Theme 2: The term “legislation”

What is legislation
 Distinguish legislation from other sources of law because rules and principles of statutory interpretation apply only to
legislation
 Legislation / statute law: written law enacted by a body or person authorised to do so by Constitution or other legislation
 Legislation referred to as enacted-law-texts:
- Enacted means it was adopted in terms of prescribed legal requirements
- Law means it has force of law
- Text means it is written law
 Generally, a statute is an Act of Parliament, but sometimes it refers to something else
 A notice may be a specific type of subordinate legislation issued by competent subordinate lawmaker, but could also be an
official notification of facts
 According to s 1 and 2 of Interpretation Act, legislation consists of:
- Proclamations, ordinances, Acts of Parliament, by-laws, rules, regulations, or orders
- Any other enactment having the force of the law
 According to the Constitution, legislation includes:
- S 239:
o National legislation, which includes subordinate legislation made in terms of Act of Parliament. Legislation that
was in force when Constitution took effect and is administered by the national government
o Provincial legislation, which includes subordinate legislation made in terms of provincial Act. Legislation that was
in force when Constitution took effect and is administered by the provincial government
- Proclamations, regulations, and other instruments of subordinate legislation (s 101(3) and 140(3))
- Assigned legislation (s 44, 104, 156)
- Old order legislation
- Legislation in the new constitutional order since 1994
- Municipal by-laws
 Types of legislation to be understood in three interrelated dimensions of time (horizontal chronological timeline), space
(geographical territories), and hierarchy (vertical levels and spheres of legislative authority)
 Primary sources of law: rules and principles issued by governing bodies. Binding and a court may give effect to them
(Constitution, Legislation, Common Law, Customary Law, Case Law, and Public International Law)
 Secondary sources have persuasive value (foreign legal principles, writing of legal scholars)

Categories of legislation

Chronological categories
Explains all forms of existing legislation according to their historical origins

Legislation before 1806

 Oldest surviving legislation in the RSA and is the old colonial Dutch placaaten which forms part of our common law
 Some statutes of Staten-Generaal of the Netherlands and placaaten of Holland may still be in force
 Technically classed as legislation, but became part of South African common law with no formal procedures required for their
demise, and they may be abrogated by disuse
 The definitions of legislation and rules of statutory interpretation will not apply to them

Old order legislation

 Defined in item 2 of Schedule 6 of the Constitution: any legislation in force before the interim Constitution took effect
Divided into 2 historical eras

Pre-union legislation (1806-1910)

 Legislation adopted between British annexation of the Cape in 1806 and creation of the Union of South Africa in 1910
 Consists of legislation of British colonies and Boer Republics
 Most had been repealed or incorporated into legislation of the Union and Republic
 Some still in force (and probably in conflict with Constitution)

Legislation between Union and democratic era (1910-1994)

 Includes most existing South African legislation:
- Acts of Parliament
- legislation of independent homelands or TBVC states
- legislation of former self-governing territories or homelands
- provincial ordinances enacted by provincial councils of 4 “white-controlled” provinces (1910-1986)
- proclamations issued by administrators of “white-controlled” provinces after provincial councils were abolished (1986-
1994)
- by-laws enacted by local authorities
- other existing delegated legislation

Legislation in the new constitutional order since 1994

 All legislation enacted after start of constitutional democracy in 1994
 Includes:
- Interim Constitution
- 1996 Constitution
- National legislation (Acts of Parliament and delegated legislation issued in terms thereof)
- Provincial legislation (Acts of 9 provincial legislatures and delegated legislation issued in terms thereof)
- Other regulations and proclamations
- Legislation by new local authorities created since 1994

Hierarchical categories

 Deal with status of legislation Constitution

 Before 1994, Constitution was not supreme and classification of legislation included section 2 states supremacy
original legislation (i.e., Acts of Parliament) and subordinate legislation (i.e.,
regulations and proclamations)
 After 1994, legislation divided according to its status and position in hierarchy
Original Legislation
The Constitution Acts of Parliament, New Provincial Acts,
Provincial Ordinances, Legislation of former
homelands, legislation of former TBVC states,
 Supreme law of the Republic, any law or conduct inconsistent with it is invalid, and New municipal legislation

the obligations imposed by it must be fulfilled (section 2)

 Courts may test all legislation and government in the light of the Constitution
Subordinate (delegated
 Initially known as the Republic of South Africa Constitution Act 108 of 1996 / secondary) legislation
 Constitution is highest law in the land and incorporates rights, aspirations, and values
of its people subordinate legislation in terms of national
legislation, New and existing provincial
 Degrading to number such an exalted document (birth certificate of new constitutional proclamations and regulations
order) as the next statute on the legislative list
 Was not adopted by Parliament but drafted by Constitutional Assembly and certified
by CC
 Citation of Constitutional Law Act of 2005: any law in force immediately prior to commencement of this Act, must be
construed as a reference to the Constitution of the Republic of South Africa, 1996
 Some people refer to it as the final Constitution (FC)
 Refers to itself as the new Constitution (item 1 of Schedule 6)
Original legislation
 Derives from complete and comprehensive legislative capacity of an authorised legislative body

Hierarchical status of original legislation based on interrelated principles:

 Enacted by democratically elected, deliberative, law-making bodies
 Original law-making powers of legislatures are always founded in the Constitution, but are derived in different ways:
- Directly from the Constitution: Parliament (ss 43 and 44), provincial legislatures (ss 43 and 104(1)) and municipalities (s
43 and 156(1))
- Indirectly from the Constitution (assigned by another Act of Parliament or provincial legislature): Provincial legislatures
[additional legislative powers assigned by Acts of Parliament (ss 44(1) and 104(1))] and municipalities [additional
legislative powers assigned by Acts of Parliament (s 44(1) and 156(1)) and additional legislative powers assigned by
provincial Acts (s 104(1) and 156(1))

Acts of Parliament
 All Acts of Parliament since 1910
 Between 1910 and 1983, Parliament consisted of House of Assembly and Senate
 Between 1983 and 1994, it consisted of the House of Assembly, House of Representatives, House of Delegates, and
President’s Council
 Since 1994, it consists of the National Assembly and National Council of Provinces
 Parliament is highest legislative body in South Africa and may, subject to Constitution, pass legislation on any matter
 Courts may review Acts of Parliament against Constitution
 Some Acts of Parliament have higher status than other original legislation
 The ‘constitutional Acts’ give effect to specific and express legislative measures required by the Constitution (ss 32, 33(1) and
9 read with item 23(1) of Schedule 6):
- Promotion of Access to Information Act
- Promotion of Administrative Justice Act
- Promotion of Equality and Prevention of Unfair Discrimination Act
 Other original legislation contains provisions stating that it will prevail over any other law in a particular field of law

New provincial Act (1994- )

 Legislation enacted by the 9 new provincial legislatures
 Legislative authority derived directly from the Constitution or is assigned to them by Acts of Parliament
 Courts have power to review provincial Acts in light of the Bill of Rights in the Constitution
 Constitution confers original legislative powers directly on provincial legislatures to pass legislation for their provinces on
matters referred to in Schedule 4 and 5 to the Constitution and provides for additional legislative powers to be assigned to
them by Acts of Parliament on matters outside the Schedules

Provincial ordinances (1961-1986)

 Provincial Government Act 32 of 1961 empowered the provincial councils at the time (Transvaal, Orange Free State, Natal,
Cape Province) to enact provincial ordinances on matters concerning their respective provinces
 Provincial councils abolished by Provincial Government Act 69 of 1986
 Ordinances were enacted by elected body, could alter common law, and could have retroactive force
 Ordinance applies only in the “old” geographical area of former province

Legislation of former homelands

 Homelands (self-governing territories) enjoyed concurrent original legislative powers with central government
 Self-governing Territories Constitution Act 21 of 1971 (since repealed): territories were granted complete legislative capacity
regarding specific matters
 In these matters, the legislative assemblies could enact any legislation and repeal or amend parliamentary legislation
 Prescribed matters such as defence and foreign affairs fell outside their legislative competence
 Not empowered to repeal the Self-Governing Territories Constitution Act or proclamations in terms of the Act which granted
self-governing status to a particular homeland

Legislation of former TBVC states

 Transkei, Bophuthatswana, Venda, Ciskei
 Legislation of former independent homelands did not form part of South African legislation, but remains valid as part of South
African law in area where it previously applied because these territories have been reincorporated into the Republic
 Will have same force of law as provincial Acts, provincial ordinances, and legislation of former self-governing territories in
their areas of operation
 HC has the jurisdiction to test its constitutionality against the provisions of the Constitution like that of any Act of Parliament

New municipal legislation

 Principle of co-operative government embraced in this democratic dispensation, means that it forms part of original legislation
 In terms of Constitution, municipal councils may enact by-laws in respect of local government matters in their areas
 Municipal councils are representative and deliberative legislative bodies, thus new municipal by-laws constitute original
legislation
 Municipal councils have original legislative powers and may pass by-laws for their areas on matters referred to in Schedules
4B and 5B of Constitution without enabling parliamentary or provincial Acts
 Additional legislative powers may be assigned to them by national or provincial legislation
 Municipalities can’t delegate the making of a by-law, thus there is no subordinate legislation category for the local sphere

Subordinate (delegated or secondary) legislation

 In principle, it’s a violation of the separation of powers principle because unelected (appointed) persons obtain law-making
powers
 Acts of Parliament and other forms of original legislation sometimes drafted in broad terms (skeleton form) and subordinate
(delegated) legislation “adds the flesh”
 Ordered by original statute, it is legislation by administration
 Elected deliberative legislative bodies are not continuously in session to deal with every detail in changing society
 Thus, they delegate some of their powers to other persons (i.e., president, minister) or bodies (i.e., Rules Board, Council of
university)
 These are vested with delegated legislative powers under enabling legislation
 Parliament can amend an Act of Parliament only by means of another Act of Parliament thus something that must be changed
frequently needs to be dealt with in terms of subordinate legislation
 Subordinate legislative enactments known as legislative administrative Acts. Validity may be reviewed by courts
 Scope of subordinate legislation will depend on provisions of enabling legislation
 May not conflict with original legislation
 Persons or bodies authorised to issue delegated legislation may only do so within the framework of the authority specifically
bestowed on them by enabling legislation, otherwise they acted ultra vires (outside the scope of their powers) and subordinate
legislation could be invalidated by court
 If enabling Act is declared unconstitutional by court, subordinate legislation issued in terms of invalid Act will cease to exist
unless court orders otherwise
 If enabling Act is repealed, subordinate legislation issued in terms of repealed Act will cease to exist unless the repealing Act
expressly provides otherwise (Hatch v Koopoomal and Pharmaceutical Manufacturers Association of SA case) Prescribed!!
 Parliament cannot confer a power on a delegated legislative body to amend or repeal an Act of Parliament (Executive Council
Western Cape Legislature v President of the RSA) Prescribed!!
 Subordinate legislation must be read and interpreted with its enabling Act, but the enabling Act may not be interpreted on the
basis of the subordinate legislation made under it

