Learning Unit 1

Outcome 1 – What is Legislation?

Legislation (‘statute law’) as source of law:
• Written law enacted by a body or person who has the authority to do so by
the Constitution or other legislation
• Various aspects of interpretation:
o Types and categories of legislation
o Structural parts or components of legislation
o ‘Codes’ used in legislative texts
o Challenging interrelationship between existing old order legislation and
new
• THE LAW consists of all forms of law
o Common law
o Statute law
o Indigenous (customary) law
o Case law.
• A LAW is a written statute enacted by those legislative bodies which have the
authority to make laws.

Legislation Comprises all the different types of enacted legislation, such as

Acts of Parliament, provincial legislation, municipal by-laws,
proclamations and regulations.
• An Act (upper case) refers to a parliamentary statute or
the legislation of a provincial legislature.
• An act (lower case) refers to conduct or action such as the
act of a government official or an organ of state.
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.
• It is made up of the underlying original or basic legal
principles
• South African common law is known as Roman-Dutch law
and most of it originated during the seventeenth century
(province of Holland).
• Needs to be distinguished from codifications, which are
statutory complications of all the legal principles relating
to a particular branch of the law.
• May be changed by original legislation, but if there is no
statutory law on the subject, the common law
applies.
Indigenous Refers to the traditional law of the indigenous black peoples of
law South Africa. This may either be unwritten customary law, or
codified (statutory complications).
Case law ‘Judicial Precedent’.
• Is the law as various courts in specific cases before them
have decided on it.
• The precedent system (stare decisis) means that
judgments of higher courts bind lower courts and courts of
equal status.
Legislation (statute law) plays an ever increasing role in common law legal
systems
- Common law does not have the necessary procedures to deal with new
technological advancements
- Therefore, legislation is the most important source of new law in most
modern societies
- In SA- apartheid- used legislation for oppression
- Therefore, new legislation was necessary to remedy the political situation

Outcome 2: Interpretation of Statues

• “Juridical understanding of legislation”
• Deals with the rules and principles used to construct correct meaning of
legislative provisions to be applied in practical situations
• Du Plessis explains it as follows:
o Statutory (and constitutional) interpretation is about construing
exacted law-texts with reference to and reliance on other law-texts,
concretising the text to be construed so as to cater for the
exigencies of an actual or hypothesised concrete situation.
• In other words, it is about making sense of the total relevant legislative
scheme applicable to the situation at hand.
• Interpretation of legislation requires more than a mere reading of the
provisions
Corocraft Ltd v Pan American Airways Inc. [1968] 3 WLR 714 732:
Donaldson J explained interpretation of legislation as follows:
In the performance of this duty the judges do not act as computers into
which are fed the statutes and the rules for the construction of statutes
and from which issue forth the mathematically correct answer. The
interpretation of statutes is a craft as much as a science and the judges,
as craftsmen, select and apply the appropriate rules as the tools of their
trade. They are not legislators, but finishers, refiners and polishers of
legislation which comes to them in a state requiring varying degrees of
further processing.
• 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 provisions.
o Technical aspects – the structure of the legislation and language
rules.
MUST BE APPLIED IN CONJUNCTION WITH
o Substantive aspects – constitutional values and fundamental rights.
• In addition to the inherent difficulties of language and meaning, the
interpreter has to keep a number of other related issues in mind:
o The provision must be read, understood and applied within the
framework of the Constitution and the Bill of Rights.
o The impact of other legislation – the Promotion of Access to
Information Act, the Promotion of Administrative Justice Act and the
Promotion of Equality and Prevention of Unfair Discrimination Act
(must be taken into account).
 o Is the legislation that must be interpreted still in force? If yes, has it
since been amended?
o If a provision in an Act of Parliament is to be interpreted, it must be
read with the rest of the Act, including definitions and possibly its
schedules as well. Regulations may have been issued in terms of
the particular provision, which have to be read with the enabling
legislation (if it is valid).
o The context (general background) of the legislative text must be
considered.
o Other external aids (e.g. dictionaries or commission reports) may be
used to establish the meaning of the legislation.
o Sometimes the interpreter will be confronted by the results of poor
drafting, conflicting provisions or a lack of resources to research the
current law.
• Interpretation is not easy, quick or mechanical.
• It requires excellent language skills, and the interpreter must have very
good knowledge of the law and where to find it.
o This means research – reading reported cases, finding and analysing
the latest Acts and regulations, and keeping up to date with new
developments in the law.
Definition: Legalese – Refers to the perplexing and specialised language used
by lawyers in legal documents, incomprehensible to the non-lawyer

Outcome 3: The impact of the constitution

Parliamentary Sovereignty:

• The legislative body is supreme, it has absolute sovereignty over all

government bodies including the executive and the judiciary.
• The legislative body is not bound by any written laws (in some cases not
even the Constitution) and may change or repeal any written laws.
• Where there is a written Constitution within a country with a sovereign
parliament, Parliament still retains sovereignty by virtue of the power to
amend the Constitution.
• No court may test the substance of parliamentary Acts against any
standards of fairness or equality.

Constitutional Supremacy:

• With the adoption of the Constitution, South Africa is now a constitutional

democracy with a supreme Constitution (lex fundamentalis).
• The Constitution is the highest law in the land. All law or conduct must be
tested against the provisions of the Constitution and the Bill of Rights.
• Parliament is still the highest legislative body, however any legislation
passed by Parliament which is in conflict with the Constitution can be
struck down as invalid.
• Constitutional supremacy does not mean judicial supremacy – the courts
are also subject to the Constitution and merely act as the guardians of the
values and principles enshrined in the Constitution.
27 April 1994- Interim Constitution came into operation
- Transformed statutory interpretation as parliamentary sovereignty
was replaced by constitutional
- Interpretation clause stated that the spirit, purport and objects of
the fundamental rights had to be taken into account when
interpreting legislation.
- Courts can no longer ignore value judgements
- The correct method of statutory and constitutional interpretation
formed the center of the debate about the protection of
fundamental human rights.
What is legislation?
‘Enacted law-text’
Enacted: Adopted/ issued/ promulgated in terms of the prescribed legal
requirements.
Law: Has the force of the law
Text: Written law
Legislative Menu
According to the constitution, the legislative menu consists of:
- National and provincial legislation
- Proclamations, regulations and other instruments of subordinate
legislation
- Assigned legislation
- Old order legislation (before interim constitution took effect)
- New legislation
- Municipal by-laws
Various types of legislation must be understood in the three interrelated
dimensions
1. Time Horizontal Chronological timeline (Old/ new order)
2. Space Geographical Territories (Provincial…)
3. Hierarchy Vertical levels and spheres of legislative authority

Outcome 4: Categories of Legislation

• Categories relate to the historical origins of legislation as well as the
various types
• Differences in categories have an impact on the commencement and
demise of legislation and play an important role in all the other branches
of the law: Administrative, Human rights and Constitutional law.

(a) Legislation before 1806:

• Some statutes of the Staten-Generaal of the Netherlands and placaaten

(statutes) of Holland may still be in force.
 • Although technically classed as legislation, these became part of South
African common law with no formal procedures for their demise
• They may be abrogated by disuse.
• Neither the various definitions of legislation nor the rules of statutory
interpretation will apply to them
(b) Old order legislation:

• Defined in item 2 of Schedule 6 of the 1996 Constitution as being any

legislation in force before the interim Constitution took effect.
Old order legislation is divided into the following two historical eras:
Pre-Union legislation (1806-1910):

• Legislation adopted between the British annexation of the Cape in 1806

and the creation of the Union of South Africa in 1910.
• Most of these had been either repealed or incorporated into legislation of
the Union and the Republic.
• However, according to the Department of Justice and Constitutional
Development, on 30 March 2007, some examples of pre-Union legislation
still in force include the Lord’s Day Observance Act, the Sunday Act and
the Police Offences Ordinance Act.

