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LEGAL INTERPRETATIONSTUDY NOTESLECTURE 1: THE CONSTITUTIONAL DEFINITION OF STATUTE/LEGISLATION AND THE CITATIONOF STATUTORY PROVISIONSIn order to determine whether a written document is a statute, you need to ask whether or not the sign refers to prevailing statutory law.Whether or not the sign refe...

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LEGAL INTERPRETATION STUDY NOTES

LECTURE 1: THE CONSTITUTIONAL DEFINITION OF STATUTE/LEGISLATION AND THE CITATION OF STATUTORY PROVISIONS In order to determine whether a written document is a statute, you need to ask whether or not the sign refers to prevailing statutory law.

Whether or not the sign refers to a prevailing statutory law 

You need to know what is understood as statute law/legislation by the constitution. o

the basic definition of of statute law/legislation: "Legislation means all statute passed by a democratically elected constitutional legislature after 4 February 1997. Legislation consists of national acts, provincial acts and municipal by-laws."

o

The Constitution never explicitly defines legislation and so we must construct a definition from various provisions and instances where the term was used. 

THE STARTING POINT: We need to understand the legislative power, executive and judiciary. Parliamentary acts...Parliament and national level Provincial acts...Provincial legislatures Municipal by-laws...Municipal councils Not all laws can be made by Parliament. (covid-19)



o

The Constitution extends this power to make law beyond the legislative branch 

Allows other branches to make laws



Extends history of law-making back in time (until amended or repealed) so current legislature doesn't start from a blank slate.

Including all factors into the basic definition

"Legislation means all statutes enacted by an authorised democratically elected legislature (national acts, provincial acts and municipal by-laws) after 4 February 1997." AND "All proclamations, regulations and other instruments of subordinate legislation issued in terms of any national or provincial act." AND "All old order legislation that was in force when the Constitution took effect on 4 February 1997."

How do I cite/refer to a statutory provision in correspondence? 

The basic format and parts of parliamentary legislation o

Statute starts with long title 

bold and contains descriptive summary

o

Sometimes followed by a preamble

o

Enactment provision 

states which legislature enacted the law

o

Contents/index page

o

Body of the longer statutes are subdivided 

o

chapters...parts...sections...subsections

Body of secondary law "operational sections" 

interpretation section



object and purpose section



delegated law-making or regulation section



savings section





transitional arrangements section



amendment and repeal section



conflict section

o

Short title and commencement clause

o

Some statutes include 1/> schedules

The citation of statutory provisions o

Act = 1/> Chapters

o

Chapter = 1/> Parts

o

Each part = 1/> Sections

o

Section = subsections, paragraphs, items

o

Sometimes there needs to be new sections between 2 sections 

o

4A; 4B; 4C

A new paragraph between paragraphs 

(aA); (aB); (aC)

LECTURE 2: CLASSIFICATION The 4 'S' classification 

Divides/classifies statute according to 4 'S' words o

Subject matter of the statute

o

Sphere of government in which statute applies

o

Democratic status of the statute

o

Historical sequence in which the statute was enacted

Subject matter of the statute 

The legislative competences in which the topics of statute falls



Schedules 4 and 5 contains a long list of all subject matter in which legislation can be enacted o

The topics are divided into 5 classes 

Topics not listed in the schedule...TYPE X o



Parliament

TYPE 4A o

National and Provincial legislature



TYPE 4B o



TYPE 5A o



Provincial legislature

TYPE 5B o

o

National, Provincial and Municipal Legislature

Provincial and Municipal legislature

Each class contains a number of topics of subject matters that specific legislation can be enacted

Sphere of government in which statute applies 

National sphere



Provincial sphere



Municipal sphere

Democratic status of the statute 

Laws enacted by democratically elected legislature itself has higher status and is called 'original legislation'



Laws enacted by subordinate/delegated law makers/regulator is called subordinate legislation



Subordinate legislation may not exceed the mandate granted to the regulator by the legislature



If original legislation is declared unconstitutional, the declaration of invalidity must be declared by the Constitutional Court

Historical sequence in which the statute was enacted 

Pre-1994 (OLD ORDER LEGISLATION)



After 1994 (NEW ORDER)



Why is democratically enacted (new) legislation different to legislation enacted before 1994? o

A large core of new legislation was enacted by the legislature in compliance with the constitutional mandate to enact these legislations to bring about a social transformation of our society.

