EXAM QUESTIONS AND ANSWERS

Q. List and briefly discuss the relevance of 8 internal aids that may be consulted to determine the
objective of a piece of legislation.

A. 1. The legislative text in another official language.

Legislation in South Africa was drafted in two official languages and the text in the other
language was used to clarify obscurities.

2. The preamble.

Preamble usually contains a program of action or a declaration of intent with regard to the
broad principles contained in the particular statute.

3. The long title.

Provides a short description of the subject matter of the legislation.

4. The definition clause.

This is an explanatory list of terms in which words or phrases used in the legislation are defined.

5. Headings to chapters and sections.

Regarded as introductions to those chapters or sections.

6. Schedules.

Serve to shorten and simplify the content matter of sections in legislation.

7. Footnotes.

Facilitate confusing and difficult cross-referencing.

8. Paragraphing and punctuation.

If was considered in passing of legislation, then must be considered during interpretation.

Q. Restrictive interpretation is applied when the words of the particular legislation embrace more
than its purpose (Botha). With reference to case law, explain the eiusdem generis rule. (8)

A. The terms eiusdem generis literally means ‘of the same kind’ or more colloquially ‘birds of the feather
flock together’.

The meaning of the words is qualified by their relationship to other words.

The meaning of general words is determined when they are used together with specific words.
The eiusdem generis rule can only be applied if specific words refer to a definite genus or category
(Skotness v SA Library).

In Colonial Treasurer v Rand Water Board 1907 the court referred to such a genus as a common quality
or common denominator.

The order of words are unimportant (Burglurs Post v Inland Revenue).

Q. Distinguish between Directory and Peremptory provisions and also state whether the judgment in
the case of African Democratic Party v Electoral Commission 2006 has affected this distinction (14).

A. Peremptory provisions

Require exact compliance.

Non-compliance renders the ensuing act null and void (Ex Parte Dow).

Directory provisions

Non-compliance won’t result in the nullity of the act (Clarke).

Failure to comply with a directory provision may be condoned by the court.

1. Semantic guidelines
a. Words with an imperative character such as “shall/must” indicate that the
provision is peremptory
b. Permissive words like “may” indicate that one is dealing with a directory
provision
c. Positive language indicates that the provision is directory
d. Negative language indicates that the provision is peremptory
e. Flexible and vague terms indicate that the provision is directory
2. Jurisprudential guidelines
a. If the provision does not include a penal provision, it is directory
b. Adding a penalty is a strong indication that the provision is peremptory
c. Sometimes the historical context indicates whether a provision is directory or
peremptory
d. If the validity of the act would defeat the purpose of legislation, there is a
presumption in favour of nullity
e. If strict compliance with the provision would lead to injustice and even fraud =
directory

African Christian Democratic Party v The Electoral Commission

 The question raised was whether the applicant had complied with the provisions of S14
and S17 of the Local Government: Municipal Electoral Act 27 of 2000
  The Electoral Commission took the view that the applicant had not complied with the
provisions of the statute and disqualified it from participating in the Cape Town
elections
 The judge concluded that the surplus held by the Electoral Commission constituted
compliance with the obligation to pay a deposit within the meaning of the Municipal
Electoral Act
 In a separate dissenting judgment, it was stated that payment must be made in respect
of specifically identified municipalities regardless of which process a political party
chooses to follow in registering for the election
 No payment was made before the cut-off date for registrations, therefore the applicant
failed to comply

Q. Name and discuss the various dimensions (aspects) of the practical inclusive method of
interpretation favoured by Botha. (10)

A. 1. Language dimension

2. Systematic dimension

3. Value-laden (teleological) dimension

4. Historical dimension

5. Comparative dimension

1. The basic principles of the language dimension include:

a) The initial meaning of the text

b) Every word is important in legislation

c) No addition or subtraction from the words

d) The continuing time frame of legislation

2. The systematic (structure and context) dimension include:

a) There must be balance between text and context

b) The structure of legislation

c) Conflicting legislation (the presumption that legislation does not contain futile provisions and
conflicts with other legislation)
3. Teleological interpretation (value based aspect) includes:

a) The new Constitutional approach to statutory interpretation towards substantive

interpretation

b) The values of Ubuntu

4. Historical aspect includes:

a) A preamble to the Constitution

b) Prior legislation

c) Preceding discussions

d) Mischief rule

5. Comparative aspect includes:

a) Foreign law (Case law)

b) International law (Human rights law)

Q. Briefly explain the facts of each case and discuss the various rules of statutory interpretation which
appear in brackets

