1
Exam Questions & Answers IOS 2601
DISCUSSION OF THE MAY/JUNE 2004 EXAMINATION
QUESTION 1
(a) What are the three phases of interpretive process in the model that is suggested by Botha in the
textbook? Explain each phase briefly. (6)
The three phases used by Botha (please note that these are not rules or principles of
interpretation) are discussed in the last part of Chapter 1 and they are the initial phase, the
research phase and the concretisation phase. In the first phase the initial meaning of the
legislative text is established (subject to the understanding that the Constitution, the common law
presumptions and the purpose of the legislature will all be taken into account with the initial grammatical
meaning of the text). In the research phase, intra-textual and extra-textual aids are studied to ascertain the
purpose of legislation. During the concretisation phase, the legislative text, the purpose, the facts of the case
and the constitutional values are weighed against each other in order to reach a conclusion.
(b) List the main grounds (at least five) on which the intentionalist approach to
interpretation may be criticised. (5)
Note that in your prescribed textbook the concepts “literalist, intentionalist and textualists” approach are
used interchangeably.
This approach
(i) reduces common law presumptions to a mere tertiary aids to interpretation,
(ii) is inherently subjective,
(iii) regards words as primary index into legislative intention,
(iv) leaves little room for judicial law making.
In addition, the view that legislative text are clear and unambiguous must be questioned in view of the
existence of disciplines such as the interpretation of statutes..
(c) Define what “interpretation by implication” means, and then briefly the three main
grounds of extension by implication. (5)
Interpretation by implication involves extending the textual meaning on the ground of a
reasonable and essential implication, which is evident from the legislation. Students were also required to set
out the three main grounds: ex contrariis, ex consequentibus and ex accessorioeius.
(d) Briefly set out what the approach of the courts should be to the interpretation of a
statute that has been taken verbatim from, say an English statute? (4)
Many students confused this question with the use of the legislative text of another official
language as an intra-textual aid. Initially the courts subscribed to the view that if the language of the statute
is identical to that of the foreign source (say, an English or British statute), the legislation concerned should
be interpreted in accordance with the interpretation of the English courts. If not, the court has unfettered
discretion. The prevailing view now is that the approach of the foreign courts will be used only as a guideline.
The courts will always interpret South African legislation in the light of South African common law.
(e) Name five generally accepted methods of constitutional interpretation. (5)
These are the grammatical, systematic, historical, teleological, and comparative methods of
interpretation. Easy marks!
(f) Define what “law” means as it is used in the Interpretation Act 33 of 1957. (5)
“Law” means “any law, proclamation, ordinance, Act of Parliament, or any other enactment having the force
of the law”. More easy marks!
, 2
(b) Discuss whether the courts may exercise a law making function when they interpret legislation. In your
answer you must refer to the position prior to the advent of the new constitutional order and thereafter.
(10)
The answer will differ depending on which theory of statutory interpretation is adopted. Prior to 1994, the
literalists or textualists argued on the basis of the maxims iudicis est ius dicere sed non dare and casus
omissus that the function of the courts was to interpret, and not to make, the law and that it was not the
function of the courts to supply omissions in legislation as this was the role of the legislature. Contextualists
on the other hand, argued that the courts could modify the initial meaning of the text to harmonise it with
the purpose. However, this discretion was qualified by the requirement that modification would only be
permissible if the purpose of legislation is clear. Labuschagne and Du Plessis have tried to show that the law
making function of the courts does not mean that they take over the legislative function; that the courts and
the legislature are partners in the law making function; that the legislation only becomes a complete and
functional statutes when it is applied by the courts.
After 1994 this debate took a new turn. The starting point of interpretation is now to ascertain the purpose
of legislation in the light of the Bill of Rights and to give effect to it. This means that the courts must establish
the purpose of legislation. If the literal meaning of the text does not give effect to the purpose, for example,
where the text has stipulated either more or less than the purpose or where it is in conflict with the
Constitution, the courts may modify the legislation concerned. Such modification can either be restrictive or
extensive.
(c) Discuss the presumption that the legislature does not intend to change existing
legislation more than is necessary. In your discussion you must also address the
influence of the new constitutional order on this presumption. (15)
This common law presumption gives expression to the value of legal certainty. First, this
presumption means that legislation must be interpreted in such a way that it is consistent with existing law
(in its widest sense). In respect of legislation, the presumption means that when interpreting subsequent
legislation, it is assumed that the legislature does not intend to repeal or modify earlier legislation. Any
repeal or amendment must be effected expressly or by necessary implication. In Shozi v Minister of Justice it
was held that old and new legislation dealing with the same issue should be read together and reconciled.
