IOS2601 MCQs FROM OLD ASSIGNMENTS ()

IOS2601 MCQs FROM OLD ASSIGNMENTS () . Interpretation Of Statutes. Old order legislation may be defined as any legislation enacted before the final Constitution took effect. (b) Original legislation includes Acts of Parliaments, new provincial Acts, provincial ordinances, legislation of the former homelands, new municipal legislation and legislation of the former TBVC states. (1) Both statements are correct. (2) Only statement (b) is correct. (3) Both statements are wrong. (4) Only statement (a) is correct. (2) Only statement (b) is correct. (See Botha pp 12-16, paras 2.2.1 and 2.2.2(ii)). Question 2 In the case of S v Koopman 1991 (1) SA 474 (NC): (a) The accused was found guilty of contravening the Criminal Procedure Act 51 of 1977. (b) The accused was sentenced to life imprisonment. (c) The court used section 11 of the Interpretation Act 33 of 1957 to arrive at a just conclusion. (d) The presumption against futile and nugatory provisions assisted the court in reaching its decision. (1) All the statements are correct. (2) All the statements are wrong. (3) Only statement (a) is correct. (4) Only statements (a) and (b) are correct. (5) Only statements (c) and (d) are correct. (5) Only statements (c) and (d) are correct. (See Botha p 40, para 4.4). Question 3 The intention of the legislature is not considered during the interpretation process because: (a) Some of the members of parliament will only support legislation for the sake of party unity but may be personally opposed to a Bill; (b) Some of the members of parliament may oppose the legislation for various reasons, with the result that the legislation ultimately only reflects the ‘intention’ of the majority of the legislature. (c) We cannot expect all parliamentarians to understand complex and highly specialized technical legislation. (d) The Bill presented before parliament for consideration, is not drafted by parliamentarians themselves, but by drafters acting on the advice of bureaucrats from state departments; (e) Some members of the legislative body might be absent when voting on a bill takes place. (1) All the statements are correct. (2) Only statements ((a), (c),(d) and (e) are correct. (3) All the statements are wrong. (4) Only statements (b), (d) and (e) are correct. (5) Only statements (a), (c) and (e) are correct. (1) All the statements are correct. (See Botha page 66-67, para 6.1.2). Question 4 (a) Restrictive interpretation is applied when the preamble of the particular legislation embraces more than its purpose. 2 (b) The law-making powers of the courts are restricted because of the common-law presumption that legislation only applies to the future. (1) Both statements are correct. (2) Only statement (a) is correct. (3) Only statement (b) is correct. (4) Both statements are wrong. (4) Both statements are wrong. (See Botha pp 102-105, para 8.3.2 (i)). Question 5 (a) Where legislation protects private revenue, a presumption against nullity exists, even if a penal clause has been added. (b) A word or words with an imperative or affirmative character indicates a directory provision. (c) If strict compliance with the provisions would lead to justice and even fraud, it is presumed that the provision is directory. (d) The Constitution does not contain any peremptory provisions. (1) Only statements (a), (b) and (d) are correct. (2) Only statements (a), (b) and (c) are correct. (3) Only statements (b)and (c) are correct. (4) All the statements are wrong. (5) All the statements are correct. 4) All the statements are wrong. (See Botha pp 109-113, paras 9.1 and 9.2). Refer to the relevant parts of the Planning Professions Act 36 of 2002 (see Appendix E of this tutorial letter) and answer the following five (5) questions. Question 6 (a) The short title of the Act is the Planning Professions Act 36 of 2002. (b) The English text of the legislation was signed by the President. This means that only the English text may be used when the Act is interpreted. (1) Both statements are wrong. (2) Only statement (b) is correct. (3) Only statement (a) is correct. (4) Both statements are correct. (3) Only statement (a) is correct. (See Botha p76-77, para 7.2.1 and p 21, para 2.4). Question 7 If Thembi lodges an appeal in terms of section 27(2) of the Act on 9 March 2009, and the Council informed him of its decision on 5 February 2009, (using the statutory method of computation of days) when will Thembi’s appeal have to be lodged? (N.B. Please answer this question without the use of a calendar). (1) 6 March 2009 (2) 7 March 2009 (3) 5 March 2009 (4) 8 March 2009 The correct answer is (2) 7 March 2009. (See Botha p 88-89, para 7.4.2). Question 8 (a) Section 39 of the Act conflicts with section 13(1) of the Interpretation Act 33 of 1957 because legislation must commence on the day that it is published. 