Summary
Summary Statutory Interpretation
- Institution
- Stellenbosch University (SUN)
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LEARNINGOUTCOMES
This module not only
considers what is the
legal position, but
asks HOW SHOULD WE
GO ABOUT
INTERPRETATION OF
DETERMINING THE
LEGAL POSITION?
SUNè-MARI
ENACTED LAWS Koekemoer
BA Law (F)
Stellenbosch University
, 2
Theme 1: Introduction to Interpretation of
Enacted Laws
Legislation as Source of Law
It is important to understand the technicalities of the law so that we may understand and
apply the rules and principles required to interpret legislation.
Important Terms
All forms of law
The Law Common law, statutes, customary law,
case law
Written statute enacted by those
A law legislative bodies which have the
authority to make laws
Enacted law texts
Legislation All different types of enacted Legislation
Acts of parliament, provincial legislation, muncipal by-
laws
A parliamentary statute
Act
Rules of law which were not originally written down, but came to be accepted as
the law of the land
Common law
Made up of underlying basic legal principles
Common law = Roman-Dutch law
Distinguishable from codifications
No statutory laws on the subject means that the common law applies
Traditional law of indigenous black people of SA
Indigenous Law Unwritten or codified
Judicial precedent
Law as various courts in specific cases before them have decided
Case law on it
Stare decisis: judgement of higher courts bind lower courts and
courts of equal status
, 2
Role of Legislation
Common law cannot deal with the regulations of new developments, and this creates
the need for legislative development
o Therefore, we say that legislation is the most important source of law in
modern society
There is a fundamental reason for a thorough understanding of the technical aspects of
legislation
o In Apartheid, the law was ideologically underpinned and was a public-law
driven system based on a web of interlocking legislation
o To dismantle this legal edifice requires
Excellent knowledge of statute law
Great deal of new legislation to remedy the situation in the new
constitution dispensation
Interpretation of Statutes
Judicial understanding of legislation
Rules and principles which are used to construct the correct meaning of legislative
provisions to be applied in practical situations
Du Plessis:
o "Statutory … interpretation is about construing enacted law-texts with
reference to and reliance on other law-texts, concretising the text to be
construed so as to cater for the exigencies of an actual or hypothesised
concrete situation"
o i.e., it’s about making sense of the total relevant legislative scheme applicable
to the situation at hand
Why is there a need for special rules of interpretation?
S v Makwanyane
S 11 of BoR
Right to life forms part of enacted law text
Right to life means that the state may not take a person's life in retribution
Death penality is unconstitutional
Ex Parte Minister Safety and Security
Existing right to kill a person in self-defence was not abolished by the Constitution
Soobramoney v Minister Health KZN
The constitutional right to life does not mean the state has a duty to keep all
terminal patients alive in all circumstances
Carmichele v Minister Safety and Security
Constitutional rights to life and freedom and security of person were linked to the
constitutional duty imposed on the state and all its organs not to perform any act
that infringes these rights
, 2
Supremacy of Constitution + context of legislation + competing human rights +
fundamental values intricate and nuanced multi-faceted process of interpretation
Interpretation is not mechanical
o Technical aspects are applied in conjunction w/ substantive aspects
Legalese
Legalese = perplexing and specialised language used by lawyers in legal documents
o Wordiness, Latin, passive verbs
o Why?
Aura of profound importance
Not always easy to use plain language
Purpose or Intention?
Interpretation is about the judicial understanding of legislation
o Interpreter must determine what the legislation has to accomplish in the legal
order
o This means to ask what is the intention of the legislature?
Intention of the legislature
o Closely linked w/ principle of sovereignty of parliament
o Ascertained from the words used by the legislature to convey that will or
thoughts
This is difficult
o Legislature is made up of a large number of persons
o Legislation only reflects the intention of the majority
o Parliamentarians do not necessarily understand the complex legislation
Correct interpretation of legislation does not depend on the term used
o Important is how that purpose is ascertained and construed
New Constitutional Order
Traditionally, interpretation of statutes in SA were saddled w/ unnecessary baggage
o Confusing system of maxims and canons of interpretation
Acceptance of the new supreme Constitution may have been compromised if the
application of the fundamental rights was hampered by the orthodox interpretation of
ordinary legislation
A supreme constitution = lex fundamentalis = highest law of the land
o Parliament remains the highest legislative body, but any legislation or act
which is in conflict w/ the Constitution will be invalid
o Courts are subject to the Constitution and act as the final guardians of the
values embodied in the Constitution
Parliament as sovereign
o Highest legislative body
o No court may test the substance of parliamentary acts against standards such as
fairness or equality
Interim Constitution
o Parliamentary sovereignty replaced w/ constitutional supremacy
, 2
o Interpretation clause: spirit and purport of the fundamental rights had to be
considered during the interpretation of statutes = courts cannot ignore value
judgements
o Interpretation was centred on the protection of fundamental human rights
The constitution
o Interpretation of statutes was transformed by six provisions of the Constitutio
S1: Fundamental S2: Supremacy S7: Obligation
Provision Clause Clause
S8: Application S36: Limitation S39: Interpretation
Clause Clause Clause
Rex v Abdurahman
Prior to 1994, parliament was sovereign and courts could not test the validity of any
legislation
Court in Abdurahman decided that the court can, in certain instances, invalidate
certain regulations if ultra vires
o The regulations in itself do not constitute an act of parliament
o They are made in terms of an act of parliament
o Courts may test the validity of regulations, if the regulations are not properly
authorised then the court may set them aside
o Sometimes we would say ‘it could be not be the intention of parliament’ to
have unreasonable laws
o Uncertainty of intention of parliament and how we determine it
This leaves room for manoeuvre for judges during Apartheid
o May invalidate subordinate legislation, or admin actions
, 2
Theme 2: The Term Legislation
Relationship between Constitution, Legislation,
and Common Law
Legislation and Common Law
Legislation and common law have a complimentary relationship
Common law can be used to fill gaps in legislation
o when legislation isn’t applicable to the facts before you: either stretch the
words of the legislation, then apply the common law rules to fill the gaps
What Happens when Legislation is Repealed?
