RVW
RVW210: Study theme 1 – General introduction
- Textbook pages 3 – 14 + lecture slides
The Law vs A Law
The Law
- All forms of law (common law, statute law, customary law, case law)
- Interpretation notes and policy documents are guidelines that are not binding … they
do not form part of the law
A Law
- A written statute enacted by those legislative bodies which have the authority to
make laws
Act vs act
Act (upper case)
- a parliamentary statute or the legislation of a provincial legislature
act (lower case)
- conduct or action
Common Law vs Codifications
Common Law
- The laws of land, made up of basic legal principles, that were not originally written
down, but came to be accepted as the law of the land (basic principles of Roman
Dutch law)
Codifications
- Statutory compilations of all legal principles relating to a particular branch of law
Ultra vires vs Intra vires
Ultra vires
- Outside the scope of power granted by law
Intra vires
- Inside the scope of power granted by law
Process vs Procedure
Process
- A series of actions taken in order to achieve a particular end over a time period
Procedure
- Guidelines that need to be followed (a prescribed way of undertaking a process)
Legislation vs legislature
Legislation (what)
- Written law enacted by a body or person authorised to do so by the constitution or
other legislation
Legislature (who)
- The body of a state capable of making and changing laws
1
Intellectual property of CAITLIN LEAHY © - do not illegally distribute
, Illegal vs Unlawful
Illegal
- Forbidden by law that has been passed
- Killing a person, selling of cocaine
Unlawful
- Wrongful but not regulated by a law
- Jaywalking, littering in a public area
Parliament vs National assembly
Parliament
- Two bodies, one of which is the National Assembly
National assembly
- A component of parliament
Legislation
- ‘enacted law-texts’ / statute law
- Made up of different types of enacted legislation: Acts of parliament, provincial
legislation, municipal by-laws, proclamations and regulations
- Needs to be understood and applied in terms of horizontal timelines, geography, and
vertical hierarchal authority
- Importance of legislation: common law cannot deal with the regulation of new
technological and scientific developments which means that legislative intervention
is necessary and new legislation is needed to remedy the situation in the new
constitutional dispensation
Common Law
- Origins of south African common law: SA. Common law is known as Roman-Dutch
law which mostly originated during the 17th century in the province Holland and was
influenced by English law
- Unwritten/not codified
- Common law may be changed by original legislation, but if there is no statutory law
on the subject, the common law applies
Indigenous Law
- The traditional law of the indigenous black people of SA
- May either be unwritten customary law or codified statutory compilations
What is statutory interpretation
- Applying technical aspects (structure and language) in conjunction with substantive
aspects (constitutional values and fundamental rights) to find the meaning and
purpose of legislation
Legalese
- The perplexing and specialized language used by lawyers in legal documents
General facts
2
Intellectual property of CAITLIN LEAHY © - do not illegally distribute
, - The supreme constitution is the highest law in the land (this means that any
legislation or act of any government body which is in conflict with the constitution
will be invalid)
- Parliament is the highest legislative body in a system of government with a supreme
constitution
System of government in SA before the interim constitution took effect
- Rules of statutory interpretation were based on sovereignty of parliament
- Parliament was capable of enacting any law it wished
- No court was able to test the substance of parliamentary Acts against standards such
as fairness and equality
The interim constitution (the Constitution of the Republic of South Africa 200 of 1993)
- Came into operation on 27 April 1994
- Principles of parliamentary sovereignty was replaced by constitutional supremacy
- Spirit and purport of the fundamental rights had to be taken into account during the
interpretation of statutes
The Constitution (the Constitution of the Republic of South Africa, 1996)
- Came into operation on 4 February 1997
- The interpretation of statutes was transformed by six provisions of the constitution:
s1(foundational provision), s2(supremacy clause), s7(obligation clause),
s8(application clause), s36(limitation clause), s39(interpretation clause)
What to consider when interpreting legislation
1. Provision must be read and informed by Constitutional scheme & BOR
2. Cross check impact of other legislation
3. Is the legislative provision still in force? Has it been amended?
4. Read with legislation’s (i) definition section and (ii) schedules if applicable.
5. Regulations issued ITO a provision must be read with the enabling Section. Are
they valid?
6. Take into account Context of the legislation (background/circumstances).
7. External aids may be used to establish meaning.
*Text may be poorly drafted, contain conflicting provisions, or lack of capacity/access to
resources to research the law.
