INTERPRETATION OF ENACTED LAW 211 (COMPREHENSIVE & EXTENSIVE NOTES + CASE SIMMARIES)
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Course
Interpretation Of Enacted Law 211 (211)
Institution
Stellenbosch University (SUN)
This document contains extensive and comprehensive notes, summaries, questions and question papers regarding the module of Interpretation of Enacted Law. The notes are compiled from the textbook, class notes, case law and extra information given in in the form of tutorials.
INTERPRETATION OF ENACTED LAW:
THEME 1: GENERAL INTRODUCTION:
WHAT IS INTERPRETATION OF ENACTED LAW:
• Example: no vehicles in the park
• Debate between HLA hart (famous legal philosopher at Oxford) and Lon L Fuller (legal
thinker at Harvard University)
o HLA Hart came up with the following example: “imagine you go to a park and
at the entrance of the park there is a sign which says, ‘no vehicles in the park’
or ‘no vehicles are allowed beyond this point in the park’”
o Let’s assume that this is a legal rule, let’s assume that it is a form of legislation
so then the question becomes how to interpret this?
o There are different approaches to interpretation of legislation and one of these
approaches says, look at the ordinary meaning of the words as far as possible.
If you are in doubt, perhaps you can look at a dictionary – but “stick” to the
words
o A second school says, it is often not that easy, you also need to look at other
considerations from the outset.
o Example 1: Let’s suppose a little boy – comes to the park with a toy car – an
official then taps the mother on the shoulder and says “sorry, didn’t you see
the sign, no vehicles are allowed in this park”
▪ Would a toy car qualify as a vehicle for purposes of this legal rule?
▪ Was it meant for only motor vehicles?
▪ We would agree that should we see a motor vehicle entering the park,
we would consider it as a vehicle. We would probably also consider a
motorcycle to be classified as a vehicle.
▪ But why would we then not classify a toy car as a vehicle? It also has
wheels?
▪ Inherent in our concept of a vehicle is that it is usually used to transport
humans, sometimes animals, objects and this is not really the purpose
this toy car.
▪ It is a toy, it is used for entertainment value and its purpose is not so
much to transport people or goods.
▪ Purpose: some of the strict textualists would suggest to stay away from
purpose as far as we can, we should just look at the ordinary meaning
of the words, law is a purposive activity, its purpose is to regulate
people’s behaviour and every law has some very specific purposes.
This toy car is not covered by the purpose of this prohibition. Which is
probably to avoid, to prevent disturbances to other users of the park
, ▪ It can prohibit noise.
▪ One could make an argument that in the wrong hands this toy car could
become a “murder” weapon (it is a crucial point to look at the purpose).
There are perhaps certain toy cars that can fall within this prohibition
because of the kind of disturbance that it could cause.
▪ There are different approaches from this very simple example, to
questions like this. The one would ask: what is the ordinary meaning of
the word vehicle? It would be to transport people or goods. Does this
toy car fall in that category? The other question to ask would be, in
addition to that is to look at the purpose behind the prohibition.
o Example 2: a mother with a stroller enters the park and similarly the park
official taps the mother on the shoulder and says “this” vehicle (the stroller) is
not allowed in the park. have you not seen the notice?
▪ Is a stroller/pram a vehicle?
▪ A pram would usually not fall within the typical scope of what we see
as a vehicle.
▪ Argument 1: you need a licence to drive a vehicle – you do not require
a licence for a pram.
▪ Argument 2: a vehicle is something that is propelled by a motor and not
by a human. (a vehicle is normally propelled or propelled by an engine
= you can argue that is the ordinary meaning of a vehicle but you can
also connect that to the purpose and say the purpose of this prohibition
is not to prevent families from having a good time in the park, while
they are not really bothering anybody else.
▪ One of the important thing about interpretation is to interpret a
legislative provision in context, not only within the social/historical
context but also within the context of the provision as a whole. No
vehicles in a park = can we argue that the meaning of the word vehicle
should also be qualified by what we understand under a “park”?