3 (b) In the Act, the reference to “this Act” includes delegated legislation. (1) Only statement (a) is correct. (2) Both statements are correct. (3) Only statement (b) is correct. (4) Both statements are wrong. (3) Only statement (b) is correct. (See Botha p 31-32, para 3.3). Question 9 Section 4(5) of the Act provides that: “every member of Council must be appointed for a period of four years, but the Minister may in his or her discretion extend the term of such a member by a further period not exceeding three months until a new Council or member has been appointed”. (a) When making a determination as to whether section 4(5) is directory or peremptory; a court will have to consider the language and purpose of the provision. (b) The word “must” indicates a discretion and will be interpreted as peremptory unless the purpose of the provision indicates otherwise. (1) Both statements are wrong. (2) Both statements are correct. (3) Only statement (a) is correct. (4) Only statement (b) is correct. (3) Only statement (a) is correct. (See Botha pp 109-113 and pp 74-81 in study guide). Question 10 When interpreting the Planning Professions Act 36 of 2002, a court: (a) must consider sections 1 and 2 of the Constitution; and (b) must promote the spirit, purport and objects of the Bill of Rights. (1) Only statement (b) is correct. (2) Both statements are correct. (3) Only statement (a) is correct. (4) Both statements are wrong. (2) Both statements are correct. (See Botha p 52-55, para 5.2.4). Question 1 A peremptory statutory provision ... (1) requires some compliance. (2) may be complied with. (3) requires exact compliance. (4) may be deviated from. The answer is (3). See paragraph 8.1 of the textbook, Statutory interpretation: an introduction for students, by Christo Botha. Question 2 In which case was the following held: “the court emphasised that these categories are merely guidelines, what is important is the purpose of the provisions in question, as well as the consequences if the statutory requirements are not strictly adhered to”? (1) Commercial Union Insurance Co v Clarke 1972 (3) SA 508 (A) (2) Weenen Transitional Council v Van Dyk 2002 (4) SA 653 (SCA) (3) Nkisimane v Santam Insurance Co Ltd 1978 (2) SA 430 (A) (4) Sentrale Kunsmis Korporasie (Edms) Bpk v NKP Kunsmisverspreiders (Edms) Bpk 1970 SA 360 (A) 4 The answer is (2). See paragraph 8.1 of the textbook, Statutory interpretation: an introduction for students, by Christo Botha. Question 3 Adoption refers to... (1) the process of putting legislation officially and legally into operation. (2) a state of affairs where 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. (3) the constitutionally prescribed and other legal processes 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. (4) construing enacted legal texts with reference to and reliance on other legal texts, concretising the text to be construed so as to cater for the exigencies of an actual or hypothesised concrete situation. The answer is (3). See paragraph 3.1 of the textbook, Statutory interpretation: an introduction for students, by Christo Botha. Question 4 According to section 12(2) of the Interpretation Act 33 of 1957, where a law repeals any other law, then, unless the contrary intention appears, the repeal shall not– (1) affect the previous operation of any law so repealed or anything duly done or suffered under the law so repealed. (2) affect any right, privilege, obligation or liability acquired, accrued, or incurred under any law so repealed. (3) affect any penalty, forfeiture or punishment incurred in respect of any sentence imposed by the law so repealed. (4) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, forfeiture or punishment. All students will receive credit for this question. Question 5 What does the term “reading down” by the courts entail? (1) The courts follow a restricted interpretation of the legislation in cases when there are conflicts with the Constitution, but such a restrictive interpretation keeps the legislation constitutional. (2) Reading down takes place when there is more than one possible reading of the legislative text, and a more extensive reading is adopted in order to keep the legislation in question constitutional. (3) A more drastic remedy used by the courts in order to change legislation to keep it unconstitutional. (4) The courts follow an expansive interpretation of the legislation in cases when there are conflicts with the Constitution, but such an expansive interpretation keeps the legislation constitutional. The answer is (1). See paragraphs 9.4 to 9.4.5 of the textbook by Botha. Question 6 Du Plessis explains interpretation of statutes as … (1) a mechanical exercise during which predetermined formulae, well-known maxims and careful reading will reveal the meaning of the legislative provision. (2) a process where technical aspects, e.g. structure of legislation, are separated from the application of substantive aspects, e.g. fundamental rights in the Constitution. 