CHAPTER 1: GENERAL INTRO
1.1 Legislation as a source of law
The law = all forms of law (common, statute, indigenous/customary,
case)
o Legislation (statute law) comprises all different types of enacted
legislation (Acts of parliament, provisional legislation, municipal
by-laws, proclamation, regulations). An Act refers to a
parliamentary statute or legislation of a parliamentary statute or
legislation of a provincial legislature. An act refers to
conduct/action such as the act of a gov official or organ of state.
o Common law composed of rules of law not originally written down
but came to be accepted as law of the land. It’s made up of
underlying original/basic legal principles. SA common law =
Roman-Dutch law. It originated during 17th century in erstwhile
Holland (influenced by English law).
Common law needs to be distinguished from codifications
(statutory compilations of all legal principles relating to
particular branch of law). Common law may be changed by
original legislation but if no statutory law on subject,
common law applies.
o Indigenous law refers to traditional law of indigenous black people
of SA. It can either be unwritten customary law or codified.
o Case law (judicial precedent) is law of various courts in specific
cases before them have decided on it. Precedent system (stare
decisis) means the judgements of higher courts bind the lower
courts and courts of equal status.
A law = written statute enacted by legislative bodies which have the
authority to make law
Legislative intervention in common law legal systems is necessary to
deal with the changes in modern society.
,1.2 What is interpretation of statutes
Interpretation of statutes (juridical understanding of legislation) deals
with rules and principles which are used to construct the correct
meaning of legislative provisions to be applied in practical situations.
It is about making sense of the total relevant legislative scheme
applicable to the situation at hand.
Technical aspects must be applied in conjunction with substantive
aspects to interpret legislation.
Interpreting:
o Provision must be read, understood and applied within framework
of supreme constitution and Bill of Rights.
o Impact of other legislation must be kept in mind.
o Is legislation still in force or has it been amended?
o If a provision in an Act is interpreted, it must be read with rest of
the Act including definition and schedules, regulations may have
also been issued.
o What is the context of legislative text?
o External aids can be used to establish meaning.
o Sometimes there can be poor drafting, conflicting provisions or
lack of resources to research current law.
Legalese (perplexing/specialized language)
o Social dialect used by lawyers in legal documents and is
incomprehensible to non-lawyers.
o The language of lawyers that they would not use in ordinary
communication but for the fact that they are lawyers.
o Characterized by wordiness, Latin expressions, passive verbs,
lengthy sentences and legal doublets.
What is in a name: purpose or intention?
o Interpretation of statutes = juridical understanding of legislation.
o Interpreter must determine what legislation has to accomplish
(intention of legislature/purpose of legislature/legislative scheme)
The term ‘intention of legislature’ is linked to principle of
sovereignty of parliament.
Parliament was sovereign lawmaker and legislation
represented parliamentary legislative intention.
Statutory interpretation can be defined as the process
during which the will/thoughts of legislature are
ascertained from the words used by legislature to convey
said will/thoughts.
, Whose intention is it as parliament comprises of many
people?
Legislature is composed of a large number of persons
who all take part in legislative process.
Democratic legislative process – some members may
oppose legislation and therefore legislation reflects
intention of only the majority of legislature.
Some members only support legislature for party
unity even though they might be personally opposed.
Parliamentarians – elected politicians and do not
necessarily understand complexities and
technicalities of Bill.
Bill – not drafted by public representatives but by
legislative drafters and law advisers acting on advice
from bureaucrats from state departments.
Some members of legislative body may be absent.
Intention of legislature – fictional collective intent of majority
of legislative body present at the time when vote took place,
expressing their will within the constraints of the voting
guidelines laid out by the caucus of ruling party in legislature,
and voting for draft legislation (formulated by legal drafters on
advice of bureaucrats from gov departments) which had been
approved earlier by state law advisors.
1.3 The new constitutional order
Statutory interpretation and unsystematic rules thereof criticized by
academics in 70’s and 80’s.
Traditionally, interpretation of statutes in SA was confusing.
Acceptance and legitimacy of new supreme constitution may have been
compromised if application of fundamental rights was hampered by
orthodox interpretation of legislation.
o Supreme constitution – highest law in the land (lex fundamentalis)
o Although parliament remains highest legislative body in system of
gov with a supreme constitution, any legislation/act of any gov
body which is in conflict with constitution will be invalid.
o Constitutional supremacy does not imply judicial supremacy.
o Courts are also subject to constitution and act as final guardians of
values and principles embodied in constitution.
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through EFT, credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying this summary from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller kiaradavey. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy this summary for R150,00. You're not tied to anything after your purchase.