1) Heydons case (mischief rule)

2) Minister van Polisie v De Beer (computatio civilis)

3) S v Kohler (eiusdem generis rule)

A. 1 Heydons case (mischief rule)

 This rule was created in the Heydon’s case

 It is the cornerstone of the contextual approach
 Here you use the historical context of the legislation to place the provision in its proper place
 The Heydon’s case laid down 4 questions to establish the meaning of the legislation:
1. What was the legal position before the legislation was adopted?
2. What was the defect not provided for by the existing legislation?
3. What remedy was provided by the legislature to solve the problem?
4. What was the true reason for the remedy?
 According to the questions laid down in the Heydon’s case, each could be answered from
reading the preamble
  Therefore the preamble of the Act was drafted with the application of the “mischief rule” in
mind

2) Minister van Polisie v De Beer (computatio civilis)

 This case dealt with a claim for damages after a police vehicle had collided with a private motor-
car
 In terms of S32 of the Police Act, a claim for damages against the police as a result of an action
executed in terms of the Police Act had to be instituted within 6 months
 The collision took place on 5th August 1967
 The summons was served on 5th February 1968
 On appeal the Supreme Court found that the ordinary civil method should be used to calculate
the time
 The last day was excluded and the summons was therefore served one day too late
 As a result the action was refused

Ordinary civil method (Computatio civilis)

 Unless clearly indicated, this method is the default method for the calculation of months and
years and is the opposite of the statutory method (Used for days)
 The first day of the prescribed period is included and the last day excluded
 The last day is regarded as ending at the very moment it begins as it were(At midnight of the
previous day)

3. S v Kohler (eiusdem generis)

 The court heard an appeal against a conviction by a magistrate’s court, which convicted Kohler
of having contravened a municipal poultry regulation by keeping a peacock within the municipal
boundaries without a license
 The regulation defined “poultry” as any fowl, duck, goose, turkey, pheasant, pigeon, chicken or
guinea fowl, any other bird
 The defence alleged that peacocks are not poultry
 The legal issue: The eiusdem generis rule
 Finding: After consulting dictionaries, the court found a peacock to be a “chicken-like decorative
bird”
 Since there already is a definite genus (poultry), the general words “any other bird” are
restricted to that genus
 A peacock is a species of that genus and the appeal was dismissed
Q. Ex parte Dow 1987 explain how the courts distinguished between a peremptory or directory
provision (10)

A. Ex parte Dow 1987;

The applicant applied for an order declaring his marriage null and void ab initiI. His wife supported the
application. Section 29(2) of the Marriage Act 1961 provides as follows:

A marriage officer shall solemnize any marriage in a church or other building used for religious service,
or in a public office or a private dwelling-house, with open doors and in the presence of the parties
themselves and at least two competent witnesses.

In this case the entire ceremony had taken place in the front garden of a house. The fact that the
marriage was not solemnised in the house was the only defect alleged. The application was dismissed.

Peremptory: Require exact compliance

 Non-compliance renders the ensuing act null and void (Ex Parte Dow)

Directory: Require substantial compliance

 Non-compliance won’t result in the nullity of the act (Clarke)

 Failure to comply with a directory provision may be condoned by the court

3. Semantic guidelines
a. Words with an imperative character such as “shall/must” indicate that the
provision is peremptory
b. Permissive words like “may” indicate that one is dealing with a directory
provision
c. Positive language indicates that the provision is directory
d. Negative language indicates that the provision is peremptory
e. Flexible and vague terms indicate that the provision is directory
4. Jurisprudential guidelines
a. If the provision does not include a penal provision, it is directory
b. Adding a penalty is a strong indication that the provision is peremptory
c. Sometimes the historical context indicates whether a provision is directory or
peremptory
d. If the validity of the act would defeat the purpose of legislation, there is a
presumption in favour of nullity
e. If strict compliance with the provision would lead to injustice and even fraud =
directory
Q. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000. Discuss why the
judgement in the following case is important for the theory and practice of statutory interpretation
(10).

A. The case involved the constitutionality of s 25(5) of the Aliens Control Act 96 of 1991 which reads: “A
regional committee may, upon application by the spouse or the dependent child of a person
permanently and lawfully resident in the Republic, authorise the issue of an immigration permit.” The
section allows the spouse or child of a person with the status of a permanent resident to immigrate to
South Africa to join her or his spouse or parent.

