Legal Interpretation (RVW 210)

Study Theme 1: Introduction – Important terms and concepts

Week 2 (26 February – 1 March) Adv N Ncame

Class Notes

Lecture 1

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 first lecture in the Legal Interpretation (RVW210) course, and also for Study Theme
1. Study Theme 1 is an introductory study theme teaching students some important terms and
concepts. The aim of Study Theme 1 is to add to the skills and theoretical knowledge students
acquired in their first year, to contextualise RVW210 within the broader LLB and to introduce
students to some of the most important terms and concepts in Legal Interpretation. The content
and importance of the interpretation of statute law, will also be illustrated in this study theme.

In this lecture we will first be looking at the importance of statutes in law as a discipline in
general, as well as the typical legislative language used. Thereafter we will look at some
important concepts in RVW210 and finally have a brief discussion on what we mean when we
refer to ‘context’.
2. Typical legislative language and the importance of statutes

The interpretation of statutes deals with those rules and principles which are used to construct
the correct meaning of legislative provisions. It is about making sense of the total relevant
legislative scheme applicable to the situation at hand. This is, however, not always so easy.

Statutory interpretation is closely linked with Constitutional Law (which explains where
legislation comes from) Administrative Law (which requires fair administrative action by the
state) and Human Rights (which entrench or fundamental values and rights). One of the basic
principles of statutory interpretation is that legislation must be read as a whole (which we will
deal with throughout this course).

The interpretation of legislation is not easy, quick or mechanical. It not only requires excellent
language skills, but the interpreter must also have a very good knowledge of the law and where
to find it. This is done through reading reported judgments, keeping up to date with the latest
legislative amendments and regulations and understanding the interrelatedness of the law. Add
to this the South African legal landscape having drastically changed in 1994 (from
Parliamentary sovereignty to constitutional sovereignty), the fact that ‘old order legislation’
did not stop to have force after 1994, and the complex hierarchical classification of legislation
and you are sure to be in for a wild ride! (Luckily, this is what RVW210 is all about.)

3. General (important) concepts in Legal Interpretation

As legal practitioners, words and concepts are what we work with every day. It is therefore
vitally important that we know exactly what the words and concepts in legal interpretation
mean, and that we are circumspect in using them.
The concepts discussed here are only a few introductory ones to aid students in their
understanding in the beginning of the course. This will include terms that we will deals with in
study theme 2 so as to ensure that you are not blank next week and we can have a fruitful
engagement. It is important that you will keep up in the course, and continuously define and
understand the concepts and words used in RVW210.

3.1 The law

The law refers to all forms of law (common law, statute law, indigenous or customary law, as
well as case law), whereas a law usually refers to a written statute enacted by those legislative
bodies which have the authority to do so.

3.2 Legislation

The term legislation refers to one type of law, namely those written down (codified) into Acts.
Take note that an Act (capital letter a) refers to a written law (wetgewing / umthetho/ molao)
and an act (small letter a) refers to conduct or action (optrede / isenzo/ tiro). The terms
legislation, Acts and statutes are often used interchangeably to refer to the written legal
instruments of Parliament or provincial legislatures. The term ‘statute’ can, however, also refer
to an international treaty (such as the Rome Statute), or subordinate legislation (such as the
Statute of the University of Pretoria). The important common denominator is that it must be a
written text, created by a body with the authority to issue binding laws.
The term legislation can be singular or plural (never “a legislation” or “legislations”).
Legislation is the ‘what’ (written text), legislature is the ‘who’ (the body enacting the
legislation) and a ‘legislator’ is a single person that, together with others, assist in the writing
of legislation (such as a member of the National Assembly or a provincial legislature).

3.3 Common law

The common law is composed of rules of law which were not originally written down, but
came to be accepted as the law of the land. The common law is made up of the underlying
original basic legal principles. South African common law has its foundation in the Roman-
Dutch law and English law.