Legislation between Union and the democratic era (1910-1994):

• In view of the constitutional changes since 1994, this legislation is known

as ‘old order legislation’ and would include most of the existing South
African legislation:
o Acts of Parliament,
o Legislation of the so-called ‘independent homelands’, o Legislation
of the former self-governing territories of homelands,
o Provincial ordinances enacted by the provincial councils of the four
‘white-controlled’ provinces,
o Proclamations issued by the administrators of the four ‘white-
controlled’ provinces after the provincial councils were abolished,
o By-laws enacted by local authorities, and o Other existing
delegated legislation.

(c) Legislation in the new constitutional order since 1994:

• Refers to all legislation enacted after the start of constitutional democracy

in 1994.
• It includes the interim Constitution; the 1996 Constitution; national
legislation; provincial legislation; other regulations and proclamations; and
legislation by the new local authorities created since 1994

Outcome 5: Hierarchy in legislation

Hierarchical categories:

• The hierarchical categories deal with the status of legislation.

 • Before 1994 the Constitution was not supreme, and the classification of
legislation was simple and straightforward: original legislation and
subordinate legislation.
• Post-1994 – o Supreme Constitution, o Old order legislation and new post-
1994 legislation, and o Three spheres of government (national, provincial
and local).

(a) The Constitution:

• Is the supreme law of the Republic, any law or conduct inconsistent with it
is invalid, and the obligations imposed by it must be fulfilled (section 2).
• Courts may now test all legislation and government action in the light of
the Constitution.
• Initially, known as the Republic of South Africa Constitution Act 108
of 1996 (cannot merely be an Act).
• It is the highest law in the land, and incorporates the rights, aspirations
and values of its people.
• The Constitution was not adopted by Parliament but drafted by the
Constitutional Assembly and certified by the Constitutional Court.
• This mistake has been corrected by the Citation of Constitutional Laws Act
5 of 2005.
• From the date of commencement of the Citation of Constitutional Laws
Act, no Act number is associated with the Constitution.

(b) Original legislation:

• Original legislation derives from the complete and comprehensive

legislative capacity of an authorised legislative body.
• The hierarchical status of original legislation in South Africa is based on
two interrelated principles:
o First, it is enacted by democratically elected, deliberative, law-making
bodies.
o Secondly, the original law-making powers of the elected deliberative
legislatures are always founded in the Constitution, but are derived in
two different ways:
- Directly from the Constitution – Parliament (ss 43(a) and 44)),
provincial legislatures (ss 43(b) and 104(1)) and
municipalities (ss 43(c) and 156(1)(a)).
- Indirectly from the Constitution – Provincial legislatures
(ss 44(1)(a)(iii) and 104(1)(b)(iii)) and municipalities (ss
44(1)(a)(iii) and 156(1)(b), (ss104(1)(c) and 156(1)(b).
Acts of Parliament:

• These include all Acts of Parliament since 1910.

• Between 1910 and 1983, Parliament consisted of the House of Assembly
and Senate; between 1983 and 1994, it comprised the House of Assembly,
the House of Representatives, the House of Delegates and the President’s
Council.
• Since 1994, Parliament has consisted of the National Assembly and the
National Council of Provinces.
 • The legislative authority of the current Parliament is derived directly from
the Constitution.
• Parliament may, subject to the Constitution, pass legislation on any
matter.
• Some Acts have a higher status than other Acts (original legislation)
because these Acts were expressly required by the Constitution (s32,
33(1) and 9 read with item 23(1) of Schedule 6 of the Constitution). The
so-called ‘constitutional Acts’.
• The Promotion of Access to Information Act – PAIA.
• The Promotion of Administrative Justice Act – PAJA.
• The Promotion of Equality and Prevention of Unfair Discrimination Act –
PEPUDA.
• These laws contain provisions stating that it will prevail over any other law
in a particular field of law.
• Have to be read in conjunction with the supreme Constitution as well as
with the constitutional Acts.
New provincial Acts:

• Legislation enacted by the nine new provincial legislatures.

• Their legislative power is also derived directly from the Constitution or
assigned to them by Acts of Parliament.
• The Constitution confers original legislative powers directly on provincial
legislatures to pass legislation for their provinces on matters referred to in
Schedule 4 and 5 to the Constitution.
• It provides for additional legislative powers to be assigned to them by Acts
of Parliament on matters outside the Schedules.

Provincial ordinances:

• The Provincial Government Act 32 of 1961 empowered the four provincial

councils of the time to enact provincial ordinances on matters concerning
their respective provinces.
• These provincial councils were abolished on 1 July 1986 by the Provincial
Government Act 69 of 1986.
• These ordinances were enacted by an elected body, could alter the
common law and could even have retroactive force.
• Ordinance applies only in the ‘old’ geographical area of the former
province.

Legislation of the former TBVC states:

• Legislation of former so-called ‘independent’ homelands did not form part

of South African legislation, it remains valid as part of South African law in
the area where it previously applied, because these territories have been
reincorporated into the Republic.
• It will have the same force of law as provincial Acts, provincial ordinances
and legislation of the former self-governing territories in their areas of
operation.

New municipal legislation:

 • Municipal councils may enact by-laws in respect of local government
matters for their geographical areas
• Post 1994 by-laws are original legislation – passed by representative &
deliberative legislative bodies
• By-laws may be passed for areas set out in Schedules 4B and 5B of the
Constitution.
• Municipalities may also be assigned additional legislative powers by
national or provincial Acts.
• Municipalities cannot delegate their law-making powers. Therefore, there
is no ‘subordinate legislation’ category for the local sphere.

(c) Subordinate Legislation:

• Can also be called delegated or secondary legislation.

• In principle, subordinate legislation is a violation of the separation of
powers principle because unelected (appointed) persons, sometimes
members of the executive, obtain law-making powers.
• Acts of Parliament and other forms of original legislation are sometimes
drafted in broad terms (skeleton form); subordinate (delegated) legislation
then ‘adds the flesh’ (detail).
• The advantage of delegated legislation is the relative speed with which
laws may be passed compared with the long, expensive and cumbersome
process of to draft new legislation or to amend an existing Act.
• Subordinate (delegated) enactments are known as legislative
administrative acts whose validity may be reviewed by the courts.
General Aspects of Subordinate Legislation:
• May not be in conflict with original legislation. The persons or bodies
authorised to issue delegated legislation may do so only within the
framework of the authority specifically bestowed on them by the enabling
legislation. If not, they have acted ultra vires and the subordinate
legislation in question could be invalidated by a court of law.
• If the enabling Act is declared unconstitutional by a court, the subordinate
legislation issued in terms of such an invalidated Act will also cease to
exist unless the court orders otherwise. If the enabling Act is repealed, all
the subordinate legislation issued in terms of the repealed Act will also
cease to exist, unless the repealing Act expressly provides otherwise.
• Parliament cannot confer a power on a delegated legislative body to
amend or repeal an act of parliament.
• Although subordinate legislation must be read and interpreted
together with its enabling Act, the enabling Act may not be interpreted in
the basis of the subordinate legislation made under it.