However, it happened that a number of gay and lesbian permanent residents were not allowed to rely
on this section to arrange for the immigration of their life partners. This, they claimed, was a form of
unfair discrimination against them on the basis of their sexual orientation. The Constitutional Court
agreed.

In this case the Constitutional Court laid down a number of principles to be considered and followed
before ‘reading-in’ is applied. However, these factors will also apply to severance:

1. The result must be consistent with the Constitution

2. It must interfere with existing law as little as possible
3. The courts must define how the legislative meaning should be modified to comply with the
Constitution
4. The courts must be faithful to the purpose of the legislation
5. The remedy ought not be granted where it would result in an unsupportable budgetary
intrusion

Q. Distinguish between the promulgation and adoption of legislation. (5)

Adoption

 Refers to the different stages (process) through which the particular legislation has to pass
before it is accepted and issued by the relevant legislative body
 Not law but once signed by either President or Premier of Provinces = officially law
 Parliament passed Bill, Act to be signed by President

Promulgation

 Refers to the process through which the legislation commences and is formally put into
operation
Q. Explain the orthodox text-based literal approach to statutory interpretation as a South African
theory of statutory interpretation. (10)

A. In terms of this approach the interpreter should concentrate primarily on the literal meaning of the
provision to be interpreted, and the interpretation process should proceed along the following lines:

 It is the primary rule of interpretation that, if the meaning of the text is clear, it should be
applied. (Principle Immigration officer v Hawabu 1936)
 If the plain meaning of the words is ambiguous, vague or misleading, or if strict literal
interpretation would result in absurd results, then the court may deviate from the literal
meaning to avoid such absurdity. (Venter v R 1907) This is also known as the ‘golden rule’ of
interpretation
 The court will turn to secondary aids to interpretation to find the intention of the legislature
(long title, headings, text in other official languages)
 Only when secondary aids to interpretation prove insufficient to ascertain the intention may
tertiary aids be used (common law presumptions)

Q. List the documents that although published in the Government gazette, do not constitute
legislation. (5)

1. A. Green and white papers

2. Reports
3. Legal notices
4. Draft bills
5. Discussion documents
6. Policy documents

Q. Distinguish between the terms ‘reading-down’ and severance of legislation. (5)

A. term “reading-down” (Restrictive)

 This is a more restrictive interpretation where one must interpret legislation narrowly
 Isn’t repeated in the 1996 Constitution but courts can rely on the common law presumption =
law doesn’t contain futile or meaningless provisions

term “severance”

 The opposite of “reading-in”

 Cut the good from the bad
 Leaving the good in order to save the text and make it constitutional
 Before severance can be applied, the 2 requirements must be met:
1. Must be possible to separate the unconstitutional part of the provision from the rest
2. What remains of the provision must still give effect to the purpose of the legislation
(Coetzee v Government of the Republic of South Africa)
Q. briefly explain the importance of each of the following cases for statutory interpretation in South
Africa

(1) R v Maibuko 1958 (the presumption that legislation only applies to the future). (5)

(2) R v Forlee 1917 (the presumption that legislation does not contain futile or nugatory provisions).
(5)

A. 1) In R v Mazibuko 1958 the court heard an appeal against the death sentence imposed for robbery.
The Criminal Procedure Act 56 of 1955 was amended after the crime had been committed but before
the sentence was passed.

In terms of the amended Act, the death sentence could be imposed after a conviction for robbery with
aggravating circumstances. The court applied the presumption that legislation only applies in respect of
the future, and found that legislation had not intended that the increased penalty should apply
retroactively. The earlier, more lenient penalty was imposed.

The increased penalty could have been imposed only in respect of crimes committed after the Amended
Act came into effect. The court relied on the common-law rule if there is a difference in penalties
between the date of the crime and the date of the trial, the date of the crime will be decisive.

2) In R v Forlee 1917 the application of this presumption was used. Forlee was found guilty of
contravening Act 4 of 1909 for selling opium. On appeal his lawyer argued that Forlee had not
committed an offence since the Act in question prescribed no punishment. The court relied on the
presumption against futility, finding that a specific offence had been created by the legislature.

The court the argued that the absence of a prescribed penal clause did not render the Act ineffective,
since the court had discretion in imposing such a suitable form of punishment as it deemed fit. This
decision gave rise to widespread criticism, because the nulla poeana lege (if there is no punishment,
there is no crime) was not adhered to. Although both the presumption and the nulla poena lege rule
applied in this case, the nulla poena lege rule forms an essential part of the principle of legality. The
principle of legality, as far as the criminal law is concerned, to prevent the arbitrary punishment of
people and to ensure that criminal liability and the imposition of punishment are in line with existing
and clear rules of law. The rule should have trumped the presumption against futile results.