Subordinate legislation in terms of national legislation

 1996 Constitution and an Act of Parliament may confer delegated legislative powers on certain persons or bodies

New and existing provincial proclamations and regulations

 Before provincial councils were abolished, certain ordinances enabled members of the provincial executive committees to
issue regulations and proclamations
 After provincial councils were abolished, legislative authority for provinces was transferred to Administrator of each province
 Administrator enacted, amended, or repealed provincial legislation by proclamation and could issue regulations under existing
or new Parliamentary Acts, provincial ordinances, or new proclamations
 New provincial legislatures will be able to empower other functionaries (Premier, members of provincial Cabinet) to “add the
flesh” to provincial Acts through proclamations or regulations
 These must satisfy the requirements and limits set by the enabling Act

Applying old order legislation in the new constitutional order

 Item 2 of Schedule 6 of the Constitution: all legislation that was in force when the Constitution took effect continues to be in
force, subject to amendment or repeal, and consistency with the Constitution
 Old order legislation that remains in force does not have wider application than before and continues to be administered by the
authorities that administered it when the Constitution took effect, unless the Constitution states otherwise
 This ensures orderly transition because process was not complete when 1996 Constitution enacted
 Each new province has its own legislature and executive, generating new original and delegated legislation
 Often new provincial boundaries overlap with old ones and sometimes neighbouring local authorities have been amalgamated
 New authorities at national, provincial, and local level must contend with existing and new legislation, applicable to old and
new areas of jurisdiction
 New Acts of Parliament must be read with other existing original legislation and subordinate legislation
 If a province repeals or amends old order legislation in their territory, it will remain in force in other provinces until their
legislatures repeal them

Law of general application

 S 36 of the Constitution: fundamental right in the Bill of Rights may be limited in terms of the law of general application
 Law of general application includes all forms of legislation, common law, and indigenous law

What is not legislation

 Before any document can be classified as legislation, it needs to comply with all the constitutional and other legal
requirements dealing with authority, adoption, and publication
Use term ‘enacted law-text’ to determine which texts (including other law-texts) are not classified as legislation:
 Rules of common and customary law constitute law (and can be found in texts), but are not enacted by authorised lawmaker
 Case law is binding (dealing with interpretation, development, and application of legal rules) and is found in texts, but is
judge-made law not issued by lawmaker
 Policy documents (i.e., Green and White Papers, interpretation notes, explanatory memoranda, practice notes) are law texts
(practical application of legal rules) but were not enacted by lawmakers, they are merely issued by government departments to
elicit public comment (part of process of public participation)
 These legal texts may be used during interpretation of legislation or may be part of legislation in the future
 Internal departmental memos and policy guidelines on how government departments apply legislation are circulated regularly,
but are not legislation
 “Administrative quasi-legislation”: consists of departmental memos and directives that are enforceable in some instances but
do not constitute subordinate legislation
 Legal notices and advertisements are published in the Gazette, even though they are not legislation

Legislative structures and codes

 Legislation is drafted in a particular form and structure according to the drafting conventions and rules used by the state law
advisors and other legislative drafters
 Process of statutory interpretation not only centred on language and structure of the legislative text

List of amendments
 If applicable, before long title an Act includes a list of Acts that have amended since its promulgation

List of regulations
 If applicable, Act will include a list of regulations issued in terms of the Act (after the list of amendments)
Long title
 Not really a title, but a short descriptive summary of subject matter of the Act
 Part of the statute tabled for adoption by Parliament and always ends with open-ended phrase (i.e., “and matters integral
thereto”)
 Sometimes, title will be comprehensive and provide the interpreter with some information at the start of the process
 Sometimes, title is sketchy description of issues dealt with by the Act

Preamble
 States the circumstances, background, and reasons for the legislation
 Always used in Private Acts, but its use in ordinary Acts is restricted to legislation of constitutional or national importance
 Usually placed after long title and is integral part of legislation

Enacting provision
 Acknowledges the constitutional authority of the body that is enacting the primary legislation (s 43 of Constitution: national
legislative authority vested in Parliament; provincial legislative authority vested in provincial legislatures; municipal
legislative authority vested in municipal councils

Table of contents
 Provides a quick reference to the reader where to find provisions and gives initial overview of legislative scheme

Definitions
 Serve as internal dictionary for legislation. Usually at beginning of Act, but sometimes definitions are in other parts of the Act

Purpose and interpretation

 Frequently included in post-1994 legislation
 Clauses give immediate overall picture of what Act wants to achieve, help to explain purpose of the Act, and should be used
during interpretation process

Regulations and ministerial power

 Clause that empowers Ministers to add changes or make regulations consistent with Act

Repeal / amendment of legislation

 Repeal / amendment of an Act is done by means of another Act
 When new Act is passed, other existing Acts may need to be amended or repealed
 New Act must contain a section that provides for amendments or repeals
 Conventional way of dealing with repealed or amended Acts is with a schedule at the end of the Act

Short title and commencement

 Is the title of the Act and is usually the last section in an Act
 Commencement date usually also in the last section – if no date is given, it may be found in the government Gazette that
published the specific statute

Schedules
 Used to deal with technical detail that will otherwise clog up the main body of an Act
 Used when several Acts or parts of Acts are repealed, or for large number of amendments

Numbering in legislation
 Section 1 – Arabic numerals
 Subsection (1) – Arabic numerals in brackets
 Paragraph (a) – lowercase letter in brackets
S 1(1)(a)(i)(aa)(AA)
 Subparagraph (i) – roman figures in brackets
 Item (aa) – italicised lowercase letters in italicised brackets
 Subitem (AA) – italicised uppercase letters in italicised brackets
 Where additional section is inserted into an Act through amendment, the section to be inserted takes the number of the section
after which it is to be inserted and gets a capital letter after it (e.g., insert a new section between current sections 66 and 67,
you will insert section 66A)
 This system is necessary, otherwise whole Act needs to be renumbered by means of an Amendment Act
 In practical terms, renumbering is impossible because cross-reference in other legislation will have to be amended and
references to previous numbering in case law and textbooks cannot change
 In older legislation, the inserted sections were numbered “bis, ter, quat,” etc.
 When a part of legislation is repealed, the number of the repealed provision remains as a placeholder to avoid renumbering

General Explanatory Note

 When amendment Bill is published in the Official Gazette for public comment, there is usually such a Note included in the
second page with explanation:
[ ] words in bold type and square brackets indicate deletions from existing enactments
_____ words underlined with solid line indicate insertions in existing enactments

Legislative codes
 Amendments (including insertions and deletions) are indicated in square brackets after the relevant provisions in the amended
version of the Act
 Indicators help interpreter of the Act:
- May indicate date of commencement for the provision
- Serve as historical paper trail should a lawyer have to use the previous versions of the legislation (for pending cases or aid
to interpret amended provisions)
 Amendment Act is separate enacted law-text, but amendments in such an Act will later be incorporated into the initial Act
 Legislative codes serve as cross-reference to the amending Acts
 Codes, list of amending Acts at beginning of Act, and amending Acts themselves should correlate

Relationship between legislation and common law

 Any law, including common law, inconsistent with the Constitution is invalid (s 2) and the courts must promote the spirit,
purport, and objects of the Bill of Rights when they develop the common law (s 39(2))
 Carmichele v Minister of Safety and Security: Court is obliged to develop the common law in view of the Constitution
 Pharmaceutical Manufacturers Association of SA: Prescribed!!
- placed common law in a constitutional framework
- There are not 2 systems of law dealing with the same subject-matter, each having similar requirements and operating in its
own field with its own highest Court
- There is one system of law, shaped by the Constitution and all law derives its force from the Constitution
 Different legal traditions have not been abolished
 We still have Roman-Dutch common law, African customary law, legislation and other sources of law and legal cultures
 Since 1994, legislation and the common law are trumped by the supreme Constitution
 Presumed that the legislature does not intend to alter the common law more than necessary, but common law may expressly be
trumped by legislation
 Common law is not repealed by legislation, but overruled
 If legislation trumps a rule of common law, but is later repealed, the common law will revive again ( Rand Bank Ltd v De
Jager)
 It is possible for new legislation to provide expressly that it will operate side-by-side with existing common-law rules
 Courts and other interpreters may rely on common-law maxims and presumptions if they are not in conflict with the values of
the Constitution
 Presumptions are preliminary assumptions as to the meaning of legislation
 It is assumed that legislation has a particular purpose, which should accomplish an ideal, predefined result
 In absence of judicially enforceable Bill of Rights in RSA pre-1994, presumptions were rebuttable common-law ‘bill of rights’
 Principles of justice, fairness, and individual rights were always part of our law, but these values were rebutted, debased, and
ignored during era of parliamentary sovereignty
 Presumptions have not been abrogated by the Constitution, but most of the underlying principles of the rebuttable common-
law presumptions are reflected in the Constitution
 Theme 3: The commencement of legislation
Adoption and promulgation of legislation
 Adoption / Passage of legislation: constitutionally prescribed and other legal procedures required for the draft legislation to
become law
 Constitutional procedures to be followed in adopting Acts of Parliament and provincial Acts are found in chapters 4 and 6 of
the Constitution
 Once assented to and signed, an Act becomes law (s 81 and 123 of the Constitution)
 Such an Act is legally enacted legislation, but not yet in operation
 Legislation needs to be promulgated to become operational
 Promulgation: process of putting legislation officially and legally into operation (commencement or taking effect of the law)
 Not all legislation published in the Government Gazette will necessarily be in operation and enforceable
 Process of adoption (applicable to Acts of Parliament):

Identify problem / Bill is Act is

Draft is Deliberated and published in
issue and propose Tabled in debated in
possible solutions, Gazette
Parliament = Parliament. Bill
which are Bill is edited and
Gazetted = Green altered Promulgation
paper

Voted on in 1st Bill (passed by

Choose one house (National legislature)
Sent to State Assented to and
solution, which Law Advisors, Assembly). Voted
is Gazetted on in 2nd house signed by the
who transcribe President = Act
(Public it into legal text (National Council
Distribution) of Provinces) (in status, but not
(Draft Bill) force of law
=White paper Enactment

 Public participation is formal requirement for the adoption of legislation ( Doctor’s for Life case)
 S 79: President may refer to CC if suspects unconstitutionality. Constitutionality certified – president must assent and sign Bill

Requirement of publication
 S 81 and 123 of the Constitution and s 13 of the Interpretation Act: Acts of Parliament and provincial Acts take effect when
published in the Gazette, or on the date determined in terms of those Acts
 S 162 of the Constitution: municipal by-laws may be enforced after they have been published in Gazette of relevant province
 Constitution doesn’t expressly require publication of subordinate legislation to commence, but s 101(3) it must be accessible to
public
 S 13 and 16 of the Interpretation Act requires subordinate legislation to be published to commence
 Principle underlying requirement that legislation only commences upon publication is that it should be made known to the
population to who it applies
 Queen v Jizwa: legislation commences on the date of publication, irrespective of whether it has come to the knowledge of
everybody in remote areas
 Criticized as arbitrary application of the rule. Suggested that there should be a period between de facto (actual) publication in
the Gazette and the de iure (legal) promulgation and taking effect of legislation
 If, for reasons beyond its control, the Government Printer is unable to print the Gazette, the President may by proclamation
prescribe alternative procedures for the promulgation of legislation (s 16 of Interpretation Act)
 When a person has the power to issue delegated legislation, a list of proclamations and notices under which it was published
must be tabled in parliament (s 17 of Interpretation Act)
 Difference in adoption of national, provincial, and subordinate legislation:
Provincial legislation Subordinate legislation
- Single chamber (vote) NCoP - Legislative authority is delegated to functionary
- Assented and signed by Premier (Adoption and promulgation happens nearly
simultaneously)
 - Published in provincial Gazette - Primary legislation dictates publication (Government
Gazette or Provincial Gazette)