Outcome 6: What doesn’t qualify as legislation

• Legislation is written law enacted by a body or person with the authority to
do so.
• Legislation must be published in an official Gazette in order to take effect,
however, not everything published in an official Gazette is legislation.
 1. Common-law rules and rules of indigenous law
a. Constitute as law, however, these rules are not enacted as
legislation by an authorised lawmaker.
2. Case law
a. Binding law and is found in texts, but since this judge-made law is
not issued by lawmakers it does not constitute legislation.
3. Policy documents such as Green and White Papers, interpretation notes,
explanatory memoranda, policy documents and practice notes
a. Constitute as law texts, but as they were not enacted by lawmakers,
they do not constitute legislation.
b. May be used during the interpretation of legislation even if not
legislation
c. May become legislation in the future (bills, green papers)

Outcome 7: Components of legislation (structure and

codes)
• Legislation is drafted in a particular form and structure, according to the
drafting conventions and rules used by the state law advisors and other
legislative drafters.
• Understand the structure of legislation and how these structural
components interact.
Assented to
- Signed by the president on that date
Commencement date
- The date the act begins
The structure of legislation:

1. List of amendments
i Acts that have amended it since promulgation → only some will
have this.
2. List of regulations
i List of regulations issued in terms of this act
3. Preamble
i States circumstances/context and background/reasons for
legislation
ii After “Whereas”
iii Not every statute has it
iv Forms part of private act - not with every public act (not
prerequisite).
4. Long title
i Short descriptive summary of the subject matter of the act
ii What the title means and what the legislation is about
5. Enacting provision
i Acknowledges constitutional authority of the body that enacts this
ii National = Parliament, Provincial and Municipal = own legislature
iii Who created the act
iv “Be it enacted by”
6. Table of contents.
7. Definitions
i Internal dictionary → legal jargon.
8. Purpose and interpretation
i Says what acts want to achieve
ii Frequently include in new-order legislation
iii Explains purpose of act and how it should be interpreted.
9. Regulations and ministerial powers
i Gives power to subordinate legislation
10. Repeal/amendment of legislation
i New Act must contain a section that provides for amendments
and/or repeals.
11. Short title and commencement.
i Contained within the content of the legislation
ii “This Act is called….”
12. Schedules
i Used to deal with technical details that will clog up the main body of
an act
13. Numbering
Square brackets used to show where it has been amended.
14. General explanatory note
i Public commentary [ ] – deletions _______ - insertions
15. Legislative code
 i Amendments (including insertions and deletions) are also indicated
clearly in square brackets after the relevant provisions in the
amended version of an Act –
a) May indicate a particular date of commencement for the provision.
b) Serve as a historical paper trail should a lawyer have to use the
previous versions of the legislation.
c) Serve as a route map or cross-reference to the amending
Acts. In other words, the ‘codes’, the list of amending Acts at the
beginning of the Act and the amending Acts themselves should
correlate.

Outcome 8: How legislation is passed and promulgated

• It’s important to distinguish between adoption (passage/passing) of
legislation and its promulgation.

Adoption:

• The adoption of legislation/law by the relevant legislative body refers to

the constitutionality prescribed, and other legal process and procedures
required for the draft legislation to become law, including preparation of a
draft Bill, introduction of the Bill in the legislature, and public participation
(if required), as well as the committee stages, voting and assent.
o Adopting – passing.
• Once Parliament has passed a Bill, the Act then has to be assented to and
signed by the President.
• In the case of a Bill passed by a provincial legislature, the Premier of
that province has to sign the Act.
• Once assented to and signed, such an Act (parliamentary or provincial)
becomes law.

Promulgation:

• Although such an Act is now legally enacted legislation, it is not yet in

operation.
• For legislation to become operation, it needs to be promulgated.
• Promulgation refers for the process of putting legislation officially and
legally into operation (the commencement or taking effect of the law).
• In other words – somebody must ‘pull the trigger’.
• In the case of subordinate legislation, this category of legislation is usually
in the form of rules or regulations.
• The adoption and promulgation will, in practical terms, happen nearly
simultaneously, because the adoption process is designed to be
reasonably quick and easy.
Requirements:
• Promulgation takes place through notice of the GG
• S 81 and 123 of the Constitution and S13 of the Interpretation Act
o Acts of Parliament + Provincial Acts take effect when published in the
Gazette / on a date determined in terms of the act
• 162 of constitution
o Municipal by-laws may be enforced after publication in GG
• 13 and 16 of interpretation act
o Subordinate legislation must be published in GG
• President may prescribe alternate procedures for promulgation of
legislation if GG cannot be printed
• A list of proclamations and notices of delegated legislation must be tabled
in parliament
The difference between adoption and promulgation:

Adoption of Legislation:

• Refers to the different stages, readings and processes through which

legislation has to pass before it is accepted and issued by the legislative
body concerned.

Promulgation:

• It is the process by which legislation commences and takes effect.

• It is when legislation is formally put into operation and made known to the
population. Legislation is promulgated by publication in an official Gazette.
o Commencement – when legislation becomes enforceable.
o Publication is required for commencement.
o Government / Provincial Gazette.
o To make laws accessible.

Outcome 9 and 10: Interpretation Act 33

When is legislation in force?

(a) The default setting – on the date of publication: S13(1)

• Section 13(1) of the Interpretation Act, as well as sections 81 and 123 of

the Constitution, provide that if legislation does not prescribe a date of
commencement, it automatically commences on the date of its publication
in the Gazette.
• Under normal circumstances the date of publication will coincide with the
day of commencement provided for in the legislation.
(b) Delayed commencement – on a future specified date: S13(1)

• Future specified date.

• In terms of the Interpretation Act, the legislation published in the
Gazette may provide a fixed date for when it commences.
• Since the legislation does not need to be published again on a future date,
it will automatically commence on that specified date.

(c) Delayed commencement – on an unspecified future date still to be proclaimed: S13(3)

• Where and Act is to commence on a date to be determined by, for

example, the President, their proclamation is all that is required.
• The Act does not need to be published again and will commence on the
date indicated in the proclamation.
• S13(3) states that if any Act provides for a date to be proclaimed by the
President or Premier of a province, there may be different commencement
dates for different provisions of that Act.

(d) Retroactive commencement:

• Refers to the publication on a specific date, but the legislation is deemed

to have commenced earlier on a date prior to the publication.
 • Constitutional and common law rules (example, due process and fairness)
make the application of legislation with retro-effect very difficult; this
means that this type of commencement if the exception rather than the
rule.

(e) A combination of the above:

• When it is published, there may be a confusing combination of possible

commencement options (specified or unspecified future dates) for various
parts of the legislation.
• This means that interpreters must be very careful as to whether a
particular provision is in force.
• Example – a specific commencement date (with proviso):
o Most of the Act will commence on a fixed date, except for several
provisions (as indicated in the Act itself) which may commence at a
later specified date and/or later unspecified dates still to be
proclaimed.
• Another example – unspecified commencement date in the future (with
proviso):
o Some provisions of the Act will commence at later unspecified dates
still to be proclaimed, while most of the provisions will commence
on specified dates (as indicated in the Act itself).

Exceptions:

• Where the retroactive legislation does no harm, the principle that

legislation only applies to the future does not apply, example –
o Where it affects procedure.
o Where it only provides benefits.
(f) When does a ‘day’ start? S13(2)

• In terms of the Interpretation Act S13(2), a ‘day’ begins immediately at the

ends of the previous day (example – immediately after midnight at 00:01).
• This means retroactive commencement, because by the time the Gazette
is published, the legislation could already have been in force for a few
hours.

(g) Time Units

•Year
o 365 days (1Jan – 31 Dec)
• Month
o S2 of interpretation Act
o Month= calendar month (not lunar)
o E.g. 9 July – 9 August (not 9 July to 1 August)
• S4 of the Interpretation Act
o Exclude first day, include last, exclude weekends and public
holidays
o Statutory method
o S1 states that S4 will apply unless indicated otherwise
Common law methods
Complement s 4 of Interpretation Act
1) Ordinary Civil method
- Default method for calculating months and years unless otherwise
provided
- First day included last day excluded
- Last day regarded as ending the moment it begins at midnight
2) Natural
- Calculated from the hour or minute to corresponding hour or minute
3) Extraordinary civil method
- Both the first and last day of the period is included. No longer used at all
Purpose of legislation will remain decisive factor
[When does a ‘day’ start? Immediately at end of previous day 00:01

The importance of section 14 of the Interpretation Act:

Two interesting aspects of the commencement of legislation are dealt with in

section 14 of the Interpretation Act:
o Section 14 provides that if a person has the power to put legislation
into operation, that power may be exercised at any time after the
legislation was passed with a view to putting it into effect.
o Provides for the making of appointments and subordinate
legislation by the relevant functionaries, provided that the
appointments or subordinate legislation cannot be effective before
the Act is in force…Means that the necessary preparations can be
made and structures provisionally put in place – even before the
enabling Act is operational, and ready to be implemented when the
Act enters force.

