Legal interpretation in South Africa refers to the juridical understanding of
South African legislation and
case law, and the rules and principles used to construct its meaning for
judicial
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
purposes. Broadly speaking there are three means by which and through which South African scholars and jurists construe their country's
statutory law
Statutory law or statute law is written law passed by a body of legislature. This is opposed to oral or customary law; or regulatory law promulgated by the executive or common law of the judiciary. Statutes may originate with national, stat ...
:
linguistics
Linguistics is the science, scientific study of human language. It is called a scientific study because it entails a comprehensive, systematic, objective, and precise analysis of all aspects of language, particularly its nature and structure ...
or
semantics
Semantics (from grc, σημαντικός ''sēmantikós'', "significant") is the study of reference, meaning, or truth. The term can be used to refer to subfields of several distinct disciplines, including philosophy, linguistics and comp ...
,
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
and
jurisprudence
Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...
. Although
statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward meani ...
usually involves a personal predisposition to the text, the goal is generally to "concretise" it: to harmonise text and purpose. This is the final step in the interpretative process.
[Botha 5.] Statutory interpretation is broadly
teleological
Teleology (from and )Partridge, Eric. 1977''Origins: A Short Etymological Dictionary of Modern English'' London: Routledge, p. 4187. or finalityDubray, Charles. 2020 912Teleology" In ''The Catholic Encyclopedia'' 14. New York: Robert Appleton ...
, comprising as it does first the evaluation and then the application of enacted law.
Statute law
Statute law is written law enacted by a person or a body empowered by the Constitution or other legislation to do so. The
Interpretation Act
Interpretation Act (with its variations) is a stock short title used for legislation in Australia, Canada, Hong Kong, Malaysia, New Zealand, the Republic of Ireland, Singapore and the United Kingdom relating to interpretation of legislation. The Bi ...
defines it as "any law,
proclamation
A proclamation (Lat. ''proclamare'', to make public by announcement) is an official declaration issued by a person of authority to make certain announcements known. Proclamations are currently used within the governing framework of some nations ...
,
ordinance,
Act of Parliament
Acts of Parliament, sometimes referred to as primary legislation, are texts of law passed by the Legislature, legislative body of a jurisdiction (often a parliament or council). In most countries with a parliamentary system of government, acts of ...
or other enactment having the force of law."
[s 2.] The
Constitution of South Africa
The Constitution of South Africa is the supreme law of the Republic of South Africa. It provides the legal foundation for the existence of the republic, it sets out the rights and duties of its citizens, and defines the structure of the Gover ...
, which has the force of supreme law,
and as such sets the standards and requirements for the construction and construal of statutes, also provides a definition of statute law, distinguishing between national and provincial legislation:
* National legislation:
** "subordinate legislation made in terms of an Act of Parliament"; and
** "legislation that was in force when the Constitution took effect and that is administered by the national government."
* Provincial legislation:
** "subordinate legislation made in terms of a provincial Act"; and
** "legislation that was in force when the Constitution took effect and that is administered by a provincial government."
There are a large number and variety of statutes in South Africa—including Acts, ordinances, proclamations,
by-law
A by-law (bye-law, by(e)law, by(e) law), or as it is most commonly known in the United States bylaws, is a set of rules or law established by an organization or community so as to regulate itself, as allowed or provided for by some higher authorit ...
s, rules and regulations.
As of 1993, statute law is to be found on all three
levels of government (
national
National may refer to:
Common uses
* Nation or country
** Nationality – a ''national'' is a person who is subject to a nation, regardless of whether the person has full rights as a citizen
Places in the United States
* National, Maryland, c ...
,
provincial and
local
Local may refer to:
Geography and transportation
* Local (train), a train serving local traffic demand
* Local, Missouri, a community in the United States
* Local government, a form of public administration, usually the lowest tier of administrat ...
), and as such affects every governmental sphere, and although generally referred to as "
public law" may be applicable to any legal area. Statutes derive binding force from their creators or legislators, who are empowered by the Constitution, and serve broadly to regulate the modern state. The Constitution provides a guide on how to read statutes and construe the common law: "When interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purport and objects of the
Bill of Rights
A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pr ...
." In general, its function is to promote the
public interest
The public interest is "the welfare or well-being of the general public" and society.
Overview
Economist Lok Sang Ho in his ''Public Policy and the Public Interest'' argues that the public interest must be assessed impartially and, therefor ...
.
Among the advantages of statute law is that legislation is accessible and therefore broadly "knowable;" that it is dynamic and flexible, and so easily amended; and that it promotes legal certainty, with a formal procedure required for its
repeal
A repeal (O.F. ''rapel'', modern ''rappel'', from ''rapeler'', ''rappeler'', revoke, ''re'' and ''appeler'', appeal) is the removal or reversal of a law. There are two basic types of repeal; a repeal with a re-enactment is used to replace the law ...
. Among its disadvantages is that, under a common-law system, legal certainty is frequently an illusion; it often falls to the courts to give "official" meaning. There is also a danger of over-legislating, which can limit the development of a
legal system and sometimes even undermine basic principles of
fairness
Fairness or being fair can refer to:
* Justice
* The character in the award-nominated musical comedy '' A Theory of Justice: The Musical.''
* Equity (law), a legal principle allowing for the use of discretion and fairness when applying justice ...
and
justice
Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspective ...
, as with the misuse or abuse of legislative power for the ends of
social engineering.
Classification of legislation
Chronological
= Pre-1806
=
The oldest surviving statutes in South Africa are the old colonial Dutch ''
placaaten'', which are regarded as common law, and for whose demise no formal procedure is necessary.
[Botha 12.] They are abrogated by disuse.
= Old-order legislation
=
Old-order legislation is defined in terms of the Constitution as "legislation enacted before the
previous Constitution took effect."
Pre-Union (1806–1910)
Laws enacted prior to the establishment, in 1910, of the
Union of South Africa
The Union of South Africa ( nl, Unie van Zuid-Afrika; af, Unie van Suid-Afrika; ) was the historical predecessor to the present-day Republic of South Africa. It came into existence on 31 May 1910 with the unification of the Cape, Natal, Tran ...
, and after the 1806 British annexation of the
Cape
A cape is a clothing accessory or a sleeveless outer garment which drapes the wearer's back, arms, and chest, and connects at the neck.
History
Capes were common in medieval Europe, especially when combined with a hood in the chaperon. Th ...
, have mostly been repealed or incorporated into other legislation.
Between Union and the democratic era (1910–1994)
Legislation enacted after 1910, but before the current constitutional dispensation, still forms a substantial—indeed predominant—part of the current body of statute law in South Africa.
= New-order legislation
=
New-order legislation refers to the whole body statute law enacted in South Africa
since 1994. It includes both the
Interim Constitution and the current Constitution of 1996, under which all such legislation has been enacted, and with which all legislation must be compatible if it is to be valid.
Hierarchy and status
Before 1994 and the new era of
constitutionalism
Constitutionalism is "a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law".
Political organizations are constitutional ...
, it was
Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. Th ...
rather than the Constitution which enjoyed
supremacy. Statutes were divided simply into original legislation (Acts of Parliament) and subordinate legislation (such as regulations and proclamations). Now, however, the Constitution is supreme, and all other legislation subordinate to it. Today legislation is divided according to its status and its position in the hierarchy.
= Hierarchy
=
"Hierarchy" is classification of legislation according to the level of government (national, provincial or local) whereat it is passed. Statutes which prevail over others are "superior" to them, and superior statutes can be either original or delegated,—see below—even within one level of government. In certain circumstances, however, in certain levels of government, delegated legislation is ''always'' subordinate; likewise the Constitution, "not passed by Parliament, but
..adopted by the Constitutional Assembly," is always supreme, in that any law inconsistent with it is invalid, and in that the obligations it imposes must be fulfilled.
[Botha 14.]
Original legislation
* Parliament is South Africa's highest legislator, its original powers bestowed by the Constitution. Some Acts of Parliament give effect to specific human rights, and are created by specific mandate in the Constitution.
These are superior to all other legislation, but subordinate to the Constitution. The
Promotion of Access to Information Act
The Promotion of Access to Information Act, 2000 (or PAIA; Act No. 2 of 2000) is a freedom of information law in South Africa. It gives the constitutional right of access to any information held by the State and any information held by private b ...
