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FSAL Term 4 Lesson 1 summarized notes on Statutory interpretation with case law. R100,00
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Class notes

FSAL Term 4 Lesson 1 summarized notes on Statutory interpretation with case law.

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This document consists of the general summarized introduction to the Interpretations of statutes in FSAL with highlighted parts.

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  • September 22, 2022
  • 19
  • 2021/2022
  • Class notes
  • Waheeda amien
  • Term 4 lesson 1

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1

Ch.1 General Introduction


1.1 - LEGISLATION AS A SOURCE OF LAW:
The law- consists of all forms of law (common law +statute law + customary law + case law)
A law- a written statute enacted by those legislative bodies which have the authority to make laws


 Legislation- “enacted law texts” emanating from a body or person that has direct or indirect
authority to make such laws
eg. Acts of Parliament, provincial legislation, municipal by- laws, proclamations and regulations

An Act- a parliamentary statute or the legislation of a provincial legislature
An act- refers to conduct or action eg. The act of a government official

 Common law- rules of law which were not originally written down but came to be accepted as the
rule of the land; basic legal principles → Roman Dutch law

Codifications- statutory compilations of all the legal principles relating to a particular branch of the
law eg. Criminal code
If there is no statutory law on the subject → common law applies

 Customary/Indigenous law - refers to the traditional law of the indigenous black people of SA
(unwritten customary law or statutory compilations)
 Case law/judicial precedent - the law in decided cases

Importance of statute law

 Common law cannot deal with the regulation of new technological + scientific development
(electronic transfer, stem cell research) ∴legislative intervention is necessary
 New legislation is needed to remedy what happened during apartheid



1.2 - WHAT IS INTERPRETATION OF STATUTES?

 Interpretation of statutes = the juridical understanding of legislation
 The interpretation has to determine what the legislation has to accomplish in the legal order →
intention/purpose of the legislature
 The rules + principles used to construct the correct meaning of legislative provisions to be applied in
practical situations
 Technical aspects (e.g., the structure of the legislation + language rules) must be applied in
conjunction with substantive aspects (e.g., constitutional values + fundamental rights)

, 2

 The interpretation of legislation is not a mechanical exercise with predetermined formulae, the
interpreter has to keep a number of other related issues in mind:
1. The provision must be read, understood + applied within the framework of the Constitution +
the BoR
2. What is the impact of other legislation?
3. Is the legislation that must be interpreted still in force + has it been amended?
4. Read within context of entire Act
5. What is the context (general background + surrounding circumstances.) of the legislative
text?
6. Other external aids may be used e.g., dictionaries, commissionaires’ reports

Legalese

 Bad drafting and legalese is another problem. ‘Legalese’ refers to the perplexing and specialised
language used by lawyers in legal documents, incomprehensible to the non-lawyer.
 Refers to the specialised language used by lawyers in legal documents
 Characterised by wordiness, Latin expressions, lengthy sentences + legal doublets (e.g., null + void)

What is in a name: purpose or intention?

 Interpreter has to determine what the legislation has to accomplish in the legal order →
Intention/purpose of the legislature
 Intention of the legislature- closely linked to the principle of sovereignty of parliament → Parliament
was the sovereign lawmaker in the Republic + legislation reflected a parliamentary legislative
intention
 Statutory interpretation- the process during which the will or thoughts of the legislature are
ascertained from the words used by the legislature to convey that will or thoughts
 It is important as to how that purpose is ascertained + construed
 It is difficult to picture a collective intention exercised by all the members of the legislative body:
 Legislature consists of a large no. of people whom all take part in legislative process
 Some members may oppose the legislation → the adopted legislation reflects the ‘intention’
of only the majority of the legislature
 Some members will support the legislation for the sake of party unity → the ‘intention’ of the
legislature is subject to what the individual. members ‘had to’ intend
 Parliamentarians do not necessarily understand the complex + technical legislation
 A Bill introduced in the legislature is not drafted by the public representatives, but by
legislative drafters and law advisers acting on the advice of bureaucrats from various state
departments.

, 3

 Some members may be absent when voting on draft legislation
In other words: The Intention of the legislature refers to the fictional collective intent of the majority
of the legislative body present at the time when voting took place.

1.3 - THE NEW CONSTITUTIONAL ORDER

 A supreme constitution- the highest law in the land
 Parliament remains the highest legislative body but any legislation or act of the government body
which is in conflict with the constitution will be invalid
 The courts are also subject to the constitution
 Traditionally, the SA rules of statutory interpretation were based on the sovereignty of Parliament
→Parliament is the highest legislative body + is capable of enacting any laws it wishes, no court may
test the substance of parliamentary Acts against standards e.g., fairness + equality
 The Constitution of the Republic of South Africa 200 of 1993 (The Interim Constitution)- principle
of parliamentary sovereignty replaced by constitutional supremacy, interpretation clause stated that
the spirit + purport of the fundamental rights had to be taken into account during the interpretation of
statutes (The courts could no longer ignore value judgments)
 The Constitution of the Republic of South Africa, 1996 (The Constitution)- the interpretation of
statutes was transformed by 6 provisions, namely:

Constitutional impact on legislation

 s 1- the foundational provision
 The Republic of South Africa is one, sovereign, democratic state founded on the following
values:
(a) Human dignity, the achievement of equality and the advancement of human rights + freedoms
(b) Non-racialism and non-sexism
(c) Supremacy of the constitution and the rule of law
(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party
system of democratic government → ensure accountability, responsiveness and openness.
 s 2- the supremacy clause
 This Constitution is the supreme law of the Republic, law or conduct inconsistent with it is
invalid, and the obligations imposed by it must be fulfilled
 s 7- the obligation clause
 The state must respect, protect, promote and fulfill the rights in the Bill of Rights
 s 8- the application clause
 The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and
all organs of state

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