Legal interpretation in South Africa

Last updated

Legal interpretation in South Africa refers to the juridical understanding of South African legislation and case law, and the rules and principles used to construct its meaning for judicial purposes. [1] Broadly speaking there are three means by which and through which South African scholars and jurists construe their country's statutory law: linguistics or semantics, common law and jurisprudence. Although statutory interpretation usually involves a personal predisposition to the text, the goal is generally to "concretise" it: to harmonise text and purpose. This is the final step in the interpretative process. [2] Statutory interpretation is broadly teleological, comprising as it does first the evaluation and then the application of enacted law.

Contents

Statute law

Statute law is written law enacted by a person or a body empowered by the Constitution or other legislation to do so. [3] The Interpretation Act [4] defines it as "any law, proclamation, ordinance, Act of Parliament or other enactment having the force of law." [5] The Constitution of South Africa, which has the force of supreme law, [5] and as such sets the standards and requirements for the construction and construal of statutes, also provides a definition of statute law, distinguishing between national and provincial legislation:

There are a large number and variety of statutes in South Africa—including Acts, ordinances, proclamations, by-laws, rules and regulations. [2] [7] As of 1993, statute law is to be found on all three levels of government (national, provincial and local), and as such affects every governmental sphere, and although generally referred to as "public law" may be applicable to any legal area. Statutes derive binding force from their creators or legislators, who are empowered by the Constitution, and serve broadly to regulate the modern state. The Constitution provides a guide on how to read statutes and construe the common law: "When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights." [8] In general, its function is to promote the public interest.

Among the advantages of statute law is that legislation is accessible and therefore broadly "knowable;" that it is dynamic and flexible, and so easily amended; and that it promotes legal certainty, with a formal procedure required for its repeal. Among its disadvantages is that, under a common-law system, legal certainty is frequently an illusion; it often falls to the courts to give "official" meaning. There is also a danger of over-legislating, which can limit the development of a legal system and sometimes even undermine basic principles of fairness and justice, as with the misuse or abuse of legislative power for the ends of social engineering.

Classification of legislation

Chronological

Pre-1806

The oldest surviving statutes in South Africa are the old colonial Dutch placaaten , which are regarded as common law, and for whose demise no formal procedure is necessary. [9] They are abrogated by disuse. [10]

Old-order legislation

Old-order legislation is defined in terms of the Constitution as "legislation enacted before the previous Constitution took effect." [11]

Pre-Union (1806–1910)

Laws enacted prior to the establishment, in 1910, of the Union of South Africa, and after the 1806 British annexation of the Cape, have mostly been repealed or incorporated into other legislation. [9]

Between Union and the democratic era (1910–1994)

Legislation enacted after 1910, but before the current constitutional dispensation, still forms a substantial—indeed predominant—part of the current body of statute law in South Africa. [9]

New-order legislation

New-order legislation refers to the whole body statute law enacted in South Africa since 1994. It includes both the Interim Constitution and the current Constitution of 1996, under which all such legislation has been enacted, and with which all legislation must be compatible if it is to be valid.

Hierarchy and status

Before 1994 and the new era of constitutionalism, it was Parliament rather than the Constitution which enjoyed supremacy. Statutes were divided simply into original legislation (Acts of Parliament) and subordinate legislation (such as regulations and proclamations). [12] Now, however, the Constitution is supreme, and all other legislation subordinate to it. [13] Today legislation is divided according to its status and its position in the hierarchy.

Hierarchy

"Hierarchy" is classification of legislation according to the level of government (national, provincial or local) whereat it is passed. Statutes which prevail over others are "superior" to them, and superior statutes can be either original or delegated,—see below—even within one level of government. In certain circumstances, however, in certain levels of government, delegated legislation is always subordinate; likewise the Constitution, "not passed by Parliament, but [...] adopted by the Constitutional Assembly," [14] is always supreme, in that any law inconsistent with it is invalid, and in that the obligations it imposes must be fulfilled. [15] [16]