This will frequently happen where a more general later provision supplements a more spesicic earlier
provision. Where reconcilation is not possible, it has to be accepted that the old legislation has been repealed
or amended by necessary implication. Such a problem presented itself in Gov of the RSA v Gov of KwaZulu
(you must shortly discuss the facts). The value of legal certainty also forms part of the new constitutional
dispensation. Sections 35(2) and 232(3) of the interim Constitution held in effect that the new Constitution
sought to change the existing law as little as possible. Legislation had to be interpreted narrowly rather than
be declared unconstitutional. These sections do not form part of the final Constitution. However, the
technique of narrowly interpreting legislation (so-called reading-down) is frequently used by the
Constitutional Court in order to save legislation that violates the final Constitution.
Question 3
(a) Section 29 of the Marriage Act 25 of 1961 reads as follows: “A marriage officer shall solemnise any
marriage in a church or other building used for religious purposes, or in a public office or a private
dwelling-house, with open doors”. Jasmine recently concluded a wedding ceremony with Joseph in the
front garden of her mother's riverside home. A friend later told here that she is, for this reason, not legally
married. She wants to know from you whether her friend is correct. In your answer explain
(i) what the difference is between peremptory and directory statutory provisions; (1)
(ii) what the effect of non-compliance with each type of provision; (1)
(iii) which semantic and jurisprudential guidelines are usually used to distinguish
between the two types of statutory provisions (8)
, 3
(b) David killed Moses during a fit of road rage on 31 January 2003. He was convicted of murder on 31
March 2004. The case was then postponed to 31 May 2004 for
sentencing. On 1 February 2004 a new Road Traffic Act was adopted by Parliament.
The Act includes new sentencing options for people convicted of road rage. The Act
was published in the Government Gazette on 31 May 2004. On the same day (the day
earlier set aside for sentencing), the question arose whether the sentencing
provisions of the new Act could be applied to David's case. The State argued that the
new law had not yet come into operation, and even if it has, the law as it was when
David committed his offence should be applied to his case. Provide a legal opinion
about the matter, dealing, inter alia, with the following
(i) the commencement of legislation; and (4)
(ii) the presumption that legislation only applies to future matters. (6)
(i) In terms of section 13(1) read with subsection (2) legislation commences on the day of its
publication in the Gazette unless another day is specified in the legislation concerned; and
the day begins immediately on the expiration of the previous day (i.e at midnight). The
reason why legislation must be published is to make people aware of its existence. If the
Government Printer is, for some reason or another, unable to print the Gazette, the
President may prescribe alternative procedure for the promulgation of the legislation
concerned. The Constitution also requires legislation to be published before it commences.
Applied to the facts at hand, The Road Traffic Act came into operation at midnight on 31
May 2004. Whether the Act applies to David's case depends on whether it is retrospective.
This question is dealt with fully below.
(ii) It is presumed, unless the contrary appears either expressly or by necessary implication,
that the legislation applies to future matters only. If the enactment deals with procedure, the
presumption does not apply. However, if the retroactive application of an enactment would
benefit the individual, the presumption does not apply. For example, in Silas case the
amending Act reduced the existing penalty after the accused had committed the offence but
before sentencing. The court held that in this case the presumption against retrospectivity
had been rebutted by other considerations. The amendment was applied retrospectively
and the new more lenient penalty was imposed. On the other hand, if the amendment
places the individual in a worse position than before, the presumption will apply. This is in
fact what was held by the court in Mazibuko. In this case the court found that if the penalty
provision provided for in an Act is increased by an amending Act, the presumption against
retrospectivity applies.
In addition, the Constitution expressly provides, in section 35(3)(n) that the accused person
has the right to the benefit of the least sever punishment if the prescribed punishment has
been changed between the time the offence was committed and the time of sentencing.
Therefore, whether the presumption and the constitutional provisions will apply in this case
depends on whether the new Act places the accused in the worst or better position.
