IOS2601 Summary Notes

MODULE : IOS2601

,IOS2601 Exam
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INTERPRETATION OF STATUTES
SECTION A – GENERAL INTRODUCTION

CHAPTER 1 – GENERAL INTRODUCTION

Interpretation of statutes is about making sense of the total relevant legislative scheme applicable to the
situation at hand

Definition of interpretation of statutes by Botha:
The body of rules & principles used to construct the correct meaning of legislative provisions to be
applied in practical situations

Statutes cannot be interpreted in a mechanical / rule-like fashion –

 Many rules of interpretation (aka: maxims / canons / presumptions of interpretation) overlap &
cannot be neatly compartmentalised
 “Legalese” – language used in legislation is often difficult & obscure
 Circumstances & contexts in which legislation must be applied differ
 Courts have not developed clear & predictable pattern of application for certain rules
 All interpreters are influenced by their own history & background
 Interpretation involves value judgments

Interpreter has to determine what the legislation has to accomplish in the legal order – case law & older
sources refer to this as the “intention of the legislature” – other sources refer to it as “purpose of the
legislation” / “legislative scheme” - However, it’s difficult to picture such a collective intention exercised by
all members of a legislative body because:

 Legislature is composed of a number of persons – all of whom take part in the legislative process;
 As part of the democratic legislative process some members of the legislature may oppose the
legislation for various reasons, with the result that the adopted legislation ultimately reflects the
“intention” of only the majority of the legislature;
 Some members will support legislations for the sake of party unity – though they may personally be
opposed to a Bill = “intention” of legislature is subject to what the individual members of legislative
body, under pressure from their party assembly, “had to” intend
 Parliamentarians are elected politicians – they do not necessarily understand the complex &
technical legislation which they adopt;
 A Bill introduced in the legislature is not drafted by the public representatives, but by legislative
drafters & law advisers acting on advice of officials from various state departments; and
 Some members of legislative body may even be absent when voting on draft legislation takes place

The correct interpretation of legislation does not depend on which term is used – but more importantly,
how the purpose (or intention / legislative scheme / aim of legislation) is ascertained & construed

Botha refers to “correct” answers – however if the rules & principles of statutory interpretation are as
complex & results of interpretation as unpredictable & from Botha’s own account of the non-mechanical
nature of the interpretative process – UNISA has a better definition =

The body of rules & principles that are used to construct & justify the meaning of legislative
provisions when they are applied in practical situations




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THE NEW CONSTITUTIONAL ORDER

Before 1994 Interim Const – interpretation of statutes was based on sovereignty of Parliament –

 Parliament as highest legislative body AND was capable of enacting any laws it wished
 No court could test substance of parliamentary Acts against standards like fairness / equality

Characteristics of statutory interpretation before 1994 interim constitution:

1. There was a confusing system of maxims & canons (standards / rules) of interpretation;
2. It was saddled with the so-called primary, secondary & tertiary rules;
3. There were misconceptions about structure & meaning of language; and
4. There were differences of opinion as to how the so-called intention of the legislature should be
ascertained

After introduction of 1994 Interim Const –

 Principle of parliamentary sovereignty was replaced by constitutional supremacy
 Interpretation clause stated that the spirit & purport of fundamental rights had to be taken into
account during interpretation of statutes – courts can no longer ignore value judgments
 Rules of statutory interpretation were influenced by new constitutional order
 Critical questions asked by academics were no longer theoretical reflections
 Correct method of statutory & constitutional interpretation formed the centre of debate about the
protection of fundamental human rights

After introduction of 1997 Const –

Principles of interim const which transformed statutory interpretation were retained

Interpretation of statutes was transformed by the following 6 provisions:

1. S1 – the foundational provision;
2. S2 – supremacy clause;
3. S7 – obligation clause
4. S8 – application clause
5. S36 – limitation clause
6. S39 – interpretation clause

PROCESS OF INTERPRETATION: A TEACHING TOOL

Dual nature of statutory interpretation = a body of law AND a practical activity
“Statutory interpretation” means distinguishing btw:
1. Process / activity of interpreting statutes on the one hand; and
2. The law (body of rules & principles) that regulates that process on the other
The legal rules & principles cannot, by themselves, say anything about the activity / process of
interpretation

More is involved in the process than mere knowledge of the rule book
(i.e. same distinction applies to activity of cooking a meal – the process of cooking can & must be
distinguished from the study of recipe books (i.e rule books on cooking) – a good cook not only knows many
good recipes – she also knows how to cook)




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