respect to the purpose of the legislation. v Stellenbosch Farmers; Winderies v Distillers Corporation Ø “In my opinion it is the duty of the Court to read the section of the Act which requires interpretation with regard on the one hand to the meaning or meanings which permitted grammatical usage assigns to the words used in the section in question and, on the other hand, to the contextual scene, which involves consideration of the language of the rest of the statute as well as the matter of the statute, its apparent scope and purpose, and, within limits, its background. In the ultimate result, the court strikes a proper balance between these various considerations and thereby ascertains the will of the legislature and states its legal effect with reference to the facts of the particular case which is before it". v The purposive approach does not propagate a method of statutory interpretation based only on the legislative context. It merely wants to move away from the rigid and legalistic text-based approach to statutory interpretation and restore the balance between text and context. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 48 Structure of Legislation v R v Njiwa Ø It is a grammatical fact that punctuation can affect the meaning of the text. Ø Held, that the punctuation must be taken into consideration during interpretation. v Skipper International v SA Textile and Allied Workers’ Union Ø It was held that, as punctuation was considered by the legislature, it must be considered during interpretation. Conflicting Legislation v Subsidiarity Principle Ø Where it is possible to solve an issue without reaching a constitutional issue, the issue must be solved in that way (without recourse to constitutional arugment) v Subsidiary vs Avoidance Ø S v Mhlungu § I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed. § The Constitution is not ignored, it just means the courts must first try to solve an issue without it. v Pharmaceuticals Ø There are not two systems of law, each dealing with the same subject-matter, each having similar requirements, each operating in its own field with its own highest Court. There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control. v Avoiding Unconstitutionality Ø Competent courts involved in constitutional review may try, if reasonably possible, to employ a number of corrective techniques or remedial correction of legislation to try keep the legislation constitutional. Should they fail the unconstitutionality will have to be declared. v Du Plessis’ Explanation of Principle of Subsidiarity (NB) Ø Adjudicative subsidiary is ‘mode’ or ‘issue centric’: it enjoins one and the same forum to prefer an aconstitutional (or at least, an indirectly constitutional) to a strictly constitutional mode of adjudication whenever the solution of a legal question admits the former (and does not of necessity require the latter). Ø The highest authority of the Constitution is, in other words, not to be overused to decide issues that can be disposed of with reliance on specific, subordinate and non-constitutional precepts of law. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 49 Internal Conflicts and the Presumption against futile and nugatory legislation (NB) v Presumption: Ø Unless the contrary is clear, it is presumed that the legislature doesn’t intend legislation which is futile or nugatory. Ø This forms the basis of the most important principle of interpretation: § Court must determine the purpose of legislation and give effect to it. § Since statutory interpretation is a purposive activity, this presumption constitutes its very essence. v Can also be stated as (NB): Ø The court must avoid an interpretation that negates part of the legislative text / leaves part of the text without meaning / purpose. Ø Remember rule: Every word must be given a meaning. § This basic principle is further supported by the common-law presumption that legislation does not contain invalid / purposeless provisions. v Foundation of this Presumption: Ø This is an acknowledgement that legislation has a functional purpose and object. Conflicts with other legislation v If there is conflicting legislation with the system of co-operative government, the national legislation will generally prevail over the provincial legislation. However, in many cases, the provincial legislation may actually trump the national legislation. v NB Sections 146 – 150 of Constitution : Ø S146 à Conflicts between national and provincial legislation Ø S147 à Other conflicts Ø S148 à Conflicts that cannot be resolved Ø S149 à Status of legislation that does not prevail Ø S150 à Interpretation of conflicts The Presumption that government bodies are not bound by their own legislation v This is also known as The King can do no Wrong v General Rule: Ø It is presumed that the government bodies are not bound by their own legislation, unless the legislation expressly or by necessary implication provides otherwise. Ø This is not lawlessness of government, but a provision so that the government's operations are not hampered by legislation v Evans v Schoeman (NB) Ø The court mentioned the following indicators when the state will not be bound: Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 50 § The Teleological Dimension If the state would be rendered subject to the authority of or interreference by its own officials § If the state would be affected by penal provisions (S v Huyser) v Not being bound by legislation (as a result of the presumption) does not mean that state liability is also automatically excluded. v Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council Ø Principle of Legality Explained (NB) § It seems central to the conception of our constitutional order that the Legislature and Executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law. § At