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Summary Interpretation of enacted law 211 notes
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- Stellenbosch University (SUN)
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INTERPRETATION OF ENACTED LAWTHEME 1
The law: consists of all forms of law – common law, statute law, customary law, case law.
A law: written statute enacted by those legislative bodies which have the authority to make laws.
Why refer back to cases decided before 1994?
1. Look back at interpretation historically because even before 1994 courts were confronted
with interpretive choices.
2. For us to make positive change we need to have a clear understanding about what was
wrong during apartheid (e.g. biases, dispositions displayed by judges back then).
DEF- Parliamentary sovereignty: under this system courts could not test the validity of
parliamentary legislation. Today we have a system of constitutional supremacy.
CASE LAW: ROSSOUW V SACHS 1964 2 SA 551 (A)
RESPONDENT: Sachs
FACTS: S detained for interrogation in terms of security legislation. Legislation was unusual as it did
not deal with people who were convicted for specific offences. They were accused simply because
court wanted to interrogate them. Could be held by police for 90 days, not entitled to bail.
Instructions of Commissioner of Police given instruction that those detained may not be given access
to reading or writing materials. Sachs wanted to be given access to these intellectual materials. BUT
legislation dealing with such accused did not detail anything about access to intellectual materials.
APPELLATE DIVISION:
RULE- Statute that deprives individuals of rights should normally be interpreted restrictively.
Court did not refer to it but common law had presumptions about the interpretation of
statute (presumed that legislature did not intend unfair consequences). Under common law
detainees have rights. Thus, Parliament could not have intended that detainee should be
subjected to assault, or that health/resistance should be impaired by inadequate food or
living conditions.
BUT Section should be interpreted “in the light of the circumstances where under it was
enacted and of its general policy and object”. [not only the wording of the legislation]
clear that the position of Sachs in this case differs from that of an “awaiting trial detainee”.
Notes that the legislation is severe in nature. E.g.- excludes right against self-incrimination
(cannot refuse to answer possibly incriminating questions etc.); access to legal
representative.
Legislation in question could be interpreted as follows:
o Legislation does not authorize taking away the right. And common law supports this,
thus courts should decide against the state that there is no textual support for the
right to be taken away
, BUT COURT DECIDED: Intention of legislature (or purpose of provision) is to induce detainee
to answer all questions satisfactorily. Not intention of legislature to alleviate the lot of the
detainee, or to give him access to comforts like reading materials
EVALUATION:
There is a direct link between Parliamentary sovereignty and intention of legislature (which
should be sought out in every case) thus courts looked at the intention of parliament.
Could Court have decided case differently?
o NO? parliamentary sovereignty
o YES? Court was able to interpret it in a way that agrees with the common law
presumption that legislation does not intend inequitable or unjust results
REFLECTION:
Interaction between legislation/common law used to fill gaps in legislation, presumptions
Judicial choice existed as legislation had gaps, internal contradictions:
o Interpretation of legislation
o Development of common law – Whittaker v Roos (1912) – applicable to or distinct
from present case?
Relation between ordinary meaning and purpose
o Position in unjust legal system
Role of values
CASE LAW: R V ABDURAHMAN 1950 3 SA 136 (A)
Facts:
Railways Act: Administration may make regulations providing for reservation of railway
coach for exclusive use of particular races
These regulations authorize Admin to “reserve any train or any portion of a train for the
exclusive use of males or females, or persons of particular races, or different classes of
persons or natives”
Admin reserves certain coaches for “Europeans”; it would be an offence for “non-
Europeans” to use those coaches. No coaches reserved for non-Europeans.
Judgement:
A court can invalidate regulations if ultra vires (a gov. department is acting outside of its
legal powers) or unreasonable
o But what about parliamentary sovereignty at the time? court could not invalidate
acts of parliament (OG legislation), BUT they could invalidate subordinate legislation
[made by a body or functionary that was given the power to make these rules by
parliament]
o Kruse v Johnson (1898): “If for instance [regulations or bylaws] were found to be partial
and unequal in their operation as between different classes; if they were manifestly
unjust;… the Court might well say: 'Parliament never intended to give authority to
make such rules; they are unreasonable and ultra vires’.’’
, QUESTION: Should the regulation be invalidated? – SCA said no as the regulation could be
applied equally and impartially – not ultra vires. BUT the state admin did not do so. The
reservation of coaches for only one race = partial and unequal, and therefore unreasonable
– could not have been intended by legislature.
Evaluation:
Room for maneuver for judges even during apartheid? – there was room for them to take
away some of the harshness of the legislature.
o May invalidate subordinate legislation, administrative action
How do judgments in Abdurahman and Rossouw differ?
o In Rossouw the court uses the intention of the legislature to restrict the rights of
detainees, in Abdurahman they using the intention of the legislature to strengthen
and protect the right of the individual. intention of parliament can be used as a
double edged sword.
How would court decide Abdurahman today?
Is intention of legislature a problematic concept?
Intention = subjective, but usually determined on the basis of ordinary meaning of words
How determine intention of legislative assembly?
Legislators may support legislation for different reasons
Legislators may understand legislation differently
Rather talk about purpose? – more objective, asking whilst considering all the evidence
available (e.g.- language, text as a whole, history etc.) what could reasonably be construed
as purpose of legislation
The Constitution
S 1: fundamental values [on which republic is based]
S 2: Constitution is supreme law [all law must be in line with constitution]
S 39(2): When interpreting legislation, must give effect to spirit, purport and objects of the
Bill of Rights
, THEME 2 – legislation
DEF—Legislation: human institution made by authorities that have been given the power by law to
make legal rules
1. Written law
2. Enacted by person/body with authority to do so by the constitution or other legislation
3. Must be published and generally accessible by the public
Section 1 and 2 of the Interpretation Act is NB
S2 defines law as: “law” means any law, proclamation, ordinance, Act of parliament or other
enactment having the force of the law.
+ all by-laws, rules, regulations and orders, any other enactment have the force of law.
Constitution gives guidelines: (pg.- 17)
Constitution s 239: “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
DIFFERENT CATEGORIES OF LEGISLATION
National, provincial and local legislation
Old order and new order legislation [before and after interim constitution]
o Old order legislation defined by schedule 6 Item 2(1) of Constitution 1996: “All law
that was in force when the new Constitution took effect, continues in force, subject
to –
(a) any amendment or repeal; and
(b) consistency with the new Constitution”.
subordinate legislation
Hierarchical categories:
1. The constitution- supreme law
2. Original legislation:
Characteristics:
o Authority sourced directly from Constitution
o Enacted by democratically elected, deliberative legislative body (Middelburg
Municipality v Gertzen)
o Subject only to Constitution
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