Judicial Law-Making During Concretisation PDF

Pass and Prosper 56 THEME 7: JUDICIAL LAW-MAKING DURING CONCRETISATION What is Definition concretisation? v Concretisation is the final stage in the interpretation process. Ø The legislation is realised (it actually becomes applicable). Ø In order to reach a conclusion, the following are brought tog...

Pass and Prosper 56 THEME 7: JUDICIAL LAW-MAKING DURING CONCRETISATION What is Definition concretisation? v Concretisation is the final stage in the interpretation process. Ø The legislation is realised (it actually becomes applicable). Ø In order to reach a conclusion, the following are brought together: § The legislative text § The legislative purpose § The facts of a particular situation Further Explanation v It is the process through which the interpreter moves from the abstract to the practical reality to apply the particular legislation. v It involves the following steps: Ø To contextualise, study the: § Text § Presumptions § Aids § Principles Ø Determine the aim and purpose Ø Apply the result to the facts of the case to reach the correct solution The LawMaking Function of Courts Does the Concretisation phase always take place? v Yes, it always takes place irrespective of the approach taken. The Text-based viewpoint v The classic formulation of literalism insists that the clear and unambiguous text of legislation is equated with the intention of the legislature. v Therefore, the law-making power of courts is limited to interpretation where the provision is ambiguous or absurd. v Bulawayo Municipality v Bulawayo Waterworks Ø The intention of the legislature can alone be gathered from what is actually said, and not from what it may have intended to say but has not said. v Remember the principle of Iudicis est ius dicere sed non dare Ø Any modifications, corrections or additions should be left to the relevant legislature. v Engels v Allied Chemical Manufacturers Ø Established the orthodox viewpoint. Ø The basic reasoning behind this approach is that by remedying a defect which the Legislature could have remedied, the court is usurping the function of the Legislature and making law, not interpreting it. The Text-in-context viewpoint v Holds that the court does have a creative law-making function during statutory interpretation. 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 57 v Du Plessis explains that such a creative role does not mean that they take over the legislative powers of the legislature. v Labuschagne explains the theoretical foundations of this sometimes inevitable (but limited) law-making role of the judiciary as follows: Ø The court has a peripheral and subordinate law-making role, in concrete cases to meet needs of society. Ø The court is the final link in the legislative chain, to ensure a meaningful and just end. Ø Legislation contained in the document is incomplete and only represents the initial structure of the statute. Only when the court applies the legislation does it become real and completely functional. The myth that courts only interpret the law v Consider the following elements: Ø Legal discretion § Modification or adaptation of the initial meaning of the text involves the exercise of a creative judicial discretion. Ø Boundaries § The exercise of legal discretion must take place within the boundaries and parameters of the purpose of the legislation. Ø Language has limits (Delegation) § There are inherent limitations to language, and thus the Legislature delegates the specific final application of law to the judiciary for this purpose. § Zimnat Insurance Co Ltd v Chawanda It sometimes happens that the goal of social and economic changes is reached more quickly through legal development by the judiciary than by the legislature (NB). This is because judges have a certain amount of freedom or latitude in the process of interpretation and application of the law. It is now acknowledged that judges do not merely discover the law, but they also make law. They take part in the process of creation. Law-making is an inherent and inevitable part of the judicial process. Ø Modification (NB) § It is not the modification of the language. § It is not the language of legislation that is physically modified, but the meaning of the legislation which is adapted (reconstructed) during interpretation to give effect to the legislature purpose. § The provision is not amended and repromulgated by the court, because that may only be done by the competent legislative body. § The language remains the same, but the meaning is modified only for that specific, concrete situation. 