Exam (elaborations)
IOS2601 EXAM PACK 2023
- Institution
- University Of South Africa
IOS2601 EXAM PACK 2023
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IOS2601EXAM PACK
2023
QUESTIONS AND
ANSWERS
,Question 1.4 = 1
Question 1.5 = 1
Question 1.6 = 2
Question 1.7 = 1
Question 1.8 = 2
Question 1.9 = 3
Question 1.10 = 1
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,An ordinary citizen may rely on the everyday meaning of legislation; therefor the courts
may not proceed beyond the plain meaning of the text. A dictionary must firstly be used
to settle interpretive questions.
The ‘golden rule’ of interpretation is that if the ‘plain meaning’ of words are ambiguous
(there exists more than one meaning of the word, in question, in the dictionary), vague
or misleading or if the strict literal interpretation would result in absurdity (Venter v R),
then the court may deviate to avoid such absurdity. The court will then turn to
‘secondary aids’ to interpret the intention of the legislator. ‘Secondary aids’ are the long
title of the statute, headings of chapters and sections, and the text in the other official
language etc. If the ‘secondary aids’ also do not lead to a satisfactory result, then the
court may refer to tertiary aids to interpretation. These tertiary aids are common law
presumptions that may be used. In these cases, the court will concedes that it cannot
determine what is intended by the legislature and that it will its own assumption about
what the legislature has intended.
The textual approach after 27 April 1994 (Interim Constitution came into effect)
The Appellate Division referred to with approval to the textual approach for statutory
interpretation in Swanepoel v Johannesburg City Council: “[T]he rules of statutory
[exegesis] are intended as aids in resolving any doubts as to the legislature’s true
intention. Where this intention is proclaimed in clear terms either expressly or by
necessary implication the assistance of these rules need not be sought.”
The Supreme Court of Appeal the traditional rule of interpretation in Commissioner,
SARS v executor, Frith’s Estate: “The primary rule in construction of a statutory
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, The purposive (text-in-context) approach
Even before 1994, the purposive approach was applied by the courts from time to time.
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This approach dates back to 16 century English law and has resulted in a number of
important minority judgments.
The purpose of the legislation is the most important factor in terms of the text-in-context
approach. The law-text in context of surrounding circumstances, as well as social and
political considerations, is taken into account. The most important rule of the contextual
approach is the so-called mischief rule.
In Construction of Statutes, Elmer Driedger defines the mischief rule as follows: “A
statute is to be so construed as to suppress the mischief and advance the remedy, thus
giving the courts considerable latitude in achieving the objective of the legislature
despite any inadequacy in the language employed by it.”
External aids to interpretation must be applied from the beginning of the process of
interpretation. These aids and circumstances are indicative of the context wherein the
legislation was enacted by indicating what the main mischief was that the legislation
intended to address. The context can be researched by considering the legal position
before the legislation, the legal problem that existed, the new solutions brought about by
the statute and the reasons for the new legislation.
The contextual approach differs from the literal approach in the following respects:
The wider context may be considered form the start.
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