Original legislation/Primary Legislation
  • Parliament is South Africa's highest legislator, its original powers bestowed by the Constitution. [17] Some Acts of Parliament give effect to specific human rights, and are created by specific mandate in the Constitution. [16] These are superior to all other legislation, but subordinate to the Constitution. The Promotion of Access to Information Act, [18] for example, is constitutionally prescribed, [19] and over-rides all other legislation that "is materially inconsistent with an object, or a specific provision, of this Act." [20]
  • The original power for new Provincial Acts (those passed since 1994) is derived directly from the Constitution. [21]
  • Some provincial ordinances, passed between 1961 and 1986, are still in force. Given that they were enacted by an elected body, could alter the common law and could even have retrospective force, they clearly represent a category of original legislation. A provincial ordinance only applies now in the "old" geographical region of the relevant former province. [22]
  • The self-governing former homelands enjoyed concurrent legislative powers in South Africa with the central government, although there were certain limitations on their legislators. Defence and foreign policy, for example, were outside of their legislative competence. [23]
  • The legislation of the former TBVC states (Transkei, Bophuthatswana, Venda and Ciskei) is still valid in the applicable areas, as these states have since been re-incorporated into South Africa.
  • New municipal legislation or "by-laws", enacted since 1993, derive their original power from the Constitution. [24]
Delegated legislation

Acts of Parliament and other original legislation are often drafted in skeleton form, as the legislative bodies responsible are not able to account continuously for every change in South African society which such legislation would be required to accommodate. Delegated legislation "adds the flesh;" [25] it is "legislation by administration." [26] An original statute thus "orders" (in an enabling provision) that legislation be drafted, usually at a lower level of government, to address certain aspects of what the original statute is supposed to remedy.

Existing provincial proclamations and regulations (1968–1994) include those issued by the Provincial Councils and, since 1986, the Provincial Administrator, who

  • issues proclamations to amend or repeal provincial legislation; and
  • issues regulations under and in terms of existing provincial legislation.

New provincial proclamations and regulations (since 1994) are issued to fulfil the requirements of the prescribing Act, to "add flesh" to it.

Other proclamations and regulations may be made or issued by the conferral of delegated powers. A cabinet minister may be authorised to make regulations according to a prescribing statute: for example, section 75 of the National Road Traffic Act, [27] which so empowers the Minister of Transport.

The minister may also empower or authorise another statutory body or person to make such regulations. University councils, for example, and the South African Towing and Recovery Association are so authorised. The Chief Justice, for another example, prescribes the Rules of the Constitutional Court.

Citation of legislation

Structure of legislation

The use or consideration of the structure of legislation for the purposes of interpretation is known as the systematic or contextual method of statutory interpretation.

Long title

The long title is a short summary of the content of the statute.

Preamble

Not every statute has a preamble, but many do. It may be useful in furnishing details of the circumstances, the background and reasons for the creation of the statute.

Enacting provision

The enacting provision of a statute acknowledges the legislator and authority responsible (be it national, provincial or municipal).

Definitions

The definitions of terms or words or concepts in the Act are usually included in an "internal dictionary," to be found in the opening section of the Act itself.

Purpose and interpretation clauses

Purpose and interpretation causes are mostly to be found in new-order legislation. They state the purpose of the Act and prescribe how it ought to be interpreted.

Short title and commencement

The short title is usually included in the final section. It is the official "name" of the Act. An obvious example would be "Interpretation Act 33 of 1957."

Included in the final section also will usually be an indication of the commencement date of the statute. If no such date is given, it may be found in the relevant gazette.

Schedules

Schedules provide auxiliary detail and other information additional to the text of the Act, as is the case, for example, in the Constitution, with its seven schedules.

Chapters

Chapters are normally to be found in longer statutes. They are sometimes also called "parts." They are not usually referred to in citation, however; scholars and judges cite instead the relevant sections and subsections of the Act. The rationale for this is that, while not all statutes have chapters, they are almost always divided into sections. This promotes uniformity.

Numbers

Examples of a statute number include the Interpretation Act 33 of 1957 and Proclamation R255 of 7 October 1977. Statutes are numbered by the order of their signature or assention by the President, not in order of their publication or enactment.

Citation of original legislation

National legislation is cited by its short title and number (as above). The same applies to provincial legislation, but with reference to the relevant province: for example, "Eastern Cape Provincial Tender Board Act 2 of 1994." The Constitution is usually cited as "Constitution of the Republic of South Africa, 1996," while the Interim Constitution is cited as "Constitution of the Republic of South Africa Act 200 of 1993."

It is now generally agreed that the final Constitution of 1996 ought, in recognition of its supreme status, not to be cited with its statute number (although it has one). [28]

In the citation "s 2(a)(i)(cc),"

"s 2A" would refer to a new section inserted in terms of an amendment.

Citation of delegated legislation

Delegated legislation usually has no official short title. Regulations issued by GN R999 GG 174254 of 28 June 1996, under s 56 of Aliens Control Act 96 of 1991, for example, would be known broadly as "Aliens control regulations."

