IOS2601 Cases mentioned Containing
Correct Answers
Nourse v Van Heerden 1999 - Answer - Application of Section 12(2) of the Interpretation
Act - this is a transitional provision - in 1992 a Doctor accused of abortion (in terms of
the Abortion and Sterilization Act 2 of 1975 - during his trial 1992 - 1997 - the law
changed- and abortion ceased to be illegal - Application for charges to be dropped
denied.
COURT found that legislation could not be abrogated by disuse and had to be repealed
by a competent legislature. Existing legislature remained in force until repealed or
declared unconstitutional.
The Trial Started before Abortion act repealed and had to be completed as if it had not
been appealed. FURTHER the trial started before the interim constitution as well so it
had to be completed in term of the law at the time of the start of the trial -Legislation is
not automatically unconstitutional. The abortion act was never declared unconstitutional
by any court of Law
S v Makwanyane 1995 - Answer - MOKGORO J quote:
With the entrenchment of the Bill of Fundamental Rights and Freedoms in a supreme
Constitution, however , the interpretive task frequently involves making constitutional
choices by balancing competing fundamental rights and freedoms. This can often only
be done by reference to a system of values extraneous to the constitutional text itself,
where these principles constitute the historical context in which the text was adopted
and which help to explain the meaning of the text. The Constitution makes it particularly
imperative for courts to develop the entrenched fundamental rights in terms of a
cohesive set of values, ideal to an open and democratic society. To this end common
values of human rights protection the world over and foreign precedent may be
instructive.
Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit 2001 - Answer - para 21
Langa DP explained
the constitutional foundation of this 'new' interpretation methodology as follows
(emphasis added): Section 39(2) of the Constitution . . . means that all statutes must be
interpreted through the prism of the Bill of Rights. All law-making authority must be
exercised in accordance with the Constitution. The Constitution is located in a history
which involves a transition from a society based on division, injustice and exclusion from
the democratic process to one which respects the dignity of all citizens, and includes all
in the process of governance. As such, the process of
interpreting the Constitution must recognise the context in which we find ourselves and
the Constitution's goal of a society based on democratic values, social justice and
fundamental human rights. This spirit of transition and transformation characterises the
constitutional enterprise as a whole.
Correct Answers
Nourse v Van Heerden 1999 - Answer - Application of Section 12(2) of the Interpretation
Act - this is a transitional provision - in 1992 a Doctor accused of abortion (in terms of
the Abortion and Sterilization Act 2 of 1975 - during his trial 1992 - 1997 - the law
changed- and abortion ceased to be illegal - Application for charges to be dropped
denied.
COURT found that legislation could not be abrogated by disuse and had to be repealed
by a competent legislature. Existing legislature remained in force until repealed or
declared unconstitutional.
The Trial Started before Abortion act repealed and had to be completed as if it had not
been appealed. FURTHER the trial started before the interim constitution as well so it
had to be completed in term of the law at the time of the start of the trial -Legislation is
not automatically unconstitutional. The abortion act was never declared unconstitutional
by any court of Law
S v Makwanyane 1995 - Answer - MOKGORO J quote:
With the entrenchment of the Bill of Fundamental Rights and Freedoms in a supreme
Constitution, however , the interpretive task frequently involves making constitutional
choices by balancing competing fundamental rights and freedoms. This can often only
be done by reference to a system of values extraneous to the constitutional text itself,
where these principles constitute the historical context in which the text was adopted
and which help to explain the meaning of the text. The Constitution makes it particularly
imperative for courts to develop the entrenched fundamental rights in terms of a
cohesive set of values, ideal to an open and democratic society. To this end common
values of human rights protection the world over and foreign precedent may be
instructive.
Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit 2001 - Answer - para 21
Langa DP explained
the constitutional foundation of this 'new' interpretation methodology as follows
(emphasis added): Section 39(2) of the Constitution . . . means that all statutes must be
interpreted through the prism of the Bill of Rights. All law-making authority must be
exercised in accordance with the Constitution. The Constitution is located in a history
which involves a transition from a society based on division, injustice and exclusion from
the democratic process to one which respects the dignity of all citizens, and includes all
in the process of governance. As such, the process of
interpreting the Constitution must recognise the context in which we find ourselves and
the Constitution's goal of a society based on democratic values, social justice and
fundamental human rights. This spirit of transition and transformation characterises the
constitutional enterprise as a whole.