Commencement of legislation
Who promulgates
 Enacting clause of legislation affirms the legislative authority of the lawmaker
 e.g., Act of Parliament will proclaim “Be it enacted by the Parliament of the Republic of South Africa, as follows”
 Since it is the lawmaker who “speaks”, the resulting legislation is promulgated by the lawmaker
 Not always possible with Acts of Parliament or a provincial legislature
 The authority will then be delegated by the legislature to a member of the executive branch (e.g., President or Premier) who
will later put the original legislation into operation by means of proclamation
 Not general legislative authority to enact subordinate legislation, but specific delegated authority to put legislation into
operation on behalf of legislature
 Ex Parte Minister of Safety and Security: In re S v Walters: Prescribed!!
- The power conferred by the legislature on the President to fix a date for commencement is a public power and must be
exercised lawfully for the purpose of such a power
- The power could not lawfully be used to block or veto the implementation of the new law
 Pharmaceuticals saga: Prescribed!!
- Danger of prematurely putting legislation into operation was illustrated
- President’s authority to put an Act into effect was not conferred by Constitution, but by Parliament for a specific purpose
- Act was incomplete and would enter into force when the President so determined
- Administrative arrangements to be made and practical requirements to be met to bring Act into operation are determined
by President, but President can’t retract proclamation to undo commencement of new Act, only Parliament had authority
- In Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa
the CC invalidated the presidential proclamation because it lacked a rational basis
- President was wrongly advised and mistakenly thought it was appropriate to bring Act into force, thus old Act was still in
force and new Act was never put into operation

When is it in force
Default: on the date of publication
 S 13(1) of Interpretation Act and s 81 and 123 of the Constitution provides that if the legislation does not prescribe a date of
commencement, it automatically commences on the day of its publication in the Gazette
 Normally, date of publication coincides with the day of commencement provided for in the legislation

Delayed commencement: on a future specified date

 S 13(1) of Interpretation Act and s 81 and 123 of Constitution: legislation as published in the Gazette may provide another
fixed date (other than date of publication) for its commencement
 Legislation need not be published again and will automatically commence on specified date
 Danger if officials do not realise that the legislation had in fact commenced

Delayed commencement: on unspecified future date still to be

proclaimed
 If Act will commence on a date to be determined by, for instance, the President, their proclamation is all that is required
 The Act need not be published again and will commence on the date indicated in the proclamation
 Lawyers will not know in advance when the proclamation will be published, thus every Gazette must be scrutinised
 S 13(3) of Interpretation Act: if any Act provides for a commencement on a date to be proclaimed by the President or the
Premier of a province, there may be different commencement dates for different provisions of the Act

Retroactive commencement
 Publication on a specific date, but the legislation is deemed to have commenced on a date prior to publication
 Constitutional and common law rules make the application of legislation with a retro-effect very difficult
 This type of commencement is exception rather than rule

Combination of the above

 When published, may be combination of commencement options for various parts of legislation
 Specific or unspecified commencement date (with proviso):
- Most of the Act will commence on a fixed date, except a few provisions (indicated in the Act itself) which may
commence at a later specified date or unspecified date still to be proclaimed

When does a day start

 S 13(2) of Interpretation Act: “day” begins immediately at the end of the previous day
 Thus, immediately after midnight at 00:01
 Means retroactive commencement, because of time Gazette is published, legislation could have already been in force for hours

Jumping the gun: Section 14 of the Interpretation Act

 To avoid endless circle of invalidity, s 14 of Interpretation Act provides that if a person has the power to put legislation into
operation, that power may be exercised at any time after the legislation was passed with a view to put it into effect
 Practical application and enforcement of an Act depends on a regulatory framework being in place when the Act commences
 Subordinate legislation to support the enabling Act cannot take effect before the Act is operational
 S 14 ensures that necessary preparations can be made, and structures provisionally put in place so that that total legislative
scheme is in place and ready to be implemented when the Act enters into force
 This is what the health officials should have done to avoid the Pharmaceuticals fiasco

The presumption that legislation applies only to the future

General principle: let bygones be bygones

 Principle is reflected in the common-law presumption that the legislature intends to regulate future matters only
 Based on prevention of unfair results and ensure legality. People must know what law is to adapt their conduct accordingly
 Presumed that legislation applies only to cases occurring after coming into operation of Act so that vested rights aren’t taken
away

Difference between retroactive and retrospective

 The rule that legislation only applies to the future means that legislation should not have retro-effect
 However, National Director of Public Prosecutions v Carolus explained difference between types of retro-effect legislation
Prescribed!!

Retroactivity (true or strong retro-effect)

 Legislation operates as of a time prior to its enactment
 Promulgated prior to publication
 It operates backwards in time and changes the law from what it was

Retrospectivity (weak retro-effect)

 Legislation operates for the future only, in line with the basic principle
 Operates forwards, but “looks backwards” – attaches new consequences for future to event that took place before legislation
was enacted
 Legislation commences for future from a particular date, but could apply to new cases and processes (that will start after the
commencement) based on earlier facts and circumstances (that arose prior to commencement)
 No express retroactivity involved here, because there is no commencement and application of legislation “backwards in time”
 Problem is that there could be a future application of new legislation to new cases (with facts and circumstances from before
the commencement). Thus, there could be a practical retro-effect
 Retrospectivity is not as drastic as retroactivity

The deeming clause

 Commencement date before the enactment of the legislation is impossible in real physical terms, thus legislation creates a legal
fiction: legislation does not change the fact, but makes-believe that the facts are otherwise
 The deeming clause creates a presumption by providing that something is deemed to have happened

What prevents legislation from applying with retro-effect

In terms of SA law, 3 legal obstacles must be removed before legislation may apply with retro-effect (retroactive or retrospective):

Common-law presumption
 Before supreme constitution, common-law presumption that legislation only applies to future was only legal obstacle that
stood in the way of laws with a retro-effect
 Legislation trumps common law; thus legislature could trump presumption either expressly or by necessary implication
 By necessary implication: not expressly provided in legislation, but it is the only reasonable conclusion that can be reached
 Determining whether it is provided by necessary implication will depend on the court’s interpretation of the legislation
 Each case will depend on the legislation as a whole and the surrounding circumstances
 Necessary implication could be inferred if the legislation would result in absurd or unfair results should it not have retro-effect

New offences and higher penalties

 S 35(3) of Constitution:
- person may not be convicted for act that was not an offence at time it was committed ( nullem crimen sine lege principle)
- accused person has right to least severe of prescribed punishments if punishment for offence has been changed between
time that offence was committed and time of sentencing ( nulla poena sine lege principle)
 Thus, new offences cannot be created, and existing punishment may not be increased retrospectively or retroactively

Other constitutional rights

 Aspects such as right to property, right to fair administrative justice, right to access of information, etc. may play a role in
determining whether legislation only applies to future or not
 Legislation passing general constitutional scrutiny to have retro-effect depends on facts and rights involved in each case (s 36)
 Will the legislation limit other constitutional rights if applied with retro-effect, and, if so, is such a limitation constitutional?

Example
 State of emergency is declared with expressly retroactive application
 Express retroactivity will trump the first ‘obstacle’ (common law presumption)
 There do not seem to be any new offences or increased penalties, the second obstacle (s 35(3)) may be bypassed
 Third obstacle cannot be breached: in terms of s 37(2) (a) of the Constitution, a state of emergency may only be prospective

Exceptions to the rule that legislation only applies to the

NB!! future

If the enactment deals with procedure

 Presumption will not apply if the legislation deals with procedure
 Courts indicated that there is a fine line between “neutral” procedure (formalities) and substantive rights
 If new procedure violates substantive rights, general principle against legislation with retro-effect will apply, and three
‘obstacles’ come into play (procedural rights not involved)

If the retro-effect favours the individual

 Reason is to avoid unfair results, thus if a person will receive a benefit, and no vested rights are taken away, the retro-effect of
legislation will be beneficial, and the presumption becomes unnecessary
 S v Mhlungu:
- Presumption not intended to exclude benefits of rights sanctioned by new legislation, but to prevent invasion of rights
 R v Sillas: Prescribed!!
- Rule that penalty in force when crime was committed must apply, only applies to amendments which increase penalty
- Where new legislation reduces penalty, time when sentence is passed is decisive in determining whether amended
penalties apply to accused or not

Retroactivity and other constitutional issues

 Constitution itself is not retroactive:
- All law in force when Constitution took effect, remains in force subject to amendment or repeal, and consistency with
Constitution (item 2 Schedule 6)
- All proceedings pending before court when new Constitution took effect, must be finalised as if it had not been enacted,
unless in interests of justice (item 17 Schedule 6)
 Any legislative process started in terms of interim Constitution, but not yet finalised when 1996 Constitution took effect, must
be finalised in terms of the 1996 Constitution (item 5 Schedule 6)

Theme 4: Changes to and the demise of

legislation
General
 Legislation cannot be abrogated by disuse (R v Detody) Prescribed!!
 Legislation needs to be repealed by a competent body or declared invalid by a court
 Before 1994, Parliament was sovereign, and courts could only invalidate delegated legislation that did not comply with
common law rules of administrative law
 After 1994, courts could test all legislation against the supreme Constitution

Who may amend and repeal legislation

 Constitution is not self-executing
 S 2 states that legislation inconsistent with Constitution will not automatically be invalid; to remove potentially
unconstitutional legislation, a competent body must amend or repeal it, or a competent court must declare it unconstitutional
 For original legislation, legislative authority of legislature includes power to pass or amend any legislation before them,
subject to hierarchical and territorial competencies prescribed by Constitution (ss 44 and 55 read with s68 in the case of
Parliament; ss 104 and 114 in the case of provincial legislatures; s 156 in the case of municipalities)
 Enabling Act may expressly state that the power to enact subordinate legislation includes the power to amend or repeal it
 In absence of such a provision, common-law principle of implied power applies: if delegated lawmaker has power to enact
subordinate legislation, it by implication includes power to amend or repeal subordinate legislation
 S 10 of the Interpretation Act: where law confers a body to make rules, regulations or by-laws, the power shall, unless contrary
intention appears, include the power to rescind, revoke, amend or vary them