5 (3) a construction of enacted legal texts with reference to and reliance on other legal texts, concretising the text to be construed so as to cater for the exigencies of an actual or hypothesised concrete situation. (4) a mechanical sequence of join-the-dots or painting-by-numbers. The answer is (3). See paragraph 1.2 of the textbook, Statutory interpretation: an introduction for students, by Christo Botha. Question 7 “The Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” In which constitutional provision is the above statement found? (1) Section 1 of the Constitution. (2) Section 2 of the Constitution. (3) Section 7 of the Constitution. (4) Section 8 of the Constitution. The answer is (2). Question 8 In terms of one of the five interrelated dimensions of interpretation, the initial meaning of the text entails that ... (1) words with a technical meaning must be given that specialised meaning. (2) an extraordinary meaning must be attached to the words. (3) the interpretation process ends with the reading of the legislation concerned. (4) words must be given their ordinary, inaccurate meaning. The answer is (1). See paragraph 6.1.1 of the textbook, Statutory interpretation: an introduction for students, by Christo Botha. Question 9 In Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) the Constitutional Court stressed that a court is obliged to … (1) develop the common law in the light of the Constitution. (2) allow legislation to trump common law as is usually the practice. (3) allow common law and legislation to operate side by side. (4) develop common law in the light of applicable legislation. The answer is (1). See paragraph 2.5 of the textbook, Statutory interpretation: an introduction for students, by Christo Botha. Question 10 If an Act was tabled on 13 January, assented to by parliament on 14 January, signed by the President on 21 February and published in the Government Gazette on 2 March, what would the date of promulgation be? (1) 21 February. (2) 2 March. (3) 13 January. (4) 14 January. The answer is (2). 6 Question 11 According to the textualist viewpoint, courts only use the secondary and tertiary aids to interpretation … (1) to determine the intention of parliament. (2) when the words in the legislation seem unclear and ambiguous. (3) to determine the abstract purpose of the text. (4) to determine the purpose of parliament. The answer is (2). This is known as the golden rule of textual interpretation. Only when the words in the legislation seem unclear and ambiguous may the courts turn to secondary and tertiary aids. In this method of interpretation, it is believed that the plain grammatical meaning of the words as they are found in the legislation constitutes the intention of the legislature and thus the purpose of the legislation. Question 12 Indicate which statement is NOT correct. Followers of the contextual school claim the following: (1) The court has a creative lawmaking function during statutory interpretation. (2) It is the task of the court to ensure that the legislative process has a just end. (3) Only when the court applies legislation does it become a real and complete, functional statute. (4) The court should interpret legislation only within the framework of the words in the legislation. The answer is (4). This statement will fall within the orthodox viewpoint. Question 13 The following are guidelines to constitutional interpretation. Please state which guideline is incorrect. (1) A supreme Constitution must be given a generous and purposive interpretation. (2) The spirit and tenor of the Constitution must be adhered to during interpretation. (3) The context of the Constitution is anchored by the values in the Constitution. (4) The principles of international human rights law must be applied during interpretation. The answer is (3). Respect must be paid to the language in the Constitution. Although the text is balanced and qualified by various contextual factors, the context is anchored to the particular constitutional text. Thus historical context and comparative interpretation can never reflect a purpose that is not supported by the constitutional text as legal instrument. Question 14 In Nourse v Van Heerden 1999 (2) SACR 198 (W) the court found that … (1) legislation can be abrogated by disuse. (2) legislation must be repealed by a competent legislature. (3) the case had to be decided in terms of the Choice of Termination of Pregnancy Act 92 of 1996. (4) the Abortion and Sterilisation Act 2 of 1975 was unconstitutional. The answer is (2), See paragraph 4.3.2 of the textbook, Statutory interpretation: an introduction for students, by Christo Botha. Question 15 The presumption that legislation applies only to the future is based on ... (1) the prevention of fair and reasonable results. (2) predictability and illegality. 