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Lecture, notes, (Introduction to Law)
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lOMoARcPSD|23849938Notes 2 (SET TWO) REAL DEAL - Copy
Introduction to Constitutional Law and Statutory Interpretation 178 (Universiteit
Stellenbosch)
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INTERPRETATION OF ENACTED LAW
PART 1: STATUTE LAW
1. THEME 1: GENERAL INTRODUCTION
Legislation as source of law
What is interpretation of statutes?
New constitutional order
2. THEME 2: THE TERM “LEGISLATION”
What is legislation?
Categories of legislation:
o Chronological categories
Legislation before 1806
Old order legislation
Legislation in the new constitutional order since 1994
o Hierarchical categories
The Constitution
Original legislation
Subordinate (delegated or secondary) legislation
o Old wine in new bags: Applying old order legislation in the new
constitutional order
o ‘Law of general application’
What is not legislation?
Legislative structure and ‘codes’ = self-study
Relationship between legislation and common
Law
3. THEME 3: THE COMMENCEMENT OF LEGISLATION
Is it in force? The commencement of legislation
o Adoption and promulgation of legislation
o Hear Ye, hear Ye! The requirement of publication
Pulling the trigger: Commencement of legislation
o Who promulgates?
o When is it force?
The default setting: on the date of publication
Delayed commencement: on a future specified date
Delayed commencement: on an unspecified future date still to
be proclaimed
Retroactive commencement
A combination of the above
When does a ‘day’ start?
o Jumping the gun? Section 14 of the Interpretation Act
Back in the time warp: The presumption that legislation applies only to the
future
o General principle: Let bygones be bygones
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o The difference between retroactive and retrospective
o What prevents legislation from applying with retro-effect?
The common-law presumption
New offences and higher penalties
Other constitutional rights
o No harm done: Exceptions to the rule
If the enactment deals with procedure
If the retro-effect favours the individual
o Retroactivity and other constitutional issues
4. THEME 4: CHANGES TO AND THE DEMISE OF LEGISLATION
General
Changes to legislation
o Formal amendment of legislation by a competent legislature
o Modificative interpretation by the courts
Attempts to save legislation during constitutional review
Modification of the legislative meaning during interpretation
The demise of legislation
o Invalidation of legislation by the courts
Unconstitutional provisions
Invalid subordinate legislation
o Repeal of legislation by a competent lawmaker
Substitution (repeal and replace)
Repeal (deletion)
Suspension of legislation already in force
The presumption that legislation does not intend to change the existing law
more than is necessary
o Common law
o Legislation
PART 2: HOW LEGISLATION IS INTERPRETED
5. THEME 5: THEORETICAL FOUNDATIONS
Introduction
Jurisprudential perspectives on statutory interpretation
o The general principles of hermeneutics
o The influence of certain modern critical theories
The Critical Legal Studies Movement (CLS)
Deconstruction
The linguistic turn
South African theories of interpretation
o The orthodox text-based approach
o The text-in-context approach
o The influence of the supreme Constitution
o A practical, inclusive method of interpretation
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6. THEME 6: FIVE INTERRELATED DIMENSIONS OF INTERPRETATION
The language dimension
o Basic principles
The initial meaning of the text
Every word is important
No addition or subtraction
The continuing time-frame of legislation: the law is always
speaking
o Internal language aids to interpretation e.g. other parts of the same
piece of legislation
The legislative text in another official language
The preamble
The long title
The definition clause
Express purpose clauses and interpretation guidelines
Headings to chapters and sections
Schedules
o External language aids to interpretation e.g. dictionaries
Dictionaries and linguistic evidence
Examples and footnotes
Definitions in the Constitution and the Interpretation Act
The clock is ticking: computation of time
The holistic (contextual and structural) dimension: Don’t miss the wood for
the trees
o Legislation must be construed within the total legal picture
o Balance between text and context
o Structure of legislation
o Conflicting legislation
Legislation has a purpose: the presumption that legislation
does not contain futile or nugatory provisions
Conflicts with other legislation
o The King can do no wrong: The presumption that government bodies
are not bound by their own legislation
The value-laden (teleological) dimension: The ghost in the machine
o The new constitutional approach to statutory interpretation, or,
moving from bumper stickers to substantive interpretation
o Ubuntu
The historical dimension: Lest we forget
o Preamble to the constitution
o Prior legislation
o Preceding discussions
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