Statutory Interpretation: An Introduction for Students Book by Christo J. Botha
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IOS2601 - Interpretation Of Statutes
Institución
University Of South Africa (Unisa)
Interpretation of statutes is about understanding enacted law-texts, in other words, making sense of the total relevant legislative scheme applicable to the situation at hand.
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, Page v
Preface
Teaching interpretation of statutes to the so-called Y-
generation—armed with the newest tablet computers, smart
phones and other electronic gadgets, and well-trained in
social-media interaction—at South African law schools is not
for the faint-hearted. Since the preface to the fourth edition
of this book was written in 2005 nothing has changed. If
anything, students’ reading and writing skills are worse, and
they know (and care) less and less about time and space. For
many students Wikipedia, Blackberry, Twitter and Facebook
represent the extreme limits of their contextual world.
One of the current education-speak issues workshopped by
South African legal academics is whether or not we ‘over-
teach’ law students (other buzz phrases are ‘closing the
curriculum gap’, ‘blended learning’, ‘enquiry-led teaching’,
‘expectancy zones’ and ‘scaffolding of threshold concepts’); a
lecturer should not be a ‘sage on the stage’, but rather a
‘guide on the side’; et cetera and so on and so forth.
However valuable these profound deliberations may turn out
to be in the future, in the meantime fewer law lecturers at
understaffed faculties have to teach more and more
hopelessly under-taught and over-confident students who
enter universities straight out of a collapsing school system.
According to modern educationists, lecturers just have to
accept this situation as an unfortunate given. Get used to it,
get over it and get on with it, because (according to those in
the know) if you are not part of the solution, you are part of
the problem. After all, to quote from one of the many
anonymous parodies of Rudyard Kipling’s If, lecturers are
,supposed to be quite adaptable:
If you can write, and not be tired of writing
Or being laughed at, aren’t reduced to tears;
Or if ignored, do not indulge in hating,
Or being fought, do not give way to sneers;
If you can talk with fools and keep your virtue;
If you can read until your eyes are gone,
Yours are the Clouds and nothing else, you fool you
and which is less—you’ll be a lecturer, my son!
Page vi
Mind you, since beleaguered lecturers are struggling in the
trenches, Alfred Lord Tennyson’s Charge of the Light Brigade
may be more apt!
On the other hand the Y-generation law students will have
to accept that, like toll roads and rock ’n roll, interpretation
of statutes is here to stay. During recent discussions between
the Council for Higher Education, members of the South
African Law Deans’ association, law teachers and members of
the professions, one of the required core skills of South
African law graduates was identified as having ‘the ability to
read and interpret statutes and legal documents’. So: as the
Americans are fond of saying, let’s cut to the chase. Law
students may consider interpretation of statutes boring,
confusing and instantly forgettable, but the legislation and
Government Gazettes and Green Papers will still be waiting
out there, and the principles, rules and maxims needed to
interpret legislation will accompany all lawyers for the rest of
their careers.
Because this book is aimed at the next generation of
lawyers, allow me a number of explanatory clauses and
disclaimers:
• It is largely based on my own re-interpretation and
personal adaptation of Lourens du Plessis’s suggested
,practical and inclusive approach to interpretation. However,
while I accept that there may be different viewpoints about
my categorisation of certain presumptions and rules within
the suggested inclusive approach, it should be borne in mind
that this book is, first and foremost, a teaching tool.
• Furthermore, this is an introductory textbook for
undergraduate students—a basic and ‘student-friendly’
introduction to the fundamental principles of the
interpretation of legislation. It is not intended as an
exhaustive reference work or complete compendium. After
all, this year’s landmark case is next year’s overturned
decision, and today’s draft Bill is tomorrow’s repealed Act . . .
• Let us be frank about it: it is impossible to teach every
rule, maxim, principle, theory and presumption of
interpretation to a large group of students in a single
semester (paradoxically, those perceived dangers of ‘over-
teaching’ are sometimes counterbalanced by sheer numbers
and lack of time). This introduction for students does not
cover every aspect of the discipline, and it cannot teach
students how to interpret legislation. It is merely an attempt
to teach
Page vii
students the most important rules and principles of the
interpretation of legislation, as well as some of the
necessary skills required to find solutions to future
problems. In a way it is similar to teaching a novice the
basic principles of golf: it is impossible to teach every
possible shot in just a few coaching sessions. However,
a player who has mastered the fundamentals of the golf
swing should have the basic skills to deal with a
plugged lie in the bunker, to play a high fade into the
wind or to take on a bump-and-run chip from a tight
lie. This also means that the golfer has to hone those
skills on the course, not only on the practice range. But
, then again, interpretation of legislation and golf are not
exact sciences: from time to time there will be bad
drafting or out-of-bounds shots to deal with!
