IOS2601 Revision Questions & Memo.

IOS2601 Revision Questions & Memo. IOS201-S 2 REVISION QUESTIONS & MEMO CHAPTER 1 1. Explain the difference between proclamation and promulgation (5) A proclamation is a specific category of subordinate legislation. Promulgation is the process by which legislation is made known to the population. In terms of section 13 of the Interpretation Act 33 of 1957, legislation commences when it is published in an official gazette unless another date is specified. 2. What are the three phases or interpretive process in the model that is suggested by Botha in the textbook? Explain each phase briefly. (6) The three phases used by Botha (these are not rules or principles of interpretation) are the initial phase, the research phase and the concretisation phase. In the first phase the initial meaning of the Iegislative text is established (subject to the understanding that the Constitution, the common law presumptions and the purpose of the legislature will all be taken into account with the initial grammatical meaning of the text). In the research phase, intratextual and extra-textual aids are studied to ascertain the purpose of legislation. During the concretisation phase, the legislative text, the purpose, the facts of the case and the constitutional values are weighed against each other in order to reach a conclusion. 3. Define what the term “law” means as it is used in the Interpretation Act 33 of 1957. (5) "Law" means "any law, proclamation, ordinance, Act of Parliament, or any other enactment having the force of the law". 4. List five reasons why even a complete knowledge of all the rules and principles of statutory interpretation would not guarantee the production of correct interpretations in a computerised fashion. (5)  Many rules of interpretation overlap and cannot be compartmentalized.  The circumstances and sets of facts will differ from case to case, as well as the context of legislation  The courts are not of one mind when it comes to the application of certain rules, with the result that the interpretation of statutes has no clear and predictable pattern of application  The law is not objective, neutral and value-free: all interpreters have a particular pre-understanding, which is the product of each interpreter's unique history, background, experience and prejudices  During the interpretation of all legislation, interpretation necessarily involves value-judgments. 5. What are the three phases of the interpretive process in the model that is suggested by Botha in the textbook? Explain each phase BRIEFLY (6) Question 1 a) Special rules of interpretation are necessary because ambiguities in legislation cannot be solved by dictionaries alone. b) The special rules of statutory interpretation ensure that value judgements play a role in the interpretation of statutes. 1) Both statements are correct. 2) Only statement (a) is correct. 3) Only statement (b) is correct. IOS201-S 3 REVISION QUESTIONS & MEMO 4) Both statements are wrong. Question 2 The rules and methods of statutory interpretation cannot reveal the meaning of legislation in a mechanical way because: a) The spirit and object of the Bill of Rights in the Constitution must be promoted when legislation is applied; b) The circumstances of each case differ; c) The courts often follow different approaches to statutory interpretation; d) Judges real legislation with preconceived ideas on the nature and role of the law in the community. 1. Only statement (a) is correct. 2. All the statements are correct. 3. Only statements (a), (b) and (c) are correct. 4. Only statements (b) and (c) are correct. CHAPTER 2 1. Explain the difference between legislature and legislation. (5) The legislature is the elected body empowered and tasked with enacting laws. Parliament is also not the only legislature in the country. There are legislatures in all three spheres of government; national, provincial and local. Legislation is the collective name for the laws which this body enacts/makes/promulgates. Legislation is the collective name for the body of written rules the society lives by. It is, therefore, also incorrect to speak of a legislation. It should be a law, a statute, an Act, or, possibly, a piece of legislation. 2. Define original and subordinate legislation. What is the distinction between them and does it remain important in the light of the Constitution? (10) Original legislation derives from the complete and comprehensive legislative capacity of an elected legislative body. It is also known as direct or primary legislative capacity, since it is derived directly from the Constitution or another Act of Parliament. Before the new constitutional dispensation no court could test original legislation for anything other than procedural correctness. Acts of Parliament, the provincial legislature and new municipal by-laws are examples of original legislation. In terms of section 40 of the Constitution we now have three distinctive, interdependent and interrelated spheres of government; national, provincial and municipal. The traditional hierarchy of original and subordinate legislators has therefore fallen away and all three spheres produce original legislation - since all three comply with the requirements of the definition. Subordinate legislation is also known as delegated legislation. Acts of Parliament and other forms of original legislation are often drafted in broad terms. It is subordinate because it derives both its authority and existence from empowering original legislation. Delegated legislation then adds flesh. The legislature may find it necessary to delegate some of its powers to other persons, bodies or tribunals. These are then vested with subordinate legislative powers under enabling legislation. These subordinate legislative enactments are known as legislative administrative acts. The courts have always been able to test the validity of subordinate legislation. Proclamations by the President or cabinet ministers and regulations by members of the cabinet or the provincial executive are examples of subordinate legislation.