least in this sense, then, the principle of legality is implied within the terms of the interim Constitution. § Whether the principle of the rule of law has greater content than the principle of legality is not necessary for us to decide here. We need merely hold that fundamental to the interim Constitution is a principle of legality. v The constitutionality of this common-law presumption has not yet been tested and as such it still applies. Ø However, the correct position in future should be as follows (NB): § Government agencies and organs of state should always be bound by their own legislation, unless they can prove that they would be hampered in the execution of their duties and functions if bound by the legislation. The new constitutional approach to statutory interpretation v Also known as the value-laden dimension, and is referred to as the ghost in the machine. v This method deals with the aim and purpose of the provisions, and the values embodied in a constitution are also taken into consideration. In other words, it is used to ascertain what the particular constitutional provisions must accomplish in the legal order. v Sidumo v Rustenburg Platinum Mines Ltd Ø Constitutional Values explained as: § The values of the Constitution are strong, explicit and clearly intended to be considered part of the very texture of the constitutional project. They are implicit in the very structure and design of the new democratic order. The letter and the spirit of the Constitution cannot be separated; just as mere values are not free-floating, read to alight as mere adornments on this or that provision, so is the text not selfsupporting, awaiting occasional evocative enhancement. The role of constitutional values is certainly not simply to provide a patina of virtue to otherwise bald, neutral and discrete legal propositions. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 51 § v v v v Text and values work together in integral fashion to provide the protections promised by the Constitution. The use of values has proved difficult post 1994 Ø Lawyers were schooled in the positivist idea of iudicis est ius dicere sed non dare, or “parliament knows best and has spoken.” Ø Lawyers are reluctant to deviate from the letter of the law The value-based dimension is more than just paying lip service. Ø Involves making those values real Ø Animated through the making, interpretation and application of the law. Ø Also about ensuring that the law is respected and adhered to. Ø It involves a willingness to keep those values in mind from the outset. It is a mind shift that comprises more ideologies, power, politics, policies and the meaning of the words on paper. Hlomisa v Argus Newspapers Ltd Ø The interpretation clause is not merely an interpretive directive, but a force that informs all legal institutions and decisions with the new power of constitutional values. Coetzee v Government of the Republic of South Africa; Matiso v Commanding Officer, Port Elizabeth Ø Sachs J explains the teleological dimension as: § The values that muse suffuse the whole process are derived from the concept of an open and democratic society based on freedom and equality, several times referred to in the Constitution. § The notion of an open and democratic society is thus not merely aspirational or decorative, it is normative, furnishing the matric of deals within which we work, the source from which we derive the principles and rules we apply, and the final measure we use for testing the legitimacy of impugned norms and conduct. § We should not engage in purely formal or academic analysis, nor simply restrict ourselves to ad hoc technicism, but rather focus what has been called the synergetic relation between the values underlying the guarantees of fundamental rights and the circumstances of the particular case. Ø This means: § The Constitutional values are not there to be used as fridge magnets or bumper stickers, to be quoted and insisted on when it suits you, but instantly forgotten when it is not. Ubuntu v Ubuntu can be explained as (per the slides): Ø Is an indigenous African concept and refers to a practical humanist disposition towards the world, including compassion, tolerance and fairness (NB). Although it is not expressly mentioned in the new constitution, that does not mean it will disappear. It is also argued that it lives in the different Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 52 human dignity references in the constitution. It forms a bridge between the communal African traditions and Western traditions, which focus on the individual, and could be very useful extra-textual aid to statutory and constitutional interpretation. v The post amble of the English text of 1993 referred to ubuntu: Ø There is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation. v S v Makwanyane Ø Generally, ubuntu translates as ‘humaneness.’ In its most fundamental sense, it translates as ‘personhood’ and ‘morality.’ Ø While it envelops the key values if group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasises respect for human dignity, marketing a shift from confrontation to conciliation. v Is Ubuntu referred to in the Constitution 1996? Ø It is not referred to. Ø It can be argued that ubuntu lives on the references to human dignity in the Constitution. Ø It was applied in Makwanyane and thus, forms part of the new South African Constitutional Jurisprudence. Ø It forms an important bridge between communal African traditions and individual Western traditions. Ø In legal interpretation there is the ever-present issue of putting together the constitutional values and the text in order to find meaning. Ø The Historical Dimension The Preamble of the Constitution v S v Mhlungu Ø The Preamble should not be dismissed as a mere aspiration and throat-clearing exercise of little interpretative value. It connects up, reinforces and underlies all of the text that follows. v Mkontwana v Nelson Mandela Metropolitan Municipality Ø The court stressed the fact that the Constitution is a. document committed to social transformation. § Bisset v Buffalo City Municipality § Transfer rights Action Campaign v MEC, Local Government and Housing, Gauteng Prior Legislation v Morake v Dubedube Ø If legislation had been partially repealed, the remaining provisions had to be interpreted in their context, which included the repealed provisions. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 53 Ø Although the repealed provisions could no longer be applied, they may be used as part of the context of the remaining legislation. Preceding Discussions v Bills are discussed and debated before parliament and various committees also report on them. The question is whether the content of these reports, debates and discussions can be used for interpretative purposes. v It is important to distinguish between debates during the legislative process and committee reports. Ø Debates during the legislative process § Steyn refers to Eckard who believed that the debates preceding the acceptance of a bill are useful in establishing the intention of the legislature, especially when it is not evident from the wording of the legislation. § The use of preceding discussions has not been accepted by the courts. § Bok v Allen The use of the preceding discussions was rejected outright. § Mathiba v Moschke Reflects the decision in Bok, but the court a quo had taken preceding discussions into account. § De Reuck v Director of Public Prosecutions, Witwatersrand Local Division The court referred to parliamentary debates, reports of task teams and the view of academics in interpreting an Act. This suggests that the dislike for including debates may be disappearing. § S v Tilly Court referred to a report of the SA Law Commission and a ministerial speech in parliament during the interpretation of a statute. § S v Tshilo Same as in Tilly. Ø Commission Reports § In some earlier cases the court did not accept the use of a commission report and in some it was accepted only if a clear link exists between the recommendations and the provisions. § Hopkins v Bloemfontein District Creamery The court held that the prevailing law prevented the use of a commission report on the Companies Act. § Rand Bank v De Jager The court decided that the report by the one-man commission of inquiry, which was largely responsible Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 54 for the Prescription Act, was an admissible aid to interpretation of the Act The Mischief Rule v Uses 4 questions to establish the meaning (perspective) of legislation: Ø What was the legal position before the legislation was adopted? Ø What was the mischief (defect) not provided for by existing legislation or common law? Ø What remedy (solution) was provided by the legislature to solve this problem? Ø What was the true reason for the remedy? v Santam Insurance Ltd v Taylor Ø The court was obliged, on account of ambiguous language used in the Act, to examine the historical background of the Act to ascertain its purpose. Contemporanea Expositio v Is an exposition (description) of the legislation at the time of its adoption or shortly thereafter. v The marginal notes, punctuation, division into paragraphs and the first application may all serve as such. v The implication is that the exposition was probably given by persons who were involved in the adoption of the legislation / shortly afterwards during its first application. v Examples: Ø Explanatory Memoranda issued by government departments and state law advisors. v Simplified Explanation: Ø Contemporanea Expositio refers to when a person involved in the adoption of legislation, gives an explanation of it. Subsecuta Observatio v Refers to the established use or custom which may originate at any time after the adoption, which may be in conflict with the contemporanea expositio. v The long-term use of a measure may be the deciding factor where more than one interpretation is possible. The Comparative Dimension The Comparative Dimensions v This refers to the process (prescribed by section 39(1) of the Constitution) during which the court examines international law and the constitutional decisions of foreign courts. v The Court has said: Ø "When dealing with comparative law we must bear in mind that we are required to construe the South African Constitution and not an international instrument and this has to be done with due regard to our legal system, our history and circumstance and the Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 55 structure and language of our Constitution. We can derive assistance from international law and foreign case law but we are not bound to follow it". v S v Zuma Ø The principles of international human rights and foreign law must be applied with due regard for the South African context. Foreign Law v In the past the courts could follow foreign law to help interpret, especially when there was some legislation that would be taken word for word from English law. It can only be used as a guideline if it does not contravene, obviously with the Constitution but also with South African common law. International Law v S231 à States that an international treaty becomes South African law when it is enacted into law by national legislation. v S232 à Provides that customary international law is law unless it is inconsistent with the Constitution or an Act. v S233 à Constitutional confirmation of the common law presumptions that legislation does not violate international law. Courts should prefer a reasonable interpretation that does not contravene international law. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect.