IOS2601-Interpretation Of Statutes STUDY SUMMARY NOTES 2022 UPDATE.

IOS2601-Interpretation Of Statutes STUDY SUMMARY NOTES 2022 UPDATE. Unit 1: Introduction miscellaneous Botha: ‐ body of rule & principles used to construct the correct meaning of legislative provisions to be applied in a practical situation – Not mechanical. Du Plessis’:‐ statutory & constitutional interpretation is constructing enact laws text with reference & reliance on other law text in concert situations. Unisa: ‐ statutory interpretation is studying the rule, principle that is used to construct and justify the meaning of legislative provision when applied in a practical situation. Interpretation not just reading – not mechanical Can’t be put into categories not rule bound:‐ • Circumstances & facts are different in each case • Interpretation has not clear and predictable pattern • Language difficult and obscure • Law is not objective, neutral, value fee • Interpreters all interpret differently depending on pre understanding, history, background and experience. • Sprit and aim of fundamental rights to be promoted during interpretation of all legislation. New Constitutional Order: • 70 & 80 rule, principles of statute interpretation was critized Traditionally: (old) unnecessary, confusing maxims, uncertain principles • “golden rule” and overriding principles called primary, secondary and tertiary rules of RDL = misconceptions on structure and meaning of language • Based on sovereignty parliament New: fundamental right based on supreme constitution • Devenish – new constitutional democracy – deceased apartheid and new political & legal order the influenced the new constitution • Bill of rights in line with sprit of the constitution 93: operation 27 April 04 = Constitutional implications, political ramification and changed interpretation of statues ‐ Parliamentary sovereignty replaced with constitutional supremacy ‐ Court can’t ignore value judgments 96: came into operation 4 Feb 97 – principles of 93 constitutions kept 6 provisions: Sec 1 – foundational provision, Sec 2 – Supremacy of the Constitution, Sec 7 – Obligation clause, Sec 8 – Application clause, Sec 36 – limitation clause, Sec 39 – Interpretation clause Glossary of Terms: • Act – parliamentary statute or provincial legislature • act – conduct of government official or organ of state • Concretisation – last phase of interpretation process = text, purpose, situation harmonised to get a meaningful conclusion • Constitutionalism – gov gets powers from + bound to the constitution, law is supreme, gov & stat authorised are bound by the rule of law • Constitutional State – state where the constitution is supreme a. Formal – separation of powers and legality b. Material – justice & equality values • Context – situation where something happens • Contextualisation – legislation is read, researched to understand the purpose • Entrenched – provision in constitution that can only be altered/amended or repealed with difficulty (2/3) • Intra vires – when gov acts within scope of powers conferred • Judicial law making ‐ primary is applications, secondary development of common law to modern situations • Jurisdiction court competency in particular court to hear the matter depends on:. Geographical area and types of cases – criminal for sentencing and civil for claims Interpretation of Statues ‐ IOS 2601 – First Semester – 2011 Page 2 • Law – common law, statute law, customary law and case law Written statue enact by legislative bodies who have authority to make rules a. Legislation – enacted legislation – Act, provincial legislation, municipal by laws, proclamations and regulations b. Common law ‐ not originally written but accepted – SA common law is RDL c. Customary Law – traditional law of indigenous black people in SA – unwritten or codifications d. Case Law – judicial precedent, law decided by various courts – state decisisi. • Legality – lawfulness • Legislature – elected boy who had legal power to enact laws – calledlegislation • Locus Standi – allow to be in court – who be heard. • Parliamentary Sovereignty – parliament is supreme, enact any law • Proclamation –subordinate legislation • Promulgation – legislation is made know to the public by promulgation and comes into operation when published in government gazette. • Purpose – point or aim of the legislation • Supreme constitution – constitutions the highest law parliament still highest legislative body | any legislation or act of parliament in conflict is invalid | courts subject to constitution|replaced parliamentary sovereignty on 27 April 1994 • Testing Legislation – called judicial review, if legislation is alleged to be in conflict with constitution – tested by court | measuring legislation against the constitution to see if valid or invalid. • Textual Approach – Simple meaning • Ultra vires – act/conduct of gov the goes beyond the powers conferred to it. Botha: ‐ statutory interpretation is both the process and activity of interpreting statues and the law that regulates the ways statues are interpreted. Unisa: ‐ statutory interpretation as a subject studies body of rules and