LECTURE 3: THE NATURE, IMPORTANCE AND UNIQUE PROBLEMS WITH THE APPLICATION OF STATUTE LAW Statute law and the Source of law in a pluralistic legal order 



Constitution is the supreme source of law o

It contains several primary 'rules' of law

o

Several secondary rules of law that recognises additional sources of primary rules 

International Human Rights Law



Indigenous law



Common law



Statute law

Interaction and differences between statute law and the other sources of law o

Human rights law 

Primary rules of the Constitution

 o

International law

Customary forms of law 

Indigenous law



Common law

Statutes and the indigenous form of law 



Some of the differences were highlighted in Alexkor Ltd v Richtersveld Community [2003] ZACC 18; 2004 (5) SA 460 (CC); 2013 (12) BCLR 1301 (CC) o

The nature of customary law rights in land of the Richtersveld Community under Nama Law that were dispossessed in the 1920's, when diamonds were discovered in the Richtersveld.

o

The Constitutional Court explained the nature of Customary law 

force and validity is dependent on the Constitution



Constitution acknowledges originality of customary law as an independent source of norms in the legal system



Subject to only legislation that deals with it



not a "fixed body of easily ascertainable rules". It evolves as the people who follow its norms evolve.



Not written



May be established through referncing writers of indigenous law

DIstortions of customary law can be seen in Bhe v Khayelitsha Magistrate [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR o

Heir of a household sought to invoke the indigenous rule of male primogeniture in urban Khayelitsha out of its traditional concept/context. Explained that Colonial codification prevented common law from adapting living customs. The ossified rule was declared unconstitutional and an interim remedy replaced it.

o

The content has been distorted by common law doctrines

o

Living form of the law has been distorted by codification of/or statutes

Statute law and the Common law form of law 

Norms of common law are found in case law and case law precedents



Finding common law on a topic means to find the latest precedent that deals with that issue



Extensively documented in case law and the works of 17th Century Dutch legal scholars



Unlike statute law, common law does not have a fixed/official formulation



The power of courts to develop common law is dealt with in section 173 Constitution



S v Holo [2008] ZASCA 98; [2009] 1 ALL SA 103 (SCA)



o

Accused was convicted of common law crime of defamation. He argued that the crime no longer formed part of the common law and defamation only exists as a statute.

o

Question was whether it had been abrogated by disuse

o

The basis of the doctrine was the tacit repeal 'through disuse by silent consent of the whole community'

o

It cannot be said that criminal defamation has been repealed as a crime by silent consent of the whole community

If the case involved a statutory crime o

there would be no question as long as the statute remained in the statute book

Statute law and the Human rights form of law 

the constitution established human rights by enforcing a bill of Rights in Chapter 2



These rights can be limited by another right and by any statutory provision



The Bill of Rights as a subsidiary/secondary function when compared to statute law (principle of subsidiarity)



Constitutional Court explained the principle in South African National Defence Union v Minister of Defence [2007] o

Where legislation is enacted to give effect to a constitutional right, a litigant may not bypass that legislation and rely on the constitution without challenging legislation as falling short of the constitutional standard

o

To permit the litigant to ignore the legislation and rely directly on the Constitutional provision would be to fail to recognise the important task conferred upon the legislation by the Constitution to respect, protect, promote and fulfill the rights in the Bill of Rights.

Problems with the Applicaiton of Statute law 





Problem 1: Too many laws/layers of laws o

may result in a conflict between different statutory rules/between a statutory rule and a rule from another source of law

o

Traditional application problems 

written formulation of statutory law



content of the law that the statute was enacted to put in place

Problem 2: Written language and the law o

language is inherently flexible

o

vague, general, ambiguous

Problem 3: The body and soul or letter and spirit of the law o

unclear whether the clearly formulated rule accurately captures the purpose/principle/intention behind the rule

LECTURE 4: THE APPLICATION OF THE PREVAILING STATUTE LAW The need for secondary rules to regulate the application of statutory rules 

Application of statutory rule of law has 2 stages o

Finding the prevailing law applicable

o

Background rules/"secondary rules of law"

Where can we find these secondary rules of application: the source of law application



The Constitution o

primary rules

o

regulates the making, commencement and interpretation of statutory law

o

Drafters had no choice but to include all categories of legislation to ensure that Post Apartheid state would have means at its disposal to effectively regulate and transform society 



drafters anticipated that broad definition of application problems

o

Decision to retain old order legislation is in direct conflict with the law of the new democratic order and especially the bill of rights

o

Contains some key secondary rules of law that must be used to determine whether any primary rule of law is in operation and prevails over competing rules of law

o

Regulates how statutes must be interpreted/applied in an indirect manner

o

Power to interpret statutes is a judicial power and judicial power is defined in the constitution

