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    Cards (19)

    • Law
      A history of South African Law
    • Where can you look up South African Law?
      • The South African court
      • Hierarchy
    • Chapter 3 is about Interpreting Statutes
    • Example of legislation
      • Companies Act
    • Why do we need to interpret statutes?
      • Statutes contain many provisions
      • A provision is a specific requirement or condition or rule about something that the statute aims to regulate
      • Interpretation difficulties may arise
      • Provisions may differ – use of different terms (cancellation fee/charge/penalty?)
      • May be unconstitutional
      • Change with surrounding circumstances
      • Words may be unclear and ambiguous
    • What does it mean to interpret a statute?
      • Interpreting a statute involves finding the purpose and aims of a piece of legislation – within the context of a factual situation
      • I.e., what was the intention of the legislature in creating a particular statute
      • Duty of courts to determine aforementioned
    • Role of Constitution
      • Parliamentary sovereignty: intention of Parl as expressed in the words of the statute
      • Now: S 2 – Constitution is supreme
      • S1: founding values on which State is based, including Dignity, equality, freedom, Supremacy of the Constitution, Democratic government, accountability & openness
      • S 7 (2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights
      • S 8 (1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state
      • S 39(2) important for interpretation purposes when interpreting any legislation, a court must promote the spirit, meaning and objects of the Bill of Rights
      • S 36 – provides for the limitation of rights contained in the Bill of Rights by way of laws of general application in reasonable and justifiable circumstances
    • Theories/Approaches to Statutory Interpretation
      • Textual/Literal approach
      • Systematic approach
      • Purposive approach
      • Contextual approach
      • Historical approach
      • Teleological approach
    • Textual/Literal approach
      • Focus on the words
      • Literal or plain or ordinary grammatical meaning
      • Authoritative dictionaries can be used to determine meaning
      • Golden rule is employed which basically holds that the ordinary meaning must be given to words unless this would lead to an absurdity or a result contrary to the intention of the legislation. If results are absurd, golden rule permits interpreter to look further/beyond literal meaning to render it effective, intelligible and valid.
    • Systemic approach

      • Statute must be read in their entirety to ensure that the text used in the Act is understood in its context, as a whole
      • Definition section of the Act is a good starting point
    • Purposive approach

      • Broader view of interpretation (Mischief rule: what is the 'mischief' the Act is trying to remedy?)
      • Attempts to make sense of the reason and purpose of statute in light of the contextual environment such as social, political or economic basis of the statute
      • Modern legislation expressly state its purpose/aims
      • Eg: Consumer Protection Act
    • Contextual Approach
      Consider context of statute to determine who it applies to and the real-life circumstances that the statute applies to, taking into account the historical and political background that led to its enactment, contents of statutes and any commission reports.
    • Historic Approach

      • Determine mischief that the statute was enacted to deal with
      • This approach allows the historical or political situation from which the rule became law to be studied in order to clarify the intention of the legislature
    • Teleological approach
      Courts must probe deeper into the meaning behind the statute – for example, look into long title and preamble in Act.
    • Natal Joint Municipal Pension Fund v Endumeni Municipality (2012 4 SA 593 (SCA)), the SCA (Wallis JA): 'Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document.'
    • Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA): 'Interpretation is the process of attributing meaning to the words in the document, be it legislation or some other statutory instrument or contract … the process of interpretation requires consideration of the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears and the apparent purpose to which it is directed … an interpretation which renders the meaning or use of some words and phrases meaningless is to be avoided.'
    • Interpretation aids - Internal aids
      • Must begin with the statute itself
      • Statutes consists of many parts which may help interpret or set out intention e.g. long title; preamble, definitions section, purpose/interpretation/application sections etc.
    • Interpretation aids - Presumptions
      • Still uncertainties after using the approaches, courts can apply common law presumptions
      • Presumptions are essentially rules of "common sense". Assumptions that courts automatically recognise as being valid and true
      • Presumptions are rebuttable
      • Eiusdem generis rule – which is basically used to decide whether a particular fact is included in a list or group of things mentioned in a statute
      • Examples: presumption in favour of natural justice (i.e procedural fairness), legislature is presumed not to intend unreasonable or unjust consequences, legislation is presumed to apply only prospectively, presumption against excluding the jurisdiction of the superior courts, presumption against futile or meaningless provisions, presumption that legislation does not change existing law unnecessarily, presumption that same words used in different places in the same statute has the same meaning
    • Other rules
      • Eiusdem generis rule - legislation may provide a list of specific items and then a general item, eg: "motorcars, motorcycles and any other vehicle". Is a bicycle included? Look at characteristics of those specifically mentioned – bicycle does not have engine – not included
      • Contra proferentem - if a document is ambiguous it is construed against person who drafted it
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