The nulla poena lege principle has since been reaffirmed in S v Dodo 2001.
Q. Define the terms Reading-down, reading-in and severance. (6)

A. Define the term “reading-down” (Restrictive)

 This is a more restrictive interpretation where one must interpret legislation narrowly
 Isn’t repeated in the 1996 Constitution but courts can rely on the common law presumption =
law doesn’t contain futile or meaningless provisions

Define the term “reading-in” (Extensive)

 More drastic remedy used by the courts in order to change legislation in order to keep it
constitutional
 In certain circumstances the court will read something into a provision to rescue it (Add in)
 Should be applied with caution as the courts are making legislation (Gory v Kolver= same-sex life
partnership)

Define the term “severance”

 The opposite of “reading-in”

 Cut the good from the bad
 Leaving the good in order to save the text and make it constitutional
 Before severance can be applied, the 2 requirements must be met:
1. Must be possible to separate the unconstitutional part of the provision from the rest
2. What remains of the provision must still give effect to the purpose of the legislation
(Coetzee v Government of the Republic of South Africa)

Q. Name and discuss the various dimensions of the practical inclusive method of interpretation
favoured by Botha. (10)

A. 1. Language dimension

2. Systematic dimension

3. Value-laden (teleological) dimension

4. Historical dimension

5. Comparative dimension

1. The basic principles of the language dimension include:

a) The initial meaning of the text

 b) Every word is important in legislation

c) No addition or subtraction from the words

d) The continuing time frame of legislation

2. The systematic (structure and context) dimension include:

a) There must be balance between text and context

b) The structure of legislation

c) Conflicting legislation (the presumption that legislation does not contain futile provisions and
conflicts with other legislation)

3. Teleological interpretation (value based aspect) includes:

a) The new Constitutional approach to statutory interpretation towards substantive

interpretation

b) The values of Ubuntu

4. Historical aspect includes:

a) A preamble to the Constitution

b) Prior legislation

c) Preceding discussions

d) Mischief rule

5. Comparative aspect includes:

a) Foreign law (Case law)

b) International law (Human rights law)

Q. List and briefly discuss the requirements which were laid down in National Coalition for Gay and
Lesbian Equality v Minister of Home Affairs 2000, before reading-in or severance could take place. (10)

A. The case involved the constitutionality of s 25(5) of the Aliens Control Act 96 of 1991 which reads: “A
regional committee may, upon application by the spouse or the dependent child of a person
permanently and lawfully resident in the Republic, authorise the issue of an immigration permit.” The
section allows the spouse or child of a person with the status of a permanent resident to immigrate to
South Africa to join her or his spouse or parent.
However, it happened that a number of gay and lesbian permanent residents were not allowed to rely
on this section to arrange for the immigration of their life partners. This, they claimed, was a form of
unfair discrimination against them on the basis of their sexual orientation. The Constitutional Court
agreed.

In this case the Constitutional Court laid down a number of principles to be considered and followed
before ‘reading-in’ is applied. However, these factors will also apply to severance:

3. The result must be consistent with the Constitution

4. It must interfere with existing law as little as possible
5. The courts must define how the legislative meaning should be modified to comply with
the Constitution
6. The courts must be faithful to the purpose of the legislation
7. The remedy ought not be granted where it would result in an unsupportable budgetary
intrusion

Q. Discuss Ex parte Dow 1987 to explain how the court distinguished between a peremptory and
directory provision. (10)

A. Ex parte Dow 1987;

The applicant applied for an order declaring his marriage null and void ab initiI. His wife supported the
application. Section 29(2) of the Marriage Act 1961 provides as follows:

A marriage officer shall solemnize any marriage in a church or other building used for religious service,
or in a public office or a private dwelling-house, with open doors and in the presence of the parties
themselves and at least two competent witnesses.

In this case the entire ceremony had taken place in the front garden of a house. The fact that the
marriage was not solemnised in the house was the only defect alleged. The application was dismissed.