(c) Section 10 of the Transport Act 1 of 2000 provides that “every person who operates a taxi, bus,
rickshaw, or any other vehicle as a means of transporting members of the public must have a licence to do
so”. Unisa employees have a lift club. Mr X who is a member of the lift club uses his minibus to bring
colleagues to work. He is eager to find out whether the Transport Act applies to his lift club or not. (15)
If you look at section 10, it has specific words (taxi, bus, rickshaw) and general words (any other vehicle). This means
that the eiusdem generis rule applies. This terms means “of the same kind”. It means that the meaning of words is
Exam Questions & Answers IOS 2601
DISCUSSION OF THE MAY/JUNE 2004 EXAMINATION
QUESTION 1
(a) What are the three phases of interpretive process in the model that is suggested by Botha in the
textbook? Explain each phase briefly. (6)
The three phases used by Botha (please note that these are not rules or principles of
interpretation) are discussed in the last part of Chapter 1 and they are the initial phase, the
research phase and the concretisation phase. In the first phase the initial meaning of the
legislative text is established (subject to the understanding that the Constitution, the common law
presumptions and the purpose of the legislature will all be taken into account with the initial grammatical
meaning of the text). In the research phase, intra-textual and extra-textual aids are studied to ascertain the
purpose of legislation. During the concretisation phase, the legislative text, the purpose, the facts of the case
and the constitutional values are weighed against each other in order to reach a conclusion.
(b) List the main grounds (at least five) on which the intentionalist approach to
interpretation may be criticised. (5)
Note that in your prescribed textbook the concepts “literalist, intentionalist and textualists” approach are
used interchangeably.
This approach
(i) reduces common law presumptions to a mere tertiary aids to interpretation,
(ii) is inherently subjective,
(iii) regards words as primary index into legislative intention,
(iv) leaves little room for judicial law making.
In addition, the view that legislative text are clear and unambiguous must be questioned in view of the
existence of disciplines such as the interpretation of statutes..
(c) Define what “interpretation by implication” means, and then briefly the three main
grounds of extension by implication. (5)
Interpretation by implication involves extending the textual meaning on the ground of a
reasonable and essential implication, which is evident from the legislation. Students were also required to set
out the three main grounds: ex contrariis, ex consequentibus and ex accessorioeius.
(d) Briefly set out what the approach of the courts should be to the interpretation of a
statute that has been taken verbatim from, say an English statute? (4)
Many students confused this question with the use of the legislative text of another official
language as an intra-textual aid. Initially the courts subscribed to the view that if the language of the statute
is identical to that of the foreign source (say, an English or British statute), the legislation concerned should
be interpreted in accordance with the interpretation of the English courts. If not, the court has unfettered
discretion. The prevailing view now is that the approach of the foreign courts will be used only as a guideline.
The courts will always interpret South African legislation in the light of South African common law.
(e) Name five generally accepted methods of constitutional interpretation. (5)
These are the grammatical, systematic, historical, teleological, and comparative methods of
interpretation. Easy marks!
(f) Define what “law” means as it is used in the Interpretation Act 33 of 1957. (5)
“Law” means “any law, proclamation, ordinance, Act of Parliament, or any other enactment having the force
of the law”. More easy marks!
, 2
(b) Discuss whether the courts may exercise a law making function when they interpret legislation. In your
answer you must refer to the position prior to the advent of the new constitutional order and thereafter.
(10)
The answer will differ depending on which theory of statutory interpretation is adopted. Prior to 1994, the
literalists or textualists argued on the basis of the maxims iudicis est ius dicere sed non dare and casus
omissus that the function of the courts was to interpret, and not to make, the law and that it was not the
function of the courts to supply omissions in legislation as this was the role of the legislature. Contextualists
on the other hand, argued that the courts could modify the initial meaning of the text to harmonise it with
the purpose. However, this discretion was qualified by the requirement that modification would only be
permissible if the purpose of legislation is clear. Labuschagne and Du Plessis have tried to show that the law
making function of the courts does not mean that they take over the legislative function; that the courts and
the legislature are partners in the law making function; that the legislation only becomes a complete and
functional statutes when it is applied by the courts.
After 1994 this debate took a new turn. The starting point of interpretation is now to ascertain the purpose
of legislation in the light of the Bill of Rights and to give effect to it. This means that the courts must establish
the purpose of legislation. If the literal meaning of the text does not give effect to the purpose, for example,
where the text has stipulated either more or less than the purpose or where it is in conflict with the
Constitution, the courts may modify the legislation concerned. Such modification can either be restrictive or
extensive.
(c) Discuss the presumption that the legislature does not intend to change existing
legislation more than is necessary. In your discussion you must also address the
influence of the new constitutional order on this presumption. (15)
This common law presumption gives expression to the value of legal certainty. First, this
presumption means that legislation must be interpreted in such a way that it is consistent with existing law
(in its widest sense). In respect of legislation, the presumption means that when interpreting subsequent
legislation, it is assumed that the legislature does not intend to repeal or modify earlier legislation. Any
repeal or amendment must be effected expressly or by necessary implication. In Shozi v Minister of Justice it
was held that old and new legislation dealing with the same issue should be read together and reconciled.
