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INTERPRETATION OF STATUTES: IOS 2601
2021 FIRST SEMESTER ASSIGNMENT 01
Please read the University’s Policy on Copyright Infringement and Plagiarism and
the Student Disciplinary Code, which are both available on myUnisa:
www.unisa.ac.za/unisarules
Question 1
1.1 List the documents that, although published in the Government Gazette, do not
constitute legislation. (5)
(a) Legal Notices
(b) Case Law
(c) Draft Bills
(d) Discussion papers
(e) Report
(f) Advertisements
(g) Common Law Rules
(h) Policy Documents
1.2 Explain the ordinary civil method of the computation of days with reference to the
case law. (7)
1|Page
, The time is computed diem de diem. The first day is included and the last day
excluded. The last day ends at midnight of the previous day.
In Minister van Polisie v De Beer the cause of action was a collision between a
police vehicle and another car. In terms of the Police Act at the time, a civil action in
terms of the Act must be instituted within 6 months. The collision took place on 5
August and action was instituted on 5 February the next year. The court found that
the civil method of calculating time should be used. The last day should have been
excluded and the summons was one day too late. Study Unit 6
1.3 Explain the concept of Ubuntu and whether it is part of the South African legal
system. (6)
Ubuntu is an indigenous African concept and refers to a practical humanist
disposition towards the world, including compassion, tolerance and fairness. The
concept was applied and explained by the Constitutional Court in S v Makwanyane.
Loosely tranaslated, ubuntu translates as ‘humaneness’. In its most fundamental
sense, it translates as ‘personhood’ and ‘morality’.It envelops the key values of
group solidarity, compassion, respect, human dignity, conformity to basic norms and
collective unity, in its fundamental sense it denotes humanity and morality. Its spirit
emphasises respect for human dignity, marking a shift from confrontation to
conciliation.
The concept of ubuntu is not expressly mentioned in the Constitution of 1996. That
does not mean that ubuntu will disappear from the South African legal stage. Since
ubuntu was used in the Makwanyane case (above), it forms part of the new South
African constitutional jurisprudence. It may also be argued that ubuntu lives on in
the numerous references to human dignity in the Constitution. It forms an important
bridge between the communal African traditions and Western traditions, which focus
on the individual, and could be a very useful extra-textual aid to statutory and
constitutional interpretation. Online Textbook Page 218
1.4 List seven (7) internal aids that can be consulted when interpreting an act. (7)
(1) Long title
(2) Preamble
(3) Headings
(4) Paragraphing
(5) Punctuation
(6) The definitions clause
(7) Schedule
[25]
2|Page
,Question 2
2.1 Name the various dimensions of the “practical inclusive method of interpretation”
favoured by Botha Statutory Interpretation: An Introduction for Students (5)
Grammatical interpretation: acknowledges the importance of the role of the language of
the legislative text. Systematic (contextual) interpretation: Concentrates on the meaning
of a particular provision in relation to the text as a whole. Also known as holistic
approach. Also takes into account the social and political environments. Teleological
(spelling!) interpretation: Purpose of legislation ascertained against fundamental
constitutional values and value-coherent interpretation. Historical Interpretation: Refers
to the history of the legislation and includes factors such as the mischief rule and the
legislative history. Comparative interpretation: Refers to the process of examining the
interpretation of similar legislation in foreign courts and international law. Study Guide
Chapter 5
2.2 Briefly EXPLAIN the importance of each of the following cases for statutory
interpretation in South Africa: (12)
(i) National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (reading
in);and
It is important because the Constitutional Court laid down the principles to be
considered before ‘reading in’ is applied. Reading in is a drastic remedy employed by
the court to change legislation in order to keep it constitutional. The court ‘reads’
something into the legislation to rescue a provision or part of it. The results of reading in
must be consistent with the values of the Constitution. The result must interfere with the
existing law as little as possible. The courts must be able to define with sufficient
precision how the legislative meaning ought to be modified to comply with the
Constitution. The court should try to be as faithful as possible to the legislative scheme
within the constraints of the Constitution. The remedy of reading in should not be
granted where this would result in an unsupportable budgetary intrusion.