3.4 Indigenous (customary) law

Indigenous law refers to the traditional law of the indigenous people of South Africa. This may
either be unwritten customary law, or codified statutory compilations thereof. (Especially the
indigenous law of the isiZulu has been codified.)

3.5 Old-order legislation

Old-order legislation refers to all legislation enacted before 1994. The term comes from the
schedules of the Interim Constitution (200 of 1993). As these laws did not lose their legislative
force with the promulgation of neither the Interim Constitution, nor the current Constitution it
is important to identify them, as they might not have been subjected to constitutional scrutiny.

Consequently, legislation adopted after the promulgation of the Interim Constitution is often
referred to as ‘new-order legislation’. This term deals with the chronological classification of
legislation, which will be discussed in detail in Study Theme 2.

3.6 Primary legislation, secondary legislation and ultra vires

When we deal with the hierarchical classification of legislation (Study Theme 2), we
distinguish between original (primary) legislation, and delegated / subordinate (secondary)
legislation. Primary legislation refers to those legislative texts enacted by a democratically
elected body, during a plenary session according to certain rules and procedures. (Typically,
the legislation from the national parliament, the provincial legislatures and municipal councils.)

Subordinate legislation are those legislative texts that have been created by a legislature
delegated with the power (through primary legislation) to create rules and regulations. This
would include a minister’s authority to create regulations, the UP Council to create the UP
Statute etcetera.

The term ultra vires means outside your scope of authority. Consequently, a subordinate
legislature overstepping their legislative authority (as prescribed by the primary legislation)
will be acting ultra vires and the legislation will be invalid. These terms will be discussed in
detail in Study Theme 2.

4. What is context?

The interpretation of legislation is not a mechanical exercise during which predetermined

formulae, well-known maxims and careful reading will reveal the meaning of the legislative
provision. Technical aspects (e.g. the structure of the legislation and language rules) must be
applied in conjunction with substantive parts (e.g. constitutional values and fundamental
rights). Apart from the inherent difficulties of language and meaning, the interpreter has to
keep a number of other related issues in mind:

• All legislative provisions must be read, understood and applied within the framework of the
supreme Constitution and Bill of Rights.

• What is the impact that other legislation has on the provision?

• Is the legislation still in force? Has it been amended? Was it in force when the action under
question took place?

• The single provision must be read together with the Act as a whole.

• What is the context or general background of the text (the drafting history).

• Other external aids that may assist in the interpretation of the provision.

In light of this, it is important to take note of a few constitutional highlights in the South African
legal history. This will be dealt with in detail in Constitutional Law (PBL210).
4.1 The Union of South Africa

In 1910 the South Africa Act of 1909 came into force. In terms of this British statute, the former
Boer Republics (Zuid-Afrikaansche Republiek and Orange Free state) were unified with the
two British colonies (Cape of Good Hope and Natal), to form a single country namely the
Union of South Africa.

4.3 Constitutionalism

The Interim Constitution (Act 200 of 1993) was negotiated by political parties and
stakeholders, and adopted by the previous regime’s Parliament. It came into operation on 27
April 1994.

The Constitution of the Republic of South Africa, 1996 (NOT Act 108 of 1996) was adopted
by the Constitutional Assembly. It was promulgated in February 1997. A radical shift from
Parliamentary sovereignty to a sovereign Constitution came with these two Acts. It also
encapsulates a Bill of Rights, and various other important trademarks of modern democracies

5. Conclusion

This lecture, being the first for RVW210, serves as an important introduction to the course, and
some specific concepts that you have to understand. It started off with a brief introduction to
statutory interpretation in general, and highlighted the importance thereof with a few practical
examples. Thereafter we looked at some key concepts and definitions, before finally giving a
brief overview of the most important constitutional highlights in the recent South African
history.

In lecture 2 (the second set of notes) we will continue with Study Theme 1, looking at legalese
and plain writing, the impact of the new constitutional order on statutory interpretation, as well
as the prescribed material for Study Theme 1.