Changes to legislation
Formal amendment of legislation by a competent legislature
 Parliament may amend an Act of Parliament with another Act of Parliament; provincial legislature may amend provincial
ordinances and provincial Acts
 In case of original legislation, amendment process is lengthy and expensive
 Two types of amending legislation:
- Non-textual (indirect) amendment: no direct changes to actual wording of initial legislation; ‘amending’ legislation merely
describes extent of changes in law with reference to provisions that will be affected
- Textual (direct) amendment: actual wording of principal legislation is changed with additions, changes to wording, etc.
 If several Acts are amended at the same time, it will usually be done with a General Laws Amendment Act
 Specific legislation will be amended by specific amending legislation
 Some legislation is amended continuously – e.g., long list of amendments for the Income Tax Act (amended annually)

Informal judicial amendments (modificative interpretation by the

courts)
 Courts are primarily involved in the application of law, but they also have a secondary law-making function
 Involves development of common law to adapt to modern circumstances, and giving form, substance, and meaning to
legislative provisions in concrete situations
 Judiciary may modify the initial meaning of a legislative provision in such a way that it conforms to the purpose of legislation
 Judicial law-making involves a creative judicial discretion, but must always be based on legal rules and principles
 Is exception to the rule: separation of powers – legislatures make legislation, courts interpret legislation and dispense justice

Attempts to save legislation during constitutional review

 Constitutional review: process whereby legislation which allegedly conflicts with Constitution is reviewed and tested by courts
 If court declares legislation unconstitutional, it cannot be applied anymore
 Could create a vacuum in the legal order
 Competent courts involved in constitutional review may try, if reasonably possible, to modify legislation to keep it
constitutional and alive by employing corrective techniques or remedial correction of legislation (reading down, reading up,
reading in, severance)

Modification of the legislative meaning during interpretation

 Courts may under exceptional circumstances modify initial meaning of legislative text to ensure that it reflects purpose and
object of legislation

The demise of legislation

 Repeal: process whereby legislation is deleted (removed from the statute books)
 Invalidation: legislation is declared to be legally unacceptable. Legislation may not be applied anymore, but remains on the
statute books until removed by competent lawmaker
 Courts invalidate legislation on constitutional grounds or because it does not comply with administrative law requirements
 Elected legislatures and other bodies enabled by primary legislation repeals legislation

Invalidation of legislation by the courts

Unconstitutional provisions
 S 172(1) of Constitution: HC, SCA or CC may declare legislation unconstitutional if it violates a fundamental right in the Bill
of Rights or if it conflicts with another constitutional requirement
 S 167(5) and s 172(2) of the Constitution: a declaration of unconstitutionality of legislation by HC or SCA has no force until
such declaration is confirmed by the CC

Invalid subordinate legislation

 Delegated legislation may be invalidated by HC, SCA, (no need for confirmation by CC) or CC if it does not comply with
requirements of administrative law (e.g., vague, ultra vires)
 Before 1994, this was the only possible review of legislation by the courts

Repeal of legislation by a competent lawmaker

Substitution (repeal and replace)
 To prevent gap in the law, the repealing legislation could expressly provide for a suitable transitional measure
 S 11 of Interpretation Act: If an enactment was repealed and replaced by another, but replacement is not operational yet,
repealed provision will remain in force – although repealed – until the replacement is in force
 S v Koopman: Court implemented s 11 of Interpretation Act Prescribed!!

Repeal (deletion)
 Legislation is removed from the statute book, not substituted
 In case of single provisions of original legislation, all that remains will be numbering (as placeholders) and legislative codes
 S 12(1): if provision X is repealed and later re-enacted as Y, all references to X in other existing legislation must be interpreted
as references to Y
 S 12(2):
- transitional provision
- repealed Act does not regain the force of law if the repealing Act itself is repealed
- If an Act, which declared an action illegal is repealed, the repeal does not have retroactive effect ( Keagile v Attorney-
General, Transvaal) Prescribed!!
- If an amendment Act is repealed, the amendment does not lapse with the repeal
- Actions, processes, prosecutions, enforcement of rights and remedies, etc. which were started but not yet completed in
terms of legislation which has meanwhile been repealed, must be completed as if legislation has not been repealed
 The provisions deal with rights derived from legislation only, not those stemming from common law
 Right must have been acquired or accrued in terms of the repealed legislation before the repeal
 Nourse v Van Heerden: Prescribed!!
- Court found that legislation cannot be abrogated by disuse, and must be repealed by competent legislature
- In terms of s 12(2), trial started in terms of Act that was since repealed must be completed as if Act had not been repealed
- Trial started before Constitution must be completed in terms of law existing at start of trial (Constitution not retroactive)

Repeal of legislation incorporated by reference

 When A repeals B, but some provisions of B were incorporated into other legislation by reference, those provisions in other
legislation will not be automatically repealed by A as well, unless A contains express or implied provisions to that effect
Sunset clauses
 Def: provision in legislation which repeals whole or portions of law after a specific date, unless further legislative action is
taken to extend it
 Most laws do not have sunset clauses – under normal circumstances, legislation remains in force indefinitely until repealed
 Legislature has adopted and repealed the same legislation at the same time
 Can only happen if legislation has very specific expiry date
 Have limited lifespan and their continued existence is dependent on parliamentary action

Implied repeal
 Where different enactments dealing with same matter clash, presumed by judiciary that legislature by implication intended that
later enactment repeals earlier enactment
 2 enactments must both be on the same hierarchical level and the same level of generality
 Legislation is not repealed by judiciary, court is merely the messenger

Suspension of legislation already in force

 Legislation can be suspended – it remains in force (not invalidated), but its operation is halted for time being until some
condition is met or requirement complied with e.g., suspension by a court
 S 40 and 41: system consists of 3 distinctive but interrelated and interdependent tiers of government
 Schedule 4 sets out matters in which national and provincial legislatures have concurrent law-making powers
 Where there are conflicts, most of the time national legislation will prevail over provincial legislation
 S 146 – 150 of the Constitution provide for process of conflict resolution within system of co-operative government
 S 149: when legislation X conflicts with legislation Y, operation of X is suspended until relevant legislature deals with conflict
 Cessante ratione legis, cessat et ipsa lex rule: court will exercise its discretion to suspend application of legislation because it
has already been complied with in another way
 Competent lawmaker may suspend legislation with formal legislative amendment, probably containing a sunset clause
 Administrative agency involved in application and administration of legislation may put its application of legislation on hold,
thus suspending the legislation

The presumption that legislation does not intend to change

existing law more than necessary
 Legislation should be interpreted in such a way that it is in accordance with existing law and changes it as little as possible

Common law
 Presumption reflects inherent respect for our common law heritage
 Presumed that legislation does not alter common law, but presumption is rebutted if legislation clearly provides for it

Legislation
 When interpreting a subsequent Act, it is presumed that the legislature did not intend to repeal or modify the earlier act
 Any repeal or amendment must be indicated expressly or by necessary implication
 Attempt to read the earlier and subsequent legislation together in effort to reconcile them
 If reconciliation is impossible, it is presumed by necessary implication that latter of provisions prevails, amending or repealing
earlier one
 Rule only applies if objects of 2 conflicting provisions are essentially the same
 According to the generalia specialibus non derogant rule, it is presumed that a provision in a subsequent general Act does not
repeal an earlier specific provision
 Theme 5: Theoretical foundations
Legisprudence: the jurisprudence of interpreting legislation

Jurisprudential perspectives on statutory interpretation

The general principle of hermeneutics
 Hermeneutics: theory of interpretation of texts. The understanding and explanation of texts to reveal their inherent meaning
 Broad sense: applies to all forms of written or spoken communication
 Legislature cannot provide a set of exhaustive descriptions and regulations for all possible situations
 Task of the court to concretise the general precepts of legislature through interpretation of legislation
 Exegesis is what author originally wanted to say to readers, while hermeneutics what author wants to say to present readers
 Words and phrases do not have inherent meaning – meaning is derived from total structure of language, including context in
which it is used
 Du Plessis’ hermeneutics circle explains practical relevance in interpretation of legislation: every part of text must be
understood in terms of the whole, and the whole in terms of its parts
 To make sense of what a text is trying to say, its context (background) needs to be considered as well

Influence of modern critical theories

 Du Plessis and Botha says there are numerous theoretical approaches to statutory interpretation and an ever-increasing number
of contemporary schools of legal thought which has an influence on modern legisprudence
 Critical legal scholars:
- Rejects the formalist position that law is rational, objective, and neutral
- Law is subjective, and ideological
- Argue that literal or contextual approaches to interpretation is characterised by formalism, which believes that the law is
autonomous (all the answers to legal questions are to be found in the law)
 Modern theoretical schools of thought (postmodernism):
- Defies a complete definition because it rejects preconceived ideas and definitions
- Modernists tried to explain and order the world with macro-arguments (i.e., liberalism), but these could not solve global
problems because the problems were too wide and abstract
- Postmodernism rejects idea that classifications and categories can be correct and final, and notions of objectivity and
subjectivity are questioned
- Everything is relative and temporary, therefore any argument, no matter how logical, is only as good as its
preconceptions
- E.g., CLS, deconstruction

Critical Legal Studies movement (CLS)

 Originated in reaction to the inability of liberalism to solve social problems such as poverty, racism, and oppression
 In the process, the outcasts and disadvantaged of society are pushed further to the margins
 Does not have an alternative program of action to solve the problems, but wants to unmask liberal argument that the law is
objective and neutral
 Law and politics have merged, and power is disguised in the legal system
 Criticism against existing legal order:
- Rules and principles only change as result of changes in political arena
- Liberal jurisprudence entrenches the position of the individual and reinforces unequal distribution of power in society
- Legal theories and reasonings are supported by political considerations and existing political and social balance of power
is consolidated
Deconstruction
 Reaction against structuralism
 Structuralism supports literal interpretation and legal positivism: rules acquire legal value and meaning because of their
position within the legal system, and their relationship with other rules
 Deconstruction focuses on forgotten aspects of humanity that were pushed aside by dominance of certain conceptions of law
 Fundamentals:
- During interpretation of statutes, different texts are simultaneously in interaction with each other. Interpreter is informed
by the interacting texts and other extra-legal factors such as cultural background. Interpretation of statutes has to do with
relationship between interpreter and text. Text-based methods cannot explain the nature of interpretation process
- Contextual interpretation is criticised. Context does not have boundaries, thus no limit to what is relevant for the context
- Shifts the focus to judicial choices and accountability: interpretation is not neutral and value-free. Each interpreter must
accept responsibility for the choices made

The linguistic turn

 Du Plessis describes linguistic turn: critical thinking about language, meaning and interpretation
 Meaning is not discovered in a text, but is made in dealing with the text
 Meaning is never fixed. Possibilities are boundless
 Language is the hyper-complex, boundless open system that makes such a proliferation of meaning possible