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 58 Ø The Constitution allows flexibility § The aim and purpose of the legislation within the framework of the Constitution is the paramount rule of statutory interpretation. § Matiso v Commanding Officer, Port Elizabeth Prison In terms of the Constitution the Courts bear the responsibility of giving specific content to those values and principles in any given situation. § The Constitution thereby provides even more flexibility to the courts. Factors which support and limit judicial law-making during statutory interpretation v The question becomes one of where to draw the line and there are a number of important factors that both support and restrict the lawmaking discretion of the courts. v This is to ensure that the core principle underlying modificative interpretation is upheld: Ø The aim and purpose of the legislation must support the modification within the framework of the Constitution. v Factors that Restrict Ø Democracy § The courts are the guardians of the constitutional values, but that they are not allowed to take over the constitutional role of the legislature. § Du Plessis v De Klerk The function of the courts is: ¨ Firstly, to ensure legislation does not violate fundamental rights. ¨ Secondly, to interpret legislation in a manner that furthers the values expressed in the Constitution. ¨ Thirdly, to ensure that common law and custom outside of the legislative sphere is developed in such a manner as to harmonise with the Constitution. Ø Separation of Powers Ø Common-law presumption § That the legislature does not intend to change the existing law more than is necessary. Ø Rule of law § Principle of legality Ø Judicial officers accountable (on three levels) § Personal Responsibility § Formal Responsibility § Substantive Accountability Ø Penal Provisions v Factors that Support Ø Reading-down § S 35(3) and S 232(3) 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 59 § Ø Ø Ø Ø Ø Possibilities during Concretisation If legislation reads as unconstitutional but is capable of a constitutional interpretation, courts should give effect to that interpretation before simply declaring it unconstitutional. S 39(2) § Courts must reconcile the aim and purpose of the legislation with the provisions of the Constitution. Bill of Rights Constitution (Supremacy) Common-law presumption § The legislature does not intend futile, meaningless and nugatory legislation. Independence of the Judiciary No problems with correlation v There are no difficulties applying the provision to the facts within the framework of the purpose and the prescribed constitutional guidelines, and the process is completed. Modification of the meaning is necessary v Modificative interpretation occurs when the initial meaning of the text does not correspond full to the purpose of the legislation. v If the purpose indicates that modification is necessary then there are only two possibilities: Ø Restrictive Modification Ø Extensive Interpretation Restrictive Interpretation v Restrictive interpretation is applied when the words of the particular legislation embrace more than its purpose. Ø Restrictive Interpretation in General § Although there is usually only two specific forms, any interpretation that reduces a wider initial meaning is restrictive. § Skinner v Palmer § Trivett & Co (Pty) Ltd v WM Brandt’s Sons & Co Ø Cessante ratione legis, cessat et ipsa lext § The maxim means: If the reason for the law ceases, the law itself also falls away § This maxim is not applied in its original form in South Africa § R v Detody Law remains in force until repealed by the legislature concerned § Green v Fitzgerald The court found that the common-law rule that adultery is a crime no longer applies in South Africa. The Cessante ratione rule was not applied because the case dealt with common law and not statute 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 60 § The courts have from time to time applied this rule in a modified form to suspend legislation but it does not invalidate or repeal it. Ø Eiusdem Generis § Means “of the same kind”. § The meaning of words is qualified by their relationship to other words. § There are prerequisites for its application: Can only be applied if the specific words refer to a definite genus or catergory. ¨ Colonial Treasurer v Rand Water Board Ø Genus is a common quality or common denominator. The specific words must not have exhausted the genus. ¨ Carlis v Oldfield The rule can be applied even when a single specific word precedes the general words. § Bugler’s Post (Pty) Ltd v Secretary for Inland Revenue The order in which the words occur is not important. § PMB Armature Winders v Pietermaritzburg City Council The rule can be applied only if the ‘legislature’s intention’ supports such a restrictive interpretation. Extensive Interpretation v It is the opposite of restrictive interpretation. v Results in interpretation by implication, which involves extending the textual meaning on the ground of a reasonable and essential implication which is evident from the legislation. These grounds include: Ø Ex Contrariis § Here the implications arise from opposites. If the legislation provides for a particular circumstance, it by implication provides that contrary provision for the opposite circumstance. Ø Ex consequentibus § If legislation demands or allows a certain result or consequence, everything which is reasonably necessary to bring about that result or consequence may be implied. Ø Ex accessorio eius de quopverba loquutur § If a principal thing is forbidden or permitted, the accessory thing is also forbidden or permitted. Ø Anatura ipsius rei § This refers to implied inherent relationships. § For example, the power to issue a regulation implies the power to withdraw it. Ø Ex correlativis § This arises from mutual or reciprocal relationships. 