Term 4 of FSAL
1. Introduction to interpretation of statutes
Sources of South African Law:
- [Unrecognised religious laws – state doesn’t recognise because in its application clause, it refers to ‘all
law’]
- Common law
o Roman-Dutch (their law/placaaten and scholars) and English law (precedent) [not
codified]
o May be changed by legislation
o If there is no legislation regulating an issue, common law is deemed to apply
o Common law can become codified by legislature based upon it.
- Case law
o Refers to decisions of court
o Judicial precedent
Stare decisis – Decisions of higher courts bind lower/courts of equal standing
- Customary law
o Traditional laws of African people in South Africa
o Unwritten / living (customs, practices, oral storytelling etc) – prevails in court!
o Written / codified as statutes (during apartheid)
- Legislation (look here first, then common law and then case law)
o Statute law or ‘enacted law-texts’
o Written law that is enacted by legislative bodies
o Have authority to make law
Acts of Parliament enacted by the South African Parliament
Provincial legislation enacted by provincial legislatures
Municipal by-laws enacted by local government
Legislation does not include:
o Common law rules
o Rules of indigenous law
o Case law
o Policy documents
Interpretation of statutes:
• Is about understanding how a legislative scheme applies to a particular issue
• Interpreting legislation requires more than a literal reading of the text
• Also requires a consideration of the
, • Historical background
• Context
• Surrounding circumstances
• Purpose of the statute
Example: Section 11 of the constitution (Everyone has the right to life)
o S v Makwanyane 1995 (3) SA 391 (CC) – abrogated the death penalty (court took into account the
historical use of death penalty in SA – against black people!)
o Makwanyane and Ex parte Minister of Safety and Security: In re S v Walters 2002 (4) SA 613 (CC) –
killing in self-defence is included in the right to life
o Soobramoney v Minister of Health, Kwazulu-Natal 1998 (1) SA 765 (CC) – state does not have to
keep terminal patients alive
When interpreting legislation
- Technical aspects (language rules and structure of legislation)
- Substantive aspects (what do the words means and what are the values and rights being
impacted)
Judge must keep in mind:
• Language used
• Constitution and Bill of Rights
• Impact of other legislation
• Whether the legislation is still in force?
• Whether the legislation has been amended?
• Meaning of the provision in relation to the rest of the statute e.g. definition section
• Are there applicable regulations?
• Context, background, surrounding circumstances of the legislative text
• Purpose of the legislation
• Other external aids e.g., dictionaries, commission reports
Parliamentary sovereignty
• Pre-1994
• Parliament was the supreme law maker (could enact any laws they wanted)
• Judges had to have regard to the intention of the legislature
• Courts could not review legislation in this era
Constitutional supremacy
• Post-1994
• Supreme Constitution
• Section 2:
• This Constitution is the supreme law of the Republic; law or
conduct inconsistent with it is invalid, and the obligations imposed
by it must be fulfilled.
,Interpreting legislation: Constitution
Section 39
(1) When interpreting the Bill of Rights, a court, tribunal or forum—
(a)must promote the values that underlie an open and democratic society based on human
dignity, equality and freedom;
(b)must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised
or conferred by common law, customary law or legislation, to the extent that they are consistent
with the Bill.
Important constitutional provisions for interpreting legislation
- s1 (founding clause) [dignity, equality and freedom]
- s2 (supremacy clause)
- s7 (obligation clause)
- s8 (application clause) [constitution applies horizontally and vertically. Sets out situations where
the bill of rights is applied horizontally or not]
- s36 (general limitations clause): law of general application includes legislation, common law and
customary law. Every right is subject to be limited by a law of general application and limitation
has to promote s1.
- s39 (interpretation clause)
Rules of statutory interpretation apply only to legislation!
2. Legal meaning of legislation
Legislation:
• Written law (enacted by a democratically elected body with competent law-making powers)
• Promulgated in terms of prescribed legal requirements (By a body or person authorised to do so
under the Constitution or other legislation)
• Force of law!
Interpretation Act 33 of 1957
Section 1
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 orders 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.
Section 2
Law = [A]ny law, proclamation, ordinance, Act of Parliament or other enactment having the
force of the law.
When read together, these sections tell us that the provisions of the act apply to all laws defined in it.
Laws are then defined in s2. This thus means that the provisions of the act apply to the interpretation
of any law, proclamation, ordinance, act of parliament or other enactment having the force of law.
This act (rules of statutory interpretation) applies to legislation!!!
Section 239 of the Constitution (defines legislation)
In the Constitution, unless the context indicates otherwise- ‘national legislation’ includes-
subordinate legislation made in terms of an Act of Parliament; and legislation that was in force when
the Constitution took effect and that is administered by the national government; …
‘provincial legislation’ includes- subordinate legislation made in terms of a provincial Act; and
legislation that was in force when the Constitution took effect and that is administered by a
provincial government.
Sections 101(3) and 140(3) of the Constitution
• Refer to proclamations and regulations as subordinate legislation.
Schedule 6 of the Constitution
• Distinguishes between old order legislation and legislation since 1994.
Section 156 of the Constitution
• Empowers local governments (municipalities) to make by-laws (as mentioned in the
Interpretation Act).
Thus, reading all of this together - Legislation consists of:
• Old order legislation (enacted prior to 27 April 1994)
• Legislation in the new constitutional order (since 27 April 1994)
• National legislation (Acts of Parliament)