Case laws to know
S v makwanyane
- The court interpreted s 11 of the constitution ‘everyone has the right to life’
- Cc held that the state may not take a person’s life in retribution, and the death
penalty was declared unconstitutional
Makwanyane and ex parte minister of safety and security: in re S v Walters
- Cc held that killing a person in self defense was not abolished
Soobramoney v minister of health
- The right to life does not mean that the state has the duty to keep all terminal
patient alive in all circumstances
Carmichele v minister of safety and security
3
Intellectual property of CAITLIN LEAHY © - do not illegally distribute
, - The state has the constitutional duty to not perform any act that infringes on the
rights to life, freedom, and security of the person
4
Intellectual property of CAITLIN LEAHY © - do not illegally distribute
RVW210: Study theme 1 – General introduction
- Textbook pages 3 – 14 + lecture slides
The Law vs A Law
The Law
- All forms of law (common law, statute law, customary law, case law)
- Interpretation notes and policy documents are guidelines that are not binding … they
do not form part of the law
A Law
- A written statute enacted by those legislative bodies which have the authority to
make laws
Act vs act
Act (upper case)
- a parliamentary statute or the legislation of a provincial legislature
act (lower case)
- conduct or action
Common Law vs Codifications
Common Law
- The laws of land, made up of basic legal principles, that were not originally written
down, but came to be accepted as the law of the land (basic principles of Roman
Dutch law)
Codifications
- Statutory compilations of all legal principles relating to a particular branch of law
Ultra vires vs Intra vires
Ultra vires
- Outside the scope of power granted by law
Intra vires
- Inside the scope of power granted by law
Process vs Procedure
Process
- A series of actions taken in order to achieve a particular end over a time period
Procedure
- Guidelines that need to be followed (a prescribed way of undertaking a process)
Legislation vs legislature
Legislation (what)
- Written law enacted by a body or person authorised to do so by the constitution or
other legislation
Legislature (who)
- The body of a state capable of making and changing laws
1
Intellectual property of CAITLIN LEAHY © - do not illegally distribute
, Illegal vs Unlawful
Illegal
- Forbidden by law that has been passed
- Killing a person, selling of cocaine
Unlawful
- Wrongful but not regulated by a law
- Jaywalking, littering in a public area
Parliament vs National assembly
Parliament
- Two bodies, one of which is the National Assembly
National assembly
- A component of parliament
Legislation
- ‘enacted law-texts’ / statute law
- Made up of different types of enacted legislation: Acts of parliament, provincial
legislation, municipal by-laws, proclamations and regulations
- Needs to be understood and applied in terms of horizontal timelines, geography, and
vertical hierarchal authority
- Importance of legislation: common law cannot deal with the regulation of new
technological and scientific developments which means that legislative intervention
is necessary and new legislation is needed to remedy the situation in the new
constitutional dispensation
Common Law
- Origins of south African common law: SA. Common law is known as Roman-Dutch
law which mostly originated during the 17th century in the province Holland and was
influenced by English law
- Unwritten/not codified
- Common law may be changed by original legislation, but if there is no statutory law
on the subject, the common law applies
Indigenous Law
- The traditional law of the indigenous black people of SA
- May either be unwritten customary law or codified statutory compilations
What is statutory interpretation
- Applying technical aspects (structure and language) in conjunction with substantive
aspects (constitutional values and fundamental rights) to find the meaning and
purpose of legislation
Legalese
- The perplexing and specialized language used by lawyers in legal documents
General facts
2
Intellectual property of CAITLIN LEAHY © - do not illegally distribute
, - The supreme constitution is the highest law in the land (this means that any
legislation or act of any government body which is in conflict with the constitution
will be invalid)
- Parliament is the highest legislative body in a system of government with a supreme
constitution
System of government in SA before the interim constitution took effect
- Rules of statutory interpretation were based on sovereignty of parliament
- Parliament was capable of enacting any law it wished
- No court was able to test the substance of parliamentary Acts against standards such
as fairness and equality
The interim constitution (the Constitution of the Republic of South Africa 200 of 1993)
- Came into operation on 27 April 1994
- Principles of parliamentary sovereignty was replaced by constitutional supremacy
- Spirit and purport of the fundamental rights had to be taken into account during the
interpretation of statutes
The Constitution (the Constitution of the Republic of South Africa, 1996)
- Came into operation on 4 February 1997
- The interpretation of statutes was transformed by six provisions of the constitution:
s1(foundational provision), s2(supremacy clause), s7(obligation clause),
s8(application clause), s36(limitation clause), s39(interpretation clause)
What to consider when interpreting legislation
1. Provision must be read and informed by Constitutional scheme & BOR
2. Cross check impact of other legislation
3. Is the legislative provision still in force? Has it been amended?
4. Read with legislation’s (i) definition section and (ii) schedules if applicable.
5. Regulations issued ITO a provision must be read with the enabling Section. Are
they valid?
6. Take into account Context of the legislation (background/circumstances).
7. External aids may be used to establish meaning.
*Text may be poorly drafted, contain conflicting provisions, or lack of capacity/access to
resources to research the law.
Case laws to know
S v makwanyane
- The court interpreted s 11 of the constitution ‘everyone has the right to life’
- Cc held that the state may not take a person’s life in retribution, and the death
penalty was declared unconstitutional
Makwanyane and ex parte minister of safety and security: in re S v Walters
- Cc held that killing a person in self defense was not abolished
Soobramoney v minister of health
- The right to life does not mean that the state has the duty to keep all terminal
patient alive in all circumstances
Carmichele v minister of safety and security
3
Intellectual property of CAITLIN LEAHY © - do not illegally distribute
, - The state has the constitutional duty to not perform any act that infringes on the
rights to life, freedom, and security of the person
4
Intellectual property of CAITLIN LEAHY © - do not illegally distribute