Peremptory: Require exact compliance

 Non-compliance renders the ensuing act null and void (Ex Parte Dow)

Directory: Require substantial compliance

 Non-compliance won’t result in the nullity of the act (Clarke)

 Failure to comply with a directory provision may be condoned by the court

5. Semantic guidelines
 a. Words with an imperative character such as “shall/must” indicate that the
provision is peremptory
b. Permissive words like “may” indicate that one is dealing with a directory
provision
c. Positive language indicates that the provision is directory
d. Negative language indicates that the provision is peremptory
e. Flexible and vague terms indicate that the provision is directory
6. Jurisprudential guidelines
a. If the provision does not include a penal provision, it is directory
b. Adding a penalty is a strong indication that the provision is peremptory
c. Sometimes the historical context indicates whether a provision is directory or
peremptory
d. If the validity of the act would defeat the purpose of legislation, there is a
presumption in favour of nullity
e. If strict compliance with the provision would lead to injustice and even fraud =
directory

Q. What is meant by commencement in section 13(1) of the interpretation Act 33 of 1957. (4)

Section 13(1) of the Interpretation Act 33 of 1957, as well as ss 81 and 123 of the Constitution, provide
that if the legislation does not prescribe a date of commencement, it automatically commences on the
day of its publication in the government gazette. Under normal circumstances the date of publication
will coincide with the day of commencement provided for in the legislation.

Q. with the aid of relevant case law, explain the purposive (text-in-context) approach to statutory
interpretation. (10)

A. The legislative function is a purposive activity. In terms of the text-in-context approach, the purpose
or object of legislation is the prevailing factor of interpretation.

The context of the legislation, including social and political policy directions, is also taken into account to
establish the purpose of the legislation.

The mischief rule is regarded as the forerunner of a text-in-context approach to interpretation.

The mischief rule acknowledges the application of external aids.

The text-in-context approach provides a balance between grammatical and overall contextual meaning.
The interpretation process cannot be complete until the object and scope of the legislation are taken
into account.

In Jaga v Donges 1950 Schreiner JA identified the following guidelines for interpretation of statutes:

 Right from the outset the interpreter may take the wider context of provision into
consideration with the legislative text in question
  Irrespective of how clear or unambiguous the grammatical meaning of the legislative
text may seem to be, the relevant contextual factors must be taken into account
 Sometimes this wider wider context may even be more important than the legislative
text.
 Once the meaning of the text and context is determined, it must be applied, irrespective
of whether the interpreter is of the opinion that the legislature intended something
else.

Q. With the aid of relevant case law, explain the textual approach to statutory interpretation. (10)

A. The orthodox text-based approach (textual).

In terms of this approach the interpreter should concentrate primarily on the literal meaning of the
provision to be interpreted, and the interpretation process should proceed along the following lines:

 It is the primary rule of interpretation that, if the meaning of the text is clear, it should
be applied and indeed, equated with the legislatures’s intention (Principle Immigration
Officer v Hawabu 1936).
 If the plain meaning of the words is ambiguous, vague or misleading, or if a strict literal
interpretation would result in absurd results, then the court may deviate from the literal
meaning to avoid such absurdity (Venter v R 1907). This is known as the golden rule of
interpretation. Then the courts will turn to the so called secondary aids to interpretation
to find the intention of the legislature (eg the long title of the statute, heading of
chapters and sections, the text in other official languages, etc).
 Only when these secondary aids to interpretation prove insufficient to ascertain the
intention, will the courts have recourse to the so-called tertiary aids to construction
(common law presumptions).

Q. When interpreting the constitution, what are the basic/general principles a court will apply. (10)

1. A supreme Constitution must be given a generous and purposive interpretation. In Nyamakazi v

President of Bophuthatswana it was held that a purposive interpretation of the Constitution is
necessary, since it enables the court to take into account more than legal rules.

2. Case law refers to the liberal interpretation of the Constitution. A liberal interpretation does not have
a political connotation, but refers to flexibility and generosity. The constitution must be liberally
construed.

3. The values and moral standards underpinning the Constitution must be taken into account
throughout the entire interpretation process.
4. A provision of the Constitution cannot be interpreted in isolation, but must be read in context as a
whole.

5. Respect must be paid to the language of the Constitution.

6. In S v A juvenile 1990, the court stressed the fact that the Constitution, as the supreme law of the
land, has bestowed on the court the sacred trust of protecting human rights.

7. The Constitution was drafted with a view to the future, providing a continuing framework for the
legitimate exercise of government power and the protection of individual rights and freedoms.

8. If the particular legislation is consistent with the Constitution, it is valid and in force.

9. Allowance must be made for changing circumstances.

10. The principles of international human rights law and foreign law must be applied with due regard for
the South African context.

11. All judges and judicial officers are obliged to interpret and apply legislation so as to give effect to
fundamental values and rights in the supreme Constitution.

Q. What effect has section 39(2) of the Constitution had on statutory interpretation in SA.(10)