, for example, is constitutionally prescribed, and over-rides all other legislation that "is materially inconsistent with an object, or a specific provision, of this Act."
* The original power for new Provincial Acts (those passed since 1994) is derived directly from the Constitution.
* Some provincial ordinances, passed between 1961 and 1986, are still in force. Given that they were enacted by an elected body, could alter the common law and could even have retrospective force, they clearly represent a category of original legislation. A provincial ordinance only applies now in the "old" geographical region of the relevant former province.
* The self-governing
former homelands enjoyed concurrent legislative powers in South Africa with the central government, although there were certain limitations on their legislators.
Defence
Defense or defence may refer to:
Tactical, martial, and political acts or groups
* Defense (military), forces primarily intended for warfare
* Civil defense, the organizing of civilians to deal with emergencies or enemy attacks
* Defense indus ...
and
foreign policy, for example, were outside of their legislative competence.
* The legislation of the former TBVC states (
Transkei
Transkei (, meaning ''the area beyond he riverKei''), officially the Republic of Transkei ( xh, iRiphabliki yeTranskei), was an unrecognised state in the southeastern region of South Africa from 1976 to 1994. It was, along with Ciskei, a Ba ...
,
Bophuthatswana
Bophuthatswana (, meaning "gathering of the Tswana people"), officially the Republic of Bophuthatswana ( tn, Riphaboliki ya Bophuthatswana; af, Republiek van Bophuthatswana), was a Bantustan (also known as "Homeland"; an area set aside for mem ...
,
Venda
Venda () was a Bantustan in northern South Africa, which is fairly close to the South African border with Zimbabwe to the north, while to the south and east, it shared a long border with another black homeland, Gazankulu. It is now part of the ...
and
Ciskei) is still valid in the applicable areas, as these states have since been re-incorporated into South Africa.
* New municipal legislation or "by-laws", enacted since 1993, derive their original power from the Constitution.
Delegated legislation
Acts of Parliament and other original legislation are often drafted in skeleton form, as the legislative bodies responsible are not able to account continuously for every change in South African society which such legislation would be required to accommodate. Delegated legislation "adds the flesh;" it is "legislation by administration." An original statute thus "orders" (in an enabling provision) that legislation be drafted, usually at a lower level of government, to address certain aspects of what the original statute is supposed to remedy.
Existing provincial proclamations and regulations (1968–1994) include those issued by the Provincial Councils and, since 1986, the Provincial Administrator, who
* issues proclamations to amend or repeal provincial legislation; and
* issues regulations under and in terms of existing provincial legislation.
New provincial proclamations and regulations (since 1994) are issued to fulfil the requirements of the prescribing Act, to "add flesh" to it.
Other proclamations and regulations may be made or issued by the conferral of delegated powers. A cabinet minister may be authorised to make regulations according to a prescribing statute: for example, section 75 of the
National Road Traffic Act, which so empowers the Minister of Transport.
The minister may also empower or authorise another statutory body or person to make such regulations.
University councils, for example, and the
South African Towing and Recovery Association are so authorised. The
Chief Justice, for another example, prescribes the Rules of the Constitutional Court.
Citation of legislation
Structure of legislation
The use or consideration of the structure of legislation for the purposes of interpretation is known as the systematic or contextual method of statutory interpretation.
Long title
The long title is a short summary of the content of the statute.
Preamble
Not every statute has a preamble, but many do. It may be useful in furnishing details of the circumstances, the background and reasons for the creation of the statute.
Enacting provision
The enacting provision of a statute acknowledges the legislator and authority responsible (be it national, provincial or municipal).
Definitions
The definitions of terms or words or concepts in the Act are usually included in an "internal dictionary," to be found in the opening section of the Act itself.
Purpose and interpretation clauses
Purpose and interpretation causes are mostly to be found in new-order legislation. They state the purpose of the Act and prescribe how it ought to be interpreted.
Short title and commencement
The short title is usually included in the final section. It is the official "name" of the Act. An obvious example would be "Interpretation Act 33 of 1957."
Included in the final section also will usually be an indication of the commencement date of the statute. If no such date is given, it may be found in the relevant gazette.