Proclamations

In the citation of proclamations, one should cite the number and the year of promulgation: for example, Proclamation R255 [GG 5766 of 7 October] of 1977. Proclamations are divided into sections, sub-sections and paragraphs.

Regulations

Regulations are promulgated by Government Notices: for example, GN R1412 of 2003, which issued explosives regulations in terms of the Explosives Act. [29] They are divided into (individual) regulations, sub-regulations and paragraphs.

By-laws

By-laws are passed by municipal councils. Such councils can also promulgate original legislation, however, because they are representative and deliberative legislative bodies.

In Fedsure v Greater Johannesburg , [30] the court held that, although the detailed powers and functions of local governments have to be determined by the laws of a competent authority, this does not mean that the powers they exercise are "delegated." Nor does it prevent those powers from being regarded as "original" and not "delegated." [31]

By-laws are divided into sections, sub-sections and paragraphs.

Rules

Examples of rules include the Uniform Rules of the High Court and the Magistrates' Court Rules. These are divided into (individual) rules, sub-rules and paragraphs.

Influence of the Bill of Rights

Section 39(2) of the Constitution of South Africa provides that, "When interpreting any legislation... every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights." Section 39(2) has far-reaching implications for statutory interpretation, especially in the context of constitutional litigation. [32] Per Investigating Directorate: Serious Economic Offences v Hyundai Motors , "all statutes must be interpreted through the prism of the Bill of Rights" in the "spirit of transition and transformation [that] characterises the constitutional enterprise as a whole". [33] : 21–22 

One consequence of this approach is that, in any case where more than one interpretation of a statutory provision is possible, the court must prefer the interpretation that "best" promotes the Bill of Rights, even if none of the available interpretations would render the provision unconstitutional. [34] : 84  In particular, in disputes about the constitutionality of a statute, section 39(2) has been taken to mandate a method of statutory interpretation known as "reading down". [35] Under this method, the court investigates whether a given statutory provision is "reasonably capable" of an interpretation under which the provision is constitutionally compliant and does not limit constitutional rights. If such an interpretation is available, the court is required to prefer it. This exercise – of awarding preference to constitutionally compliant interpretations – was explicitly set out in section 35(2) of the Interim Constitution. Though the same requirement does not appear in the Constitution of 1996, it remains a requirement of constitutional law; as Justice Laurie Ackermann held in De Lange v Smuts, the method of "reading down" simply expresses "a sound principle of constitutional interpretation" with broad acceptance in other constitutional democracies. [36] : 85 

The authoritative statement of the "reading down" method is Justice Sandile Ngcobo's judgment in Investigating Directorate (in which the court "read down" a provision of the National Prosecuting Authority Act to interpret the word "suspicion" as meaning "reasonable suspicion"). In that judgment, the Constitutional Court noted that the method is bounded by the requirement that the ultimate interpretation should be reasonable and not "unduly strained". [33] : 21–26  Indeed, shortly before Investigating Directorate was handed down, the court had concluded in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs that the wording of another provision (section 25(5) of the Aliens Control Control Act, 1996) did not accommodate a constitutionally compliant "reading down". [37] : 23–26  Another prominent case involving the method, decided during the same period, was Daniels v Campbell .

Under the principle of avoidance, a court will generally attempt to interpret legislation in conformity with the Bill of Rights before considering the direct application of the Bill of Rights. If an impugned provision can be read down as constitutional, the challenge to its constitutionality must fail, as it is consistent with the Constitution. On the other hand, if the only plausible interpretation of a statutory provision is one that entails an infringement of the Bill of Rights, then the court must proceed to apply the Bill of Rights directly to ascertain whether the infringement is justifiable. [32] This sequence was summarised in Govender v Minister of Safety and Security, where the Supreme Court of Appeal set out a five-part formula for resolving constitutional challenges to legislation. In the first three steps, the judicial officer must examine the objects and purport of the statute under consideration; examine the ambit and meaning of the rights protected by the Constitution; and ascertain whether it is reasonably possible to interpret the statute in such a manner that it conforms to the Constitution (by protecting the rights protected therein). At that juncture, if such an interpretation is possible, the judicial officer must give effect to it; if it is not possible, he initiates steps leading to a declaration of constitutional invalidity. [38] : 11 

See also

Related Research Articles

<span class="mw-page-title-main">Constitution of Canada</span>

The Constitution of Canada is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents are an amalgamation of various codified acts, treaties between the Crown and Indigenous Peoples, uncodified traditions and conventions. Canada is one of the oldest constitutional monarchies in the world.