Outcome 11, 12 and 13: Retroactivity vs retrospectivity

The presumption that legislation applies only to the future:

• The time-honoured principle that legislation should only apply to the future
is one of the basic foundations of a legal system based on the rule of law.
• Described as the ‘general rule of every civilised country’.
• Unless the contrary appears either expressly or by necessary implication,
it is presumed that the legislature intends to regulate future matters only.
• Common law presumption that the legislature intends to regulate future
matters only, and not the past.
• According to case law (Transnet) – This rule is based on the prevention of
o Unfair and unreasonable results, and
o to ensure predictability and legality (this rule is based on the
prevention of unfair result)
o Individuals should know what the law is and to adapt their conduct
accordingly.
• It is then presumed that legislation only applies to cases or transactions
occurring after coming into operation of the Act in question, so that the
vested rights are not taken away.
 • The presumption was not intended to exclude the benefits of rights
sanctioned by new legislation, but rather to prevent the invasion of rights.
• Unless otherwise provided, legislation was not to be interpreted to take
away existing rights and obligations, because this principle was basic to
the rule of a law, a foundational principle (section 1) of the Constitution.

The difference between retroactive and retrospective:

• In practical terms the rule that legislation only applies to the future means
that legislation should not have a retro-effect.

National Director of Public Prosecutions v Carolus 1999:

The court explained the difference between the two types of retro-effect of
legislation:
1. Retroactivity:
• ‘True or strong’ retro-effect.
• In this case, the legislation operates as of a time prior to its enactment.
• In other words, it operates backwards in time and changes the law from
what it was.
2. Retrospectivity:
• ‘Weak’ retro-effect.
• Operates for the future only, in line with the basic principle.
• Legislation is prospective, but it could impose new results in respect of a
past event.
• It operates forwards but it ‘looks backwards’ in that it attaches new
consequences for the future to an event that took place before the
legislation was enacted.
• Because of this backwards and forwards implementation, which is not
possible, the legislation uses a deeming clause.
The deeming clause:
• Difference between retroactive and retrospective lies in the date of
commencement
• In the case of retroactive commencement, the date of commencement is
before the date of publication
• “History is rewound” – because this is physically impossible, the legislation
uses a deeming clause to
• Legislation is deemed to have commenced on a date prior to the
publication date.
• What is it?
▪ Legislative activity in Virtual reality of make believe
▪ Creates a presumption that something is ‘deemed’ to have
happened

Exceptions to the rule of legislation only applying to the future:

• At first glance, procedure is red tape or a set of neutral administrative

arrangements, and of course, nobody will argue that the retrospective
granting of benefits is unfair.
(a) If the enactment deals with procedure:

• The presumption does not apply if the retroactive legislation deals with
procedure.
• If substantive rights and obligations remain unimpaired and capable of
enforcement by using the newly prescribed procedure, then the general
principle does not apply.
• However, if the new procedure violates substantive rights, the general
principle against legislation with retro-effect will apply and the three
obstacles come into play.
• Therefore – the presumption does not apply if the retrospective legislation
deals with procedures where no rights are affected or if the application will
benefit the individual.

(b) If the retro-effect favours the individual:

• The presumption will not apply.

• If a person would be receiving a benefit, and no vested rights are
taken away, the retroactive or retrospective application of legislation will
be beneficial, and the presumption becomes necessary.

What prevents legislation from applying with retro-effect?

• This principle is not an absolute rule.

• In terms of South African law, three legal obstacles need to be removed
before legislation may apply with retro-effect.
(a) The common law presumption:

• The common law presumption that legislation applies only to the future
was the only legal obstacle that stood in the way of laws with retro-effect.
• However, legislation trumps common law, meaning that the legislature
could trump the presumption either expressly or by necessary implication.
• ‘By necessary implication’ – The legislature actually wanted to rebut
the presumption but failed to express the intention clearly in the
legislation.
• The court held in Kruger v President Insurance Co Ltd that it was easier to decide
(by necessary implication) that legislation did not apply to the future, only
when vested rights would not be affected by the retro-effect of the
legislations; or the purpose of the legislation is to grant a benefit or to the
effect even-handedness in the operation of law.

(b) New offences and higher penalties:

• Section 35 of the Constitution states that a person may not be convicted

for an act that was not an offence at the time it was committed.
• It is a basic human right that a new offence may not be created with retro-
effect.
• Accused person has the right to the benefit of the least severe prescribed
punishment if the prescribed punishment has been changed between the
time the act was committed and the time of sentencing.

(c) Other constitutional rights:

 • Should the first and second obstacle fail, there are other constitutional
provisions that prevent a retro-effect (example – the right to property, the
right to fair administrative action, right to access of information).
• Whether or not the legislation passes general constitutional scrutiny in
order to have retroactive application, will depend on the facts and rights
involved in each case.

Retroactivity and other constitutional issues:

• The principle that legislation should only be prospective also applies to the
Constitution.
• The meaning of the Constitution itself is not retroactive.
o All law in force when the Constitution took effect remains in force
subject to amendment or repeal, and subject to consistency with
the Constitution (item 2 Schedule 6 of the Constitution).
o All proceedings pending before a court when the new Constitution
took effect must be finalised as if the new Constitution had not been
enacted, unless the interests of justice require otherwise (item 17
Schedule 6 of the Constitution).
• Any legislation process started in terms of the interim Constitution, but not
yet finalised when the 1996 one took effect must be finalised in terms of
the 1996 Constitution (item 5 Schedule 6 of the Constitution).

Outcome 14: Who can amend and repeal legislation

• Legislation that is inconsistent with the Constitution will not automatically
be unconstitutional and invalid.
• All legislation in force when the Constitution took effect remains in force
until amended or repealed, or declared unconstitutional (item 2(1)
Schedule 6 of the Constitution.
• To remove potentially unconstitutional legislation a competent body must
either amend or repeal it, or a competent court must declare it
unconstitutional.
• Legislation – enacted law-texts – is amended or repealed by the relevant
competent lawmakers, in other words, those bodies or persons with the
legislative authority to do so.
• For original legislation the legislative authority for the relevant legislatures
includes the power to pass or amend any legislation before them, subject
to the hierarchical and territorial competencies prescribed by the
Constitution.
• In the case of subordinate legislation, the enabling Act may in some cases
expressly state that the power to enact subordinate legislation includes
the power to amend or repeal it, if not, the common-law principle of
implied power comes into play.

Formal amendment of legislation by a competent legislature:

• Legislation may be amended by a competent legislature.

 • Parliament may amend an Act of Parliament with another Act of
Parliament, a provincial legislature may amend provincial ordinances and
provincial Acts.
• In the case of primary legislation, the amendment of legislation is a
lengthy and expensive process.

Outcome 15: Ways in which legislation is changed

• There are two types of amending legislation –
o The non-textual (indirect) amendment; and
o The textual (direct) amendment.
• A non-textual amendment occurs where there are no direct changes to the
actual wording of the principal legislation, but the ‘amending’ legislation
merely describes the extent of the changes in the law with reference to
the provisions that will be affected.
• A textual amendment on the other hand, is where the actual wording of
principal legislation is changed with additions, changes to the wording,
etc.
• If a number of Acts are amended at the same time- it will usually be done
with a General Laws Amendment Act
• Some legislation is amended annually (Income Tax Act)

Informal Judicial ‘Amendment’

- Courts have secondary law-making power
- Involves the development of common law to adapt to modern
circumstances
- The judiciary may modify the initial meaning of a legislative provision in
such a way that it confirms the purpose or aim of the legislation.
- Informal because it is in principle, against the separation of powers

Attempts to save legislation during constitutional review

- To test legislation (review) refers to the process whereby legislation is
reviewed to test of it conflicts with the constitution
- Decide – valid or invalid
- Courts may try , if reasonable to do so, to save legislation to prevent a
vacuum affect
- The court may then provide a number of corrective techniques or remedial
correction (e.g., reading with/ change meaning) to prevent the legislation
in question from being invalid and repealed.

The demise of legislation

- Repeal- process whereby legislation is deleted (removed from the statute
book)
- Invalidate – made legally unacceptable (not removed from statute book)
o Legislation cannot be applied anymore but is still in the statute
book until removed by a competent lawmaker
- Courts cannot repeal legislation – they invalidate it until a lawmaker can
repeal it
 oLawmaker = elected legislatures and other bodies enabled by
primary legislation
- S v Makwanyane
o CC held that the death penalty was unconstitutional
o No death sentences could be given out, but the relevant law still
existed in the statute book
o However- it was the Criminal Law Amendment Act that repealed the
death penalty

Outcome 16: How legislation is invalidated by the courts

Invalidation of legislation by the courts:

(a) Unconstitutional provisions:

• In terms of section 172 of the Constitution, the High Court, or the Supreme
Court of Appeal, or the Constitutional Court may declare legislation
unconstitutional.
• Legislation may be declared unconstitutional if it violates a fundamental
right in the Bill of Rights, or if it conflicts with another constitutional
requirement.
• In terms of section 167(5) read with section 172(2) of the Constitution a
declaration of unconstitutionality of legislation by a High Court, of the
Supreme Court of Appeal has no force until such a declaration is confirmed
by the Constitutional Court, but a High Court or the Supreme Court of
Appeal may make an order which is just and equitable (including
appropriate interim relief).
• Local gov legislation and delegated legislation can be declared
unconstitutional by the High Court or SCA, but such invalidation doesn’t
need CC confirmation
(b) Invalid subordinate legislation:

• Delegated legislation may be invalidated by a court if it does not comply

with the requirements of administrative law.
• Before 1994 this was the only real possible review of legislation by the
courts.

Outcome 17: Repealed

Repeal of legislation by a competent lawmaker:

(a) Substitution (repeal and replace):

• When a lawmaker substitutes legislation with another enactment there

might be a possibility that the replacing law is not in force when the other
legislation departs from the scene.
• In order to prevent this type of ‘legislative short circuit’ or gap in the law,
the repealing legislation could expressly provide for a suitable transitional
measure.
 • However, for those cases where the legislation is question does not
provide for express transitional arrangements, section 11 of the
Interpretation Act was enacted to deal with those unfortunate gaps in the
law if the one enactment is repealed, but the replacement enactment is
not operational yet:
When a law repeals wholly or partially any former law and
substitutes provisions for the law so repealed, the repealed law
shall remain in force until the substituted provisions come
into operation.
• This means that if an enactment was repealed and replaced by another,
but the replacement is not operational yet, the repealed provision will
remain in force – although repealed – until the replacement is in force.

(b) Repeal (deletion):

• Repeal is the revocation of legislation by the relevant competent

lawmaker.
• The legislation is not changed or substituted (replaced): it is deleted
(removed) from the statute book.
• In the case of individual provisions of original legislation all that remains
will be the numbering and the legislative codes.
• Section 12 of the Interpretation Act deals with the consequences when
legislation is repealed.

Section 12(1) of the Interpretation Act:

“Where a law repeals and re-enacts, with or without modifications, any

provision of a former law, references in any other law to the provisions so
repealed shall, unless the contrary intention appears, be construed as
references to the provisions so re-enacted.”
• If provision ‘x’ is repealed and later re-enacted as provision ‘y’, all
references to ‘x’ in other existing legislation must be interpreted as
references to ‘y’
Section 12(2) of the Interpretation Act:

Where a law repeals any other law, then, unless the contrary intention
appears, the repeal shall not –

a) Revive anything not in force or existing at the time at which the

repeal takes effect; or
b) Affect the previous operation of any law so repealed or anything
duly done or suffered under the law so repealed; or
c) Affect any right, privilege, obligation, or liability acquired, accrued,
or incurred under any law so repealed; or
d) Affect any penalty, forfeiture, or punishment incurred in respect of
any offence committed against any law so repealed; or
e) Affect any investigation, legal proceeding, or remedy in respect of
any such right, privilege, obligation, liability, forfeiture, or
punishment as in this sub-section mentioned;
 and any such investigation, legal proceeding, or remedy may be
instituted, continued, or enforced, any such penalty, forfeiture, or
punishment may be imposed, as if the repealing law has not been passed.
• S12(2) is a typical transitional provision
• S12(2)(a) means that a repealed Act does not regain the force of law is the
repealing act itself is repealed
• If an act is repealed, the repeal does not have retroactive effect, declaring
legal which was illegal before the repeal
• If an amendment Act is repealed, the amendment does not lapse with the
repeal
• Subsections (b) to (e) provides that all actions (transactions, prosecutions
etc) that were started, but not yet completed, in terms of legislation which
has meanwhile been repealed, must be completed as if the legislation has
not been repealed
o Nourse v Van Heerden
• This means the following:
o It forms a bridge between pending actions and repealed legislation
9the current position is preserved until the pending case is finished)
o Actions executed legally and properly in accordance with legislation,
before that legislation is repealed, remain valid and in force after
the repeal.
o This provision deals with rights derived from legislation only, not
common law
o The right or privilege in question must have been acquired or
accrued in terms of the repealed legislation before the repeal
Sunset Clauses
- Provision in legislation which terminates (repeals) all or portions of the law
after specific dates, unless further action is taken to extend it.
- It is a date-bound repeal for the future, meaning, in effect, the legislation
has adopted and repealed the same legislation at the same time.
- This can only happen if the legislation has a specific expiry date
- Most laws don’t have these clauses- remain in force until repealed
- Sunset clauses have a limited lifespan and their continued existence is
dependent on parliamentary action
Implied repeal
- When two different enactments dealing with the same matter clash, it is
presumed by the judiciary that the relevant legislation, by implication
intended that the later enactment repeals the earlier enactment (new
replaces old)
- The two must be on the same hierarchical level and be on the same level
of generality
- The legislation is not repealed by the judiciary, but it is assumed that the
legislature implicitly repealed the earlier legislation

Outcome 18: Suspension of legislation in force

Suspension of legislation already in force:

• Legislation can also be temporarily suspended.

• It remains in force, but its operation is halted for the time being until some
or other condition is met or requirement complied with.
• Example of legislation temporarily halted is suspension by a court.
• The system of co-operative government in one of the unique features of
the South African constitutional structure.
• In terms of sections 40 and 41 of the Constitution this system consists of
three distinctive, but interrelated and interdependent tiers of government.
• Schedule 4 of the Constitution sets out the matters in which national and
provincial legislatures have concurrent law-making powers.
• Where there are conflicts, the national legislation will sometimes prevail
over the provincial legislation, but in other cases the provincial legislation
may actually trump the national legislation.
• Sections 146-150 of the Constitution provide for the intricate process of
conflict resolution within this system of co-operative government.
• Section 149 of the Constitution provides for an interesting variation on the
demise of legislation: Section 149 Status of legislation that does not prevail
“A decision by a court that legislation prevails over other legislation does
not invalidate that other legislation, but that other legislation becomes
inoperative for as long as the conflict remains.”
When X conflicts with Y, the operation of X is suspended until the relevant
legislature deals with the conflict. X is not invalidated, but merely
suspended for the duration of the legislative standoff
• A competent lawmaker may also suspend legislation for a period of time
with a formal legislative amendment, probably containing a sunset clause
• An administrative agency can also put its application of legislation
on hold, effectively suspending the legislation in question

Outcome 19: Presumption (legislation - change existing

law)
The presumption that legislation does not intend to change the existing law more than is
necessary:
 • The presumption means that legislation should be interpreted in such a
way that it is in accordance with existing law and changes it as little as
possible.

Common law:

• This presumption reflects an inherent respect and esteem for our common
law heritage.
• Solomon J in Johannesburg Municipality v Cohen’s Trustees put it as follows:
It is a sound rule to construe a statute in conformity with the
common law rather than against it, except where and so far as the
statute is plainly intended to alter the course of the common law.
• It is presumed that legislation does not alter the common law, but this
presumption is rebutted if legislation clearly provides that the common law
is being altered.

Legislation:

• The presumption means that in interpreting a subsequent Act it is

assumed that the legislature did not intend to repeal or modify the earlier
Act.
• Any repeal or amendment must be indicated expressly or by necessary
implication.
• An attempt should be made to read the earlier and subsequent legislation
together in an effort to reconcile them.
• If such reconciliation is impossible, it has to be presumed by necessary
implication that the latter of the two provisions prevails, resulting in the
amendment or repeal of the earlier one.
• The rule only applies if the objects if the two conflicting provisions are
essentially the same – repeal by implication will only be accepted if the
legislation contradicts the earlier legislation
Learning Unit 2
Outcome 1: Hermeneutics
The word ‘hermeneutics’ is derived from the Greek work hermeneuein which
means ‘to interpret’.
• Lategan defines hermeneutics as the science of understanding or the
theory of the interpretation of texts
• It is the techniques and methods used to interpret texts
• Hermeneuein is in turn derived from the name Hermes, the messenger
god of ancient Greece who had to explain the messages of the gods to the
mortals on earth.
• Hermeneutics is a very old discipline, used by the Greeks of antiquity –
Aristotle addressed the science of interpretation in his discourses.
• It has become an important and useful tool in both Christian theology and
jurisprudence.
• Biblical hermeneutics (scriptural exegesis) and legal hermeneutics
(interpretation of statutes) developed as separate fields, although they
had a great deal in common, since both had very strong normative
characteristics.
• In the case of Biblical hermeneutics, the message of the Scriptures has to
be constantly reinterpreted to adapt to changing circumstances.
• Likewise, the legislature cannot provide a set of exhaustive descriptions
and regulations for all possible concrete situations.
• Therefore, it is the task of the courts to concretise the general precepts of
the legislature through interpretation of legislation.
• Some of the similarities are the following:
o Both disciplines aim to interpret established authoritative texts with
regard to current concrete situations
o Both have an existential urgency: it is the purpose of interpretation
of the Scriptures to offer a liberating message of salvation to
sinners, while statutory interpretation is aimed at legal certainty
and order
o In both disciplines the interpreter has to deal with the demands of
changing situations and circumstances; and
o The interpretation of both the Scriptures and legislation is
influences by history.
• However, there are also a number of distinct differences:
o Legislation is a distinct style, with its own rules, which is aimed at
the legal regulation of society
o The biblical text is closed (i.e. the text is complete); legislation, on
the other hand, is characterised by continuous development and
change.
• Labuschagne distinguishes between exegesis (that which the author
originally wanted to say to the readers) and hermeneutics (that which the
author wants to say to present readers).
 • It was only during the second half of the nineteenth century that
hermeneutics as a general method of understanding for the human
sciences gained prominence.
• In contemporary hermeneutics the German philosophers Hans-Georg
Gadamer, Ricoeur and Schleiermacher and the Italian Betti are the leading
figures.
• Gadamer’s hermeneutics emphasised the importance of the socio-
historical situation or context of the interpreter and is closer to a
contextual approach to texts than to a literal one.
• Scholars of hermeneutics emphasised that words and phrases so not have
inherent meaning, but that meaning is derived from the total structure of
language, including the context in which it is used.
• Perhaps the greatest contribution made by the hermeneutical theory is its
emphasis on the role of the interpreter during the interpretation process,
and that the science of understanding is not a mechanical exercise, but
also involves value judgements.
• Baxter argues that this supports the argument that interpreters of
legislation inevitably have to exercise a judicial discretion.
• Every part of a text must be understood in terms of the whole, and in turn,
the whole in terms of its parts in a continuous circle of legal interpretation.
• This is continuous process during which both the whole and the parts are
progressively explained.
• This part-whole approach underlines the importance of the context
of a specific phrase or sentence.

Outcome 2: Modern critical theories

• There are numerous theoretical approaches to statutory interpretation
(textualism, purposivism, intentionalism or original-intent theory).
• As well as contemporary schools of legal thought (critical race/gender etc);
influence on modern ‘legisprudence’.
• 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.
• Modern theoretical schools of thought study and examine the law together
with other disciplines such as economics, political science, linguistics,
philosophy, literature, and so on.
• These schools must be understood in the spirit of postmodernism.
• Postmodernism is an intellectual style/ condition/ spirit that accepts that
everything is relative, it welcomes problems, paradoxes and
contradictions.
• It defies a complete definition, because postmodernism rejects
preconceived ideas, definitions and categories.
o Postmodernism argues that the utopian promises of the modern
world-view came to nothing. The modernists tried to explain and
order the world with macro-arguments such as liberalism, Marxism
and fascism.
 o These macro-arguments could not solve global problems, because
problems were too big, too wide, and too abstract.
o These macro-arguments were based on a mistaken belief in science
and technology, and a false optimism about the ability of language
to compile, disseminate and interpret information.
o Postmodernism rejects the idea that classifications and categories
can be correct and final, and the notions of both objectivity and
subjectivity are questioned. Ultimately, everything is relative,
temporary and incomplete.
o Therefore, any argument, no matter how logical it may seem, is
only as good as its preconceptions and presuppositions.
(a) The Critical Legal Studies movement (CLS):

• CLS originated in reaction to the inability of liberalism to solve social

problems such as poverty, racism, pluralism and oppression.
• In the process the outcasts and disadvantages of society are pushed
further to the ‘margins’.
• CLS does not have an alternative programme of action to solve the
problems but is rather an attempt to unmask the liberal argument that the
law is objective and neutral.
• According to CLS, the Western liberal legal tradition is an instrument
of social and economic oppression – existing power structures are merely
reinforced by the legal system.
• These power relationships are reinforced with rights rhetoric (hollow
promises about human rights), which conceals the political role of the legal
system.
• The courts play an important part in this political role, since the existing
order is maintained by a mechanical ‘his master’s voice’ method of
statutory interpretation.
• As a result, law and politics have merged, and power is disguised by the
legal system.
• The CLS movement criticises the existing legal order:
o In the liberal legal tradition, the determination of legal rules is
based on hidden political and ideological considerations. Rules and
principles only change as a result of changes in the political arena.
o The liberal legal tradition is based on individual autonomy which
does not take into account community involvement and
communitarianism. It entrenches the position of the individual and
reinforces the unequal distribution of power in society.
o With regards to interpretation of statues, legal theories and legal
reasoning are supported by political considerations, and the existing
political and social balance of power is consolidated.

(b) Deconstruction:

• Deconstruction is a reaction against structuralism.

• Structuralism supports literal interpretation and legal positivism.
 • Deconstruction, on the other hand, challenges the modern person to
consider and reconsider, and ultimately to reformulate dominant theories
and opinions about society.
• It focuses on those forgotten aspects of humanity which were pushed
aside and marginalised by the dominance of certain conceptions of law.
• The fundamentals of deconstruction can be summarised as follows:
o It is impossible to obtain knowledge of the real objective world. The
meaning of each symbol (word) depends on the differences from, as
well as the similarities between other symbols in the system:
meaning not only depends on the differences between symbols, but
the continuous reference to other symbols in the system. Meaning
is indefinitely deferred, because inherently each symbol refers to
other symbols as well. A text is never closed and finished but
consists of a network of interlinked symbols which infinitely refer to
each other.
o The meaning of a text is not determined by its author, but by the
relationship between texts, and between text and reader. The fact
that the text is liberated from the author (death of the author),
enables the reader to read the symbols in the text in an unbiased
and impartial manner.
o A text can never acquire one fixed and final meaning. Meaning
depends on a set of codes (social, cultural and political) inherent to
each text and each reader. By definition the interpretation of a text
is subjective. Meaning is always disputable and is open to
reinterpretations.
o During the interpretation of statutes, different texts are
simultaneously in interaction with each other: other legislative
texts, the common law, case law, and so on. The interpreter is
informed by other extra-legal factors (codes) such as cultural and
ideological background. Interpretation of statutes has to do with the
relationship between the interpreter and the text. The legislature
cannot control the manner in which the interpreter will interpret the
legislative text. The text-based methods of statutory interpretation
(literal interpretation and the intention theory) cannot explain the
nature of the interpretation process.
o Contextual interpretation is also criticised. A text can only acquire a
fixed meaning through its context if the context has a fixed content.
Context does not have boundaries, and there is no limit to what is
necessarily relevant for the context.
o Deconstruction shifts the focus to judicial choices and
accountability: interpretation is not neutral and value-free. The
interpreter cannot hide behind value-free and mechanical methods
of interpretation and is responsible for the ideological values
underlying each interpretation.