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 61 Interpretation by Analogy v This method of interpretation involves extending legislative provisions expressly applicable to particular circumstances to other analogous cases not expressly mentioned. v If legislation applies to certain mentioned instances and its purpose can apply equally to other unspecified instances, the legislation can be extended to such other instances on the basis of sameness of reason. v Joint Liquidators of Glen Anil Development Corporation Ltd v Hill Samuel Ø The court confirmed that an omission may not be supplied through interpretation by analogy. Cases No modification of meaning is possible v Clearly the discretion of the judiciary to modify or adapt the initial ordinary meaning of the text is limited. v If no modification of the meaning is possible, the court will have to apply the legislation as it reads. Ø In such cases concretisation would inevitably be defective, because the text, purpose and the particular facts would not by fully harmonised. v The law-making discretion of the judiciary is limited to the frame of reference of the purpose and no further. Ex Parte Dow v Summary: Ø The applicant applied for an order declaring his marriage solemnized in 1984 null and void as it had not complied with the provisions of s 29(2) of the Marriage Act 25 of 1961 in that it had been solemnized in the front garden of a private dwelling and not in the house as required by s 29(2). Ø The Court examined the objects of the provision and the changes which had taken place in the formalities required for the conclusion of a valid marriage through the centuries and came to the conclusion that the object of such provisions was essentially to ensure that marriages took place in public, thereby avoiding clandestine marriages. Ø By virtue of the Marriage Act Amendment Act 51 of 1970, however, the provisions which served to inform the public of an intended marriage were abolished. The Court was of the opinion that a marriage was such an important contract and relationship, and the consequences of a decree of nullity could be so farreaching, that the Legislature did not intend non- compliance with the word 'in' in s 29(2) to be visited with nullity. v Principle (NB): Ø Deals with the intention of the legislature and how to determine it. 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 62 Ø If the literal application of the law leads to harmful results or results that are not in line with the intention of the legislature, then it is not applied. Ø This is an example of modificative interpretation. Bloem Fontein Town Council v Summary: Ø The defendant municipality had the right conferred both by servitude and by statute to dam a river for the purpose of obtaining a water supply and a statutory right to maintain the dam. Ø In the course of maintaining the dam the defendant removed silt deposited in the dam by the ordinary method of scouring. The plaintiff, who owned certain land riparian to the river, alleged that the operation had caused the bank on his side of the river to collapse and in an action in a Provincial Division succeeded in his claim for damages and an interdict. Ø On appeal the Court found that the collapse of the bank was due to the removal of subjacent support by the removal of silt and also to the saturation of what were hitherto dry banks owing to a duly authorised raising of the dam wall. It also found that without the right to remove silt the rights of the municipality could not be properly enjoyed or exercised. v Held: Ø Held, that under these circumstances the right to take away the silt from the dam was one conferred by necessary implication. Ø Held, further, that it had been proved that such removal, however effected, would cause some damage to the plaintiff's banks and that therefore the Legislature intended an interference with private rights. Ø Held, further, that the plaintiff had not discharged the onus of proving that there was another reasonably practicable method (other than by scouring) of cleaning the dam, which, if adopted, would have caused less damage to him and that therefore his claim failed. v Principle: Ø The Legislature’s intention can be determined by evaluating how rights and duties will be exercised. Ø Where the use of legislation objectively results in damage to a person’s rights or property, without any way to avoid it, it is clearly the intention of the legislature that it should occur in that way. 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.