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12 views4 pages

Notes 2

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u23599392
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Legal Interpretation (RVW210)

Study Theme 1: Introduction – Important terms and concepts


Week 2 (26 February – 1 March 2024) Adv N Ncame
___________________________________________________________________________
Class Notes
___________________________________________________________________________
Lecture 2
Prescribed Material for Study Theme 1:
• Textbook chapter 1, page 3–14;
• Botha, CJ & Bekink, B ‘Aspects of legislative drafting: Some South Africa realities
(or, plain language is not always plain sailing)’ (2007) Statute Law Review 34;
• Le Roux, W ‘Undoing the past through statutory interpretation: The Constitutional
Court and apartheid marriage laws’ (2005) Obiter 526;
• Citation of Constitutional Laws Act, 5 of 2005;
• Interpretation Act, 33 of 1957.
___________________________________________________________________________
1. Introduction
This is the second lecture for RVW210, and the last for Study Theme 1. In lecture 1 we
contextualised the subject of Legal Interpretation as part of the broader discipline of law. We
also briefly examined the content and importance of statutory interpretation and looked at a
few important concepts and terminology.

In this lecture, building on lecture 1, we will look at legalese and the move toward plain writing
in legal documents. We will also examine the impact of the new constitutional order (post-
1994) on legal interpretation. Finally, we will shortly look at the prescribed texts for Study
Theme 1, to aid students in their preparation thereof for assessment purposes.

2. Legalese and plain writing


The term ‘legalese’ refers to the perplexing and specialised language (or social dialect) used
by lawyers in legal documents, incomprehensible to the non-lawyer. It has been described as
“the language of lawyers that they would not use in ordinary communications but for the fact
that they are lawyers”. Legalese is characterised by wordiness, Latin expressions, passive
verbs, lengthy sentences and legal doublets (such as ‘null and void’ or ‘fit and proper’).
Worldwide there is an increasing call that legal practitioners should do away with the
confusing, convoluted and complex language that is inaccessible to non-lawyers (and
sometimes even lawyers). Understanding the language of law is of course the core of RVW210.

In this regard students have to also refer to the article by Botha and Bekink, as set out under
paragraph 6.2 below.
3. The new constitutional order
For many years statutory interpretation in South Africa – especially in the late 1970s and 1980s
– was unsystematic, saddled with a confusing system of maxims and canons of interpretation,
tentative principles, a golden rule, overriding principles etcetera. The intention of the
legislature was always sought, with a complicated system (often with contradictions) through
which it had to be ascertained.

Since the dawn of the new constitutional era in 1994, this position has changed. The shift from
a sovereign parliament to a sovereign constitution (lex fundamentalis) had far reaching
implications for the entire legal structure, including Legal Interpretation. Although parliament
remains the highest legislative body in any democratic system of government, legislation or an
act of the government has to be evaluated against the entrenched provisions of the supreme
constitution. Constitutional supremacy is however not the same as judicial supremacy. With a
supreme constitution, courts obtained a new authority namely to scrutinise the validity of
legislation against the supreme constitution. Nevertheless, they are still bound by the provisions
therein. In short: the Constitution is supreme; the courts are merely the final guardians of its
values and principles.

Six provisions of the Constitution are of fundamental importance for statutory interpretation.
They are: section 1 (foundational provision); section 2 (the supremacy clause); section 7 (the
obligation clause); section 8 (the application clause); section 36 (the limitation clause); and
section 39 (the interpretation clause). These sections will be discussed in detail in the coming
study themes, but it is already important now that students will familiarise themselves with the
scope and content thereof.

4. The Citation of Constitutional Laws Act


Botha explains that a supreme constitution, such as that of South Africa, is more than just
another piece of legislation. A supreme constitution is the lex fundamentalis – the supreme law
of the land. To reflect this position, the citation of the South African Constitution was changed.
Where the Constitution originally had an Act number (108 of 1996), this was altered through
the Citation of Constitutional Laws Act.
In terms of this Act the one and only correct citation of the Constitution is: Constitution of the
Republic of South Africa, 1996. This citation accurately reflects the Constitution as superior to
other pieces of legislation. Students are required to not only to cite the Constitution correctly,
but also to understand the decision to adopt the Citations Act. For this reason, the Act is
prescribed material.

5. The Interpretation Act


The Interpretation Act is, save for the Constitution, the most important legislation for purposes
of this course. Students will be required to know several section numbers off by heart for test
and examination purposes. Students should also take note that this Act is not only old-order
legislation, but a relatively old piece of legislation. Attempts to re-write this Act have thus far
been unsuccessful. Students may also be asked to critically comment on the importance and
relevance of this Act in South Africa in 2024.

6. The prescribed articles


Two articles have been prescribed for Study Theme 1, first that of Botha and Bekink and the
second by Le Roux. These articles have also been made available on ClickUP. Students are
required to read these articles, and can be assured that they will be tested on the content thereof.
To aid students in their understanding of the relevance of these articles, I will shortly discuss
the aspects that have to be paid specific attention to. Be warned: The discussion here below is
not sufficient for purposes of test or examination.

6.1 Botha and Bekink


This article provides a very good overview of the most important terminology used in Study
Theme 1 and 2. Moreover, this article highlights (and illustrates) the difficulties with
interpretation, underscores the need for plain-language drafting but also explains the difficulty
thereof (with a specific focus on South Africa).

Students are required to read this article and to summarise the essence of it. Students will be
expected to air considered and balanced opinions on ‘legalese’, plain-language drafting and the
complexity thereof in a pluralistic society such as South Africa. Reading this article will also
prepare students for Study Theme 2.

6.2 Le Roux
The Le Roux article serves to illustrate the importance and role of statutory interpretation as a
tool for transformation – or at the very least the potential it holds. This article should be read
as but one example of how statutory interpretation can assist (or not assist) in dismantling the
unjust system imposed by apartheid (as well as Eurocentricity / heteronormativity / misogyny).
Many of the concepts discussed in Le Roux might only become clear after we have done Study
Themes 2 through 4.

7. Conclusion
This marks the end of Study Theme 1 – the introductory study theme to RVW210. We started
this study theme off by contextualising this subject as part of the broader LLB and within the
legal discipline. Thereafter we looked at some important concepts and terminology within the
module, as well as broadly sketching the constitutional context of South Africa. In this lecture
we critically considered legalese and the importance of plain writing, as well as the new
constitutional order and the impact thereof on the South African legal scheme – especially
regarding the interpretation of legislation.

In Study Theme 2 you will be taking a closer look at the concept of ‘legislation’. Study Theme
2 is a fundamental study theme with the hierarchical and chronological classification of
legislation at its core.

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