Outcome 3: SA theories of interpretation

The orthodox text-based approach:
• The interpreter should concentrate on the literal meaning of the provision.
• The interpretation process should proceed along the following lines:
o It is primary rule of interpretation that if the meaning of the text is
clear (the plain meaning), it should be applied and equated with the
legislature’s intention
o The Golden Rule - If the ‘plain meaning’ is ambiguous, vague or
misleading, or if a strict literal interpretation would have absurd
results, then the court may deviate from the literal meaning to
avoid such absurdity.
o Then the court will turn to the ‘secondary aids’ to interpretation to
find the intention of the legislature (e.g. the long title of the statute,
headings of chapters and sections, the text in the other official
language.)
o Only when these ‘secondary aids’ to interpretation prove insufficient
to ascertain the intention, will the courts have recourse to the so-
called ‘tertiary aids’ to construction (i.e. the common-law
presumptions).
o This approach was popular in legal systems influenced by English
law.
Factors led to the adoption of the textual approach in England:

• Misconceptions about the doctrine of separation of powers (tres politica) and

sovereignty of parliament led to the acceptance of the idea that the
courts’ function should be limited to the interpretation and application of
the will of the legislature as recorded in the text of particular legislation.
• The doctrine of legal positivism influenced the literal approach in England.
Positivism is based on the idea that the essence of law is in the command.
The role of the court is limited to the analysis of the law as it is and to find
the intention of the legislature. A strict distinction is made between ‘black
letter law’ and morality, because value judgements by the courts would
lead to the justiciability of policy matters.
• England has a common law tradition, in which the courts have
traditionally played a very creative role in regard to the common law
principles. Legislation was viewed as the exception to the rule, altering the
traditional common law as little as possible.
• English legislation was drafted to be as precise and as detailed as possible,
for the sake of legal certainty and to cover any number of possible future
cases. The well-known maxim that the legislature has prescribed
everything that it wishes to prescribe is derived from this approach.

• The text-based approach was introduced into the South African legal
system in a roundabout way from English law. In the 1875 case of De Villiers
v Cape Divisional Council 1875 Buch 50, the Chief Justice decided that
legislation that had been adopted after the British had taken over the
Cape should be interpreted according to the English rules of statutory
interpretation.
• The text-based methodology is based on the ‘predominance of the word’
and the intention of the legislature is demoted to the status of the literal
meaning of the text.
• Over the years the courts came to regard the clear, literal meaning as
identical to what the legislature intended.
• As a result, only lip-service was paid to the principle of legislative intent,
because the so-called ‘clear and unambiguous meaning of the words to
the status of the will and intention of the legislature: if the legislature had
a specific intention, it would be reflected in the clear and unambiguous
words of the text.
• More recently in Commissioner, SARS v Executor, Frith’s Estate (2001) (2) SA 261
(SCA) 273 the SCA reiterated the well-known traditional rule of
interpretation:
o The primary rule in construction of a statutory provision is (as is
well established) to ascertain the intention of the legislator and (as
is equally well established) one seeks to achieve this, in the first
instance, by giving the words under consideration their ordinary
grammatical meaning, unless to do so would lead to an absurdity so
stark that the Legislature could not have contemplated it.
• All three of these judgements emanate from the SCA/AD.
 • All three were based on the formalistic and text-based (literal) method of
interpretation.
• The foundations of a text-based approach are many:
o Legal positivism (the essence of law is in the decree, and law and
morality should be separated),
o Sovereignty of parliament (the will of Parliament is expressed in
the legislation)
o Formalistic idea about law, language and understanding.
• Criticism against the text-based approach to statutory interpretation can
be summarised as follows:
o The normative role of the common-law presumptions during the
interpretation process is reduced to a mere ‘last resort’, to be
applied only if the legislative text is ambiguous.
o In this narrow approach – the words (their literal meaning) are
regarded as the primary index to legislative meaning.
o Other important internal and external aids to interpretation which
could be applied to establish the meaning of text-in-context, are
ignored. The context of the legislation is only used if the text is not
clear.
o As a result, the ‘intention of the legislature’ is ultimately dependent
on how clear the language used in the legislation may be to the
particular court
o Very few texts are so clear that only one final interpretation is
possible. The mere fact that a discipline such as interpretation of
statutes exists would, by implication, suggest that legislation is
seldom clear unambiguous.
o The text-based approach leaves very little room for judicial law-
making, and the courts are often seen as mechanical interpreters of
the law (the so-called ‘his master’s voice’ role). This view creates
the impression that once the legislature has spoken, the courts
cease to have a law-making function. As a result of slavish
adherence to the doctrine of separation of powers, the courts can
only interpret the law, not make it. The legislature creates the
legislation, and the courts have no law-making capacity with regard
to legislation, except in very exceptional cases, where the courts
deviate from the ‘literal meaning’ of the legislation to apply some
sort of corrective interpretation.
o Iudis est ius dicere sed non dare and the casus omissus rule.
The well know maxims form the basis of the general principle that
no addition to or subtraction from the legislative text is possible.
- The literal approach was the predominant approach used in SA before 1994,
and regrettably, many courts still follow the same method
The text-in-context approach:

• Th legislative function is a purposive activity.

• In terms of the text-in-context approach, the purpose or object of the
legislation 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.
• The purposive approach doesn’t give courts the authority to distort the
meaning of words beyond reason
• In contrast to the exaggerated emphasis on the legislative text, the
mischief rule is regarded as the forerunner of the text-in-context approach
to interpretation.
• The historical context of the particular legislation is used to place the
provision in its proper perspective (mischief rule).
• Aims to examine the circumstances that lead to the adoption of the
legislation in question.
• The search for the purpose of the legislation requires a purpose-orientated
approach which recognizes the contextual framework of the legislation
right from the outset, and not only in cases where the literal, text-based
approach has failed.
• The text-in-context approach provides a balance between grammatical
and overall contextual meaning,
• The interpretation process cannot be complete until the object and scope
of the legislation (contextual environment) are taken into account.
• In this way the flexibilities of language, and all the intra-textual and extra-
textual factors are accommodated in the continuing time frame within
which the legislation operates.

Jaga v Donges 1950

- Judge identified the following guidelines for interpretation of statues
o Right from the outset, the interpreter may take the wider context
into consideration
o Irrespective of how clear or unambiguous the grammatical meaning
of the text it, the relevant contextual factors must be taken into
account
o Sometimes the wider approach is more important than the
legislative text
o Once the meaning of the text and context is determined, it must be
applied, irrespective of whether the interpreter is of the opinion that
the legislature intended something else
- This was one of the first concrete efforts in SA to utilise the wider context
and move beyond the grammatical meaning to ascertain the legislative
process
• According to the text-in-context approach, the judiciary has inherent law-
making discretion during statutory interpretation. Although an exception
to the rule, the courts may modify or adapt the initial meaning of the text
to harmonise it with the purpose of the legislation.
• The role of the courts is therefore far more flexible and is not limited to
textual analysis and mechanical application of the legislation.
• But this discretion is qualified by the perquisite that modification of the
meaning of the text is possible only if the scope and purpose of the
legislation is clear and supports such modification.
 • This is not an infringement of the legislature’s legislative function, but
merely a logical extension of the powers of the court during the
interpretation and application of the relevant legislation in each practical
instance.