Schedules
Schedules provide auxiliary detail and other information additional to the text of the Act, as is the case, for example, in the Constitution, with its seven schedules.
Chapters
Chapters are normally to be found in longer statutes. They are sometimes also called "parts." They are not usually referred to in citation, however; scholars and judges cite instead the relevant sections and subsections of the Act. The rationale for this is that, while not all statutes have chapters, they are almost always divided into sections. This promotes uniformity.
Numbers
Examples of a statute number include the Interpretation Act 33 of 1957 and Proclamation R255 of 7 October 1977. Statutes are numbered by the order of their signature or assention by the President, not in order of their publication or enactment.
Citation of original legislation
National legislation is cited by its short title and number (as above). The same applies to provincial legislation, but with reference to the relevant province: for example, "Eastern Cape Provincial Tender Board Act 2 of 1994." The Constitution is usually cited as "Constitution of the Republic of South Africa, 1996," while the Interim Constitution is cited as "Constitution of the Republic of South Africa Act 200 of 1993."
It is now generally agreed that the final Constitution of 1996 ought, in recognition of its supreme status, not to be cited with its statute number (although it has one).
In the citation "s 2(a)(i)(cc),"
* "2" refers to the section number;
* "(1) refers to the sub-section;
* "(a)" refers to the paragraph;
* "(i)" refers to the sub-paragraph; and
* "(cc)" refers to the item.
"s 2A" would refer to a new section inserted in terms of an amendment.
Citation of delegated legislation
Delegated legislation usually has no official short title. Regulations issued by GN R999 GG 174254 of 28 June 1996, under s 56 of Aliens Control Act 96 of 1991, for example, would be known broadly as "Aliens control regulations."
Proclamations
In the citation of proclamations, one should cite the number and the year of promulgation: for example, Proclamation R255
G 5766 of 7 Octoberof 1977. Proclamations are divided into sections, sub-sections and paragraphs.
Regulations
Regulations are promulgated by Government Notices: for example, GN R1412 of 2003, which issued explosives regulations in terms of the Explosives Act. They are divided into (individual) regulations, sub-regulations and paragraphs.
By-laws
By-laws are passed by municipal councils. Such councils can also promulgate original legislation, however, because they are representative and deliberative legislative bodies.
In ''
Fedsure v Greater Johannesburg'', the court held that, although the detailed powers and functions of local governments have to be determined by the laws of a competent authority, this does not mean that the powers they exercise are "delegated." Nor does it prevent those powers from being regarded as "original" and not "delegated."
[Para 39.]
By-laws are divided into sections, sub-sections and paragraphs.
Rules
Examples of rules include the Uniform Rules of the High Court and the Magistrates' Court Rules. These are divided into (individual) rules, sub-rules and paragraphs.
See also
*
Statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward meani ...
*
Constitutionalism
Constitutionalism is "a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law".
Political organizations are constitutional ...
References
Books
* Botha, C. ''Statutory Interpretation: An introduction for students''. 4 ed. Juta and Company Ltd, 2010.
* Du Plessis, LM. ''Re-Interpretation of Statutes''. Butterworths, 2002.
* Devenish, GE. ''The Interpretation of Statutes''. Juta and Company Ltd, 1992.
* Kellaway. ''Principles of Legal Interpretation''. Butterworths, 1995.
* HR Hahlo and E Kahn ''The South African legal system and its background''. 1973.
Statutes
* Citation of Constitutional Laws Act 5 of 2005.
* Interpretation Act 33 of 1957.
* Promotion of Access to Information Act 2 of 2000.
Cases
* ''
Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others'' 1999 (1)
SA 374 (CC).
* ''
Kruger v President of Republic of South Africa and Others'' 2009 (1) SA 417 (CC).
* ''
R v Patz'' 1946
AD 845.
* ''
Theart and Another v Minnaar NO; Senekal v Winskor 174 (Pty) Ltd'' 2010 (3) SA 327 (SCA).
* ''
True Motives 84 (Pty) Ltd v Mahdi and Another'' 2009 (4) SA 153 (SCA).
Notes
{{SA law, state=expanded
Law of South Africa
Legal interpretation