▪ So perhaps in a different statute stroller may or may not qualify as a
vehicle – but because of our sense that the park is a place where
families, individuals and friends go to relax, to spend time with each
other, we would say that this stroller would not be covered by the
definition of vehicle.
o Example 3: there is a plane/jet mounted on a pedestal somewhere in the
middle of the park. is this a vehicle?
▪ One could say normally an aeroplane transports people, normally it
would qualify as a vehicle but in this case it may serve as a memorial or
monumental kind of purpose to remind us perhaps of a particular war
or it may be a tourist attraction. So here the purpose of this object does
, not comply with that of a vehicle and it would not fall within the scope
of the purpose of this prohibition.
o Example 4: someone enters the park on a motorized wheelchair.
▪ The park official argues that this object transports people, it is
motorized therefore it has to be a vehicle.
▪ Argument 1: not all people are in the same position. Some people has
special needs and part of the whole idea of a park is that everyone
should have access. There is something democratic about it. There is
something egalitarian about it. Everyone should have access and
everyone should be able to enjoy the facilities of the park and for that
reason we should not take this wheelchair to be a vehicle for purposes
of this law.
▪ Can one bring the Constitutional rights into it? Would that be
permissible? What would the argument be? This would constitute to
discrimination on the basis of disability to prevent this person from
entering the park. it may also be an infringement on the person’s
human dignity.
▪ Are we allowed to look at the Bill of Rights when we interpret
legislation? What specific section in the Constitution authorises that?
It is section 39(2) of the Constitution which says “when interpreting
legislation the court must take into account the values, purport and
objects of the Bill of Rights.”
o Example 5: some pervert decides to fly a drone above the park because he
wants to take pictures of people relaxing and sunbathing etc.
▪ Would a drone qualify as a vehicle in the park? is it a vehicle and is it
in the park?
▪ It would certainly infringe on people’s privacy.
▪ Argument 1: suppose the owner of the drone says: “this municipal
ordinance was made in the 1960’s at that stage drones did not exist, so
therefore the drafters of this legislation could never have intended to
cover drones.”
▪ Some people would say you should look at the original intention behind
the legislation. Other people would say that legislation and the law is
something dynamic, it must be kept in tune with changing times. And
therefore it might be possible to view a drone as a vehicle in the park.
o Example 6: suppose this park official is still very eager, and sometimes
someone brings this huge sound system with huge speakers into the park, it
makes a big noise and the park official tells them that the purpose of the
legislation is always important.
▪ The purpose of this prohibition seems to be to avoid a disruption to the
relaxation to the people in the park to prevent a noise. These speakers
, make a noise, it causes a disruption and therefore it qualifies as a
vehicle.
▪ The problem here is that the purpose and the words sometimes pull in
opposite directions.
▪ Certainly prohibiting the speakers would achieve many of the goals of
this prohibition but at the same time most lawyers would say “to say
that these speakers are a vehicle would be just to stretch the meaning
of the language too much.
▪ So there are limits to purposive interpretation, the purpose should
always be balanced with the meaning of the words used.
▪ Clearly here are different issues at play, different dimensions at play
when interpreting laws and these include the ordinary meaning of the
words used, the purpose, the context and the values.
• How to interpret it:
o Dictionary meaning?
o Other considerations?
RELATION BETWEEN:
• Words used (ordinary meaning)
• Purpose
• Context
• Values
ROSSOUW V SACHS 1964 2 SA 551 (A):
• Recap: Sachs was incarcerated for a period of time and who was not entitled and who
was not given access to reading and writing materials. In the end the Supreme Court
of Appeal or the Appellate Division as it was then known ruled against it. The
interaction between legislation and the common law in this case = the common law is
that part of the law which is not contained in legislation. It is derived from the old
Roman Dutch law and the old English law and it was developed further by our courts.
The court even though it has to interpret this legislation, this piece of security
legislation had on a view occasions referred back to the common law.
o Why is that? Why would the common law still be relevant where there is a
statute in place?
o Do legislation always provide an answer to the question at hand? Not always
because the legislation can contain some gaps – things that are not expressly
regulated by the legislation and in such cases the common law can help to fill
in the gaps.
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