IOS2601 exam prep notes (textbook & study guide)
2023
Chapter 1 Introduction
Before we can study the Interpretation of Statutes, we first need to establish what the subject entails and
how the prescribed textbook approaches this field of law.
What will we study in this chapter?
After working through this chapter you should be able to:
1. Provide own definition of statutory interpretation as a field of study
2. Explain why statutes cannot be interpreted in a mechanical or rule like fashion
3. Discuss two different meanings of the phrase "interpretation of statutes"
4. Explain how TB structures the many rules and principles of statutory interpretation in his
textbook.
The chapter although introductory in nature explains the approach and philosophy of the author of the
TB. It highlights the key theoretical assumptions or themes in the textbook as a whole.
What is the central question to be answered?
There are various possible approaches to the interpretation of statutes, based on the way the different
rules and principles of statutory interpretation are organised.
And there are as many ways of organising these rules and principles as there are legal textbooks.
The important question to ask before we start using our TB is how the author has chosen to organise the
rules and principles of statutory interpretation in this particular.
In other words, which theoretical assumptions or philosophical approach are embodied in the textbook
we are going to use.
These are some of the questions that we will explore in this introductory chapter.
Tip
Chapter contains a more detailed discussion of the themes that are introduced here. In our experience it
is advisable to study chapters 1 and 5 together.
What is the interpretation of statutes?
In paragraph 1.2 Botha supplies a definition of statutory interpretation and discusses the reasons why it
is not a mechanical or rule-bound activity.
The new Constitutional order
Paragraph 1.3 Botha describes the recent history of statutory interpretation.
He focuses on the fact that a new method of statutory interpretation has been introduced by the new
Constitutional order.
This is a key statement and a central theme of the whole textbook which is returned to frequently.
Why Botha says that a new and uniform method was introduced by the new Constitution and what that
method entails are discussed in more detail in chapter 5, specifically paragraph 5.3.
,Paragraph 1.3 and paragraph 5.3 should be studied together.
1. Legislation as a source of law
• In order to understand and apply the rules, principles and canons required to interpret
legislation lawyers need to be proficient in the technical 'black letter' or 'nuts and bolts" aspects
of legislation.
• These aspects include the various types and categories of legislation, the structural parts or
components of legislation and the sometimes confusing 'codes' used in legislative texts, as well
as the challenging interrelationship existing between old-order and new post-1994 laws.
• The law consists of all forms of law (common law, statute law, indigenous customary law and
case law) while a law is a written statute enacted by those legislative bodies which have the
authority to make laws.
• Legislation (enacted law texts or statute law) comprises of all the different types of enacted
legislation, such as acts of parliament, provincial legislation, municipal by-laws, proclamations
and regulations.
• An Act (upper case) refers to a parliamentary statute or the legislation of a provincial legislature
(wet).
• An act (lower case) refers to conduct or action (optred or handeling) such as the act of a
government official or an organ of state.
• The common law is comprised of the rules of law which weren't originally written down, but
came to be accepted as the law of the land. It is made up of the underlying original or basic legal
principles which is Roman-Dutch in SA and mostly originated in the 17th century in the erstwhile
province of Holland.
• Common law needs to be distinguished from codifications, which are statutory compilations of
all the legal principles relating to a particular branch (eg criminal law). The common law may be
changed by original legislation, but if there is no statutory law on the subject the common law
applies.
• Indigenous law refers to the traditional law of the indigenous black people of SA which may be
either unwritten customary law or codified (statutory compilations).
• Case law (judicial precedent) is the law as various courts in specific cases before them have
decided on it. The precedent system (also known as stare decisis) means that judgements of
higher courts bind lower courts and courts of equal status.
• Statute law (legislation) plays an ever increasing role in common-law legal systems.
• In the past, legislation my have been viewed as exceptions to the common law but rapid
changes in society have stretched the adaptability of common-law rules to their limits. Since the
common law cannot deal with the regulation of new technological and scientific developments
such as EFT's, stem cell research and cross-border human trafficking more and more legislative
intervention is necessary and thus, inevitable. As a result, legislation is the most important
source of new law in most modern societies.
• In South Africa there is of course, a more fundamental reason for a thorough understanding of
technical aspects of legislation strictly in the legalistic sense apartheid was an ideologically
underpinned and public-law driven system, based on a web of interlocking legislation.
• The dismantling of this legal edifice not only requires an excellent knowledge of statute law, but
also a great deal of new legislation is needed to remedy the situation in the new constitutional
dispensation.
2. What is interpretation of statutes (IOS)?
,• IOS or perhaps more precisely the juridical understanding of legislation, deal with those rules
and principles used to construct the correct meaning of legislative provisions to be applied in
practical situations.
• Du Plessis (2002:18) explains it as follows: Statutory (and constitutional) interpretation is about
construing enacted law-texts with reference to and reliance on other law-texts, concretising the
text so as to cate for the exigencies of an actual or hypothesised concrete situation.
• In other words, it is about making sense of the total relevant legislative scheme applicable to the
situation at hand.
