Exam (elaborations)
IOS2601 EXAM PACK 2023
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- University Of South Africa (Unisa)
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IOS2601 EXAM PACK 2023QUESTIONS
AND ANSWERS
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, CLS cc
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.
, CLS cc
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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Entrenched: refers to provisions in the Constitution, which can only
be altered, amended or repealed with difficulty. Legislation is usually
changes by a simple majority vote in the legislature.
Intra Vires: when a government organ acts within the scope of the
powers conferred on it
Judicial law making: although courts are primarily involved in the
application of law, they also have a secondary law making function.
They develop common law to adapt to modern circumstances as well
as giving form, substance and meaning to particular legislative
provisions in concrete situations. It means the judiciary can modify or
adapt the ordinary meaning of a legislative provision in such a way
that it conforms with the purpose or aim of the legislation
Jurisdiction: means the competency of a particular court to
adjudicate on a specific case – determined by 2 factors:
1) The geographical area in which it operates
2) The types of cases the courts may hear
Law: the law consists of all forms of law, while a law is a written
statute enacted by those legislative bodies which have authority to
make laws:
• Legislation
• Common law: composed of rules which weren’t written down
originally but have been accepted as the law of the land
• Indigenous law
• Case law
Legality: refers to lawfulness and control of arbitrary state action –
government by the law, under the law.
All government action is governed by the letter as well as the spirit of
the law
Legislature: this refers to an elected body which has the legal power
to enact laws
Legitimacy: is the level of acceptance of a Constitution, government
or legal system – it refers to the faith of the population in the system
Locus Standi: deals with access to the court – one has a place of
standing in the court.
It determines whether a person has the right to be heard by the court
– who may bring a case before the court
Parliamentary sovereignty: means that parliament is supreme – not
only is parliament the highest legislative body, capable of enacting any
law it wishes, but no court may test these laws against standards
such as fairness or equality
Proclamation: is a specific category of subordinate legislation
Promulgation: legislation is made known to the public by
promulgation and comes into operation when its published in the
official gazette
Purpose: the purpose of the legislation means the legislative scheme
or the object or aim of legislation
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