Exam (elaborations)
IOS2601 EXAM PACK 2023
- Course
- Interpretation of Statutes
- Institution
- University Of South Africa
IOS2601 EXAM PACK 2023
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IOS2601EXAM
PACK
2023
,Q .In Geyser v Msunduzi Municipality 2003 (5) SA 19 (N) 32D-
E the court emphasised that “the orthodox primary rule of
interpretation is that the courts must give effect to the
literal or grammatical meaning of the legislation, and that
deviation from this rule will be allowed only in exceptional
circumstances”.
Write an essay of between four (4) and five (5) pages in which
you discuss the popularity of the textual approach in legal
systems influenced by English law, the criticisms of the
orthodox text-based (literal) approach to statutory
interpretation and evaluate whether the statement at 32D-E
in Geyser v Msunduzi Municipality 2003 (5) SA 19 (N) reflects
the interpretative trend in South Africa post 1994.
Special instructions:
(a) Use the following headings to structure your essay:
(1) Introduction (1 mark)
(2) The factors that led to the adoption of the orthodox
text-based (literal) approach in England (4 marks)
(3) The criticisms of the orthodox text-based (literal)
approach to statutory interpretation (6 marks)
MEMORIZING THE LAW IS NOT WHAT LAW
EXAMS ARE ABOUT. DO YOU NEED TO
KNOW THE LAW? SURE, BACKWARDS AND
FORWARDS. BUT THAT IS NOT
ENOUGH...THE QUESTION IS WHAT YOU
DO WITH THE LAW YOU’ VE STUDIED?"-
ALISON MONOHAM
,(4) The interpretative approach adopted by South African
courts post 1994 (15 marks)
(5) The impact of the Constitution (specifically section
39(2)) on statutory interpretation post 1994; and (20 marks)
(6) Conclusion (4 marks)
Introduction
The orthodox text –based approach was the predominant
approach to the interpretation is South Africa prior to
1994.However the promulgation of the supreme Constitution
changed the approach of South African courts to statutory
interpretation .In this essay I argue that the statement made in
32D-E in Geyer v Msunduzi Municipality as it applies to statutory
interpretation is correct.
The factors that led to the adoption of the orthodox text –
based approach in England
According to Botha the orthodox text- based approach was
adopted in England due to the following factors which are the
misconception about the doctrine of separation of power and
sovereignty of Parliament which resulted in accepting the idea
MEMORIZING THE LAW IS NOT WHAT LAW
EXAMS ARE ABOUT. DO YOU NEED TO
KNOW THE LAW? SURE, BACKWARDS AND
FORWARDS. BUT THAT IS NOT
ENOUGH...THE QUESTION IS WHAT YOU
DO WITH THE LAW YOU’ VE STUDIED?"-
ALISON MONOHAM
, that the courts function should be limited to the interpretation
and applying the will of the legislation.
The other factor that played a role in the adoption of the orthodox
text- based approach in
England is the doctrine of legal positivism. This doctrine
influenced the literal approach in England. The positivist idea is
absolutely based on the validity of the decree ,that is command
which is decreed by the state is law , as a result the importance
of law is to be found in the command of decree.
In addition to the above factors, England common –law tradition
also contributed to the adoption of the orthodox text-based
approach. The courts played a creative role in regard to the
common- law principle. Legislation was viewed as the exception
to the rule, altering the traditional common –law.
Moreover, the English legislation which was drafted to be as
precise and as detailed in order to avoid legal uncertainty .This
contributed in the adoption of the text –based approach in
England.
MEMORIZING THE LAW IS NOT WHAT LAW
EXAMS ARE ABOUT. DO YOU NEED TO
KNOW THE LAW? SURE, BACKWARDS AND
FORWARDS. BUT THAT IS NOT
ENOUGH...THE QUESTION IS WHAT YOU
DO WITH THE LAW YOU’ VE STUDIED?"-
ALISON MONOHAM
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