• Why do we need special rules of interpretation? Lawyers all have (or should) the necessary
language skills to read and understand legislation carefully and apply it to the situation at hand.
However, should you encounter an ambiguity in the text it is not always as simple as using a
dictionary. Interpretation of legislation requires more than a mere reading of provisions and is
not a mechanical sequence.
• For example, think of a law which is passed stating sleeping in railway stations is prohibited.
Could you arrest a regular commuter who simply dozed off while waiting for the train or
perhaps could they arrest a homeless man who was awake but brought a blanket and was
settled on a bench for the night.
• Another example is S11 of the Const. which states everybody has the right to life, doesn’t
necessarily mean it grants the right to immortality but rather it forms part of an 'enacted law-
text' which can be interpreted in terms of S v Makwanyane 1995 where the CC held that the
state may not take a persons life in retribution (ie. death penalty is unconstitutional
• This same provision can be interpreted differently regarding the killing of a person in sefl-
defence as held in the case of Makwanyane and Ex Parte Minister if Safety and Security: In Re S
v Walters 2002 (4) SA 613 CC that the right to kill in self-defence was not abolished by the
Constitution.
• On the other hand, the decision of the CC in the case of Soobramoney v Minister of Health, KZN
1998 (1) SA 765 (CC) effectively meant that the right to life in S11 does not mean that the state
has a duty to keep all terminal patients alive in all circumstances.
• Further, the case of Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) the court
linked that the constitutional rights to life and freedom and security of the person to the
constitutional duty imposed on the state and all of its organs not to perform any act which
infringes on these rights.
• The Supreme Constitution, the context of legislation and competing human rights and
fundamental values also form part of this process: a very intricate, nuanced and multi-faceted
process.
• Du Plessis 1999 explains this aspect very well stating: one cannot understand a legal text merely
by concentrating on its language. You must also understand how law works and what it seeks to
achieve in order to understand how it communicates with you and what it wants to tell you.
• The interpretation of legislation is not a mechanical exercise during which predetermined
formulae, well-known maxims and careful reading will reveal the meaning of the legislative
provisions.
• Technical aspects (eg. The structure of legislation and language rules) must be applied in
conjunction with substantive aspects (eg. Constitutional values and fundamental rights).
• Apart from the inherent difficculties of language and meaning, the interpreter has to keep a
number of other related issues in mind:
• The provision must be read, understood and applied within the framework of the
supreme Constitution and BoR.
, • What is the impact of other legislation (eg. The Promotion of Access to Information Act
of 2000, the PAJA 3 of 2000 and the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000)?
• Is the legisilation that must be interpreted still in force? If so, has it since been
amended?
• If for instance, a provision in an act of parliament is to be interpreted it must be read
with the rest of the act, including its definition section and possibly its schedules as well.
Regulations may have been issued in terms of the particular provision, which have to be
read with the enabling legislation, are those regulations valid?
• What is the context of the legislative text?
• Other external aids (eg. Dictionaries or commission reports) may be used to establish
the meaning of legislation.
• Sometimes an interpreter will be confronted by the result of poor drafting, conflicting
provisions or a lack of resources to research the current law.
• Interpretation of legislation is not easy, quick or mechanical. It requires excellent language skills
but the interpreter must also have a very good knowledge of the law and where to find it
through research.
• This means reading reported cases, finding and analysing the latest acts and regulations and
keeping up to date with latest developments in law.
• Bad drafting and legalese is another problem. "Legalese" refers to the perplexing and specialised
language (or social dialect) used by lawyers in legal documents which is incomprehensible to the
non-lawyer.
• Once it was defined as 'the language of lawyers that they would not use in ordinary
communications but for the fact they are lawyers'. Often characterised by wordiness, Latin
expressions, passive verbs, lengthy sentences and legal doublets (stringing two words together
to convey a single legal concept such as null and void, fit and proper, perform and dischare and
terms and conditions)
• Drafters often use this language possibly for professional mystique, compelling lawyers to write
in a complicated and learned style in order to maintain an aura of profound importance. It is
also not always easy to use plain language drafting in legislation and other legal documents.
• However, even in SA legislative drafters, legislatures and lawyers are becoming more aware of
the need to draft legal documents in a more understandable language.
• What is in a name: purpose or intention? As explained earlier, interpretation of statutes is about
the juridical understanding of legislation and thus, the interpreter has to determine what the
legislation has to accomplish in the legal order. This may be referred to as the intention or
purpose of the legislation.
• The intention of the legislature is closely linked to the principle of sovereignty of parliament.
Parliament was the sovereign lawmaker in the Republic of SA and legislation reflected a
parliamentary legislative intention. As one of the influential proponents of the intention theory,
Steyn 1) defined statutory interpretation as 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 thought.
But it is difficult to picture such a collective intention exercised by all members of a legislative
body:
• The legislature is composed of a large number of persons, all of whom take part in the
legislative process.
• As part of the democratic legislative process some members may oppose the legislation
for various reasons, with the result that the adopted legislation represents only the
majority.
