Exam (elaborations)
IOP2601 EXAM PACK 2023
- Institution
- University Of South Africa
IOP2601 EXAM PACK 2023
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IOS2601 EXAMPACK 2023
QUESTIONS
AND ANSWERS
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WHAT IS “INTERPRETATION OF STATUTES”?
It’s the juridical understanding of legislation; it deals with the body of
rules and principles used to construct the correct meaning of
legislative provisions to be applied in practical situations.
Statutory interpretation is similar to the interpretation of wills = the
author of the document can’t be called upon to clear up uncertainties
in the text, concretising the text to be construed so as to cater for the
exigencies of an actual or hypothesized concrete situation.
The courts are obliged to use specific rules of interpretation to
construe the meaning of the document.
Interpretation of legislation requires more than the mere reading of
the provisions: i.e. everyone has the right to life in Section 11.
S v Makwanyane: the Constitutional court held that the right to life
means that the state can’t take someone’s life in retribution and the
death penalty was declared unconstitutional.
Q: does this mean that you can’t kill in self-defence?
S v Walters: the court held that the existing right to kill someone in self-
defence wasn’t abolished by the Constitution
In Soobramoney: the Constitutional right to life doesn’t mean the state
has a duty to keep all terminal patients alive in all circumstances
Carmichele v Minister of Safety and Security: the Constitutional Court
linked the Constitutional right to life and freedom of security of a person
to the Constitutional duty imposed on the state and its organs not to
perform any act that infringes these rights
Why is interpretation not a rule like activity? / Why can IOS not
be like a computerized fashion?
The rules of Interpretation of Statutes can overlap and it is not always
clear which rule to applies. When deciding, the following must be
taken into consideration:
The set of facts differ from case to case, as well as the context of
legislation
The courts are not in one mind set when it comes to the
application of rules, therefore there is no particular pattern
involved when it comes to the application.
The law is not objective, neutral or value-free: interpreters have
their own pre-understanding of legislation based on their history,
background experiences, personal beliefs, etc.
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The spirit and the aim of fundamental rights must be promoted
during the interpretation of all legislation. Interpretation involves
value-judgments
The new Constitutional order
Traditionally, interpretation of statutes in South Africa was saddled
with unnecessary (and unacceptable) baggage: a confusing system of
maxims and canons of interpretation, a golden rule, overriding
principles, so called ‘primary, secondary and tertiary’ rules, should be
ascertained.
Traditionally, the South African rules of statutory interpretation were
based on the sovereignty of parliament, while a fundamental rights
dispensation is based on a supreme Constitution and fundamental
values.
Golden rule of interpretation – Give effect to the words as they appear
in the text.
Primary rule: read the words of the text and give effect to it.
Secondary rule: if the words are ambiguous or unclear then look to
your secondary aids – intra textual aids.
Tertiary rule: if the secondary aids still don’t assist in
ascertaining the purpose of the legislation, then we
look to our tertiary aids – extra textual aids.
Act: refers to a parliamentary statute or the legislation of the
provincial legislature. act: refers to conduct
Concretization: refers to the final phase of the interpretation process
during which the legislative text, the purpose and the situation are
harmonized to bring the process to a conclusion
Constitutionalism: refers to a government in accordance with the
Constitution: the government derives its powers and is bound by the
Constitution. It refers to a state where the law is supreme and
government and state authorities are bound by the law.
Constitutional state (rechtsstaat):
Refers to a state where Constitutionalism prevails: a country where
the Constitution is supreme. There are 2 types:
Formal: includes separation of powers, checks and balances and the
principle of legality
Material: refers to a state underpinned by a system of fundamental
values of justice and equality.
Context: refers to the circumstances surrounding something or the
situation in which something happens
Contextualisation: is the process during which the legislative text is
read and researched within its total context in an effort to ascertain
the purpose of the legislation
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