1
Ch.1 General Introduction
1.1 - LEGISLATION AS A SOURCE OF LAW:
The law- consists of all forms of law (common law +statute law + customary law + case law)
A law- a written statute enacted by those legislative bodies which have the authority to make laws
Legislation- “enacted law texts” emanating from a body or person that has direct or indirect
authority to make such laws
eg. Acts of Parliament, provincial legislation, municipal by- laws, proclamations and regulations
An Act- a parliamentary statute or the legislation of a provincial legislature
An act- refers to conduct or action eg. The act of a government official
Common law- rules of law which were not originally written down but came to be accepted as the
rule of the land; basic legal principles → Roman Dutch law
Codifications- statutory compilations of all the legal principles relating to a particular branch of the
law eg. Criminal code
If there is no statutory law on the subject → common law applies
Customary/Indigenous law - refers to the traditional law of the indigenous black people of SA
(unwritten customary law or statutory compilations)
Case law/judicial precedent - the law in decided cases
Importance of statute law
Common law cannot deal with the regulation of new technological + scientific development
(electronic transfer, stem cell research) ∴legislative intervention is necessary
New legislation is needed to remedy what happened during apartheid
1.2 - WHAT IS INTERPRETATION OF STATUTES?
Interpretation of statutes = the juridical understanding of legislation
The interpretation has to determine what the legislation has to accomplish in the legal order →
intention/purpose of the legislature
The rules + principles used to construct the correct meaning of legislative provisions to be applied in
practical situations
Technical aspects (e.g., the structure of the legislation + language rules) must be applied in
conjunction with substantive aspects (e.g., constitutional values + fundamental rights)
, 2
The interpretation of legislation is not a mechanical exercise with predetermined formulae, the
interpreter has to keep a number of other related issues in mind:
1. The provision must be read, understood + applied within the framework of the Constitution +
the BoR
2. What is the impact of other legislation?
3. Is the legislation that must be interpreted still in force + has it been amended?
4. Read within context of entire Act
5. What is the context (general background + surrounding circumstances.) of the legislative
text?
6. Other external aids may be used e.g., dictionaries, commissionaires’ reports
Legalese
Bad drafting and legalese is another problem. ‘Legalese’ refers to the perplexing and specialised
language used by lawyers in legal documents, incomprehensible to the non-lawyer.
Refers to the specialised language used by lawyers in legal documents
Characterised by wordiness, Latin expressions, lengthy sentences + legal doublets (e.g., null + void)
What is in a name: purpose or intention?
Interpreter has to determine what the legislation has to accomplish in the legal order →
Intention/purpose of the legislature
Intention of the legislature- closely linked to the principle of sovereignty of parliament → Parliament
was the sovereign lawmaker in the Republic + legislation reflected a parliamentary legislative
intention
Statutory interpretation- the process during which the will or thoughts of the legislature are
ascertained from the words used by the legislature to convey that will or thoughts
It is important as to how that purpose is ascertained + construed
It is difficult to picture a collective intention exercised by all the members of the legislative body:
Legislature consists of a large no. of people whom all take part in legislative process
Some members may oppose the legislation → the adopted legislation reflects the ‘intention’
of only the majority of the legislature
Some members will support the legislation for the sake of party unity → the ‘intention’ of the
legislature is subject to what the individual. members ‘had to’ intend
Parliamentarians do not necessarily understand the complex + technical legislation
A Bill introduced in the legislature is not drafted by the public representatives, but by
legislative drafters and law advisers acting on the advice of bureaucrats from various state
departments.
, 3
Some members may be absent when voting on draft legislation
In other words: The Intention of the legislature refers to the fictional collective intent of the majority
of the legislative body present at the time when voting took place.
1.3 - THE NEW CONSTITUTIONAL ORDER
A supreme constitution- the highest law in the land
Parliament remains the highest legislative body but any legislation or act of the government body
which is in conflict with the constitution will be invalid
The courts are also subject to the constitution
Traditionally, the SA rules of statutory interpretation were based on the sovereignty of Parliament
→Parliament is the highest legislative body + is capable of enacting any laws it wishes, no court may
test the substance of parliamentary Acts against standards e.g., fairness + equality
The Constitution of the Republic of South Africa 200 of 1993 (The Interim Constitution)- principle
of parliamentary sovereignty replaced by constitutional supremacy, interpretation clause stated that
the spirit + purport of the fundamental rights had to be taken into account during the interpretation of
statutes (The courts could no longer ignore value judgments)
The Constitution of the Republic of South Africa, 1996 (The Constitution)- the interpretation of
statutes was transformed by 6 provisions, namely:
Constitutional impact on legislation
s 1- the foundational provision
The Republic of South Africa is one, sovereign, democratic state founded on the following
values:
(a) Human dignity, the achievement of equality and the advancement of human rights + freedoms
(b) Non-racialism and non-sexism
(c) Supremacy of the constitution and the rule of law
(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party
system of democratic government → ensure accountability, responsiveness and openness.
s 2- the supremacy clause
This 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
s 7- the obligation clause
The state must respect, protect, promote and fulfill the rights in the Bill of Rights
s 8- the application clause
The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and
all organs of state
Ch.1 General Introduction
1.1 - LEGISLATION AS A SOURCE OF LAW:
The law- consists of all forms of law (common law +statute law + customary law + case law)
A law- a written statute enacted by those legislative bodies which have the authority to make laws
Legislation- “enacted law texts” emanating from a body or person that has direct or indirect
authority to make such laws
eg. Acts of Parliament, provincial legislation, municipal by- laws, proclamations and regulations
An Act- a parliamentary statute or the legislation of a provincial legislature
An act- refers to conduct or action eg. The act of a government official
Common law- rules of law which were not originally written down but came to be accepted as the
rule of the land; basic legal principles → Roman Dutch law
Codifications- statutory compilations of all the legal principles relating to a particular branch of the
law eg. Criminal code
If there is no statutory law on the subject → common law applies
Customary/Indigenous law - refers to the traditional law of the indigenous black people of SA
(unwritten customary law or statutory compilations)
Case law/judicial precedent - the law in decided cases
Importance of statute law
Common law cannot deal with the regulation of new technological + scientific development
(electronic transfer, stem cell research) ∴legislative intervention is necessary
New legislation is needed to remedy what happened during apartheid
1.2 - WHAT IS INTERPRETATION OF STATUTES?
Interpretation of statutes = the juridical understanding of legislation
The interpretation has to determine what the legislation has to accomplish in the legal order →
intention/purpose of the legislature
The rules + principles used to construct the correct meaning of legislative provisions to be applied in
practical situations
Technical aspects (e.g., the structure of the legislation + language rules) must be applied in
conjunction with substantive aspects (e.g., constitutional values + fundamental rights)
, 2
The interpretation of legislation is not a mechanical exercise with predetermined formulae, the
interpreter has to keep a number of other related issues in mind:
1. The provision must be read, understood + applied within the framework of the Constitution +
the BoR
2. What is the impact of other legislation?
3. Is the legislation that must be interpreted still in force + has it been amended?
4. Read within context of entire Act
5. What is the context (general background + surrounding circumstances.) of the legislative
text?
6. Other external aids may be used e.g., dictionaries, commissionaires’ reports
Legalese
Bad drafting and legalese is another problem. ‘Legalese’ refers to the perplexing and specialised
language used by lawyers in legal documents, incomprehensible to the non-lawyer.
Refers to the specialised language used by lawyers in legal documents
Characterised by wordiness, Latin expressions, lengthy sentences + legal doublets (e.g., null + void)
What is in a name: purpose or intention?
Interpreter has to determine what the legislation has to accomplish in the legal order →
Intention/purpose of the legislature
Intention of the legislature- closely linked to the principle of sovereignty of parliament → Parliament
was the sovereign lawmaker in the Republic + legislation reflected a parliamentary legislative
intention
Statutory interpretation- the process during which the will or thoughts of the legislature are
ascertained from the words used by the legislature to convey that will or thoughts
It is important as to how that purpose is ascertained + construed
It is difficult to picture a collective intention exercised by all the members of the legislative body:
Legislature consists of a large no. of people whom all take part in legislative process
Some members may oppose the legislation → the adopted legislation reflects the ‘intention’
of only the majority of the legislature
Some members will support the legislation for the sake of party unity → the ‘intention’ of the
legislature is subject to what the individual. members ‘had to’ intend
Parliamentarians do not necessarily understand the complex + technical legislation
A Bill introduced in the legislature is not drafted by the public representatives, but by
legislative drafters and law advisers acting on the advice of bureaucrats from various state
departments.
, 3
Some members may be absent when voting on draft legislation
In other words: The Intention of the legislature refers to the fictional collective intent of the majority
of the legislative body present at the time when voting took place.
1.3 - THE NEW CONSTITUTIONAL ORDER
A supreme constitution- the highest law in the land
Parliament remains the highest legislative body but any legislation or act of the government body
which is in conflict with the constitution will be invalid
The courts are also subject to the constitution
Traditionally, the SA rules of statutory interpretation were based on the sovereignty of Parliament
→Parliament is the highest legislative body + is capable of enacting any laws it wishes, no court may
test the substance of parliamentary Acts against standards e.g., fairness + equality
The Constitution of the Republic of South Africa 200 of 1993 (The Interim Constitution)- principle
of parliamentary sovereignty replaced by constitutional supremacy, interpretation clause stated that
the spirit + purport of the fundamental rights had to be taken into account during the interpretation of
statutes (The courts could no longer ignore value judgments)
The Constitution of the Republic of South Africa, 1996 (The Constitution)- the interpretation of
statutes was transformed by 6 provisions, namely:
Constitutional impact on legislation
s 1- the foundational provision
The Republic of South Africa is one, sovereign, democratic state founded on the following
values:
(a) Human dignity, the achievement of equality and the advancement of human rights + freedoms
(b) Non-racialism and non-sexism
(c) Supremacy of the constitution and the rule of law
(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party
system of democratic government → ensure accountability, responsiveness and openness.
s 2- the supremacy clause
This 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
s 7- the obligation clause
The state must respect, protect, promote and fulfill the rights in the Bill of Rights
s 8- the application clause
The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and
all organs of state