This will frequently happen where a more general later provision supplements a more spesicic earlier
provision. Where reconcilation is not possible, it has to be accepted that the old legislation has been repealed
or amended by necessary implication. Such a problem presented itself in Gov of the RSA v Gov of KwaZulu
(you must shortly discuss the facts). The value of legal certainty also forms part of the new constitutional
dispensation. Sections 35(2) and 232(3) of the interim Constitution held in effect that the new Constitution
sought to change the existing law as little as possible. Legislation had to be interpreted narrowly rather than
be declared unconstitutional. These sections do not form part of the final Constitution. However, the
technique of narrowly interpreting legislation (so-called reading-down) is frequently used by the
Constitutional Court in order to save legislation that violates the final Constitution.
Question 3
(a) Section 29 of the Marriage Act 25 of 1961 reads as follows: “A marriage officer shall solemnise any
marriage in a church or other building used for religious purposes, or in a public office or a private
dwelling-house, with open doors”. Jasmine recently concluded a wedding ceremony with Joseph in the
front garden of her mother's riverside home. A friend later told here that she is, for this reason, not legally
married. She wants to know from you whether her friend is correct. In your answer explain
(i) what the difference is between peremptory and directory statutory provisions; (1)
(ii) what the effect of non-compliance with each type of provision; (1)
(iii) which semantic and jurisprudential guidelines are usually used to distinguish
between the two types of statutory provisions (8)
, 3
(b) David killed Moses during a fit of road rage on 31 January 2003. He was convicted of murder on 31
March 2004. The case was then postponed to 31 May 2004 for
sentencing. On 1 February 2004 a new Road Traffic Act was adopted by Parliament.
The Act includes new sentencing options for people convicted of road rage. The Act
was published in the Government Gazette on 31 May 2004. On the same day (the day
earlier set aside for sentencing), the question arose whether the sentencing
provisions of the new Act could be applied to David's case. The State argued that the
new law had not yet come into operation, and even if it has, the law as it was when
David committed his offence should be applied to his case. Provide a legal opinion
about the matter, dealing, inter alia, with the following
(i) the commencement of legislation; and (4)
(ii) the presumption that legislation only applies to future matters. (6)
(i) In terms of section 13(1) read with subsection (2) legislation commences on the day of its
publication in the Gazette unless another day is specified in the legislation concerned; and
the day begins immediately on the expiration of the previous day (i.e at midnight). The
reason why legislation must be published is to make people aware of its existence. If the
Government Printer is, for some reason or another, unable to print the Gazette, the
President may prescribe alternative procedure for the promulgation of the legislation
concerned. The Constitution also requires legislation to be published before it commences.
Applied to the facts at hand, The Road Traffic Act came into operation at midnight on 31
May 2004. Whether the Act applies to David's case depends on whether it is retrospective.
This question is dealt with fully below.
(ii) It is presumed, unless the contrary appears either expressly or by necessary implication,
that the legislation applies to future matters only. If the enactment deals with procedure, the
presumption does not apply. However, if the retroactive application of an enactment would
benefit the individual, the presumption does not apply. For example, in Silas case the
amending Act reduced the existing penalty after the accused had committed the offence but
before sentencing. The court held that in this case the presumption against retrospectivity
had been rebutted by other considerations. The amendment was applied retrospectively
and the new more lenient penalty was imposed. On the other hand, if the amendment
places the individual in a worse position than before, the presumption will apply. This is in
fact what was held by the court in Mazibuko. In this case the court found that if the penalty
provision provided for in an Act is increased by an amending Act, the presumption against
retrospectivity applies.
In addition, the Constitution expressly provides, in section 35(3)(n) that the accused person
has the right to the benefit of the least sever punishment if the prescribed punishment has
been changed between the time the offence was committed and the time of sentencing.
Therefore, whether the presumption and the constitutional provisions will apply in this case
depends on whether the new Act places the accused in the worst or better position.
(c) Section 10 of the Transport Act 1 of 2000 provides that “every person who operates a taxi, bus,
rickshaw, or any other vehicle as a means of transporting members of the public must have a licence to do
so”. Unisa employees have a lift club. Mr X who is a member of the lift club uses his minibus to bring
colleagues to work. He is eager to find out whether the Transport Act applies to his lift club or not. (15)
If you look at section 10, it has specific words (taxi, bus, rickshaw) and general words (any other vehicle). This means
that the eiusdem generis rule applies. This terms means “of the same kind”. It means that the meaning of words is
