STUDY UNIT 5

• Housekeeping Rules


  • Always attend classes
  • Prepare before attending the contact sessions
  • Familiarise yourself with module outcomes
  • Participate in the sessions
  • Use study guide as a reference when studying and preparing
• Preparation for the next Lecture

  Read Botha Statutory Interpretation Chapter 5 and consult the study unit 5 in the SG
• Module outcomes


  • Detailed knowledge and understanding of general hermeneutics and the practical importance thereof for statutory interpretation with reference to the hermeneutical circle
  • Detailed knowledge and understanding the influence of critical and sceptical theories and the relevance thereof for statutory interpretation
  • Detailed knowledge and understanding of the South African approaches to statutory interpretation and the influence of the supreme Constitution on statutory interpretation
  • Ability to analyse and evaluate the practical importance thereof for statutory interpretation with reference to the hermeneutical circle
  • Ability to provide accurate and coherent written and verbal communication on the practical importance thereof for statutory interpretation with reference to the hermeneutical circle
  • Critical understanding of the ethical implications of judicial approaches to legal interpretation
  • Ability to analyse and evaluate the ethical implications of judicial approaches to legal interpretation
  • The knowledge, understanding and respect for intellectual property conventions, copyright and rules on plagiarism
• Hermeneutics


  The science of understanding, or more specifically, the theory of the interpretation of texts
• Hermeneutics is the art of understanding: the techniques, methods or approaches used to interpret texts
• In its broader sense, hermeneutics applies to all forms of written or spoken communication
• Critical legal scholars reject the formalist position that law is rational, objective and neutral. They argue that all law is not rational: it is subjective and ideological
• Types of amending legislature

  • Postmodernism
  • Critical Legal Studies movement (CLS)
• Postmodernism


  • Argues that the utopian promises of the modern world-view came to nothing
  • Rejects the idea that classifications and categories can be correct and final, and the notions of both objectivity and subjectivity are questioned: ultimately, everything (including knowledge) is relative, temporary and incomplete
• Critical Legal Studies movement (CLS)

  Originated in reaction to the inability of liberalism to solve social problems such as poverty, racism, pluralism and oppression
• Deconstruction


  Should be understood as a reaction against structuralism
• Linguistic turn


  • Meaning is not discovered in a text, but is made in dealing with the text
  • Meaning is never, at any given point in time, a fixed and stable presence
  • The possibilities for meaning are boundless
  • Language is the hyper-complex, boundlessly open system that makes such a proliferation of meaning possible
• South African theories of interpretation

  • Text-based approach
  • Text-in-context approach
• Text-based approach


  • If the meaning of the text is clear (the plain meaning), it should be applied, and, indeed, equated with the legislature's intention
  • If the plain meaning of the words is ambiguous, vague or misleading, or if a strict literal interpretation would result in absurd results, then the court may deviate from the literal meaning to avoid such an absurdity
  • Only when these secondary aids to interpretation prove insufficient to ascertain the intention, the courts will have recourse to the so-called tertiary aids to construction (ie the common law presumptions)
• Text-in-context approach


  • The purpose or object of the legislation (the legislative scheme) is the prevailing factor in interpretation
  • The context of the legislation, including social and political policy directions, is also taken into account to establish the purpose of the legislation
• Since 27 April 1994, the (largely academic) debate about a text-based approach versus a text-in-context approach to statutory interpretation has become irrelevant
• Statutory interpretation (like all law in South Africa) must now be conducted within the value-laden framework of the supreme Constitution which is the highest law of the land
• Provisions of the Constitution that transformed the interpretation of statutes

  • Section 1 (the foundational provision)
  • Section 2 (supremacy of the Constitution)
  • Section 7 (the obligation clause)
  • Section 8 (the application clause)
  • Section 36 (the limitation clause)
  • Section 39 (the interpretation clause)
• Section 1 of the Constitution

  The foundational clause that establishes human dignity, the achievement of equality, non-racialism and non-sexism, the supremacy of the constitution and the rule of law, and a multi-party system of democratic government
• Section 2 of the Constitution


  The constitutional supremacy clause that states this Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled
• Section 39(2) of the Constitution (the interpretation clause)


  When any legislation is interpreted, the result must be a construction that promotes 'the spirit, purport and objects of the Bill of Rights
• The supreme Constitution, underpinned by universally accepted values and norms, is the fundamental law in the land and the ultimate value-laden yardstick against which nearly everything is viewed and reviewed
• A supreme constitution is not merely another legislative document but the supreme law (lex fundamentalis) of the land
• A constitutional state (which has a supreme constitution) is underpinned by a formal foundation (such as separation of powers, checks and balances, and legality) and a material or substantive foundation (such as a system of fundamental values like justice and equality)
• Components of a practical, inclusive method of interpretation

  • Words and phrases: the language aspect
  • Structure and context: the systematic aspect
  • Teleological interpretation: the value-based aspect
  • Historical aspect
  • Comparative aspect