<span class="mw-page-title-main">Law of Canada</span>

The legal system of Canada is pluralist: its foundations lie in the English common law system, the French civil law system, and Indigenous law systems developed by the various Indigenous Nations.

The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of patriating the constitution, introducing several amendments to the British North America Act, 1867, including re-naming it the Constitution Act, 1867. In addition to patriating the Constitution, the Constitution Act, 1982 enacted the Canadian Charter of Rights and Freedoms; guaranteed rights of the Aboriginal peoples of Canada; entrenched provincial jurisdiction over natural resources; provided for future constitutional conferences; and set out the procedures for amending the Constitution in the future.

Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward meaning. But in many cases, there is some ambiguity in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose. In common law jurisdictions, the judiciary may apply rules of statutory interpretation both to legislation enacted by the legislature and to delegated legislation such as administrative agency regulations.

<span class="mw-page-title-main">Australian legal system</span>

The legal system of Australia has multiple forms. It includes a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. Its legal institutions and traditions are substantially derived from that of the English legal system, which superseded Indigenous Australian customary law during colonisation. Australia is a common-law jurisdiction, its court system having originated in the common law system of English law. The country's common law is the same across the states and territories.

Canadian constitutional law is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the courts. All laws of Canada, both provincial and federal, must conform to the Constitution and any laws inconsistent with the Constitution have no force or effect.

In law, coming into force or entry into force is the process by which legislation, regulations, treaties and other legal instruments come to have legal force and effect. The term is closely related to the date of this transition. The point at which such instrument comes into effect may be set out in the instrument itself, or after the lapse of a certain period, or upon the happening of a certain event, such as a proclamation or an objective event, such as the birth, marriage, reaching a particular age or death of a certain person. On rare occasions, the effective date of a law may be backdated to a date before the enactment.

Chapter Two of the Constitution of South Africa contains the Bill of Rights, a human rights charter that protects the civil, political and socio-economic rights of all people in South Africa. The rights in the Bill apply to all law, including the common law, and bind all branches of the government, including the national executive, Parliament, the judiciary, provincial governments, and municipal councils. Some provisions, such as those prohibiting unfair discrimination, also apply to the actions of private persons.

A reception statute is a statutory law adopted as a former British colony becomes independent by which the new nation adopts, or receives, the English common law before its independence to the extent not explicitly rejected by the legislative body or constitution of the new nation. Reception statutes generally consider the English common law dating prior to independence, as well as the precedents originating from it, as the default law because of the importance of using an extensive and predictable body of law to govern the conduct of citizens and businesses in a new state.

In Canada, the term quasi-constitutional is used for laws which remain paramount even when subsequent statutes, which contradict them, are enacted by the same legislature. This is the reverse of the normal practice, under which newer laws trump any contradictory provisions in any older statute.

The equal authenticity rule is a rule of judicial interpretation developed by Canadian courts as a way of interpreting laws written in parallel French and English texts. The constitution of Canada requires that both versions of each bilingual law be treated as equally authoritative, which can result in problems when the English and French versions are incongruent. The equal authenticity rule is derived from section 133 of the Constitution Act, 1867, which states that "The Acts of the Parliament of Canada and the Legislature of Quebec shall be printed and published in both those Languages."

South African constitutional law is the area of South African law relating to the interpretation and application of the Constitution of the Republic of South Africa by the country's courts. All laws of South Africa must conform with the Constitution; any laws inconsistent with the Constitution have no force or effect.

<i>Coetzee and Matiso</i> 1995 South African legal case

Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others is an important case in South African law, with an especial bearing on civil procedure and constitutional law. It concerned the constitutional validity of certain provisions of the Magistrates' Courts Act. It was heard, March 6, 1995, in the Constitutional Court by Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J and Sachs J. They delivered judgment on September 22. The applicant's attorneys were the Legal Resources Centres of Cape Town, Port Elizabeth and Johannesburg. Attorneys for the first and second respondents in the Coetzee application were the State Attorneys of Cape Town and Johannesburg, and Du Plessis & Eksteen for the Association of Law Societies. IMS Navsa SC appeared for the applicants in both matters, D. Potgieter for the first and second respondents in the Coetzee matter, and JC du Plessis for the Association of Law Societies.

<span class="mw-page-title-main">South African environmental law</span> Legal rules relating to management of the environment

South African environmental law describes the legal rules in South Africa relating to the social, economic, philosophical and jurisprudential issues raised by attempts to protect and conserve the environment in South Africa. South African environmental law encompasses natural resource conservation and utilization, as well as land-use planning and development. Issues of enforcement are also considered, together with the international dimension, which has shaped much of the direction of environmental law in South Africa. The role of the country's Constitution, crucial to any understanding of the application of environmental law, also is examined. The National Environmental Management Act (NEMA) provides the underlying framework for environmental law.

