IOS2601 EXAM PACK 2022

IOS2601 EXAM PACK 2022. IOS2601 - Interpretation Of Statutes WHAT IS “INTERPRETATION OF STATUTES”? It’s the juridical understanding of legislation; it deals with the body of rules and principles used to construct the correct meaning of legislative provisions to be applied in practical situations. Statutory interpretation is similar to the interpretation of wills = the author of the document can’t be called upon to clear up uncertainties in the text, concretising the text to be construed so as to cater for the exigencies of an actual or hypothesized concrete situation. The courts are obliged to use specific rules of interpretation to construe the meaning of the document. Interpretation of legislation requires more than the mere reading of the provisions: i.e. everyone has the right to life in Section 11. S v Makwanyane: the Constitutional court held that the right to life means that the state can’t take someone’s life in retribution and the death penalty was declared unconstitutional. Q: does this mean that you can’t kill in self-defence? S v Walters: the court held that the existing right to kill someone in selfdefence wasn’t abolished by the Constitution In Soobramoney: the Constitutional right to life doesn’t mean the state has a duty to keep all terminal patients alive in all circumstances Carmichele v Minister of Safety and Security: the Constitutional Court linked the Constitutional right to life and freedom of security of a person to the Constitutional duty imposed on the state and its organs not to perform any act that infringes these rights Why is interpretation not a rule like activity? / Why can IOS not be like a computerized fashion? The rules of Interpretation of Statutes can overlap and it is not always clear which rule to applies. When deciding, the following must be taken into consideration:  The set of facts differ from case to case, as well as the context of legislation  The courts are not in one mind set when it comes to the application of rules, therefore there is no particular pattern involved when it comes to the application.  The law is not objective, neutral or value-free: interpreters have their own pre-understanding of legislation based on their history, background experiences, personal beliefs, etc. CLS cc  The spirit and the aim of fundamental rights must be promoted during the interpretation of all legislation. Interpretation involves value-judgments The new Constitutional order Traditionally, interpretation of statutes in South Africa was saddled with unnecessary (and unacceptable) baggage: a confusing system of maxims and canons of interpretation, a golden rule, overriding principles, so called ‘primary, secondary and tertiary’ rules, should be ascertained. Traditionally, the South African rules of statutory interpretation were based on the sovereignty of parliament, while a fundamental rights dispensation is based on a supreme Constitution and fundamental values. Golden rule of interpretation – Give effect to the words as they appear in the text. Primary rule: read the words of the text and give effect to it. Secondary rule: if the words are ambiguous or unclear then look to your secondary aids – intra textual aids. Tertiary rule: if the secondary aids still don’t assist in ascertaining the purpose of the legislation, then we look to our tertiary aids – extra textual aids. Act: refers to a parliamentary statute or the legislation of the provincial legislature. act: refers to conduct Concretization: refers to the final phase of the interpretation process during which the legislative text, the purpose and the situation are harmonized to bring the process to a conclusion Constitutionalism: refers to a government in accordance with the Constitution: the government derives its powers and is bound by the Constitution. It refers to a state where the law is supreme and government and state authorities are bound by the law. Constitutional state (rechtsstaat): Refers to a state where Constitutionalism prevails: a country where the Constitution is supreme. There are 2 types: Formal: includes separation of powers, checks and balances and the principle of legality Material: refers to a state underpinned by a system of fundamental values of justice and equality. Context: refers to the circumstances surrounding something or the situation in which something happens Contextualisation: is the process during which the legislative text is read and researched within its total context in an effort to ascertain the purpose of the legislation CLS cc Entrenched: refers to provisions in the Constitution, which can only be altered, amended or repealed with difficulty. Legislation is usually changes by a simple majority vote in the legislature. Intra Vires: when a government organ acts within the scope of the powers conferred on it Judicial law making: although courts are primarily involved in the application of law, they also have a secondary law making function. They develop common law to adapt to modern circumstances as well as giving form, substance and meaning to particular legislative provisions in concrete situations. It means the judiciary can modify or adapt the ordinary meaning of a legislative provision in such a way that it conforms with the purpose or aim of the legislation Jurisdiction: means the competency of a particular court to adjudicate on a specific case – determined by 2 factors: 1) The geographical area in which it operates 2) The types of cases the courts may hear Law: the law consists of all forms of law, while a law is a written statute enacted by those legislative bodies which have authority to make laws: • Legislation • Common law: composed of rules which weren’t written down originally but have been accepted as the law of the land • Indigenous law • Case law Legality: refers to lawfulness and control of arbitrary state action – government by the law, under the law. All government action is governed by the letter as well as the spirit of the law Legislature: this refers to an elected body which has the legal power to enact laws Legitimacy: is the level of acceptance of a Constitution, government or legal system – it refers to the faith of the population in the system Locus Standi: deals with access to the court – one has a place of standing in the court. It determines whether a person has the right to be heard by the court – who may bring a case before the court Parliamentary sovereignty: means that parliament is supreme – not only is parliament the highest legislative body, capable of enacting any law it wishes, but no court may test these laws against standards such as fairness or equality Proclamation: is a specific category of subordinate legislation Promulgation: legislation is made known to the public by promulgation and comes into operation when its published in the official gazette Purpose: the purpose of the legislation means the legislative scheme or the object or aim of legislation CLS cc Supreme Constitution: the Constitution is the highest law of the land. Although parliament remains the highest legislative body in a system of government with a supreme Constitution, any legislation that is in conflict with the Constitution is invalid Testing legislation: is known as Constitutional/ judicial review, this refers to a process whereby legislation is alleged to be in conflict with the Constitution is reviewed by the court Textual approach: literal or plain meaning approach Ultra vires: the act of a government organ, which goes beyond the authority conferred on it Legislation: Enact: formulate and pass, Amend: change existing legislation, Repeal: cancel existing legislation, Promulgate: make legislation known to the public, Adopt: accept or pass legislation 3 Phase process of interpretation 1) Initial phase: a number of basic principles are used as a point of departure: a) The supreme Constitution and the Bill of Right b) Must ascertain the purpose of the legislation and apply it in light of the bill of rights c) The text of legislation is read to find the initial meaning of the text, bearing in mind the common law presumptions and a balance between the text and context of the legislation 2) Research phase: the purpose of the legislation is determined by studying all the factors and considerations that may have bearing on the particular legislation. When the purpose of the legislation has been determined the next stage comes into play.