South African theories of interpretation

The orthodox text-based approach

 Interpreter should concentrate primarily on the literal meaning of the provision to be interpreted
 Interpretation process:
- Primary rule that if meaning of text is clear (plain meaning), it should be applied and equated with legislature’s intention
- Golden rule: if plain meaning of words is ambiguous or vague, or if strict legal interpretation would result in absurdity,
court may deviate from literal meaning, and turn to secondary aids to find legislature’s intention (e.g., long title, heading)
- Only when secondary aids prove insufficient to ascertain intention, will courts have recourse to tertiary aids (e.g.,
common law presumptions)
 Approach was popular in legal systems influenced by English law
 Factors that led to adoption of textual approach in England:
- Misconceptions about doctrines of separation of powers and sovereignty of parliament resulted in acceptance of idea that
court’s function should be limited to interpretation and application of will of legislature, as recorded in text of provision
- Doctrine of legal positivism: that which is decreed by the state is law, and thus the essence of law is found in decree
- England has common law tradition, in which courts played creative role regarding common law principles. Legislation
viewed as exception to the rule, altering traditional common law as little as possible
- English legislation drafted to be as precise and detailed as possible, for sake of legal certainty and to cover possible future
cases. Well-known maxim that legislature has prescribed everything it wishes to prescribe is derived from this approach
 Approach introduced to South African legal system in roundabout way from English law
 De Villiers v Cape Divisional Council:
- Court decided that legislation that had been adopted after British had taken over Cape should be interpreted in
accordance with English rules of statutory interpretation
- Strange because in terms of English law, a conquered territory continued to apply its own legal system (in our case
Roman-Dutch law)
- Roman-Dutch rules of statutory interpretation were based on purpose-orientated approach, but after British occupation,
English law rules of interpretation played ever increasing role
 Courts regarded clear literal meaning as identical to what the legislature intended
 Union Government v Mack and Farrar’s Estate v CIR and Dadoo Ltd v Krugersdorp Municipal Council:
- Intention of the legislature should be deduced from the words used in the legislation
- Only lip-service is paid to the principle of legislative intent, because courts automatically elevated the clear meaning of
the words to the status of intention of the legislature
Prescribed!!
 Commissioner, SARS v Executor, Frith’s Estate:
- SCA reiterated traditional rule of interpretation: ascertain intention of legislator by giving words their ordinary
grammatical meaning, unless it would lead to absurdity so glaring that legislature could not have contemplated it
- Based on formalistic and text-based approach
- Foundations of text-based method are legal positivism, sovereignty of parliament and formalistic ideas about law,
language and understanding
 Was predominant approach to interpretation in South Africa prior to 1994, and is still followed by many courts today
 Legislature had specific intention, and the ordinary, grammatical meaning of the text is decisive in determining it ( R v Kirk)
 In Engels v Allied Chemical Manufacturers (Pty) Ltd: rules of construction of Acts of Parliament state that they must be
construed according to intention of legislature expressed in Acts themselves. Consequence is that statute may not be extended
to meet a case for which provision has clearly not been made

Criticism against this approach

 Normative role of common law presumptions during the interpretation process is reduced to last resort, to be applied only if
the legislative text is ambiguous
 Words (their literal meaning) are regarded as the primary index to legislative meaning, thus narrow approach
 Other internal and external aids to interpretation, which could be applied to establish meaning of text-in-context, are ignored.
Context is only used if text is not clear
 Intention of legislature dependant on how clear the language used in the legislation may be to the court
 Very few texts are so clear that only one final interpretation is possible. The existence of statutory interpretation implies that
legislation is seldom clear and unambiguous
 Leaves very little room for judicial law-making and the courts are seen as mechanical interpreters of the law
- Well-known maxims form basis of general principle that no addition to or subtraction from legislative text is possible
- Harris v Law Society of the Cape of Good Hope: according to iudicis est ius dicere sed non dare, it is function of court to
interpret law, not make it. Rigid obsession with this rule is result of misunderstanding of separation of powers, which was
used to justify text-based approach
- Casus omissus rule (courts may not supply omissions in legislation) is derived from principle that function of courts is
interpreting and not making the law

Text-in-context approach
 Legislative function is a purposive activity
 Purpose or object of legislation is the prevailing factor in interpretation
 Subjective intention of legislature must be replaced by intention (legislative purpose) in objective sense
 Context of legislation, including social and political policy directions is considered to establish purpose of legislation
 Does not give a court licence to distort the ordinary meaning of words beyond reasonable capability
 Mischief rule regarded as forerunner according to Du Plessis
 Mischief rule: interpreter must consider circumstances which gave rise to the adoption of the legislation
 It acknowledges application of external aids: common law prior to enactment of legislation, defects in law not provided for by
common law, new remedies legislature provided, true reason for remedies
 Search for purpose of legislation recognises contextual framework of legislation at outset, and not only in cases where literal
text-based approach has failed
 Judiciary has inherent law-making discretion during statutory interpretation: although exceptions to the rule, courts may
modify or adapt initial meaning of the text to harmonise it with purpose of legislation
 Role of courts is more flexible and not limited to textual analysis and mechanical application of legislation
 Modification of meaning of text is possible only if scope and purpose of legislation is clear and supports such modification
 Law-making function of judiciary is not an infringement of legislature’s function, but a logical extension of powers of court
during interpretation and application of relevant legislation in each practical instance
 In S v Zuma the importance of words in a constitutional interpretation was stressed
 Mjuqu v Johannesburg City Council: utilised all available aids and surrounding circumstances to determine purpose of
legislation
 University of Cape Town v Cape Bar Council: court has to examine all contextual factors in ascertaining intention of
legislature, irrespective of whether the words are clear and unambiguous
 Influence of the supreme Constitution
 Most academics in South Africa before 1994 used text-in-context (purposive) method of statutory interpretation that
recognised importance of legislative context, but few courts adopted less formalistic approach to interpretation
 Since 1994, the debate about text-based vs text-in-context approach to statutory interpretation has become irrelevant
 Interim (s 35(3)) and final Constitution (s 39(2))included express mandatory interpretation provision that statutory
interpretation must be conducted within value-laden framework of supreme Constitution
 Interpretation transformed by constitutional values and 6 provisions:
- S 1 (foundational clause)
- S 2 (supremacy clause)
- S 7 (obligation clause)
- S 8 (application clause)
- S 36 (limitation clause)
- S 39 (interpretation clause)

Constitutional supremacy
 According to Du Plessis, s 1(c) merely anticipates supremacy of Constitution, while s 2 unambiguously confirms it
 S 2 must be read with s 7 (states that Bill of Rights is cornerstone of South African democracy, and that state must respect,
protect, promote and fulfil rights in Bill of Rights), s 8(1) (Bill of Rights applies to all law and binds legislature, executive,
judiciary, and all organs of state), s 8(2) (Bill of Rights applies to natural and juristic persons) and s 237 (all constitutional
obligations must be performed diligently and without delay)
 The Constitution cannot be interpreted in light of the Interpretation Act, Roman-Dutch common law, or customary law
 All theories of interpretation are influenced and qualified by the Constitution

The interpretation clause

 S 39(2) of Constitution deals with the interpretation of legislation other than the Bill of Rights
 Constitution does not expressly prescribe a contextual (purposive) approach to statutory interpretation
 Interpretation clause is peremptory provision, which means that all courts, tribunals, and forums must review aim and purpose
of legislation in light of Bill of rights – plain meanings and unambiguous texts are no longer sufficient
 Even before legislative text is read, interpretation clause forces interpreter to promote values and objects of Bill of Rights
 Interpreter is consulting extra-textual factors before legislative text is even considered
 Interpretation of statutes starts with Constitution, not with the legislative text
 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism: Prescribed!!
- Starting point in interpreting any legislation is the Constitution
- Interpretation must, if possible, advance values in Bill of Rights, and statute must be capable of such interpretation
- Legislation must be interpreted purposively to promote the spirit, purport, and objects of the Bill of Rights
- During interpretation, must have regard to context in which words occur, even where words are clear and unambiguous

Constitutional values
 Constitution is the value-laden yardstick against which nearly everything is viewed and reviewed
 S v Makwanyane: Prescribed!!
- Interpretive task involves making constitutional choices by balancing competing fundamental rights and freedoms
- Can often only be done by reference to a system of values extraneous to constitutional text, like historical context in
which text was adopted, which help to explain the meaning of the text
- Constitution makes it imperative for courts to develop entrenched fundamental rights in terms of cohesive set of values,
ideal to open and democratic society
- Common values of human rights protection over the world, and foreign precedent may be instructive
 Preamble of the Constitution refers to society based on democratic values, social justice, and fundamental human rights
 These are: freedom, equality, human dignity (s 7(1)), advancement of human rights and freedoms, non-racialism, non-sexism
 S 36(1) and 39(1) refer to open and democratic society based on freedom, equality, and human dignity
 In terms of official oath of judicial officers, the courts must uphold and protect Constitution and the human rights in it
 Values underlying Constitution is not absolute, thus interpretation of legislation is balancing of conflicting values and rights
 Interpretation of statutes is no longer mechanical reiteration of what was ‘intended’ by parliament, but rather what is permitted
by the Constitution

Impact of constitutionalism
 Constitutional state is underpinned by 2 foundations:
- Formal: includes aspects such as separation of powers, checks and balances on government, and principle of legality.
Institutional power map of the country
- Material / substantive: state bound by system of fundamental values such as justice and equality
 S v Makwanyane:
- All constitutions seek to articulate shared aspirations of a nation which binds its people, disciplines its government, and is
basic premises upon which judicial, legislative, and executive power is to be wielded
- South African Constitution retains from the past only what is defensible and represents a rejection of that part of the past
which is racist and authoritarian, and commitment to a democratic, caring ethos expressly articulated in Constitution
 Preamble to interim Constitution states that RSA is a constitutional state, but only implied in final Constitution:
- Preamble refers to society based on democratic values, social justice, and fundamental human rights
- S 1 states that we are a democratic state founded on the supremacy of the Constitution and the rule of law
- S 7 entrenches the Bill of Rights as the cornerstone of democracy
 Fundamental principles form the material (substantive) guidelines which must regulate all the activities of the state
 Spirit of the Bill of Rights (s 39(2)) is reflection of those principles
 These values are found in other sources apart from Constitution, e.g., international human rights law, concept of ubuntu
 Some courts follow a literalist approach to interpretation without the reference to the supreme Constitution and its values, e.g.,
Geyser v Msunduzi Municipality
Practical, inclusive method of interpretation
 Interpretation of statutes is not mechanical process of mutually exclusive steps based on aspects such as the clarity of the text
 Triple-synthesis of liberalism, intentionalism and purposivism calling for a careful appraisement of these determining factors
 Problem is that foundations of 3 factors are so irreconcilable that synthesis will result in usual text-based method
 Du Plessis suggests 5 interrelated techniques for constitutional interpretation which could be applied to statutory interpretation
 Pragmatic approach to interpretation is based on combination of different techniques

Components of this method (Du Plessis model)

Words and phrases: the language aspect
 Acknowledges the importance of the role of the language of legislative texts
 Focusses on linguistic and grammatical meaning of the words, structural components of the text, and the rules of syntax
 Does not imply return to literalism and the orthodox text-based interpretation

Structure and context: the systematic / holistic aspect

 Concerned with the clarification of the meaning of a legislative provision in relation to the legislative text as a whole
 Principle that words, phrases and provisions cannot be read in isolation
 Emphasis on wholeness considers other parts of legislation, and other contextual considerations in which legislation operates

Teleological interpretation: the value-based / normative aspect

 Emphasises fundamental constitutional values and value-coherent interpretation
 Aim and purpose of legislation must be ascertained against the fundamental constitutional values (s 39(2))
 Fundamental values in Constitution form foundation of a normative jurisprudence during which legislation and actions are
evaluated against these values