Outcome 4: Influence of the Constitution

The influence of the supreme Constitution:

• Although most academics in SA propagated a text-in-context (purposive)

method of statutory interpretation, few courts actually adopted a less
formalistic approach to legislative interpretation. However, since 1994, the
largely academic debate about a text-based approach vs a text-in-context
approach to statutory interpretation has become irrelevant
• Both the interim and final Constitutions contained a mandatory
interpretation provision
o Statutory interpretation now has to be conducted within the value-
laden framework of the supreme Constitution which is the highest
law of the land.
• Apart from the Constitutional values, the interpretation of statutes was
transformed by six provisions of the Constitution, in particular:
▪ S1 - the foundational provision
▪ S2 - supremacy of the Constitution
▪ S7 – obligation clause
▪ S8 – the application clause
▪ S36 – the limitation clause
▪ S39 – the interpretation clause.
o Section 2 must be read with section 7 which states that the Bill of
Rights is the cornerstone of SA democracy
o Section 8 which provides that the Bill of Rights binds natural and
juristic persons
o Section 237 which states that all constitutional obligations must be
performed diligently and without delay.
• When all of these sections are read together it is clear that the
Constitution is supreme and everything and everybody is subject to it.
• The Constitution cannot be interpreted in the light of the Interpretation Act
or the Roman Dutch common law or traditional customary law.
• All law and conduct, all cultural traditions and legal dogmas, religious
perceptions, rules and procedures and all theories, canons and maxims of
interpretation are influenced and ultimately qualified by the Constitution.
The Interpretation Clause
• The Constitution does not expressly prescribe a purposive approach to
statutory interpretation.
• However, S39(2) is a peremptory provision which means that all court,
tribunals and forums must revie the aim and purpose of legislation in the
light of the Bill of Rights.
• This means that the interpreter must consider extra-textual factors before
the legislative text is even considered.
 • This means that Interpretation of statutes starts with the Constitution and
not the legislative text (Bato Star Fishing v Minister of Environmental
Affairs and Tourism 2004)
• 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.
• All statutes must be interpreted through the prism of the Bill of Rights

Impact of constitutionalism
- Interpretation took into account the values of the Constitution
- Recognises the injustices of the past, including past interpretation
methods (literal)
- Some critiques still say that rules of statutory interpretation were not
affected by constitution
- For many courts- interpretation is still a mechanical process
When assessing legislation
1. Constitution
2. PAJA, PAIA, PEPUDA
3. Legislation itself (internal aids)
4. External aids

Outcome 5: Methodology of statutory interpretation

A practical, inclusive method of interpretation:

• Post 1994 Courts have grappled with the issue of statutory interpretation
with varying approaches being followed.
• In one case the SCA suggested that interpretation under the Constitution
required the court to sail between the Scylla of the old-style literalism and
the Charybdis of judicial law-making.
• Du Plessis & Corder (1994) originally suggested five practical interrelated
techniques for constitutional interpretation.
• Du Plessis has applied this practical and inclusive method for statutory
interpretation as well.
• These components of a practical methodology are complementary and
interrelated, and should be applied in conjunction with one another.
• The inclusive method of interpretation is not new or radical – it brings
together all the different aspects or techniques necessary for
interpretation.

Outcome 6: Dimensions of Interpretation

The 5 components of the Practical, inclusive method of interpretation:

• Words and phrases: the language aspect:

o Focuses on the linguistic and grammatical meaning of the words,
phrases, punctuation, sentences and other structural components
of the text and on the rules of syntax (the rules dealing with the
order of words in a sentence).
 o However, this does not mean a return to literalism and the orthodox
text-based interpretation. It merely acknowledges the importance of
the legislative text in the complex process of interpretation.
• Structure & Content: the systematic aspect:
o Also known as the holistic approach – refers to the principle that
words, phrases and provisions cannot be read in isolation.
o This method is concerned with the clarification of the meaning of a
particular legislative provision in relation to the legislative text as a
whole.
o The emphasis on the ‘wholeness’ is not restricted to the other
provisions and parts of the legislation, but also takes into account
all other contextual considerations (e.g. the social and political
environments) in which the legislation operates.
• Teleological interpretation: the value- based aspect:
o Emphasises fundamental constitutional values and value-coherent
interpretation.
o The aim and purpose of the legislation must be ascertained against
the fundamental constitutional values, in other words s39(2) of the
Constitution.
o The fundamental values in the Constitution form the foundation of a
normative, value laden jurisprudence during which legislation and
actions are evaluated against and filtered through constitutional
values.
• Historical aspect:
o Focuses on the historical context
o Includes factors such as the circumstances which gave rise to the
adoption of the legislation (mischief rule) and the legislative history
(prior legislation and preceding discussions).
o Although is an important aspect, the historical perspective cannot
be decisive on its own.
• Comparative aspect:
o This aspect refers to the process (if possible and necessary) where
the court examines the interpretation of similar legislation by
foreign courts, as well as international law.
o The inclusive method of interpretation is not new or radical – it
brings together all the different aspects or techniques necessary for
interpretation.
o It is not just another template for a mechanical application of words
and phrases with passing reference to values and context.
o It is a total, integrated framework within which the process of
interpretation of statutes should take place.
o A practical, all-encompassing methodology to deal with the
complexities and nuances of statutory interpretation.
Outcome 7: Presumption (futile/nugatory provisions)
• Unless the contrary is clear, it is presumed that the legislature does not
intend legislation which is futile or nugatory
• The court has to determine the purpose of the legislation and give effect
to it
• If the intention of the legislature is clear, it should not be defeated merely
because of vague or obscure language
• The court must, as far as possible, attach a meaning to the words which
will promote the aim of the provision
• If there are two possible interpretations, the court must try, if reasonably
possible, to adopt an interpretation that will render the legislation effective
• Courts may adapt the initial meaning of the legislation in the light of this
presumption
• However, this presumption only applies of there is more than one possible
interpretation and cannot be used by courts to interpret legislation at will
• The presumption also applies to subordinate legislation

Outcome 8: Presumption (Gov bodies aren’t bound by

their own legislation)
• As a general rule, it is presumed that government bodies are not bound by
their own legislation, unless the legislation implicates otherwise.
• “The King can do no wrong” (fears of abuse of power
• However, this does not mean that the state operates above the law, it is
rather a principle of effectiveness to ensure that the state is not hampered
in its government functions in as far as they are aimed at enhancing the
public good and welfare
• The question of whether the state is bound depends on the specific
circumstances and legislation – each case has to be judged on its own
merits
• EG – a driver of a fire engine may disregard a red traffic light while
firefighting (S v Labuschagne)
o If it is out of duties (weekends/ fays off) this presumption does not
apply
• Not being bound by legislation as a result of this presumption doesn’t
mean that the state liability is also automatically excluded (cannot escape
delictual liability)
o EG if a police officer violates speed limit and crashes - still has to
pay
Criticism
1. S39(2) stipulates that laws must be developed in the sphere of the BOR
2. S8(1) sates that gov organs at all levels are bound by the BOR
3. Legislation is subject to the constitution – so how can gov not be bound?
4. Constitutional principles imply that this presumption should not be applied
a. Implies that gov should be bound by legislation unless they can
prove a justifiable reason as to not be (flip presumption around)
The constitutionality of this presumption has not yet been tested in court- so it
still stands

Outcome 9: Mischief Rule

The Mischief Rule
Historical context of the particular legislation is used to place the provision in
question in its proper perspective

• Laid down in the 16th century by Lord Coke in the famous Heydon’s Case
(1584)
• Forms one of the cornerstones of the text-in-context approach to
interpretation.
• Aims to examine the circumstances that lead to the adoption of the
legislation in question.
The Mischief Rule poses 4 questions that will help to establish the meaning
of the rule:
o What was the existing law (the legal position) before the legislation
in question was adopted?
o Which problem (mischief or defect) was not adequately addressed
by the existing law before the new legislation was adopted?
o What remedy (solution) is proposed by the new legislation to solve
this problem?
o What is the true reason for the proposed remedy?
• The mischief rule acknowledges:
o The application of external aids
o The common law
o Whatever new remedies the legislature provides
o The true reason for the remedies.