(ii) Nourse v Van Heerden (repeal of legislation).
It is imperative because, the court found that legislation could not be abrogated by
disuse, and had to be repealed by a competent legislature. Existing legislation remained
in force until repealed or declared unconstitutional.
The trial started before the repeal of the Abortion Act, and in terms of s 12(2) of the
Interpretation Act the trial had to be completed as if the Abortion Act had not been
repealed. Furthermore, the trial started before either the interim Constitution or the 1996
3|Page
, Constitution commenced. Since none of the Constitutions was retroactive, the trial had
to be completed in terms of the law existing at the start of the trial. Finally, legislation is
not automatically unconstitutional, and the Abortion Act was never declared
unconstitutional by any court of law.
2.3 Explain the “mischief rule”. Refer to relevant case law. (8)
The Mischief-rule forms the cornerstone of the contextual approach to in-terpretation.
The object of the rule is to examine the circumstances leading to the measure in
question. It appears as a term in the index to the textbook (it can thus quickly be looked-
up). The mischief rule formed part of the English law of the 16th century. It was laid
down by Lord Coke in Heydon’s case. The rule required of the interpreter of legislation
to determine the original purpose of the legislation (so that the purpose could be
promoted).
The Court had to determine the original or historical purpose of the legislation by asking
4 questions:
(i) what was the legal position before the legislation was introduced?
(ii) (ii) what was the mischief (or problem) that the law at the time failed to
address;
(iii) (iii) what solution did the legislature introduce to overcome the problem or
remove the mischief?
(iv) (iv) what was the real reason behind the solution?
[25]
Please read the University’s Policy on Copyright Infringement and Plagiarism and
the Student Disciplinary Code, which are both available on myUnisa:
www.unisa.ac.za/unisarules
4|Page
INTERPRETATION OF STATUTES: IOS 2601
2021 FIRST SEMESTER ASSIGNMENT 01
Please read the University’s Policy on Copyright Infringement and Plagiarism and
the Student Disciplinary Code, which are both available on myUnisa:
www.unisa.ac.za/unisarules
Question 1
1.1 List the documents that, although published in the Government Gazette, do not
constitute legislation. (5)
(a) Legal Notices
(b) Case Law
(c) Draft Bills
(d) Discussion papers
(e) Report
(f) Advertisements
(g) Common Law Rules
(h) Policy Documents
1.2 Explain the ordinary civil method of the computation of days with reference to the
case law. (7)
1|Page
, The time is computed diem de diem. The first day is included and the last day
excluded. The last day ends at midnight of the previous day.
In Minister van Polisie v De Beer the cause of action was a collision between a
police vehicle and another car. In terms of the Police Act at the time, a civil action in
terms of the Act must be instituted within 6 months. The collision took place on 5
August and action was instituted on 5 February the next year. The court found that
the civil method of calculating time should be used. The last day should have been
excluded and the summons was one day too late. Study Unit 6
1.3 Explain the concept of Ubuntu and whether it is part of the South African legal
system. (6)
Ubuntu is an indigenous African concept and refers to a practical humanist
disposition towards the world, including compassion, tolerance and fairness. The
concept was applied and explained by the Constitutional Court in S v Makwanyane.
Loosely tranaslated, ubuntu translates as ‘humaneness’. In its most fundamental
sense, it translates as ‘personhood’ and ‘morality’.It envelops the key values of
group solidarity, compassion, respect, human dignity, conformity to basic norms and
collective unity, in its fundamental sense it denotes humanity and morality. Its spirit
emphasises respect for human dignity, marking a shift from confrontation to
conciliation.