Historical aspect
 Refers to the use of the historical context of the legislation
 Includes factors such as the mischief rule and the legislative history (prior legislation and preceding discussions)
 Important aspect of interpretation, but cannot be decisive on its own
Comparative aspect
 Refers to process (if possible and necessary) during which courts examine interpretation of similar legislation by foreign
courts, as well as international law

Theme 6: Practical, inclusive method of

interpretation: the language dimension
4 basic principles (Botha principles)
The initial meaning of the text
 Text-based approach no longer has any place in statutory interpretation – purpose of legislation qualify meaning of text
 Basic language principles about meaning of the text may be regarded, at most, as tentative rules
 Interpretation begins with reading of the legislation concerned
 Volschenk v Volschenk: most important rule of interpretation was to give words their ordinary, literal meaning
 Sigcau v Sigcau: ‘ordinary meaning’ includes ordinary grammatical meaning
 Association of the Amusement and Novelty Machine Operators v Minister of Justice: ‘ordinary meaning’ means colloquial
speech
 Natal Joint Municipal Pension Fund v Endumeni Municipality: starting point of interpretation process is language of provision
itself, read with regard to purpose of provision and background
 Savage v Commissioner for Inland Revenue: danger of elevating ordinary meaning of a word to fundamental principle because
the literal meaning is not something that is revealed to judges – it is what individual judges think it is
 Interpreter should not attach artificial meaning to the text
 Context of legislation which could influence initial meaning of provision must be considered from the outset
 In case of technical legislation that applies to specific trade, words must be given their specific meaning in that field, which is
different from colloquial meaning

Every word is important

 Derived from the rule that words are to be understood according to their ordinary meaning
 Legislation should be interpreted in such a way that no word or sentence is redundant
 Keyter v Minister of Agriculture: courts’ function is to give effect to every word, unless it is essential to regard it as unwritten
 In practice, courts will not easily decide that words in legislation are redundant
 Sometimes it is impossible to assign a meaning to every word in a statute, as tautological provisions are added because of
excessive caution (ex abundanti cautela)
 The resulting redundancy may be ignored in the interpretation of a clause
 If superfluous words help to ascertain meaning of other words, they are not unwanted, and provision should be read as a whole
to obtain meaning
 Secretary for Inland Revenue v Somers Vine: principle that a meaning should be assigned to every word is not absolute
because the purpose of the legislation should be the determining factor of whether a word is redundant or not
 Principle is related to presumption that legislation does not contain futile provisions

No addition or subtraction
 No additions or subtractions to words used in legislation
 Based on separation of powers principle
 Only default principle, because in the final analysis, the purpose of the legislation is the qualifier of the meaning of the text
 Courts have elevated this principle to another “primary rule”
 Courts may not supply omissions in legislation at will, but if purpose of legislation is clear, court is the last link in legislative
process and should ensure that it reaches a just and meaningful conclusion
 Continuing timeframe of legislation: the law is always speaking
 If words bear their ordinary meaning, question is whether legislation should be interpreted according to their present-day
meaning, or meaning they had when legislation was passed
 If words should retain their original meaning, it indicates a tendency to glance over one’s shoulder based on incorrect
reconstruction of historical legislature’s thoughts, and negates future-orientated frame of reference of legislation
 Initially, courts followed general rule (words retain original meaning), but might be less rigid in the future
 All legislation must be interpreted to promote spirit and scope of Bill of Rights, but a supreme Constitution is not a static
document, nor are the values underpinning it
 Enactment cannot automatically be reinterpreted to keep up with changing society
 Rule of law principle means that courts always need to balance the future with legality issues and legal certainty

Internal language aids to interpretation

The legislative text in another official language
 Prior to interim Constitution, legislation in South Africa was drafted in 2 official languages, and text in the other language was
used to clarify obscurities (statutory bilingualism)

Original legislation
 Signing of legislation is part of prescribed procedure during passing of legislation
 Old order legislative texts were signed alternately in different languages they were drafted, and signed text was enrolled for
record at Appellate Division
 In case of irreconcilable conflict between legislative texts, signed one prevailed (expressly included in previous Constitutions)
 1996 Constitution:
- S 240 states that English text will prevail in event of inconsistency between different texts
- ss 82 and 124: versions of all new national and provincial legislation which have been signed by President or a provincial
premier must be entrusted to the CC for safekeeping
- Signed version will be conclusive evidence for the provisions of that legislation
 Signed version of legislative text does not carry more weight because it was signed:
- signed version is conclusive only when there is irreconcilable conflict between versions
- if one version of text is wider than other, texts are read together to establish common denominator
- if versions differ, but there is no conflict, versions complement one another and must be read together. Attempt must be
made to reconcile texts with reference to context and purpose of legislation ( Zulu v Van Rensburg)
- even unsigned version of legislative text may be used to determine intention of the legislature
- because statutes are signed alternately, amendment Acts create a problem. If version in one language was signed, but
version of another language was amended, the amendment Act will be regarded as part of the original statute. The version
of the statue signed originally will prevail in the case of an irreconcilable conflict

Subordinate legislation
 There are no statutory or constitutional rules about conflicting language versions of subordinate legislation
 All versions of subordinate legislation are signed
 If texts differ, they must be read together
 If there is irreconcilable conflict between texts, court will give preference to one that benefits the person concerned
 Approach based on presumption that legislature does not intend legislation that is futile
 If irreconcilable conflict leads to vague and unclear subordinate legislation, court may declare it invalid

Criticism
 All versions of legislative texts should be read together from the outset, because they are all part of same enacted law-text
 This manner of conflict resolution (signed version prevails) is statutory confirmation of text-based approach, because purpose
is ignored
 Suggested solution in light of interpretation clause and constitutional interpretation: in case of irreconcilable conflict between
2 versions of same legislative text, the text which best reflects spirit and purport of Bill of Rights must prevail

 For practical reasons, legislation cannot be promulgated in all 11 official languages

 S 59(1) of Constitution obliges Parliament to facilitate public involvement in legislative processes
 One way of doing that is to publish translations of Bills introduced to Parliament
 The Joint Rules of Parliament require that translated version of adopted Bill must be submitted with the Bill to be signed into
law, which means that new Acts of Parliament are only promulgated in English

The preamble
 Old order legislation with a preamble is rare, but some private Acts, new public Acts, and the Constitution has a preamble
 Contains a programme of action or a declaration of intent regarding the broad principles contained in the statute
 Tend to be programmatic and couched in general terms, but may be used during interpretation since whole text should be read
in its context
 Cannot provide final meaning of legislative text on its own
 Post-1994 preambles should provide interpreter with starting point

The long title

 Provides short description of subject matter of legislation
 Forms part of statute considered during legislative process
 Role played in helping to ascertain the purpose of legislation will depend on information it contains
 Courts are entitled to refer to long title to establish purpose of legislation

The definition clause

 Explanatory list in which words or phrases used in legislation are defined
 Internal dictionary for the Act only – starts with the phrase “In this Act, unless context indicates otherwise”
 Definition in this clause is conclusive, unless context in which word appears in legislation indicates another meaning, in which
case court will follow ordinary meaning

Express purpose clauses and interpretation guidelines

 Contains more detail, are more focussed, and should be more valuable during interpretation process than preamble or long title
 None of them can be decisive on their own – this would constitute a new text-based approach
 Interpreter must analyse legislative text as a whole with all internal and external aids

Headings to chapters and sections

 May be regarded as introductions to those chapters and sections
 Within framework of text-in-context, headings may be used to determine purpose of legislation
 In past, headings may be used by courts to establish purpose of legislation only when rest of provision is not clear
 Value will depend on the information it contains

Schedules
 Serve to shorten and simplify the content matter of sections in legislation
 Value during interpretation depends on nature of schedule, its relation to rest of legislation, and language in which legislation
refers to it
 General rule is that schedules should have the same force of law as a section in the main Act
 Must be consulted when interpreting provisions in the main part of the Act
 In case of conflict between schedule and main section, the main section prevails
 Sometimes a schedule will state that it is not part of the Act and does not have the force of law, in which case it is an external
aid and may be considered as part of the context (thus subordinate legislation)

External language aids to interpretation

Dictionaries and linguistic evidence
 In era where legislation is becoming more technical and highly specialised, courts often use dictionaries during interpretation
 Dictionary meaning is only a guideline
 Dictionary cannot prescribe which of several possible meanings of a word shall prevail – context in which word is used should
be decisive factor
 Interpretation cannot be done by excessive peering at the language without sufficient attention to context

Examples and footnotes

 Use of footnotes in legislation is new trend, which is used to facilitate better and more streamlined cross-references
 Acts in which footnotes are used expressly state that they do not form part of the Act, but they may be used as external aids
during interpretation process

Definitions in the Constitution and the Interpretation Act

 When interpreting old order legislation, definitions in item 3 Schedule 6 of Constitution is indispensable
 Definitions in s 2 of Interpretation Act will apply to all other legislation, unless expressly provided otherwise

Computation of time
 Legal documents must be filed within a certain time, debt must be settled before a certain time, etc.
 Number of statutory enactments and contractual provisions prescribe a time in which or after which certain actions are to
begin, be executed, abandoned, or completed
 Failure to discharge obligations within prescribed period may have dire consequences
 S 4 of Interpretation Act deals with the computation of time, but reality is much more complicated

Meaning of time units

Year
 Consists of a cycle of 365 days (366 every 4th year), and is based on Gregorian calendar
 Every year commences on 1 January and ends on 31 December

Month
 Could have 3 possible meanings:
- S 2 of Interpretation Act: calendar month – 12 unequal named periods which make up a year on the calendar
- Lunar month of 28 days
- Period stretching between 2 corresponding dates in succeeding months of the year (e.g., 9 April – 9 May)
 Last meaning used most frequently in our law
 Could be more appropriate to use term ‘calendar month’ for first meaning, and ‘month’ for last one
Day
 Normally, a 24-hour unit of a week stretching from midnight to midnight
 Could be hours of daylight

Week
 Traditionally, week as part of a calendar runs from midnight on a Saturday to midnight on the next Saturday
 For purposes of computation of time, it is any period of seven successive days

Computation of time methods

Statutory method
 S 4 of Interpretation Act:
- Refers to days, and not periods of months or years
- Default method of calculation for days (and weeks as the units of days) is the statutory method
- First day is excluded (counting starts on next day) and last day is included, unless it falls on Sunday or public holiday, in
which case the period will move to the next day
- Sundays and public holidays falling within period will be counted
 S 1 of the Interpretation Act provides that s 4 will apply unless contrary intention is clear from legislation
 Instances where principle of ‘first day excluded, last day included does not apply NB
- Rules of court provide that where ‘court days’ are referred to in a contract or legislation, the computation will not include
Saturdays, Sundays, and public holidays, nor can the period end on those days
- Where there is a reference to number of ‘clear days’ or ‘at least’ several days between events, those days will be calculated
with the exclusion of the first and last days
 Legislation may at any time change the default calculation methods

