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Interpretation of Statues Notes CLS cc WHAT IS “INTERPRETATION OF STATUTES”?It’s the juridical understanding of legislation; it deals with the body of rules and principles used to construct the correct meaning of legislative provisions to be applied in practical situations.Statutory interpretation i...

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WHAT IS “INTERPRETATION OF STATUTES”? It’s the juridical understanding of legislation; it deals with the body of rules and principles used to construct the correct meaning of legislative provisions to be applied in practical situations. Statutory interpretation is similar to the interpretation of wills = the author of the document can’t be called upon to clear up uncertainties in the text, concretising the text to be construed so as to cater for the exigencies of an actual or hypothesized concrete situation. The courts are obliged to use specific rules of interpretation to construe the meaning of the document. Interpretation of legislation requires more than the mere reading of the provisions: i.e. everyone has the right to life in Section 11. S v Makwanyane: the Constitutional court held that the right to life means that the state can’t take someone’s life in retribution and the death penalty was declared unconstitutional. Q: does this mean that you can’t kill in self-defence? S v Walters: the court held that the existing right to kill someone in selfdefence wasn’t abolished by the Constitution In Soobramoney: the Constitutional right to life doesn’t mean the state has a duty to keep all terminal patients alive in all circumstances Carmichele v Minister of Safety and Security: the Constitutional Court linked the Constitutional right to life and freedom of security of a person to the Constitutional duty imposed on the state and its organs not to perform any act that infringes these rights Why is interpretation not a rule like activity? / Why can IOS not be like a computerized fashion? The rules of Interpretation of Statutes can overlap and it is not always clear which rule to applies. When deciding, the following must be taken into consideration:  The set of facts differ from case to case, as well as the context of legislation  The courts are not in one mind set when it comes to the application of rules, therefore there is no particular pattern involved when it comes to the application.  The law is not objective, neutral or value-free: interpreters have their own pre-understanding of legislation based on their history, background experiences, personal beliefs, etc.

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 The spirit and the aim of fundamental rights must be promoted during the interpretation of all legislation. Interpretation involves value-judgments The new Constitutional order Traditionally, interpretation of statutes in South Africa was saddled with unnecessary (and unacceptable) baggage: a confusing system of maxims and canons of interpretation, a golden rule, overriding principles, so called ‘primary, secondary and tertiary’ rules, should be ascertained. Traditionally, the South African rules of statutory interpretation were based on the sovereignty of parliament, while a fundamental rights dispensation is based on a supreme Constitution and fundamental values. Golden rule of interpretation – Give effect to the words as they appear in the text. Primary rule: Secondary rule: Tertiary rule:

read the words of the text and give effect to it. if the words are ambiguous or unclear then look to your secondary aids – intra textual aids. if the secondary aids still don’t assist in ascertaining the purpose of the legislation, then we look to our tertiary aids – extra textual aids.

Act: refers to a parliamentary statute or the legislation of the provincial legislature. act: refers to conduct Concretization: refers to the final phase of the interpretation process during which the legislative text, the purpose and the situation are harmonized to bring the process to a conclusion Constitutionalism: refers to a government in accordance with the Constitution: the government derives its powers and is bound by the Constitution. It refers to a state where the law is supreme and government and state authorities are bound by the law. Constitutional state (rechtsstaat): Refers to a state where Constitutionalism prevails: a country where the Constitution is supreme. There are 2 types: Formal: includes separation of powers, checks and balances and the principle of legality Material: refers to a state underpinned by a system of fundamental values of justice and equality. Context: refers to the circumstances surrounding something or the situation in which something happens Contextualisation: is the process during which the legislative text is read and researched within its total context in an effort to ascertain the purpose of the legislation

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Entrenched: refers to provisions in the Constitution, which can only be altered, amended or repealed with difficulty. Legislation is usually changes by a simple majority vote in the legislature. Intra Vires: when a government organ acts within the scope of the powers conferred on it Judicial law making: although courts are primarily involved in the application of law, they also have a secondary law making function. They develop common law to adapt to modern circumstances as well as giving form, substance and meaning to particular legislative provisions in concrete situations. It means the judiciary can modify or adapt the ordinary meaning of a legislative provision in such a way that it conforms with the purpose or aim of the legislation Jurisdiction: means the competency of a particular court to adjudicate on a specific case – determined by 2 factors: 1) The geographical area in which it operates 2) The types of cases the courts may hear Law: the law consists of all forms of law, while a law is a written statute enacted by those legislative bodies which have authority to make laws: • Legislation • Common law: composed of rules which weren’t written down originally but have been accepted as the law of the land • Indigenous law • Case law Legality: refers to lawfulness and control of arbitrary state action – government by the law, under the law. All government action is governed by the letter as well as the spirit of the law Legislature: this refers to an elected body which has the legal power to enact laws Legitimacy: is the level of acceptance of a Constitution, government or legal system – it refers to the faith of the population in the system Locus Standi: deals with access to the court – one has a place of standing in the court. It determines whether a person has the right to be heard by the court – who may bring a case before the court Parliamentary sovereignty: means that parliament is supreme – not only is parliament the highest legislative body, capable of enacting any law it wishes, but no court may test these laws against standards such as fairness or equality Proclamation: is a specific category of subordinate legislation Promulgation: legislation is made known to the public by promulgation and comes into operation when its published in the official gazette Purpose: the purpose of the legislation means the legislative scheme or the object or aim of legislation

