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STI Test 1 Memo
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- Law (STI321)
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- University Of The Western Cape (UWC)
Statutory Interpretation Memorandum
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UNIVERSITY OF THE WESTERN CAPESTATUTORY INTERPRETATION (STI321)
TEST 1 (22 MARCH 2020)
MEMORANDUM
Question 1 [8 marks] 16 minutes
Answer only ONE of the questions.
(1) “As a source of law, legislation stands tall amongst and can subordinate or limit other
sources such as customary law, common law, and human rights law.” In no more than
400 words, explain why this statement is either correct or incorrect. Bear in mind that you
cannot argue both ways.
The statement is correct for the following reasons. With regards to customary law, section
211(3) of the Constitution establishes that customary law is applicable subject to both the
Constitution and any statutory law that deals specifically with customary law. Likewise, in
relation to common law, section 8 of the Constitution specifies that the application and
development of common law is subject to statutory law. As it relates to human rights law,
first, we draw from section 36 of the Constitution that statutory law can limit any of the rights
in the Bill of Rights provided that the limitation test is met. Secondly, going by the principle
of subsidiarity, where a statute has been enacted to give effect to any right in the Bill of
Rights as required by the Constitution, the statute becomes the primary law and is directly
applied in respect of such right while the Bill of Right is subordinated to serve as an
interpretative guide for the statute. In the same line of the principle of subsidiarity, where an
international human right treaty has been domesticated by Parliament, the treaty will be the
interpretive guide while the domesticated statute will play a primary role and be applied
directly. Overall, the Constitution is the supreme source of law while statutory law is
considered the primary source of law given how it can limit or surbodinate customary law,
common law, and human rights law. [235 words]
OR
(1) You work for a state department and are requested by the Director-General to draft a rule
"that will not be open to interpretation" to regulate access to public buildings. In your view,
will it be possible for a skilful drafter to do so? Comment in less than 400 words with
reference to the recurring problems faced by generations of drafters who have over the
centuries attempted to literally and figuratively carve their laws into stone.
It is impossible to draft a rule that is not open to interpretation. Rules are subject to
interpretation for several reasons. First, some rules include vague terms or ambiguous terms.
Drafters can do much to eliminate ambiguities but rules are often deliberately drafted in
vague terms where the legislature does not have the knowledge or political power to pass a
more detailed set of rules. Broad standards or vague rules cannot be completely eliminated.
Furthermore, because the drafter cannot control to which situations the rule will in future be
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