CHAPTER 8: PEREMPTORY AND DIRECTORY PROVISIONS
8.1 GENERAL INTRODUCTION
- Problems arise when legislation fails to spell out what the consequences will be of a failure to
comply with the prescribed formal requirements
- Hypothetical example
o You are renewing your driver’s license and have complied with all the prescribed
statutory requirements. However you complete the application form with a blue pen
instead of a black pen
o If complete compliance with the prescribed requirements is rigidly enforced your
application could be thrown out
o If substantial compliance is sufficient then the pen mix up can be condoned
- Statutory provision that requires exact compliance:
o Peremptory (obligatory or mandatory)
o Failure to comply with a peremptory provision will leave the ensuing act (action or
conduct) null and void
- Statutory provision requiring substantial compliance
o Merely directory
o Non compliance (or defective/partial compliance\) with a directory provision will not
result in the ensuing act being null and void
o Compliance is not a pre requisite
- Weichers in principle all legislative provisions are peremptory
o If this were not the case thy would not be binding legal rules but merely non
obligatory suggestions for desirable conduct
- What is important is the purpose of the provisions in question as well as the consequences if
the statutory requirements are not strictly adhered to
o Question not whether mechanical compliance is required but rather substantial
compliance
o Full compliance is not necessarily literal compliance but substantial compliance
o Substance over form: compliance with the aim and purpose of the legislation within
the context of the legislation as a whole
8.2 SOME GUIDELINES
- Purpose = deciding factor in establishing whether a requirement is peremptory or directory
- Courts have developed a series of guidelines as initial tests of the purpose of the legislation
(mini presumptions)
- These guidelines are not binding legal rules, but merely pragmatic solutions with persuasive
force
- The form in which a requirement is set out will not necessarily be decisive
8.2.1 semantic guidelines
- Based on the grammatical meaning of the language used in the provision
o A word or words with an imperative or affirmative character indicate a peremptory
provision e.g. court found that ‘shall’ is a strong indication that the provision is
peremptory
Where a statute prohibits the doing of something unless something else is
done as a precedent to doing the thing prescribed = obligatory
o Permissive words (like may) indicate a discretion and will be interpreted as being
directory, unless the purpose of the provision indicates otherwise
8.1 GENERAL INTRODUCTION
- Problems arise when legislation fails to spell out what the consequences will be of a failure to
comply with the prescribed formal requirements
- Hypothetical example
o You are renewing your driver’s license and have complied with all the prescribed
statutory requirements. However you complete the application form with a blue pen
instead of a black pen
o If complete compliance with the prescribed requirements is rigidly enforced your
application could be thrown out
o If substantial compliance is sufficient then the pen mix up can be condoned
- Statutory provision that requires exact compliance:
o Peremptory (obligatory or mandatory)
o Failure to comply with a peremptory provision will leave the ensuing act (action or
conduct) null and void
- Statutory provision requiring substantial compliance
o Merely directory
o Non compliance (or defective/partial compliance\) with a directory provision will not
result in the ensuing act being null and void
o Compliance is not a pre requisite
- Weichers in principle all legislative provisions are peremptory
o If this were not the case thy would not be binding legal rules but merely non
obligatory suggestions for desirable conduct
- What is important is the purpose of the provisions in question as well as the consequences if
the statutory requirements are not strictly adhered to
o Question not whether mechanical compliance is required but rather substantial
compliance
o Full compliance is not necessarily literal compliance but substantial compliance
o Substance over form: compliance with the aim and purpose of the legislation within
the context of the legislation as a whole
8.2 SOME GUIDELINES
- Purpose = deciding factor in establishing whether a requirement is peremptory or directory
- Courts have developed a series of guidelines as initial tests of the purpose of the legislation
(mini presumptions)
- These guidelines are not binding legal rules, but merely pragmatic solutions with persuasive
force
- The form in which a requirement is set out will not necessarily be decisive
8.2.1 semantic guidelines
- Based on the grammatical meaning of the language used in the provision
o A word or words with an imperative or affirmative character indicate a peremptory
provision e.g. court found that ‘shall’ is a strong indication that the provision is
peremptory
Where a statute prohibits the doing of something unless something else is
done as a precedent to doing the thing prescribed = obligatory
o Permissive words (like may) indicate a discretion and will be interpreted as being
directory, unless the purpose of the provision indicates otherwise
