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Lecture notes Interpretation of Statutes (ios2601)
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- University Of South Africa (Unisa)
Lecture notes of 30 pages for the course Interpretation of Statutes at Unisa (great for exams)
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NOTESInterpretation of Statutes
IOS201-6
1. GENERAL INTRODUCTION
1.1. Definition
Statutory interpretation as a subject of study is the body of rules and principles used to construct
and justify the meaning of legislative provisions to be applied in practical situations.
1.2. Why can statutes not be interpreted in a mechanical or rule-like fashion?
Many rules of interpretation overlap and cannot be neatly compartmentalised as:
the circumstances and sets of facts will differ from case to case, as well as the context of
legislation;
the courts are not of one mind when it comes to the application of certain rules, resulting in no
clear predictable pattern of application
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the law is not objective, neutral and value-free: all interpreters have a particular frame of mind
which will influence their understanding of legislation;
since the spirit and aim of the fundamental rights in the Constitution must be promoted,
interpretation necessarily involves value-judgements;
Poor drafting, conflicting provisions or a lack of resources to research the current law.
1.3. Two different meanings of the phrase “interpretation of statutes”
Before 1994 and the Constitution, interpretation of statutes was an orthodox system of maxims and
rules for interpretation based on parliamentary sovereignty. Today interpretation is based on consti-
tutional supremacy and the spirit and purport of fundamental rights are to be taken into account
and thus value judgment can no longer be ignored. According to Devenish:
courts will be able to test and invalidate legislation;
all statute law will have to be interpreted to be compatible with letter and spirit of Constitution;
a value-coherent theory of interpretation should become prevalent;
a justiciable bill of rights is likely to indicate a new methodology and theory of interpretation.
Interpretation of statutes transformed by six provisions of the Constitution:
Section 1 The foundational provision Section 8 The application clause
Section 2 Supremacy of the Constitution Section 36 The limitation clause
Section 7 The obligation clause Section 39 The interpretation clause
1.4. How are the many rules and principles of statutory interpretation structured?
Interpretation of statutes is neither mechanical nor objective and can never be reduced to a pre-
conceived ‘road map’. The following three phase interpretation process is merely a teaching tool:
Initial phase
Basic principles are used as a point of departure:
(i) Constitution and Bill of Rights the cornerstones of legal order;
(ii) most importantly, to ascertain and apply the purpose of the legislation in view of (i);
(iii) text is read to find initial meaning bearing common law presumptions and a balance
between text and context in mind.
Research phase
All factors and consideration possibly having a bearing on the particular legislation are studied
to determine the purpose.
Concretisation phase
Legislative text, the purpose of legislation and the facts of the particular case are harmonised
and the spirit, purport and aim of fundamental rights must be promoted during this process.
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Which is the product of each interpreter’s unique history, background, experience and prejudices.
,IOS201-6 Page 2 of 30
2. WHAT IS LEGISLATION?
2.1. What is regarded as legislation in South African law?
It is important to distinguish legislation from other types of law as the rules and principles of
statutory interpretation only apply to legislation.
Section 1 of the Interpretation Act
The provisions of this Act shall apply to the interpretation of every law (as in this Act defined) in
force, at or after the commencement of this Act, in the Republic or any portion thereof, and to the
interpretation of all by-laws, rules, regulations or order made under the authority of any such law,
unless there is something in the language or context of the law, by-law, rule, regulation or order
repugnant to such provisions or unless the contrary intention appears therein.
Legislation or enacted law-texts is one of the three formal sources of law in South Africa (judicial
precedent and custom being the others) and is written law enacted by a body or person authorised
to do so by the Constitution or other legislation. This excludes common-law, as does the following:
Section 2 of the Interpretation Act, 33 of 1957
‘law’ means any law, proclamation, Ordinance, Act of parliament or other enactment having the
2
force of law.
The Interpretation Act refers to different types of legislation: Acts, ordinances, proclamations, by-
laws, regulations, rules and any other enactment with the force of law.