South African administrative law is the branch of public law which regulates the legal relations of public authorities, whether with private individuals and organisations or with other public authorities, or better say, in present-day South Africa, which regulates "the activities of bodies that exercise public powers or perform public functions, irrespective of whether those bodies are public authorities in a strict sense." According to the Constitutional Court, administrative law is "an incident of the separation of powers under which the courts regulate and control the exercise of public power by the other branches of government."

New Clicks South Africa (Pty) Ltd v Tshabalala-Msimang and Another NNO; Pharmaceutical Society of South Africa and Others v Tshabalala-Msimang and Another NNO 2005 (2) SA 530 (C) is an important case in South African administrative law. However, note that this case went on appeal, first to the Supreme Court of Appeal and thereafter to the Constitutional Court, where the various judgments of Chaskalson, Ngcobo, Sachs, Moseneke and others had far-reaching effects on administrative law in South Africa. This article discusses the first hearing of this matter in the Cape Provincial Division. The final judgment is listed on SAFLII as Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others [2005] ZACC 14.

<span class="mw-page-title-main">Judicial review in South Africa</span>

The South African judiciary has broad powers of judicial review under the Constitution of South Africa. Courts are empowered to pronounce on the legality and constitutionality of exercises of public power, including administrative action, executive action, and the passage of acts of Parliament. Though informed by the common law principles that guided judicial review during the apartheid era, contemporary judicial review is authorised by and grounded in constitutional principles. In the case of administrative action, it is also codified in the Promotion of Administrative Justice Act, 2000.

In law, South African constitutional litigation is the area dealing with the rules and principles concerning constitutional matters in the country of South Africa. It includes the jurisdiction of the Constitutional Court of South Africa, the High Court of South Africa, the Supreme Court of Appeal of South Africa, and certain other specialist courts. It also includes the consideration of rules peculiar to these courts that are relevant to constitutional litigation, such as the admission of an amicus curiae, the duty to raise a constitutional matter as early as possible in proceedings, and the duty to join the relevant organ of state in a case involving a constitutional issue.

<span class="mw-page-title-main">Section 93 of the Constitution Act, 1867</span> Provision of the Constitution of Canada

Section 93 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to education. It gives the provinces a broad legislative jurisdiction over education. Section 93 also contains guarantees of publicly funded denominational and separate schools for Catholic or Protestant minorities in some provinces.

References

Books

Statutes

Cases

Notes

  1. ↑ Botha 1.
  2. 1 2 Botha 5.
  3. ↑ Botha 11.
  4. ↑ Act 33 of 1957.
  5. 1 2 s 2.
  6. ↑ s 239.
  7. ↑ Constitution ss 101(3), 140(3).
  8. ↑ s 39(2).
  9. 1 2 3 Botha 12.
  10. ↑ R v Patz.
  11. ↑ Schedule 6, item 1.
  12. ↑ Botha 13.
  13. ↑ Constitution, s 2.
  14. ↑ Citation of Constitutional Laws Act, preamble.
  15. ↑ Constitution ss 2, 39(2), 172.
  16. 1 2 Botha 14.
  17. ↑ ss 43(a), 44.
  18. ↑ Act 2 of 2000
  19. ↑ s 32(2).
  20. ↑ s 5.
  21. ↑ s 43(b), 104.
  22. ↑ Botha 15.
  23. ↑ Botha 15–16.
  24. ↑ s 156.
  25. ↑ Hahlo & Kahn 163.
  26. ↑ Botha 16.
  27. ↑ 93 of 1996.
  28. ↑ See Citation of Constitutional Laws Act 5 of 2005.
  29. ↑ Act 26 of 1956.
  30. ↑ 1999 (1) SA 374 (CC).
  31. ↑ Para 39.
  32. 1 2 Currie, Iain; Waal, Johan De (2013). The Bill of Rights Handbook. Juta. ISBN   978-0-7021-9999-8.
  33. 1 2 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC).
  34. ↑ Wary Holdings (Pty) Ltd v Stalwo 2009 (1) SA 337 (CC) .
  35. ↑ Bishop, Michael; Brickhill, Jason (2012). "In the Beginning Was the Word: The Role of Text in the Interpretation of Statutes". South African Law Journal. 129: 681.
  36. ↑ De Lange v Smuts NO and Others 1998 (3) SA 785 (CC).
  37. ↑ National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC).
  38. ↑ Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA).
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.