My own notes from the lectures, which include case discussions and important points from tutorials. I used these notes as my main source to study for the A1 and A2 and obtained a distinction. These notes contain everything you need to do well in the module.
Example: no vehicles in the park but does a toy car, bicycle, pram, wheelchair qualify
as a vehicle?
- Definitional meaning of the word and the function are sometimes different
- Wheelchair: constitutional rights and values need to be considered
- Need to update old and new meanings of constitution for the bill of rights
Relationship between words used, purpose, context, and constitutional values.
What is the interpretation of statutes?
Why do we need special rules of interpretation?
When interpreting legislation, what are some of the most important factors
that need to be kept in mind?
What does the concept of ‘the intention of the legislature’ refer to and why is it
problematic?
Which constitutional provisions are particularly important for statutory
interpretation?
What does the apartheid-time judgment of R v Abdurahman reveal about the
interpretive choices confronting judges, administrators, and legal
practitioners?
Two cases:
- Before 1994 under a system of parliamentary sovereignty (parliament could
make any law, no matter how unjust or unfair- courts could do nothing about
it)
- Now constitutional supremacy
1. R v Abdurahman 1950 (3) SA 136 (A)
, - Railway’s act: state administration may make regulations which reserve
certain coaches/trains for certain races or for men/women
- State administration reserves certain trains for Europeans only and it is an
offence for non-Europeans to use these trains
- Judgment: court can invalidate regulations if they are unreasonable or ultra
vires (ultra vires – outside of the competencies given to state, state never had
power to make those regulations)
- Are these regulations unreasonable and can they be invalidated? If it was not
the intention of parliament to authorise these regulations, they are
unreasonable and ultra vires.
- Regulation itself is not ultra vires and it could be applied equally and
impartially if coaches were set aside for every race – could be interpreted in
such a way to not discriminate any race group.
- Regulation itself not invalidated
- Reservation of coaches for only one race and making it an offence for black
people to sit in a coach for whites only, is partial and unequal thus
unreasonable – could not have been intended by legislature.
- Administrative action taken in terms of the regulation was invalidated
Judges had room for manoeuvre even during apartheid but did not have absolute
discretion to decide against unjust apartheid laws. If the language indicated more
clearly that railways could discriminate, courts could not disagree.
2. Rossouw v Sachs 1964 (2) SA 551 (A)
- Sachs was detained for interrogation in terms of security legislation based on
suspicion of him having knowledge of crimes against the security of the state
- Wasn’t detained pending trial
- Commissioner of police and prisoners issued instructions to people detaining
him to not give him reading or writing materials
- Sachs demanded this right
- S 17 did not make any conditions for the detaining of people, or no regulations
made by executive authority that tells us what conditions must be for people
who are held
, - Statute that deprives individuals of rights should normally be interpreted
restrictively
- Court refers to common law position of detainees: old judgement of Whitakker
v Roos: a detainee is entitled to all personal rights and dignity not temporarily
taken away by law
- Parliament could not have intended that detainee should be subject to
assault, or that health or resistance should be impaired by inadequate food or
living conditions
- Distinguished that Sachs was not an awaiting trial prisoner therefore principle
awaiting trial prisoners are entitled to all personal rights is not fully applicable.
- Intention of legislature is to induce detainee to answer all questions
- The judgment thus gave effect to the intention of the legislature or the
purpose of the legislation, rather than the ordinary meaning of the words of
the legislation.
THEME 2: THE TERM ‘LEGISLATION ’
- Need proper legal authority and to follow correct procedures to make
legislation
- Such rules (written) must also be published in government gazette to be valid
What is legislation?
- Section 239 Constitution: National and provincial legislation includes a)
subordinate legislation made in terms of an act of parliament and…
b) legislation that was in force when constitution took effect and that is
administered by the national government
, - enforced by s 1 and of the interpretation act
Different categories
- National, provincial and local legislation
- Old order and new order legislation
- Original and subordinate legislation
Old order: schedule 6 – all law that was in force when the new constitution took
effect, continues in effect unless they have been repealed or amended, or
invalidated because they are inconsistent with the new constitution
Original legislation
- Characteristics: authority sourced directly from parliament and made by
deliberative legislative bodies (deliberative legislative body = body composed
of different members of legislative assembly who sit and debate issues to
make decisions)
- Subject to constitution
- Categories: acts of parliament, acts of provincial legislatures, municipal
bylaws after 1994
- Would be an Act etc.
Subordinate legislation
- Original legislation authorizes executive authority or statutory body (like a
minster) to make rules or regulations (Ministers power to make rules
dependent on authority given to them by parliament)
- Petroleum products Act – minister may prescribe, by regulation or notice, the
fuel price (more practical as fuel price changes so often and parliament
cannot regulate this)
- Higher education Act – council of university may issue institutional statute
dealing with the university’s general management (otherwise it would become
too prescriptive if parliament managed all universities)
- Must remain within the framework of the enabling legislation (may not conflict
with original legislation)
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