Topic 13 Notes - Summary of lecture 13 PDF

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Topic 13: Reliance on cannons for interpretationThere are specific tools used to guide how statues should be interpreted:Cannons, aids, presumptions or maxims of interpretationFocus: Canons Cannons are not legally binding rules but are presumptions on how language ordinarily works. Cannons guide int...

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Topic 13: Reliance on cannons for interpretation There are specific tools used to guide how statues should be interpreted: Cannons, aids, presumptions or maxims of interpretation Focus: Canons 1) Cannons are not legally binding rules but are presumptions on how language ordinarily works. 2) Cannons guide interpreter when words are vague or ambiguous by showing what the word is normally understood as and used. There are 3 categories of canons: 1) Textual canons- tools used by judges to understand individual meaning of words 2) Contextual cannons- used to determine meaning of a word or phrase in terms of an enactment 3) Purpose canons- used to determine the purpose or policy that underlies the law as a whole. E.g. rules about how we interpret criminal statutes. Focus: Textual canons 1) The fixed meaning cannon - Words in a statue must be understood as in its intended context at the time the statute was put in place. - A proper understanding of what a provisions aims to achieve can only be achieved by looking at the meaning of the words at the time it was enacted. - Determining the content and purpose of a statue requires an understanding of the language used by legislature and public at the time the statute was adopted. - Fixed cannon established in our law through Finbro furnishers (pty) LTD 1985 AD held that in order to understand whether the phrase ‘right to mineral’ in the act included right to stone should be understood according to its meaning at the time of the adoption of the statute. - Court still have to decide if the fixed canon forms part of our law because of certain considerations - Considerations : - If the phrase understood in its meaning at the time of adoption is unconstitutional it will be struck out. - Court have power to update language by reading provisions in line with BoR - problem of how future courts should understand legislation passed during our democratic dispensation Recent case dealing with fixed meaning canon: Harvey NO and Others v Crawford NO and Others.

deal with whether the provisions of a trust deed dating back to 1953 should be understood in light of the meaning it had at the time of its execution. The trust donor, Mr Louis John Druiff, executed a trust deed in 1953. In terms of the trust deed, the net revenue and income gained from investments should be paid out to his four children. In the event that one of them dies, the deceased’s share will be divided equally amongst his or her descendants. One of Louis John Druiff’s children did not have children of her own and adopted two children after the death of her father. She became concerned that upon her death, her adopted children might not be given their quarter-share of the capital, as received by the children born of her deceased siblings. So, she approached the Western Cape High Court for relief but was opposed by the trustees. The High Court held that the words ‘child or children’ should not be updated to include adopted children, as the meaning the words had at the time of the execution of the trust deed did not include adopted children. e High Court, holding that the words cannot be updated - The Courts generally prefer to declare a provision unconstitutional and invalid (thereby rendering it inoperative) rather than update its meaning in order to make it constitutional. 2) Casus Omissus Canon (The Omitted Case Canon) - Nothing can be added to text that it does not state or reasonably imply. - Interpreters cannot put themselves in position of legislature and ask what legislature would have wanted in these circumstances. - If legislature did not provide for a matter, we can cover that gap through interpretation. -Casus Omissus constitutionally important because it separates powers, legislature makes law, judges interpret it. - Operation of casus omissus does not affect other rules of statutory interpretation where language can be modified. Rules should not be seen as exception to casus ommisus but kept in consideration. -

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First : Casus omissus does not affect law that is uncodified/ judge made/ common law. Meaning judges still have power to develop common law when it is applicable. Second- if text reasonably implies something, even if not expressly stated, a casus cannon does not apply.

Case Mercedez Benz Financial Services South Africa v Dunga 2011 (1) SA374 (WCC) Consider the case of Mercedes Benz Financial Services v Dunga. This case concerns the interpretation of a notoriously sloppy piece of legislation, the National Credit Act. Mr Dunga bought a car but could not repay it. The car company wanted

the car back as well as money it was owed. Mr Dunga was placed under debt review by the Magistrates’ Court. Section 86(10) read with 86(11) of the Act provides that a credit provider can terminate the debt review process ‘at any time after at least 60 business days after the date on which the consumer had applied for the debt review’. If the credit provider then proceeds to enforce the credit agreement, ‘the Magistrate’s Court hearing the matter’ may order that the debt review resume. Mercedes Benz terminated the debt review process in the Magistrates’ Court but applied in the High Court for summary judgment against Mr Dunga. The question was whether the High Court could also order a resumption of the debt review process. The obvious problem was that the Act only referred to the ‘Magistrate’s Court’ and assumed that the matter will proceed in that court. Parliament failed to say what should happen if the matter proceeded in the High Court. According to the High Court, this was a legislative oversight or mistake, which resulted in a casus omissus (‘a contingency not provided for in the statute’). What could the High Court do about it? The court ruled that to read the provision literally would be insensible, unworkable and linguistically inappropriate. A literal reading would not allow the realisation of what the Act authorises. And so, in this case, it would be appropriate to consider the words ‘or High Court’ after ‘Magistrate’s Court’ so as to give effect to the Act’s objectives. Lastly a Casus omissius does not apply where a court exercises a constitutional remedy of reading in. City of Cape Town v Robertson- recognized application of casus omissus but refrained from passing judgement on its constitutional relevance. Casus omissus a constitutional safeguard rather than a hinderance. 3) Every-word-counts canon. - Every word in a statute must be given to have an effect. - Borne out of presumption that parliament is presumed not to draft legislation in a redundant, superfluous or unnecessary manner. - Function of parliament to legislate and is improper for courts to subtract from or ignore text of an act. - Fish hoek Primary school it was explained that cannon is well established in our law and it is important to presume that legislature avoided surplus age. - Surplusage is defined as useless statement and completely irrelevant. - Sometimes the legislature includes unnecessary and repetitive provisions in the aim not to exclude anything ( ex abundanti cautela) . - If a party claims there is Surplusage the onus lies on them to prove the surplusage. This is done to clarify a meaning. 4) Ejusdem Generis - When a statute sets out a series or specific items ending with a general term, that general term is confined,to covering subjects comparable to the specifics it follows.

EG: ‘this Act applies in respect of all automobiles, trucks, tractors, motorcycles and all other motor-powered vehicles’, it does not cover all other motor-powered vehicles, but only those vehicles of the same genus to those previously listed - in this case, land-based transportation.’ - Important features and qualifiers for the application of Ejusdem Generis canon. - Firstly, a general term can only be given the meaning of the specific term if a common quality or common denominator is found in all the listed terms. - Second, the context must be consulted to determine whether it is sensible to apply the cannon in particular circumstances. - Cases o Page 10 to provide examples if it is unclear. Not prescribed cases 5) Conjunctive v disjunctive - Conjunctive “and” combines terms - Disjunctive “or” , creates alternative - Eg : ‘In order to pass the semester, you must write test 1, test 2 and submit an assignment’. This gives context to conjunctive. - Eg : in order to pass the semester, you must write test 1 and test 2 or complete an assignment’. This gives effect to disjunctive. - There is a presumption in our law that ‘and’ is always conjunctive and ‘or’ is always disjunctive -...