2.2. Classification of different pieces and types of legislation
Chronological (Historical origins)
Legislation before 1806 Old Dutch placaaten (statutes) are viewed as common-law and
no formal procedures required for their demise
Old order legislation (enacted before interim Constitution took effect)
• Pre-Union legislation (1806-1910) Legislation of the British colonies and Boer Republics - most
had been incorporated into legislation after 1910 or repealed
• Legislation between Union and Most existing legislation
democratic era (1910-1994)
Legislation in the new constitutional order All legislation enacted after the start of constitutional democracy
in 1994, including the interim Constitution
since 1994
Hierarchical (Status)
The Constitution • The supreme law of the Republic, any law inconsistent with it is invalid and the courts
may test all legislation (old and new)
• Not an Act of parliament, drafted by Constitutional Assembly
3
Original legislation • Acts of Parliament
• New provincial Acts (1994-)
• Provincial ordinances (1961-1986)
Classification
according to • Legislation of the former homelands
status • Legislation of the former TBVC states
• New municipal legislation
Delegated legislation • Existing provincial proclamations and regulations (1968-1994)
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(also subordinate) • New provincial proclamations and regulations (1994-)
• Other proclamations and regulations
The distinction between original and delegated legislation is relevant as delegated legislation may
not be in conflict with enabling (original) legislation.
2.3. What is not legislation?
Legislation must be published in an official Gazette before it can take effect, but not everything
published in the Gazette is legislation. The following texts are not legislation:
legal notices;
reports;
draft Bills;
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This definition excludes common law
3
Derives from the direct or primary legislative capactiy of an elected legislative body derived directly from the Constitution
4
Where original legislation is drafted in broad terms, delegated legislation then ‘adds the flesh’
, IOS201-6 Page 3 of 30
various discussion papers;
advertisements;
policy documents issues by government departments in the process of formulating public policy
to elicit public comment (Green Papers and White Papers); and
internal departmental memoranda and policy guidelines on how government departments apply
legislation.
Some of these may lead to legislation and may be used in the interpretation process. Legislation
should be distinguished from “administrative quasi-legislation” (Baxter), which consists of depart-
mental memos and directives (although enforceable ≠ delegated legislation). Legislation must
comply with all the constitutional and other legal requirements dealing with authority, adoption and
publication. Unwritten law (common-law rules and indigenous law) is not legislation, although a
source of South African law and can become legislation once codified.
2.4. The basic structure or parts of legislation
Legislation is drafted in a particular form and structure according to the drafting conventions and
rules used by the state law advisors and other legislative drafters.
Component Explanation
Long title Short summary of the subject matter of the Act, which is part of the statute
and is tabled for adoption in the legislature.
Preamble States circumstances and background of, and reasons for the legislation
and is usually placed after the long title.
Enacting provision Acknowledges the authority of the body that is enacting the legislation.
Section 43 of Constitution states:
• national legislative authority vested in parliament
• provincial legislative authority vested in provincial legislatures
• local authorities vested in municipal councils
Definitions Serve as an ‘internal dictionary’ for the particular legislation and is usually
found at the beginning of an Act.
Purpose and Such clauses are frequently included in post-1994 legislation and should
interpretation explain the purpose of the Act and how it should be interpreted.
Repeal / Done by means of an amending Act and when passed existing Acts needs
amendment of to be amended or repealed. New Act must contain a section providing for
legislation amendments or repeals and is conventionally dealt with a schedule at end.
Short title Short title is the title of the Act and is usually the last section in an Act.
Commencement • No date Commence on date of publication in Gazette
• Specific date As specified in short title
• Unknown future date Short title states come into operation on date to
be fixed by President (Premier, provincial) by proclamation in Gazette.
Schedules Used to deal with technical detail that will otherwise clog up the main body
of an Act, used when several Acts are repealed or extensively amended.
Numbering in Section 1; subsection (1); paragraph (a); sub-paragraph (i); item (aa); sub-
legislation item (AA) Full citation: 1(1)(a)(i)(aa)(AA)
Where an additional section is inserted through amendment Act, it takes the
next number and gets a capital letter after it – between 66 and 67 = 66A. In
older Acts inserted sections were number bis, ter, quat.
Amendments When amendment Act is published, there is a General Explanatory Note on
second page, which includes the following:
• [ ] Words in bold type and in square brackets indicate deletions from
existing enactments.
• ___ Words underlined with a solid line indicate insertions in existing
enactments.
Amendments (deletions and insertions) are also indicated clearly in the
amended version of an Act.
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