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Supreme Constitution: the Constitution is the highest law of the land. Although parliament remains the highest legislative body in a system of government with a supreme Constitution, any legislation that is in conflict with the Constitution is invalid Testing legislation: is known as Constitutional/ judicial review, this refers to a process whereby legislation is alleged to be in conflict with the Constitution is reviewed by the court Textual approach: literal or plain meaning approach Ultra vires: the act of a government organ, which goes beyond the authority conferred on it Legislation: Enact: formulate and pass, Amend: change existing legislation, Repeal: cancel existing legislation, Promulgate: make legislation known to the public, Adopt: accept or pass legislation 3 Phase process of interpretation 1) Initial phase: a number of basic principles are used as a point of departure: a) The supreme Constitution and the Bill of Right b) Must ascertain the purpose of the legislation and apply it in light of the bill of rights c) The text of legislation is read to find the initial meaning of the text, bearing in mind the common law presumptions and a balance between the text and context of the legislation 2) Research phase: the purpose of the legislation is determined by studying all the factors and considerations that may have bearing on the particular legislation. When the purpose of the legislation has been determined the next stage comes into play. 3) Concretization phase: the legislative text, the purpose of the legislation and the facts of a particular case are harmonized to bring the process to a just, purposive and meaningful end within the framework of the purpose of the legislation. During this process the spirit, purport and aim of the Constitution must be promoted.

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Questions What the “golden rule” is and what other rules apply under the textual approach The golden rule: Firstly, you apply the primary rule – you look at the wording of the legislation and apply it, then if the meaning of the words is too ambiguous, apply your secondary rule – your intra textual aids. If they do not assist you, apply your tertiary rule – extra textual aids. Briefly explain, with examples from case law, how contextualists interpret legislation. Initial: Look at your basic principles: Constitution, the purpose of the legislation and all common law presumptions. Research: Determine the purpose of the legislature by studying all the factors (intra and extra textual aids). Concretization: The legislative text, the purpose of the legislation and the facts of the case are harmonized to bring the process to a conclusion. (apply it to the set of facts) What are the three phases of the interpretive process in the model that is suggested by Botha in the textbook? Explain each phase BRIEFLY. The three phases are “the initial phase”; “the research phase” and “the concretisation phase”. In the initial phase a number of basic principles are used as a point of departure namely the Constitution, the text of the legislation, common law presumptions, the balance between the text and context. In the research phase the legislation intra-textual and extra-textual factors are studied to ascertain the purpose of the legislation. During the concretisation phase the legislative text, the purpose and the facts of the case are brought together to reach a conclusion. DEFINE what the term “law” means as it is used in the Interpretation Act 33 of 1957. “Law” means any law, proclamation, ordinance, Act of parliament or other enactment having the force of law.

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WHAT IS LEGISLATION? Legislation is written law enacted by a body or person authorized to do so by the Constitution or other legislation. Section 2 of the Interpretation Act: ‘law’ means any law, proclamation, ordinance, Act of Parliament or other enactment having the force of law Section 239 of the Constitution: in the Constitution, unless the context indicates otherwise – ‘national legislation’ includes: a. Subordinate legislation made in terms of an Act of parliament and b. Legislation that was in force when the Constitution took effect and that is administered by the national government ‘provincial legislation’ includes: a. Subordinate legislation made in terms of a provincial Act and b. Legislation that was in force when the Constitution took effect and that is administered by a provincial government Types of legislation Original legislation: derives from the complete and comprehensive legislative capacity of a legislative body – its known as direct or primary legislative capacity since it’s derived directly from the Constitution Subordinate legislation: is known as delegated legislation. Acts of Parliament are sometimes drafted in broad terms because the respective legislative bodies aren’t continuously in session to deal with every possibility in changing society = delegated legislation then adds flesh Is the distinction still important? In the past parliament was sovereign and the courts couldn’t test the contents of parliamentary legislation. Only delegated legislation could be reviewed by the courts. With the commencement of the supreme Constitution, the distinction between original and subordinate legislation isn’t as watertight as it used to be: • In a sense all legislation is subordinate because everything is subject to the Constitution and the courts can test all legislation against the bill of rights • In terms of Section 40 of the Constitution: the government comprises of the national, provincial and local spheres of government which are distinctive, interdependent and interrelated