The Common Law o

Important to stipulate whether this common law in question is 

Roman-Dutch common law



English common law

o

Two common law traditions have two different interpretations of statutes

o

Roman-Dutch tradition 

treated statutory rules as they treated common law rules



granted courts general power to develop both common law and statutory law 



courts could adopt/modify any statutory rule

Approach rejected by our courts in 1875 

English common law approach was to be followed



Drew a sharp contrast between rules of common law and statutory rules AND

denied that courts have the power to develop and adopt statutory rules to unforeseen circumstances

o

English tradition 

o

Rules for research and interpretation of statute law that are contained in common law are not subject to rules of precedent

o

Later courts are not bound to the methodological decision taken by earlier courts 

o

makes it difficult to find case law

Methodological stare decisis does not apply in our law 



required courts to stick to the letter of the law regardless of its consequences

FIRAC method of reading cases do not apply to secondary rules of statutory interpretation

Statute law o

every statute contains an interpretation section 

o

can be limited to definition of key terms used in statute

where statutes do not contain an interpretation section 

general provisions of the Interpretation Act of 1957 applies to all statutes unless the contrast indicates otherwise

LECTURE 5: FINDING THE APPLICABLE LAW; PUTTING STATUTES INTO OPERATION Introduction

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

How do you find an act? o

by using databases/government sites and NGO sites

o

www.gov.za can be used to find acts

3 important reasons why legal interpretors should study the legislative process in closer detail: o

To determine whether a statute is constitutionally valid

o

To determine when the statute came into operation

o

To recreate the drafting history of a statute

The four stages of the legislative process 

Stage 1: Passing a bill by Parliament o

o

o

Step 1: Notification of intention to introduce a new bill 

May be introduced in National Assembly (NA) after approval by cabinet



Once approved, draft must be published in the Government Gazette (GG) with invitation to submit representations on the draft



A memorandum must explain the objects of the Bill, on account of the expected financial implications, and the state proposed classification of the bill must be published.

Step 2: Introduction of the Bill 

Formally introduced in Parliament by submitting a copy to the speaker



Copy must be certified by the state law advisor to confirm that it has been properly drafted



Speaker must refer the bill to the Joint Tagging Mechanism to determine which of the different legislative processes must be followed

Step 3: Tabling and First reading of the Bill 

In terms of the s75 process, the speaker must table the Bill in the NA together with the memorandum of its objectives

o

o

o





The person introducing the bill may make a speech of 15 minutes to explain the background of the bill and the reasons for and the objectives of the bill



One person of each party in the NA may make a statement not exceeding 3 minutes



Once speeches are made, the bill is regarded as being read



The bill must then be referred to the appropriate committee of the NA

Step 4: Committee stage 

The relevant committee will debate the bill and may hold public hearings and call for submissions on aspects of the bill



The committee must report back to the NA and submit a final version after approval by the committee



The committee hearings are documented by Parliamentary Monitoring Group

Step 5: Second reading debate 

The NA must wait 3 days before the bill can be debated in a plenary session



The NA passes the bill if it approves the second reading by majority members who are present



If it has been passed, it must then be referred to the National Council of Provinces (NCOP)

Step 6: Referral to and adoption by NCOP 

The NCOP must consider the bill and can refer to its own committees and hold public hearings



If it is adopted, the Bill has then been passed by Parliament

Stage 2: The signing of the bill by the President o

After the Bill has been passed, it must be presented to the President for it to be assented to

o

A bill assented to and signed by the President then becomes an act

o

It still needs to go through 2 more stages before it can acquire any power of law 

o

there are certain exceptions

S14 interpretation act provides that certain powers



May be exercised after the bill has been assented to



Minister would also be able to make rules/regulations before the act commences

Stage 3: Publication of an act o

Published in the Government Gazette

o

Consequences of publication

o







Does not change the fact that it is not an act



Until it is put into operation, only s14 powers may be exercised

Minister can draft regulations, short-list and interview people, but will remain suspended until the act comes into operation

Stage 4: Putting the act into operation o

Legislature must determine how and when an act is to be put into operation

o

There are 3 ways in which an act can be put into operation. It is necessary to look at the commencement section to determine which method to use.

o