And no new legislation is enacted in its place? What rules do we apply no?
Older legislation does not revive
o Once a law is repealed, it remains repealed
We adopt the old common law position again
o The common law never dies, but slumbers
o Legislation takes precedence over common law, but once that legislation is
repealed, the common law rules wake up again
Common law is dynamic and keeps evolving through case law
Common Law Presumption
Law doesn’t apply retroactively
Can be rebutted
Valuable aid in interpreting legislation
One System of Law
Pharmaceutical Manufacturers 2000 (CC)
Facts
o Arose from the enactment of a new act of parliament dealing with medicines
o The president proclaimed that the act shall come into effect, but then after a
while realised he was wrongly advised
o If the act came into effect it would be a disaster as the act is unworkable
o This case faces judicial control over exercises of public power by the state and
executive
Questions
o Does the constitutional court have jurisdiction?
o This is dealt with by the common law, why bring the constitution into all of
this?
“The control of public power by the courts through judicial review is and always has
been a constitutional matter… The common-law principles that previously provided the
grounds for judicial review of public power have been subsumed under the
, 2
Constitution, and in so far as they might continue to be relevant to judicial review,
they gain their force from the Constitution. In the judicial review of public power,
the two are intertwined and do not constitute separate concepts.”
o Old common law principles have
Been subsumed under the Constitution
Derive their force from the Constitution
o You don’t have two separate systems of law
You have a single system relating to the criteria for valid government
action and that is all informed by the Constitution
Still invoke the common law principles, but they are now underpinned
by the Constitution
It is therefore a constitutional matter
“There is only one system of law. It is shaped by the Constitution which is the supreme
law, and all law, including the common law, derives its force from the Constitution and
is subject to constitutional control.”
o Implication: you do not get to pick and choose whether to rely on the
constitution or the common law
o This kind of litigation where you want to hold the government accountable for
its actions, means that you have to follow the principles in terms of the
constitution
o Doesn’t mean you won’t always go directly to the constitution
o Even when applying the common law, it is a constitutional matter
Important for the single system of law principle
o Doesn’t tell us what we should do if there is a common law legislation conflict
o What if both the common law and legislation is applicable?
PRINCIPLE OF SUBSIDIARITY
, 2
AJ vd Walt: Property and Constitution
Legislation and
common law both Both should give
effect to the
derive their spirit, purport and
power from the objects of the BoR
Constitution
Because there is one
system of law, we
should avoid pitting The principle of
subsidiarity guides
the Constitution, us in deciding
legislation and which law to apply
common law against
e/o
Don't start with the supreme law
directly when legislation is also in
place to give effect to the
Principle of constitution
Start w/ legislation
subsidiarity Legislation must throughout be
interpreted in view of
constitutional values
Generally, apply lower norm
Constitution and Legislation
Apply legislation enacted to give effect to the Constitution and not the Constitution
itself
Interpreted in view of Constitutional Provisions and values
Apply the legislation first
o Except when attacking the constitutionality of the legislation
o Then you go to the applicable constitutional provision
SANDU v Minister
KZN v Pillay
Defence
School learner who wore Labour dispute where
a nose stud in line with there was reliance
her culture directly on s23 of the
ConCourt: such a case Constitution
must rely directly on There are regulations
PEPUDA: which has been (Labour Relations Act)
enacted to give effect to which have been enacted
s9 of the Constitution Apply the legislation first
, 2
Why do we have Subsidiarity?
Specific Legislation puts flesh to the
bones of the Constitution
Rules >
General
Principles
It would frustrate the will of
Respect for parliament if the court
the ignores the legislation and
gives its own interpretation
legislature of Constitutional rights
Legislation and Common Law
Apply legislation enacted to give effect to the Constitution and not common law
o Legislation is given precedence
Except where legislation doesn’t cover that aspect of common law, and where common
law is constitutional or can be developed to give effect to the Constitution
o Provided that the common law itself is in line w/ constitution or can be
developed
Bato Star Fishing v Minister Environmental Affairs and Tourism
Should the court apply the common law or does it apply the Act? (PAJA)
o PAJA was adopted to give effect to s33 of the Constitution?
o Court says to go to PAJA, where the cause of action come from
o Where the case is not covered by PAJA: use common law, or develop the
common law
“The provisions of section 6 divulge a clear purpose to codify the grounds of judicial
review of administrative action as defined in PAJA. The cause of action for the judicial
review of administrative action now ordinarily arises from PAJA, not from the common
law as in the past. And the authority of PAJA to ground such causes of action rests
squarely on the Constitution.”
Reasons
General relationship
o Legislation is adopted to change existing legal position (under legislation or
common law)
, 2
o Role of common law in filling in gaps
Respect for the legislature
o Disrespectful to apply common law where the legislation was developed,
unlawful even
Role of legislature in constitutional transformation
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