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Original legislation 1) Acts of Parliament: the Constitution is the supreme law of the land and any law or conduct inconsistent with it is deemed to be invalid 2) New provincial acts: legislation enacted by the 9 new provincial legislatures 3) Provincial Ordinances: ordinances applies to old geographical areas of the former province concerned 4) Legislation of the former homelands: territories were granted complete legal capacity with regard to specific matters (e.g. health, education) 5) Legislation of the former TBVC states: remains valid as part of SA law in the area where it was previously applied because these states were re-incorporated into the Republic 6) New municipal legislation: municipal councils may enact bylaws in respect of local governmental matters Subordinate legislation: 1) Existing Provincial proclamations and regulations: the legislative authority for the provinces was transferred to the administrator of each province. The administrator enacted, repealed and amended provincial legislation by proclamation and could issue regulations under existing/new parliamentary acts 2) New provincial proclamations or regulations: new provincial legislation will be able to empower other functionaries like the Premier or members of cabinet to add flesh to provincial acts through proclamations 3) Other proclamations and regulations: if the enabling act is repealed, all the subordinate legislation in terms of that act also cease to exist unless the new act expressly provides otherwise WHAT IS NOT LEGISLATION      

Green and white papers Policy documents Legal notices Reports Draft bills Discussion documents

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Questions In terms of section 89 of the Electoral Act, the Commission may make regulations. Will the rules of statutory interpretation be applicable to the interpretation of those regulations? In your answer you should also mention the difference between original and subordinate legislation and give two examples of each. Original – also known as “direct” because it comes directly from the Constitution. It is “primary legislative capacity” and derives from the complete and comprehensive capacity of a legislative body. Examples: New Acts of Parliament; Legislation of the former TBVC states Subordinate – also known as “delegated”. This is legislation made by a body, which is not part of any legislature in South Africa because original legislation can sometimes be drafted too widely so delegated legislation then ‘adds the flesh’. Examples: Existing Proclamations and Regulations; New Proclamations and Regulations Subordinate rules will apply. List the documents that, although published in the Government Gazette, do not constitute legislation.      

Green and white papers Policy documents Legal notices Reports Draft bills Discussion documents

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THE COMMENCEMENT OF LEGISLATION It’s important to distinguish between the adoption of legislation and its promulgation: Adoption: refers to the different stages, readings and processes through which the particular legislation has to pass before its accepted and issued by the relevant legislative body. Promulgation: refers to the process through which the legislation commences and is formally put into operation. The passage of legislation is the term used to describe all the various stages through which legislation passes, before it’s adopted. The promulgation of legislation is the term use for notifying the population of the adoption of the legislation – this is done by notice in the Gazette = its usually also the moment that legislation commences or comes into force, unless the legislation states another date. Question: does legislation commence on the date of publication or the date when it becomes known throughout the country? Queen case: date of publication Author Steyn: suggests a period (8 days) between the actual publication and when the law becomes operative Publication: commencement of legislation Section 13 (1) of the Interpretation Act: of the Act stipulates that unless the particular legislation itself provides another date, it commences on the day of its publication in the Gazette. Date of commencement: a) date specified in the legislation b) date to be proclaimed c) date published in the Gazette Section 13 (2): the day begins immediately at the end of the previous day.

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THE PRESUMPTION THAT LEGISLATION ONLY APPLIES TO FUTURE MATTERS Unless the contrary appears either expressly or by necessary implication, it’s presumed that the legislature intends to regulate future matters only. According to case law (Transnet) this rule is based on the prevention of unfair results. Unless a retrospective intention is clear, it’s presumed that the legislation applies to the future and not the past. An enactment may provide expressly that it has retrospective force. The presumption could also be rebutted if it appears from the enactment that the legislature intended it to be retroactive. Such a necessary implication could be inferred if the legislation would result in absurd or unfair results should it not be retroactive. The common law view is that unless the contrary appears, an act expressly retroactive in nature won’t affect actions already brought to a close during a repealed acts existence If the enactment deals with procedures: The presumption doesn’t apply if the retroactive legislation deals with procedures. New rules of procedure apply to future cases, the facts of which may date from the past. The new act is retroactive only in that the new procedural rules apply even in the case of claims or disputes, which arose before the new rules came into effect. Therefore: the presumption doesn’t apply if the retrospective legislation deals with procedures where no rights are affected or if the application will benefit the individual. Grand Wholesalers v Ladysmith Metal Industry The appellant was the defendant in an action instituted in the Magistrate court by the respondent. The claim was for R 4 666.29. The amendment to the Magistrate Court Act that increased the monetary jurisdiction to R5000 only came into effect after pleadings had closed. The appellant said that the court didn’t have jurisdiction. The Magistrate stated that as it was procedural it did have retrospective effect. On appeal the court held that there was no retrospectivity and the Magistrates court did not have jurisdiction.

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Kruger v President Insurance made it easier to decide whether legislation is retrospective by implication. It is if: 1. vested rights have not been affected by the retrospective operation of the legislation 2. the purpose of the legislation is to grant a benefit or to effect even handedness in the operation of law If the enactment favours or disfavours the individual: If the retroactive operation of legislation will benefit the individual, the presumption doe...