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Interpretation of Enacted Law 211 - complete module notes
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- Stellenbosch University (SUN)
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INTERPRETATION OF ENACTED LAWTable of Contents
Theme 1: General Introduction.......................................................................................... 2
Theme 2: The term legislation and Subsidiarity ................................................................. 9
Theme 3: Adoption and promulgation of legislation and Presumption that legislation
applies only to the future ................................................................................................ 17
Theme 4: Changes to and demise of legislation ............................................................... 25
Theme 5: Theoretical Foundations .................................................................................. 29
Theme 6(a): The five interrelated dimensions of interpretation ....................................... 37
Theme 6(b): Holistic (contextual and structural) dimension ............................................. 41
Theme 6(c): Values .......................................................................................................... 44
Theme 7: Judicial law-making during concretization ........................................................ 57
Theme 8: Peremptory and directory provisions ............................................................... 61
Theme 9: Constitutional interpretation ........................................................................... 64
1
,Theme 1: General Introduction
- Start by looking at 2 Apartheid Era cases that were decided before 1994 – They were
decided under a system of parliamentary sovereignty
The cases:
- Rossouw v Sachs 1964 2 SA 551 (A)
- REX v ABDURAHMAN 1950 (3) SA 136 (A)
Why look at these old cases?
- Statutory Interpretation has undergone lots of changes since these times
- We now have a supreme constitution which has fundamental implications for the
interpretation of legislations
- HOWEVER, it makes sense to look at interpretation historically to see what courts
did before 1994
- 1) When we do so, we see that before 1994, courts were confronted with certain
interpretive choices – not everything was absolutely clear cut even though it was a
system of parliamentary sovereignty and the courts could not test the validity of
parliamentary legislation
- 2) We should have a good understanding of what was wrong during Apartheid and
what biases and dispositions were exhibited by judges during that time.
What is it meant by parliamentary sovereignty?
- Under a system of parliamentary sovereignty, courts could not test the validity of
parliamentary legislation so parliament could make laws that were grossly unfair,
blatantly discriminatory and there was very little that the courts could do. For
example, the courts could not declare that the parliamentary legislation was invalid
because it violated people’s human rights
Today: CONSTITUTIONAL SUPREMECY – all law can be tested against the constitution. All
law and government conduct must conform with the constitution.
Rossouw v Sachs 1964 2 SA 551 (A)
- Albie Sachs later became a constitutional court judge
- Sachs was on the wrong side of the state because he was involved in the Anti-
Apartheid struggle
- He was detained for interrogation in terms of security legislation
- This legislation was unusual because it didn’t deal with people who were convicted
of offences. Nothing to do with crime. They were detained simply because the state
wanted to interrogate them. They could be held by police for a period of 90 days and
were not entitled to bail.
2
, - Instructions of Commissioner of Police: not given access to reading or writing
materials
- Mr Sachs is an intellectual – likes to read newspapers, books, poetry etc. – went to
the court for an audit declaring that he is entitled to access to reading and writing
materials.
- The case reaches the Appellate Division – (what the Supreme court was known as in
those days.
- Appellate division doesn’t start of too badly: says that Statute that deprives
individuals of rights should normally be interpreted restrictively – as a rule, the
court should not interpret legislation which restricts people right more restrictively
than necessary.
- Common law position of detainees – In SA we don’t only have Legislation but
Common Law (unwritten law) and Customary Law
- Common law comes in where legislation does not govern a particular issue – so the
common law is still a really important body of law in SA
Why does the court refer to the common law?
1. Even when you have legislation, the common law can sometimes be use to fill in the gaps
in the legislation. In other words: determine what is the legal position
2. At common Law, there were certain presumptions dealing with statutory interpretation
If the legislation was not quite clear, the court could use a presumption such as it is
presumed that the legislature did not intend unfair consequences.
Under common law – Detainees have rights so they don’t lose all their rights the moment
they are locked up/ detained
Parliament could not have intended that detainee should be subjected to assault, or that
health or resistance should be impaired by inadequate food or living conditions – the court
is saying if Mr Sachs complained is that he is not getting any food in while he is detained,
the court will have reached the conclusion that detainees are not allowed to be starved in
terms of the common law.
BUT…
Section should be interpreted “in the light of the circumstances whereunder it was
enacted and of its general policy and object”
- The court says we should not only look at the wording of the legislation but also look
at the purpose/ object/ policy in terms it was enacted and the circumstances at the
time.
- Awaiting-trial prisoners are entitled to certain rights and liberties
- Court notes exceptional, severe nature of legislation, e.g. excludes right against self-
incrimination; access to legal representative – normally when a person is arrested/
accused of offence. The person can refuse to answer questions that may incriminate
them. This legislation excludes access to legal representative.
3
, We stated discussing the court’s judgment: However, the one material factor that we have
left out until now is that the legislation in question did not say anything about the access
of detainees to reading and writing materials – it was silent on that matter
Because that the legislation did not say anything, one could conclude/ make an argument
that therefore the legislation itself doesn’t authorize taking away this particular right of
detainees and if one also considers that at common law, detainees also have certain
individual right and freedoms, the court should decide against the state.
- The court should say there is no textual (the text of the legislation) for the
conclusion that this right should be taken away and therefore reading and writing
materials should be available to detainees such as Mr Sachs
At this stage (slide 6) – it is clear that this is not the direction that the court is going in this
case. The appellate division comes to the conclusion that it is the intention of
parliament/legislature to induce detainees to answer all questions asked to them
satisfactorily.
- The court clearly doesn’t only look at the language of the provision but also the
intention/ purpose of the legislation and it says that if we read this legislation as a
whole, it is the purpose of the legislation to make sure that these detainees talk.
- Legislature wants to make sure that any information that these detainees have that
may be to the detriment/ endanger the apartheid state, that all this information
should be disclosed.
The court then makes it clear: Not intention of legislature to alleviate the lot of the
detainee, or to give him access to comforts like reading materials
- The court says that the purpose of this legislation is to make people like Mr Sachs
talk, it is not to make them feel comfortable (by providing them reading materials
etc.)
Evaluation:
- It seems quite “progressive” to the extent that it is willing to look at the purpose of
the legislation and to the context of the legislation as a whole.
- On the other hand, the outcome of this interpretation is very much detrimental to
the rights and freedoms of the individual – NOT A LIBERAL JUDGEMENT – one of the
worst decisions by the Apartheid court ever
Parliamentary sovereignty and intention of legislature
- Parliament is the highest legislature and nobody can challenge the validity of
parliamentary legislation.
- Direct link between the system of parliamentary sovereignty and intention of
legislature. If your point of departure is whatever parliament wants is law, then, you
are going to look for the intention of parliament, in order for the courts to give
better effect to what parliament actually wanted. Even if the language of legislation
didn’t see that clearly.
- Courts did not want to say what is fair or just. They just want to give an effect to the
intention of parliament.
4
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