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JJUV100 Intro Lecture

The document provides information about an introduction to legal interpretation and constitutionalism course, including assessment dates and topics that will be covered. It discusses key concepts like sources of law, statutory interpretation, and how to determine the purpose or intention of legislation.

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21 views27 pages

JJUV100 Intro Lecture

The document provides information about an introduction to legal interpretation and constitutionalism course, including assessment dates and topics that will be covered. It discusses key concepts like sources of law, statutory interpretation, and how to determine the purpose or intention of legislation.

Uploaded by

lungilejackson17
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
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Legal Interpretation

JJUV100/JJUV1X0

Introduction to Legal Interpretation and Constitutionalism


Assessment dates
Assessment 1:
10th April 2024
Building 35 -0-005 and Building 35-0-40
18:00 – 20:00

Assessment 2:
8th May 2024
Building 35-0-005 and Building 35-0-40
18:00 – 20:00
Let’s talk
§ Suppose a law is passed that states it is a criminal offence to sleep in
any railway station.
§ Lewis Hamilton and Max Verstappen appear in court on a charge of
contravening the law in question.
§ Lewis is a regular commuter who sat upright but dozed off while waiting
for the train.
§ Max brought a blanket to the station and settled down for the night on
one of the benches, but he was still fully awake when he was arrested.
§ How should the court and apply the legislation?
§ Should the court read the legislation in the literal sense?
§ Are these simple and straightforward cases?
Prescribed reading
§ C Botha Statutory Interpretation: An Introduction for Students 6th
edition 3 -14, 108-116.
§ Investigative Directorate: Serious Economic Offences v Hyundai Motor
Distributors (Pty) Ltd 2001 (1) SA 545 (CC) par [21 – 26].
§ Independent Institute of Education (Pty) Ltd v KwaZulu-Natal Law
Society 2020 (2) SA 323 (CC).
What is the interpretation of statutes?
§ The juridical understanding of legislation that deals with those rules and
principles used to find the correct meaning of legislative provisions in
practical situations.
§ IOW: it is about making sense of the total relevant legislative scheme
applicable to the situation at hand.
§ Requires more than just reading provisions of legislation.
§ It is not a mechanical sequence of join-the-dots or painting-by-
numbers.
What is interpretation of statutes?
§ We cannot understand a legal text by just concentrating on its
language.
§ We must understand how law works and what it seeks to achieve in
order to understand how it communicates with you and what it wants to
tell.
§ Keep this in mind throughout the semester.
Terms to know
§ The law = all forms of law (i.e. common law, statute law, customary law
and case law)

§ A law = a written statute enacted by those legislative bodies which


have the authority to make laws.

§ An Act = legislation

§ An act = conduct or action e.g. of a government official or an organ of


State.
Sources of law
Legislation
• “enacted law texts” or statute law
• Can you think of examples of legislation?
• Includes:
- Acts of Parliament,
- provincial legislation,
- municipal by-laws,
- Proclamations
- Regulations.
A closer look…
§ Acts of Parliament
A closer look…
§ Provincial Acts: https://www.eclegislature.gov.za/acts/provincial
A closer look…
§ Municipal by-laws:
https://www.nelsonmandelabay.gov.za/documentslist?catID=15
A closer look…
§ Regulations
Sources of law
Common law
• Composed of the rules of law which were not originally written down
but came to be accepted as the law of the land.
• Made up of original or basic legal principles
• SAn common law is Roman-Dutch law
• Common law can be changed by original legislation
• If there is no legislation on the subject, the common law applies
A closer look…
§ Common law on parentage
§ Birth implies reciprocal duties of support between parents and children
§ Two consequences: duty of support and parental power and
consequences.
§ A father must support his children i.e. supply food, clothing, shelter,
medicine etc
§ Now also regulated by legislation
Sources of law
Indigenous law/ customary law
• Refers to the traditional law of the indigenous black people of South
Africa
• Can you think of examples of customary law?
• Unwritten or codified
A closer look…
§ Customary law covers all matters
§ Think of:
§ Personal and family life
- Care, contact, maintenance, guardianship and initiation
- Marriage and consequences of marriage
- Rights and responsibilities of spouses during and after the marriage
- Succession (who has the right to inherit)
- Leadership (who regulates family matters and disputes)
Sources of law
Case law
• ”judicial precedent”
• The law as various courts in specific courts before them have decided
on it.
• Precedent system (aka stare decisis): judgements of higher courts bind
lowers courts and courts of equal status.
A closer look…
§ Grootboom has been locally cited on approximately 62 separate
occasions by the Constitutional Court, 25 separate occasions by the
Supreme Court of Appeals, and 114 separate occasions by High Courts
across the country. Internationally, the decision has been cited by
courts in Australia, England and Wales, India, Namibia, New Zealand.
§ Also, regional courts including the European Court of Human Rights.
§ The “canonical” decision has also been the subject of several teaching
texts, casebooks, edited collections, and journal articles.
Why do we need special rules to
interpret statutes?
• More to legislation than just language

• It can be complex for various reasons – e.g.

• Words have different meanings depending on the context

• E.g. “Proteas bounce back after disappointing season”

• What does this mean?

• Laws drafted many years ago and are still in effect – times have changed

§ The meaning of the word “spouse” extended beyond husband and wife
Why do we need special rules to interpret
statutes?
§ Bad drafting

In this Ordinance, unless the context otherwise indicates –

‘disaster’ means a disaster or a state which is not a state of emergency or


a state of disaster and which, in the opinion of the Administrator or of
the local authority concerned, is a disaster, as defined in Section 1 of
the Act, or is likely to develop into such a disaster; -

Section 1 OFS Civil Protection Ordinance 10 of 1977


Why do we need special rules to interpret
statutes?
§ Legalese: specialised language used by lawyers in legal documents
incomprehensible to non-lawyers.
§ Legalese has Latin expressions, passive verbs, lengthy sentences and
legal doublets
§ e.g.
- null and void,
- audi alteram partem
- Nemo iudex sua causa;
- reasonable man test
- fit and proper
§ (better option - plain language)
NB factors to consider when interpreting
legislation
§ The Constitution and the Bill of Rights : read section 39(2)

§ Is the law still in force? Has it been amended?

§ What does the text say?

§ Must read the Act as a whole – definitions, preamble, regulations etc

§ Act as a whole (regulations, schedules etc)

§ Impact of this legislation on other legislation

§ What is the purpose of the law? To which context does it apply?

§ External aids such as commission reports and dictionaries.

§ Poor drafting causes problems ( see legalese as well)


Activity
§ Read Independent Institute of Education (Pty) Ltd v KwaZulu-Natal Law
Society 2020 (2) SA 325 (CC) 2020 (2) SA 325 (CC) and see if you can
find instances where the CC used the factors referred to in the previous
slide to interpret the Legal Practice Act.
Purpose or intention?

§ When we interpret legislation, we ask what the legislation aims to


achieve
§ Often expressed as the ‘intention of the legislature’ or ‘purpose of the
legislation’ or ‘legislative scheme’.
§ “intention of the legislature” problematic:
- Intention = subjective
- too many people involved (or are absent!)
- Majority rule
- Party unity
- No legal knowledge necessarily
§ For this module, the purpose of legislation is far better
New constitutional order

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