7 (3) unpredictability and legality. (4) the prevention of unfair and unreasonable results. The correct answer is (4). See paragraph 3.4 of the textbook by Botha. Question 1 According to Botha, a number of factors support the law-making discretion of the courts during the interpretation of legislation. One of these factors is (1) the principle of democracy. (2) the rule of law principle. (3) the common-law presumption that the legislature does not intend to change the existing law more than is necessary. (4) the common-law presumption that the legislature does not intend futile, meaningless and nugatory legislation. Answer: Only statement (4) is correct. See Botha C Statutory interpretation: An introduction for students (2012) 165, paragraph 7.2.4(b). Question 2 Indicate which statement is NOT correct: Section 233 of the Constitution … (1) is constitutional confirmation of the common-law presumption that legislation does not violate international law. (2) is a directory provision. (3) states that a court must prefer a reasonable interpretation that is not in conflict with international law. (4) is qualified by sections 231 and 232 of the Constitution. Answer: Only statement (2) is not correct. See Botha C Statutory interpretation: An introduction for students (2012) 155-156, paragraph 6.5.2. Question 3 The revocation of legislation by the relevant competent lawmaker is known as … (1) concretisation. (2) repeal. (3) suspension. (4) retroactivity. Answer: Only statement (2) is correct. See Botha C Statutory interpretation: An introduction for students (2012) 71, paragraph 4.3.2(b). Question 4 Section 27(2) of the Planning Professions Act 36 of 2002 provides that: “an appeal must be lodged, in the manner prescribed and upon payment of the fees prescribed by the Council, within 30 days after the Council or disciplinary tribunal has informed the appellant of its decision and the Appeal Board must consider and decide the appeal.” Vuyo wishes to lodge an appeal in terms of section 27(2) of the Act, against a decision of Council. The Council informed him of its decision on 5 February 2015. Using the ordinary civil method of computation of days (computatio civilis), when must Vuyo‟s appeal be lodged by? (NB Please answer this question without using a calendar and also assume that the month of February only has 28 days.) (1) 6 March 2015 (2) 7 March 2015 (3) 5 March 2015 (4) 8 March 2015 8 Answer: Only statement (3) is correct. See Botha C Statutory interpretation: An introduction for students (2012) 127-128, paragraph 6.1.3(d). According to the ordinary civil method of computation of days (computatio civilis), the first day of the prescribed period is included and the last day excluded. Question 5 In S v Kohler 1979 (1) SA 861 (T) ... (1) the court had to interpret section 2(1)(b) of the Legal Deposit of Publications Act 17 of 1982. (2) the court heard an appeal against the decision of a magistrate‟s court in which Kohler was found guilty of contravening a municipal by-law because he kept a duck within the municipal boundaries without the required licence. (3) the court had to interpret section 10(1) of the Stock Theft Act 26 of 1923. (4) the court heard an appeal against the decision of a magistrate‟s court in which Kohler was found guilty of contravening a municipal by-law because he kept a peacock within the municipal boundaries without the required licence. Answer: Only statement (4) is correct. See Botha C Statutory interpretation: An introduction for students (2012) 172, paragraph 7.3.2(a) Question 6 Indicate which of the statements that follow is NOT correct: Some of the criticisms levelled against the orthodox text-based (literal) approach include: (1) The text-based approach promotes judicial law-making, and the courts are not viewed as mere mechanical interpreters of the law. (2) 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. (3) Words are regarded as the primary index to legislative meaning. (4) Few texts are so clear that only one final interpretation is possible. Answer: Only statement (1) is not correct. See Botha C Statutory interpretation: An introduction for students (2012) 94-97, paragraph 5.3.1. Question 7 Fill in the missing word: According to section 13(1) of the Interpretation Act, as well as sections 81 and 123 of the Constitution, if legislation does not prescribe a date of commencement, it automatically commences on the day of its publication in the … (1) Gazette. (2) newspaper. (3) Green Paper. (4) White Paper. Answer: Only statement (1) is correct. See Botha C Statutory interpretation: An introduction for students (2012) 49, paragraph 3.3.2(a). Question 8 In Public Carriers Association v Toll Road Concessionaries Pty (Ltd) 1990 (1) SA 925 (AD) … 9 (1) the court consulted a dictionary and discovered that the words “an alternative road” was linguistically limited to a single ordinary grammatical meaning. (2) the court stated that where application of the literal approach results in ambiguity and one seeks to determine which of more than one meaning was intended by the legislature, one may properly have regard to the purpose of the provision under consideration to achieve such objective. (3) the court held that “an alternative road” meant “an alternative roadway” and not “an alternative route”. (4) the court suggested that the intention of the legislature could solve interpretation problems as a last resort when the contextual approach