Untitled

• Law

  Refers to all forms of law, including common law, statute, and indigenous law
• Parliamentary


  Consists of all forms of law enacted by legislative bodies with the authority to make laws
• Common law


  Unwritten customary law that was accepted by the courts in specific cases
• Statute law

  Written law enacted by legislative bodies
• Indigenous law

  Traditional law of the indigenous black people of South Africa, including unwritten customary law and codified legislation
• Judicial precedent


  The law as decided on by various courts in specific cases before them
• Stare decisis

  The principle that judgments of higher courts bind lower courts and courts of equal status
• Statutory interpretation


  The process of ascertaining the will or thoughts of the legislature from the words used
• Intention theory


  The fictional collective intent of the majority of the legislative body present at the time the vote took place
• Pre-1994 era


  Based on the sovereignty of parliament, where no court could test the validity of its acts
• Post-1994 constitutional order


  Replaced by constitutional supremacy, where the spirit and purport of fundamental rights had to be taken into account during interpretation
• Amend


  To make minor changes to a text, piece of legislation, etc. in order to make it fairer or more accurate, or to reflect changing circumstances
• Repeal


  To rescind or annul by authoritative act, especially to revoke or abrogate by legislative enactment
• Legislation


  Written law enacted by a body or person authorized to do so by the constitution or other legislation
• National legislation


  Legislation administered by the national government
• Provincial legislation


  Legislation administered by the provincial government
• Subordinate legislation

  Legislation made in terms of an act of parliament or a provincial act
• Retrospectivity


  Legislation only applies to the future, in line with the basic principle that one cannot be held retrospectively for disobeying a rule they didn't know existed
• Retroactivity


  Legislation operates as of a time prior to its enactment, having a "weak retro" effect
• Invalidation


  When a court applies legislation against the constitution and decides it is invalid, the legislation cannot be applied anymore and could create a legal vacuum
• Modification techniques


  Courts' attempts to save legislation during constitutional review by modifying or adjusting the act
• Repeal and substitution


  Presumption that legislation does not intend to change existing law, and should be interpreted in accordance with existing law, changing as little as possible
• Hermeneutics

  The science of understanding and interpretation of texts, aiming to determine the original meaning the author or legislature wanted to convey
• Critical legal studies movement (CLS)

  A school of thought that challenges the traditional approaches to legal interpretation
• Deconstruction

  A method of critical analysis that examines the underlying assumptions and biases in a text
• Linguistic turn

  The focus on the role of language in shaping our understanding of the world and legal texts
• Radioactive effect


  Provision which repeals all or portions of the law by a specific date
• Implied repeal

  Two enactments dealing with the same subject matter clash, the earlier one is repealed
• Case law: MEC for public works v morning star
• Repeal and substitution


  Presumption that legislation does not intend to change existing law, legislation is temporarily suspended, can apply sunset clause, legislation should be interpreted in accordance with existing law, changes as little as possible
• Common law is rebutted by legislation prescribing otherwise, and legislation did not intend to repeal or modify earlier act
• General rule of hermeneutics

  A science of understanding, interpretation of text, precepts of author originally wanted to say, exegesis, present day reader, meaning is derived from total use of language
• Critical legal studies movement (cls)

  Reaction to the inability of liberalism to solve problems, reaction against structuralism, meaning of language can be reformulated, meaning is subjective to number of interpretations, meaning is not discovered in text, dealing with the text, possibility for meaning are boundless
• Deconstruction


  The linguistic turn, meaning is not ascertained and pinned down from its grammatical structure
• Orthodox text-based approach


  Interpreter concentrates on the literal meaning of the provision, meaning is vague, court may deviate from literal meaning, meaning of the text is clear should be applied
• Legal positivism


  The essence of law in the decree, sovereign
• Parliament


  The will of parliament is expressed in legislation, predominant before constitution 1994
• Introduction of textual approach in SA, De Villiers v. Cape divisional council, ruled: British rules of interpretation
• 1996 constitution using stringent text-based approach, Union Government V. Mack, intention of legislation should be deducted, plain meaning of text
• Legal precedence for text-based approach, Bhyat v. Comissioner for immigration (1932), plain meaning of language should be adopted