principles that are used to conduct and justify the meaning of legislative provisions when they are applied in practical situations Soccer/cooking – can u play soccer by studying the official fifa rule book. The game of soccer is not the same as the rules of soccer. Interpretation Steps 1. Read the text 2. Read the text in context of Act as a whole 3. Consider text in light of Bill of Rights 4. Presumptions to be kept in mind 5. Make use of intra textual aids 6. Make use of extra textual aids 7. Use all above to find purpose and aim of legislation 8. Compare purpose with actual text 9. Look at answer in line with the Constitution 10. Apply situation at hand Interpretation of Statues ‐ IOS 2601 – First Semester – 2011 Page 3 Unit 2 – What is legislation B4 interpret Legislation: • Is the legislation in force? • When it came into force • Has it been amended or repealed • Study legislative process from promulgation to repeal. • written law enacted by a body/person authorised to do so by the constitution • 1 of 3 formal sources of law • Rules, principles of interpretation apply to legislation • Du Plessis’ – enacted law text Interpretation Act 33 of 1957 – Sec 2 different types of legislation, Acts, ordinances, proclamations, by laws, regulations, rules and any other enactments with force of law ‐Section 1 and 2 Constitution ‐ refers to proclamations, regulation and subordinate legislation – Sec 101(3) Proclamations, regulations & other subordinate legislation must be accessible to the public. Sec 140(3) Proclamations, regulations & other subordinate legislation must be accessible to the public. Categories of legislation: (chronological, hierarchical and delegated) Chronological /Historical Categories: Existing legislation categorise according to their historical origins Chronological time line: 1. Legislation before 1806 – Dutch law seen as common law – no formal procedures 2. Old order legislation (schedule 6 of 96 Con as legislation enacted before interim constitution) a. Pre union legislation (1806‐1910) legislation between British annexation of the Cape in 1806 and the union in 1910. British colonies & Boer Republic – incorporated in Union and Republic or Repealed. b. Legislation between Union and Democratic era (1910 – 1994) = old order legislation. Most existing SA Legislation between 1983 and 1994. 3. Legislation in new Constitutional era since 1994 – all legislation enacted after the star to the constitutional democracy in 194, included interim constitution (repealed). 96 Constitution, national legislations, provincial legislation, regulation, proclamations. Hierarchical Categories: Deals with status of legislation Before 94 Constitution was not supreme; the classification of legislation was simple and straight forward – original legislation, subordinate legislation (regs & proclamations) After 94: new supreme constitution, older order legislation and new 94 legislation & 3 levels of co operative government (national, provincial and local) Constitution supreme, all other legislation is subordinate Du Plessis’: different between hierarchy and status of legislation. a. Constitution • Supreme law of republic and any law/conduct inconsistence is invalid • Obligations must be fulfilled – sec 2 • Courts can test legislation • Called constitution of Republic of South Africa Act 108 of 1996 Van Wyk & Du Plessis – don’t agree with the number of the act, as ordinary Acts of parliament are numbered chronologically but the Constitution is more than just an Act. • Constitution is not and Act as it wasn’t adopted by Parliament, but drafted by a Constitutional Assembly and certified by the Constitutional Court. Interpretation of Statues ‐ IOS 2601 – First Semester – 2011 Page 4 b. Original Legislation (6) Know diff between this and Delegated • forms complete and comprehensive legislative capacity to elect legislative body • Assigned by another Act of parliament/Constitution 1. Acts of Parliament • All acts since 1910 • 1910 – 1983: Parliament consisted of House of Assembly and senate • 1983 – 1994: Parliament consisted of House of Assembly ,House of Representative, House of delegates, President council • 1994: Parliament consisted of Nation Assembly + National Council of provinces • Legislative author of current parliament is the Constitution Section 43(a) and 44 • Parliament highest legislative body in SA subject to the constitution • Some acts of parliament have a higher status than other legislation (PAIA) and were created to give effect to specific human rights by the constitution sec 9, 32 and 33. PAIA – sec 5 – says it prevails over any other law in that area of law. 2. New Provisional Act from 1994 onwards • Legislation enacted by 9 new provincial legislatures • Powers to make legislation from constitution or acts of parliament • Courts had power to review Act ito Bill of rights 3. Provincial Ordinances (1961 – 1986) • Provincial Government Act of 32 of 1961 – 4 former provincial councils to enact provincial ordinances on matter within their powers • Councils abolished in July 1986 by Provincial Government Act 69 of 1986 – ordinances only apply in geographical area.