• It is suggested that this book be used as part of an
integrated teaching methodology. The rules of statutory
interpretation cannot be taught in isolation, and should be
continually linked to other law subjects (preferably in the
same year of study), with suitable practical examples and
references to relevant legislation. Practical examples and
hypothetical scenarios will not only enable the students to
link the rules and principles of interpretation to the ‘real’
world, but will also emphasise the interrelatedness of
statutory interpretation and the rest of the law. Needless to
say, such an approach will necessarily require more problem-
based examples during lectures and contact sessions.
This fifth edition is not only the product of more than three
decades’ efforts (including misguided visions and mistakes)
to teach interpretation of statutes to undergraduate
students, but it has also been influenced by lectures to the
association of Regional Magistrates of Southern Africa and by
my certificate course in legislative drafting (offered by the
University of Pretoria). I also have to acknowledge the
positive criticism, innovative ideas, comments and
suggestions of a number of my friends: Rassie Malherbe,
Isabeau Southwood, Bernard Bekink, Pieter Carstens, Jakkie
Wessels, Mike van Heerden, Koos Malan, Werner Krull and all
the other usual suspects. However, all the mistakes,
shortcuts and wrong interpretations will inevitably be
deemed to be mine. of course, since my personal mantra is
‘Why procrastinate if you can do it tomorrow’, Linda van de
Vijver of Juta deserves a medal for her infinite patience.
Page viii
Finally, this fifth edition includes supplementary material
containing the Constitution of the Republic of South Africa,
,1996 and the Interpretation Act 33 of 1957
CHRISTO BOTHA
PRETORIA
2012
, Page ix
Contents
Preface
Part 1: Statute law
1 General Introduction
1.1 Legislation as source of law
1.2 What is interpretation of statutes?
1.3 The new constitutional order
2 The term ‘legislation’
2.1 What is legislation?
2.2 Categories of legislation
2.2.1 Chronological categories
(a) Legislation before 1806
(b) Old order legislation
(c) Legislation in the new
constitutional order since 1994
2.2.2 Hierarchical categories
(a) The Constitution
(b) Original legislation
(c) Subordinate (delegated or
secondary) legislation
2.2.3 Old wine in new bags: Applying old
order legislation in the new
constitutional order
2.2.4 ‘Law of general application’
2.3 What is not legislation?
2.4 Legislative structure and ‘codes’
2.5 Relationship between legislation and common
law
,3 Is it in force? The commencement of legislation
3.1 Adoption and promulgation of legislation
3.2 Hear Ye, hear Ye! The requirement of
publication
Page x
3.3 Pulling the trigger: Commencement of
legislation
3.3.1 Who promulgates?
3.3.2 When is it force?
(a) The default setting: on the date
of publication
(b) Delayed commencement: on a
future specified date
(c) Delayed commencement: on an
unspecified future date still to be
proclaimed
(d) Retroactive commencement
(e) A combination of the above
(f) When does a ‘day’ start?
3.3.3 Jumping the gun? Section 14 of the
Interpretation Act
3.4 Back in the time warp: The presumption that
legislation applies only to the future
3.4.1 General principle: Let bygones be
bygones
3.4.2 The difference between retroactive and
retrospective
3.4.3 What prevents legislation from
applying with retro-effect?
(a) The common-law presumption
(b) New offences and higher
penalties
(c) Other constitutional rights
3.4.4 No harm done: Exceptions to the rule
, (a) If the enactment deals with
procedure
(b) If the retro-effect favours the
individual
3.4.5 Retroactivity and other constitutional
issues
4 Is it still in force? Changes to and the demise of
legislation
4.1 General
Page xi
4.2 Changes to legislation
4.2.1 Formal amendment of legislation by a
competent legislature
4.2.2 Modificative interpretation by the
courts
(a) Attempts to save legislation
during constitutional review
(b) Modification of the legislative
meaning during interpretation
4.3 The demise of legislation
4.3.1 Invalidation of legislation by the courts
(a) Unconstitutional provisions
(b) Invalid subordinate legislation
4.3.2 Repeal of legislation by a competent
lawmaker
(a) Substitution (repeal and replace)
(b) Repeal (deletion)
4.4 Suspension of legislation already in force
4.5 The presumption that legislation does not
intend to change the existing law more than is
necessary
4.5.1 Common law
4.5.2 Legislation
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