The concept of ubuntu is not expressly mentioned in the Constitution of 1996. That
does not mean that ubuntu will disappear from the South African legal stage. Since
ubuntu was used in the Makwanyane case (above), it forms part of the new South
African constitutional jurisprudence. It may also be argued that ubuntu lives on in
the numerous references to human dignity in the Constitution. It forms an important
bridge between the communal African traditions and Western traditions, which focus
on the individual, and could be a very useful extra-textual aid to statutory and
constitutional interpretation. Online Textbook Page 218
1.4 List seven (7) internal aids that can be consulted when interpreting an act. (7)
(1) Long title
(2) Preamble
(3) Headings
(4) Paragraphing
(5) Punctuation
(6) The definitions clause
(7) Schedule
[25]
2|Page
,Question 2
2.1 Name the various dimensions of the “practical inclusive method of interpretation”
favoured by Botha Statutory Interpretation: An Introduction for Students (5)
Grammatical interpretation: acknowledges the importance of the role of the language of
the legislative text. Systematic (contextual) interpretation: Concentrates on the meaning
of a particular provision in relation to the text as a whole. Also known as holistic
approach. Also takes into account the social and political environments. Teleological
(spelling!) interpretation: Purpose of legislation ascertained against fundamental
constitutional values and value-coherent interpretation. Historical Interpretation: Refers
to the history of the legislation and includes factors such as the mischief rule and the
legislative history. Comparative interpretation: Refers to the process of examining the
interpretation of similar legislation in foreign courts and international law. Study Guide
Chapter 5
2.2 Briefly EXPLAIN the importance of each of the following cases for statutory
interpretation in South Africa: (12)
(i) National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (reading
in);and
It is important because the Constitutional Court laid down the principles to be
considered before ‘reading in’ is applied. Reading in is a drastic remedy employed by
the court to change legislation in order to keep it constitutional. The court ‘reads’
something into the legislation to rescue a provision or part of it. The results of reading in
must be consistent with the values of the Constitution. The result must interfere with the
existing law as little as possible. The courts must be able to define with sufficient
precision how the legislative meaning ought to be modified to comply with the
Constitution. The court should try to be as faithful as possible to the legislative scheme
within the constraints of the Constitution. The remedy of reading in should not be
granted where this would result in an unsupportable budgetary intrusion.
(ii) Nourse v Van Heerden (repeal of legislation).
It is imperative because, the court found that legislation could not be abrogated by
disuse, and had to be repealed by a competent legislature. Existing legislation remained
in force until repealed or declared unconstitutional.
The trial started before the repeal of the Abortion Act, and in terms of s 12(2) of the
Interpretation Act the trial had to be completed as if the Abortion Act had not been
repealed. Furthermore, the trial started before either the interim Constitution or the 1996
3|Page
, Constitution commenced. Since none of the Constitutions was retroactive, the trial had
to be completed in terms of the law existing at the start of the trial. Finally, legislation is
not automatically unconstitutional, and the Abortion Act was never declared
unconstitutional by any court of law.
2.3 Explain the “mischief rule”. Refer to relevant case law. (8)
The Mischief-rule forms the cornerstone of the contextual approach to in-terpretation.
The object of the rule is to examine the circumstances leading to the measure in
question. It appears as a term in the index to the textbook (it can thus quickly be looked-
up). The mischief rule formed part of the English law of the 16th century. It was laid
down by Lord Coke in Heydon’s case. The rule required of the interpreter of legislation
to determine the original purpose of the legislation (so that the purpose could be
promoted).
The Court had to determine the original or historical purpose of the legislation by asking
4 questions:
(i) what was the legal position before the legislation was introduced?
(ii) (ii) what was the mischief (or problem) that the law at the time failed to
address;
(iii) (iii) what solution did the legislature introduce to overcome the problem or
remove the mischief?
(iv) (iv) what was the real reason behind the solution?
[25]
Please read the University’s Policy on Copyright Infringement and Plagiarism and
the Student Disciplinary Code, which are both available on myUnisa:
www.unisa.ac.za/unisarules
4|Page