Common-law method
 These methods are part of common law, but complement s 4 of Interpretation Act
 Ordinary civil method (computatio civilis):
- Unless clearly indicated otherwise, this is default method for calculation of months and years and is opposite of statutory
method used for days
- First day of the prescribed period is included and the last day excluded
- Last day is regarded as ending the moment it begins (midnight the previous day)
 Natural method (computatio naturalis): prescribed period is calculated from the hour (or even minute) of an occurrence, to the
corresponding hour on the last day of the period
 Extraordinary civil method (computatio extraordinaria): both first and last day of period are included. This method is obsolete
and not used by courts anymore

Theme 7: Holistic (contextual & structural)

dimension
Legislation must be construed within the total legal picture
 Any area of law might include legislation from different eras, areas, and hierarchies, all operating under supreme Constitution
 In the process, the interpreter could miss a legislation that may also apply to the issue
 Serious problem of interpretation is that many practitioners fail to see bigger legal picture – legislative organogram – when
they interpret legislation
 Nasionale Vervoerkommisie van Suid Afrika v Salz Gossow Transport: when interpreting provisions, statute must be studied
in its entirety
 Du Plessis refers to principle of structural wholeness of enactment: apart from legislation to be construed, bigger picture
includes Constitution and all other relevant law
 Interpretation should be ex visceribus actus (from the bowels of the Act)
 Balance between text and context
 In the past, context was only considered for interpretation when the language of the text was ambiguous
 Jaga v Dönges: rejected this narrow view and stated that interpreter could examine broader context even when text was clear
 Legislation cannot be construed properly if text and context are separated
 Legislation as a whole, surrounding circumstances, and constitutional values must be considered to ascertain purpose
 Stellenbosch Farmers’ Wineries v Distillers Corporation described the balancing process:
- Duty of court to read section of Act which requires interpretation sensibly to grammatical meaning of words, and to
contextual scene, which involves consideration of language in rest of Act, purpose, and background
- Court strikes a balance between various considerations, ascertains will of Legislature, and states its legal effect with
reference to facts of case before them
 Supporters of text-based approach accuses text-in-context approach of indulging in ‘free-floating’ methods of interpretation,
which ignore the text of legislation
 There must be a balance between text and context, and the context must be anchored to the text

Structures of legislation

 Structural aspects, like table of contents, paragraphing, and punctuation could play meaningful role in interpretation process
 Grammatical fact that punctuation can affect the meaning of a text
 R v Njiwa: court stated that punctuation must be considered during interpretation
 Skipper International v SA Textile and Allied Workers’ Union: since punctuation was considered by legislature during passing
of legislation, it must be used during interpretation

Conflicting legislation

Conflicts with the Constitution and the subsidiarity principles

 When confronted with possible conflict between legislation and Constitution, subsidiarity principle must be adhered to as far
as possible
 Subsidiarity: public law principle which argues that where it is possible to solve an issue without reaching a constitutional
issue, it must be solved that way (without recourse to constitutional argument)
 Subsidiarity must not be confused with avoidance
 S v Mhlungu: where it is possible to decide in any case without reaching a constitutional issue, that is the course that should be
followed
 Courts must try to solve conflict at lower, non-constitutional level, then – if necessary – escalate conflict to constitutional level
 Pharmaceuticals: all law is placed in constitutional framework. All law derives its force from Constitution and is subject to
constitutional control
 In attempt to avoid unconstitutionality, competent courts involved in constitutional review may try, if reasonably possible, to
employ corrective techniques or remedial correction of legislation (reading-down, reading-up, reading-in, severance) to keep
legislation constitutional
 If such efforts are unsuccessful, unconstitutionality is the only alternative
 Adjudicative subsidiarity is issue-centric and prefers an indirectly constitutional to strictly constitutional mode of adjudication

Internal conflicts and the presumption against futile and nugatory

legislation
 Principle of effectual and purposeful legislation: unless contrary is clear, it is presumed that legislature does not intend
legislation which is futile or nugatory
 Encapsulates basis of most important principle in interpretation, which is that court must determine purpose of legislation and
give effect to it
 Acknowledgement that legislation has a functional purpose
 If 2 possible interpretations, a court must try, if reasonably possible, to adopt interpretation that will render legislation
effective Prescribed!!
 R v Forlee:
- Court relied on presumption against futility, finding that a specific offence had been created by the legislature
- Court argued that the absence of a penal clause did not render the Act ineffective, since the court has a discretion to
impose a suitable form of punishment
- Decision criticised because nulla poena sine lege rule was not adhered to
- This rule should have trumped the presumption against futile results
- Court should have applied casus omissus rule
 Presumption enables court to interpret legislation in such a manner that the evasion of its provisions is prevented
 Courts may modify initial meaning of legislation in light of presumption against futile provisions and within purpose of
legislation
 Presumption only applies if there are numerous possible interpretations, and cannot be used by court to reinterpret legislation
at will
 Presumption also applies to subordinate legislation and maxim ut res magis valeat quam pereat applies, which means that an
interpretation which will not leave subordinate legislation ultra vires must be preferred
 This maxim only applies where 2 interpretations of a provision are possible and cannot be used to rescue an administrative Act
which is defective from the outset

Conflict with other legislation

 S 146 – 150 of the Constitution provide for process of conflict resolution within system of cooperative government
 If different pieces of legislation are in conflict, they must be read together to solve the problem
 If conflict cannot be resolved, and both enactments deal with same issue, earlier one repealed by implication by latter one
 Where they do not deal with the same topics, they will have to be read and applied together
 If they cannot be reconciled, result is a legislative short-circuit, since original legislation cannot be invalidated because of
vagueness or confusion
 Solution could be the application of modificative interpretation if the purpose of the legislation permits it
 If this is not possible, s 39(2) ensures that the enactment which best promotes the spirit of the Bill of Rights prevails
 Maccsand (Pty) Ltd v City of Cape Town: Prescribed!!
- Conflict resolution mechanism in s 146 – 150 can only be applied when there is conflict between 2 Acts or ordinances,
otherwise they must continue to operate alongside each other
 Some legislation will expressly provide for potential future conflicts with other legislation
 Some legislation (i.e., constitutional Acts) contain clauses proclaiming their superiority over other legislation (except
Constitution), which should avoid legislative conflicts

Presumption that government bodies are not bound by their own

legislation
 Generally presumed that government bodies are not bound by their own legislation unless expressly or by necessary
implication provided otherwise
 Presumption is trumped by the wording of the legislation, the surrounding circumstances, and other indications
 State does not operate above the law; this presumption just ensures that state is not hampered in its government functions
 Presumption should serve the purpose of maintaining public order of law
 Some argue that state should be bound by its own legislation, except where it would hinder performance of government
functions
 Evans v Schoeman: indicators when the state will not be bound:
- if the state would be rendered subject to the authority of or interference by its own officials
- if the state would be affected by penal provisions
 Whether state is bound depends on legislation and circumstances, thus each case judged on its own merit
 Presumption applies to original and subordinate legislation
 State may be bound by one provision of legislation and not the other
 State’s liability is not automatically excluded because of presumption
 S 39(2) stipulates that rules of common law must be developed in light of fundamental rights of Constitution, thus argued that
this presumption should not apply anymore:
- In a system based on constitutionalism it would not make sense that government bodies are bound by the Constitution (s
8(1)), but at same time is presumed not to be bound by their own legislation, which is also subject to Constitution
- Constitution contains principles like accountability and openness (preamble), constitutional supremacy (s 2), values of an
open and democratic society (s 7(1) and 39(2)). State is bound by Constitution (s2 and s8(1)) and must respect and
promote Constitution and Bill of Rights (s 7(2))
 View that presumption should be applied other way round has been vindicated by Constitution and SA as a constitutional state
 Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council:
- Central to conception of constitutional order that Legislature and Executive in every sphere are constrained by principle
that they may not exercise a power or perform a function beyond that conferred upon them by law
- Principle of legality is implied within the terms of the interim Constitution
 Constitutionality of this presumption has not been tested in courts, thus it still applies in RSA
 Suggested new position is that organs of state should always be bound by their own legislation unless they can prove that it
would hamper execution of their duties
 This would have to be prospective only, since retroactively undoing vested rights and interests obtained by state under this
presumption could prove impossible

Theme 8: The Value - Laden (Teleological)

Dimension
New Constitutional approach to statutory interpretation

 Sidumo v Rustenburg Platinum Mines Ltd:

- Values of Constitution are strong, explicit, and clearly intended to be considered part of the texture of constitutional project
- Implicit in the structure and design of new democratic order
- Letter and spirit of Constitution cannot be separated
- Values are not free-floating, thus text is not self-supporting
- Text and values work together in integral fashion to provide protections promised by Constitution
 Value-based dimension of statutory interpretation difficult to implement – since 1994, legal community implemented values
 Supreme Constitution references fundamental values of freedom, equality, and human dignity, democracy, and transparency,
which form the basis of a mature society (S v Makwanyane)
 Value-based dimension involves making those values real through making, interpreting, applying and adhering to law
 S 39(2) ensures that interpretation occurs within value-laden constitutional framework
 Legislation should expressly incorporate terms of Constitution; constitutional values are part of implied contents of statutes
 Always use Constitution as a point for departure for legal analysis, interpretation, and application
 In S v F the court did not follow this rule: Prescribed!!
- Court interpreted a law badly through text-based analysis
- No reference to Constitution, which means there is no reference to human dignity or s 39(2), and no fundamental values
 Ubuntu in Constitution = humanist disposition towards world, including compassion, tolerance, and fairness. S v Makwanyane

Theme 9: The Historical Dimension

Preamble to the Constitution and prior legislation
 Constitution is a document committed to social transformation
 Preamble connects, reinforces, and underlies all of the text that follows
 If legislation partly repealed, remaining provisions must be interpreted in their context, which includes repealed provisions
 Repealed provisions cannot be applied anymore, but may be used as part of the context of the remaining legislation
 Preceding discussions

 Debates about a Bill before parliament, debates and reports of committees that are part of legislative process, and reports of
commissions of inquiry constitute preceding discussions
 Debated whether it can be used in construing legislation

Debates during legislative process

 Some argue that debates preceding acceptance of a Bill are important in establishing intention of legislature, especially when it
is not evident from wording of legislation
 In the past, the use of debates was not accepted in courts ( Bok v Allen and Mathiba v Moschke)
 In De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, court used parliamentary debates, reports of
task teams, and views of academics when interpreting legislation
 In S v Tilly and S v Tshilo, court referred to reports of SALC and a ministerial speech in Parliament during interpretation

Commission reports
 In Hopkinson v Bloemfontein District Creamery, court held that prevailing law prevented use of a commission report about
certain legislation
 Rand Bank Ltd v De Jager: report of commission of enquiry, which resulted in Act, was an admissible aid in construing Act

 The reasons given by courts for not admitting these materials are not very convincing
 During statutory interpretation, the judiciary should be able to separate the good and bad in the parliamentary debates
 Speeches and commission reports of ad hoc, joint, and portfolio committees can be useful to ascertain purpose of legislation