could not – the court thus partially recognised the value of the textual approach, but restricted its application to cases where the contextual approach had failed. Answer: Only statement (2) is correct. See Le Roux WB, Moodley I & Nkuna IL Interpretation of statutes: Only study guide for IOS2601 (2009) 34-36. Question 9 A court may use the following internal language aids to assist it in the interpretation process: (1) the preamble, the long title, the definition clause, express purpose clauses and interpretation guidelines, headings to chapters and sections, dictionaries and linguistic evidence. (2) the preamble, the long title, the definition clause, express purpose clauses and interpretation guidelines, examples and footnotes and schedules. (3) the preamble, the long title, the definition clause, express purpose clauses and interpretation guidelines, headings to chapters and sections and schedules. (4) the preamble, the long title, the definition clause, definitions in the Constitution and the Interpretation Act, headings to chapters and sections and schedules. Answer: Only statement (3) is correct. See Botha C Statutory interpretation: An introduction for students (2012) 115-122, paragraphs 6.1.2(a)-(g). Question 10 Indicate which statement is NOT correct: The guidelines used to interpret the Constitution include: (1) a provision in the Constitution can be interpreted in isolation and need not be read in the context as a whole. (2) a supreme Constitution must be given a generous and purposive interpretation. (3) during the interpretation of the Constitution, its spirit and tenor must be adhered to. (4) case law also refers to a liberal interpretation of the Constitution and respect must be paid to the language employed in the Constitution. Answer: Only statement (1) is not correct. See Botha C Statutory interpretation: An introduction for students (2012) 189-192, paragraph 9.3.1. Question 11 Fill in the missing case name: In … the concept of ubuntu was applied and explained by the Constitutional Court at 501D-E as “„humaneness‟. In its most fundamental sense, it translates as „personhood‟ and „morality‟ … While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasises respect for human dignity, marking a shift from confrontation to conciliation.” (1) S v Mhlungu 1995 (3) SA 867 (CC) (2) S v Makwanyane 1995 (3) SA 391 (CC) (3) S v Dodo 2001 (3) SA 382 (CC) (4) S v Zuma 1995 (2) SA 642 (CC) 10 Answer: Only statement (2) is correct. See Botha C Statutory interpretation: An introduction for students (2012) 148, paragraph 6.3.2. Question 12 Fill in the missing words: The … refers to the fictional collective intent of the majority of the legislative body present at the time when the vote took place, expressing their will within the constraints of the voting guidelines laid down by the caucus of the ruling party in the legislature, and voting for the draft legislation – formulated by legal drafters on the advice of bureaucrats from a government department – which had been approved earlier by the state law advisors. (1) intention of the legislature (2) demise of the legislation (3) law of general application (4) amendment of legislation Answer: Only statement (1) is correct. See Botha C Statutory interpretation: An introduction for students (2012) 11, paragraph 1.2. Question 13 According to sections 1 and 2 (read together) of the Interpretation Act 33 of 1957 legislation consists of … (1) any law, proclamation, ordinance, Act of Parliament, all by-laws, rules, legal notices and any other enactment having the force of law. (2) any law, proclamation, ordinance, Act of Parliament, all by-laws, rules advertisements and any other enactment having the force of law. (3) any law, proclamation, ordinance, Act of Parliament, all by-laws, rules, regulations or orders and any other enactment having the force of law. (4) any law, proclamation, ordinance, Act of Parliament, all by-laws, rules, Green and White papers and any other enactment having the force of law. Answer: Only statement (3) is correct. See Botha C Statutory interpretation: An introduction for students (2012) 15-17, paragraph 2.1. Question 14 The term … refers to the discussions during the drafting of an international treaty, but it is also increasingly used with regard to the deliberations of the drafters of a supreme constitution. (1) ex accessorio eius de quo verba loquuntur (2) travaux préparatoires (3) anatura ipsius rei (4) expressio unius est exclusio alterius Answer: Only statement (2) is correct. See Botha C Statutory interpretation: An introduction for students (2012) 194, paragraph 9.3.2(d). Question 15 Fill in the missing case name: In … the court stated clearly that the principle that a meaning should be assigned to every word is not absolute. (1) Volschenk v Volschenk 1946 TPD 486 (2) Secretary for Inland Revenue v Somers Vine 1968 (2) SA 138 (A) (3) Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein 1985 (4) SA 773 (A) (4) Golden China TV Game Centre v Nintendo Co Ltd 1997 (1) SA 405 (A)