The mischief rule

 The historical context of legislation is used to place the provision in its proper perspective (known as the mischief rule)
 Laid down in 16th century by Lord Coke in the Heydon’s case and forms a cornerstone of text-in-context approach
 Questions to help establish the meaning of legislation:
- What was the existing law (legal position) before the new legislation was adopted?
- Which problem was not adequately addressed by the existing law before the new legislation was adopted?
- What remedy is proposed by the new legislation to solve this problem?
- What is the true reason for the proposed remedy?
 Aim of the rule is to examine the circumstances that lead to the adoption of legislation
 Has been applied on numerous occasions by the courts, for example in Santam Insurance Ltd v Taylor

Contemporary exposition

 Contemporanea expositio
 Explanation of legislation given by people involved in adoption of legislation, or shortly afterwards during its first application
 E.g., Explanatory memoranda issued by government departments and state law advisors, as well as the first application
 Publication of a Bill is often accompanied by the publication of the explanatory memorandum from its drafters
 Memorandum may help to determine the purpose of the statutory provisions of the Act resulting from the Bill

Followed by observation
 Subsecuta observatio
 Category of external aids to interpretation
 Refers to established administrative usage over time – way legislation has been applied in practice by agencies and
departments entrusted with its administration may be a good indication of its aim
 Long-term use of legislation cannot dictate particular interpretation to courts, but may be deciding factor when 2
interpretations are possible
 E.g., notes, circulars

Theme 10: The Comparative Dimension

Foreign law

 In the past, South African courts could refer to foreign law and case law during legislative interpretation
 Foreign law could be used as guidelines if it was not in conflict with South African common law principles
 Now, s 39(2) provides that common law must be developed to promote the spirt of the Bill of Rights
 Supreme Constitution also determines whether foreign law may be applied
 Since interpretation starts with Constitution, foreign law and case law must be applied with circumspection ( S v Zuma)

International law
 S 233 deals with relationship between Constitution and public international law
 Is a constitutional confirmation of the common law presumption that legislation does not violate international law
 Court must prefer a reasonable interpretation that is not in conflict with international law
 Any interpretation under s 233 is subject to the foundational clause, supremacy clause, and application clause
 Argued that s 233 strengthens s 39(2) because interpretation consistent with international law will promote spirit of BoR
 S 233 is qualified by 2 provisions that also deals with international law:
- S 231: an international agreement (treaty) becomes law in Republic when it is enacted into law by national legislation
- S 232: customary international law is law in Republic unless it is inconsistent with Constitution or an Act of Parliament

Theme 11: Judicial law-making during

concretisation
What is concretisation
 Du Plessis: concretisation is final stage in the interpretation process where legislative text, purpose, and facts of situation are
brought together to reach a conclusion
 AKA correlation, harmonisation, actualisation
 Always takes place, irrespective of the interpretation approach
 Text-in-context argues that contextualisation better equips interpreter to concretise accurately
 Du Toit says that meaning of the text is tantamount to its application in a concrete situation
 Lategan defines interpretation as concretisation of meaning of text in a concrete situation during last stage of interpretation
process. This process is the transition from interpretation to application
 Law-making function of the courts

Text-based viewpoint
 Clear and unambiguous text of legislation is equated with the intention of the legislature
 Bulawayo Municipality v Bulawayo Waterworks: intention of legislature gathered from what was actually said, not what was
intended to be said
 Only if words seem ambiguous may court use secondary and tertiary aids to interpretation
 Courts should interpret legislation within framework of words used, and any modifications, corrections, or additions should be
left to relevant legislature
 Engels v Allied Chemical Manufacturers: reason behind this approach is that by remedying a defect which legislature could
have remedied, the court is usurping the function of the legislature and making law, not interpreting it

Text-in-context viewpoint
 Court has a creative law-making function during statutory interpretation
 Does not mean that they take over the legislature’s powers
 Explained by Du Plessis:
- Statutory interpretation involves more than reproduction of plain meaning and intention of legislature
- It is a reconstruction of generally framed provisions with a view to their specific application to a concrete situation
- Can be done with respect to authority of legislature if court bears in mind that its function is to interpret enactment
without repromulgating it
 Labuschagne explains theoretical foundations of the inevitable law-making role of the judiciary:
- Court has subordinate law-making function and forms part of legislative process in concrete cases aimed at fulfilling
needs of society
- Court is final link in the legislative chain, tasked with ensuring the legislative process has a meaningful and just end
- Legislation contained in document is incomplete and only represents initial structure of statute. Only when courts apply
legislation, does it become completely functional

Myth that courts only interpret the law

 Modification of the initial meaning of text involves creative judicial discretion
 This discretion is authoritative application of legal principles
 Creative application of discretion by courts is not foreign principle falling outside of ambit of their powers
 Because of limitations inherent to language, statutory interpretation involves delegation by legislature to judiciary about
specific application of general rule
 Older sources refer to modification of meaning during interpretation as ‘modification of language’ (woordwysigende uitleg)
 This is incorrect, as language is not physically modified, but meaning is adapted to give effect to legislative purpose
 Provision is not amended and repromulgated by court, as that may only be done by competent legislative body
 Du Plessis points out that text-based viewpoint prohibiting modification could result in incorrect and unjustifiable form of
judicial law-making
 When courts adopt interpretation that does not give effect to purpose, legislation is concretised in conflict with purpose
 Constitution replaces parliamentary sovereignty with constitutional supremacy, thus aim of legislation must be within
framework of Constitution
 Matiso v Commanding Officer, Port Elizabeth Prison: Courts are responsible to give content to values and principles in given
situation, and judges should recognise their function of judicial review, based on constitutional supremacy

Factors which support and limit judicial law-making during

statutory interpretation
 Factors ensures that courts apply their law-making function within boundaries set by core principle underlying modificative
interpretation, which is that purpose of legislation must support modification within constitutional framework
Restrictions on law-making discretion of the courts
 Principle of democracy is fundamental constitutional value, and courts are guardians of these values, but may not take over
constitutional role of legislature
 Separation of powers principle ensures state powers are shared between 3 branches of government, resulting in checks-and-
balances to curb abuse of power by government
 Common law presumption that legislature does not intend to change existing law more than necessary
 Rule of law principle and principle of legality
 Judicial officers are accountable for their actions on 3 levels:
- Personal responsibility
- Formal responsibility, consisting of constitutional and legislative control over judiciary
- Substantive accountability – judicial decisions are open for public debate and academic criticism
 Penal provisions or restrictive provisions in legislation and presumption against infringement of existing rights

Factors which support judicial law-making

 Reading-down principle: s 35(3) and 232(3) of interim Constitution provided that if legislation is on the face of it
unconstitutional, but reasonably capable of restricted interpretation which would be constitutional, such interpretation should
be followed. These provisions are not in final Constitution, but principles are well-known to constitutional interpretation
 S 39(2): during interpretation, courts must try to reconcile purpose of legislation with Constitution and Bill of Rights
 Bill of Rights is cornerstone of South African democracy and state must protect and promote rights in Bill of Rights (s 7) and
applies to all law and judiciary (s 8(1))
 Constitutional supremacy (s 2), thus no more parliamentary sovereignty
 Common law presumption that legislature does not intend legislation which is futile
 Independence of judiciary (s 165(2))

Possibilities during concretisation

 May be influenced by Constitution, because result of interpretation process may not be in conflict with it
 Modificative interpretation may only be applied if permitted by the purpose of legislation, which must be constitutional

No problems with correlation

 No difficulties applying provision to facts within framework of purpose and prescribed constitutional guidelines
 Majority of cases; interpretation and application appear to occur automatically
 Cases create wrong impression that interpretation comes into play only when plain meaning is ambiguous

Modification of the meaning necessary

 Modificative interpretation when initial meaning of text does not correspond to purpose or is in conflict with Constitution
 Ambiguity, vagueness, and absurdity are indicators that initial meaning should be modified; purpose of legislation is qualifier
 Judicial law-making, in the guise of modificative interpretation, is exception to the rule

Restrictive interpretation
 Applied when words of legislation embrace more than its purpose
 Meaning of provision is modified to give effect to true purpose

Restrictive interpretation in general

 Courts traditionally refer to the two specific forms (below) of restrictive interpretation
 Any interpretation which reduces a wider initial meaning of text to narrower purpose of legislation is restrictive interpretation

Cessante ratione legis, cessa et ipsa lex

 “If reason for the law ceases, the law itself falls away”
 Legislation cannot be abolished by custom or altered circumstances, thus this rule is not applied in SA law in its original form
 Legislation remains in force until repealed by competent legislature, but abrogation of common law by disuse is possible
 Cessante ratione rule only applicable to statute law, not common law
 Courts have applied this rule in its adapted form, where provisions were merely suspended as purpose of legislation had
already been complied with in another way; under these circumstances, it would have been futile to apply the legislation
 Court merely suspends the operation of legislation – it is not invalidated, nor repealed

Eiusdem generis
 “Of the same kind” based on principle of ‘birds of a feather flock together’
 Meaning of the word is qualified by their relationship with other words
 Apart from general requirements for modification, other prerequisites to be met before this rule is applied:
- Can only be applied if the words refer to a definite genus or category (common quality / denominator)
- Specific words must not have exhausted genus. In such a case, it is assumed that general words refer to a broader genus
and cannot be interpreted restrictively
- Can be applied even when a single word precedes the general words
- General words may precede, appear amongst, or follow specific words (order of words do not matter)
- Can only be applied if the legislature’s intention supports such a restrictive interpretation

Extensive interpretation
 Instances where purpose is broader than the initial textual meaning of the legislation
 Meaning is to be extended to give effect to the purpose
 Du Plessis states that traditionally courts were wary to extend initial meaning, because common law tradition of legislative
drafting was aimed at exhaustive and comprehensive enactments

Interpretation by implication
 Extending the textual meaning on the ground of a reasonable and essential implication which is evident from the legislation
 Express provisions are extended by implied provisions
 Indicators when provisions may be extended:
- Ex contrariis: implications arise from opposites. If legislation provides for a circumstance, it by implication provides
contrary provision of opposite circumstance. Principal expression of one thing by implication means exclusion of another
- Ex consequentibus: if legislation allows a certain result, everything which is reasonably necessary to bring about that
result may be implied. Bloemfontein Town Council v Richter
- Ex accessorio eius de quo verba loquuntur: if a principal thing is forbidden or permitted, accessory thing is also forbidden
or permitted
- A natura ipsius rei: implied inherent relationships (e.g., power to issue regulation implies power to withdraw it)
- Ex correlativis: arises from mutual reciprocal relationship (e.g., prohibiting purchase of something prohibits its sale)

Interpretation by analogy
 Extending legislative provisions expressly applicable to circumstances to other analogous cases not expressly mentioned
 Seldom applied by the courts

No modification of the meaning is possible

 If purpose is not clear or does not support modificative interpretation, legislature has to rectify errors or supply omissions
 If no modificative meaning is possible, the courts will have to apply the legislation as it reads
 Concretisation would be defective because the text, purpose, and facts would not fully be harmonised
 Law-making discretion of the judiciary is limited to the frame of reference of the purpose
 In these cases, common law may be used to complete concretisation process