Chapter 9 Legal Interpretation

Flashcards covering key concepts and legal principles discussed in Chapter 9 on Legal Interpretation (Constitutional Interpretation), suitable for exam preparation and review.

Constitutional interpretation

The judiciary's authoritative interpretation of the supreme Constitution throughout judicial examination of whether legislation and government action are constitutional under section 172 of the Constitution.

Interpreting the Constitution

Entails determining the fundamental principles or ideals that it was written with.

Interpreting a specific piece of legislation

Entails determining whether or not it can be interpreted in a way that is consistent with the Constitution

Text-in-context (purposive) method

A method of constitutional interpretation that combines a text-in-context approach with a text-based method of ordinary interpretation.

Lex fundamentalis

The fundamental law

Investigative Directorate: Series Economic Offences v Hyndai Motor Distributors (Pty) Ltd 2001 (1) SA 545 paragraph 24

The responsibility of the judicial officer to interpret legislation in accordance with the Constitution to the extent that is reasonably possible; the legislature also has a responsibility to pass legislation that is reasonably clear and precise so that citizens and officials know what is expected of them.

Section 2 of the Constitution

The supreme law of the Republic; any law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC) judgement, paragraph 72 to 77

The constitution is now the supreme law in our country, therefore it is the starting point for interpreting any law and every court must promote the spirit, purport, and objects of the Bill of Rights when interpreting any legislation.

Supreme law (lex fundamentalis) of the land

A supreme constitution, which is distinct from other legal frameworks.

Formal foundation of a constitutional state

Refers to the institutional power structure of the nation and includes elements like the separation of powers, checks and balances on the executive branch, and the principle of legality

Material or substantive foundation of a constitutional state

Describes a state bound by a set of fundamental values like justice and equality.

Formal power structure in a constitution

It focuses on the institutional and organizational structures and processes of the state, including the type of state and government, the roles and responsibilities of various individuals and institutions, the branches and tiers of government, any checks and balances on the executive branch, the electoral process, and national symbols.

Material or substantive foundation in a supreme constitution

Includes a bill of rights that may be enforced in court, and the state including the government is obligated to uphold a set of essential values including justice and equality.

S v Makwanyane at paragraph 262

All constitutions aim to express, in varying degrees of intensity and detail, the shared aspirations of a nation, the principles upon which judicial, legislative, and executive power is to be exercised, the constitutional bounds and conditions under which such power is to be used, and the national ethos which defines and regulates those institutions.

Constitutional justice

States function is to realize the equality of its inhabitants under both public and private law, regardless of color, culture, origin, religion, gender, or political affiliation.

The Constitution

Acts as a link in a society divided, bridging the gap between the authority culture depending on the parliamentary sovereignty and the justification culture based on a supreme constitution, and is a monument that simultaneously celebrates and commemorates.

A country's constitution

Is more than just a law that mechanically spells out the forms of government and the relationships between them and the people they are supposed to represent; it is a mirror reflecting the national soul

Supreme constitution

Offers, primarily, a set of society norms to which other common law statutes and rules must adhere, and with which the government and its agencies must comply in performing their duties.

Nortje v Attorney-General of the Cape (above) 472F-G

The methods used by other Courts and constitutional attorneys in interpreting, limiting, and applying rights that are enshrined in the constitution are unquestionably a useful aid in comprehending what is involved in such processes.

Carmichele v Minister of Justice and Section 39(1)(a) of the Constitution

The Bill of Rights itself must be interpreted to promote the values that underpin our constitution and democratic society based on human dignity, equality and freedom; human dignity is defined as an attribute inherent in every human being and must be recognised and respected by the state and fellow men alike; equality means that everyone is equal before the law and has the rights to equal protection and benefit of the law; and freedom is defined as the quality or state of being free.

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs

Interpretation must advance at least one of the Bill of Rights' identified values, as well as the Bill of Rights' overall purpose, and the courts must ensure that the law is interpreted in a way that gives effect to the transformative constitutional mandate.

Shabalala v The Attorney-General of Transvaal 1996 (1) SA 725 (CC) 740 paragraph 26

A supreme constitution must be interpreted broadly and intentionally.

Nyamakazi v President of Botswana

The court must take into account factors other than just the law, such as the goals of the rights included, the context in which the interpretation must be made, the consequences of the construction for the future, the effect of the construction on future generations, and the consideration of societal changes and new developments.

Liberal interpretation of the Constitution

Relates to adaptability and compassion rather than having a political connotation, and the Constitution must be freely interpreted, keeping in mind its letter and spirit, the framers' intentions, and the goals and justifications of the law.

S v Acheson

The spirit and tenor of the Constitution must be upheld while it is being interpreted, giving consideration to the principles and moral principles that support the Constitution.

S v. Makwanyane case

The Constitution's clauses must be understood in the context of the full document rather than being interpreted in isolation.

Nyamakazi v President of Botswana

Historical context and comparative interpretation can never represent an objective that is not upheld by the constitutional language as a legal document, and this method is an open-ended process of explanation and commentary that analyses, reads into, derives from, and adds meaning to each word, phrase, or clause in connection to the overall context.

S v A Juvenile 1990 (4) SA 151 (ZSC) 176B

The court emphasized that the Constitution, which is the supreme law of the land, has given the court the sacred trust of defending human rights.

Khala v The Minister of Safety and Security, Qozoleni v Minister of Law and Order

The Constitution was written with the long term in mind, providing a foundation for the ongoing preservation of individual rights and freedoms and the legal exercise of governmental authority, and must be done in the context and environment that exist at the time the case is heard, expressing the principles it seeks to foster for the future.

Constitutional interpretation

Constitutional interpretation involves weighing the interests and ideals of diverse society groups.

S v Makwanyane

Constitutional interpretation must begin and finish with the South African Constitution.

Prince v Cape Law Society 2002 (2) SA 794 (CC) paragraph 55

It’s needed the greatest possible harmonisation of all the competing considerations, on a principled yet nuanced and flexible case-by-case basis, situated in South African reality but guided by international experience, articulated with the appropriate candor, and accomplished without losing sight of the fundamental values highlighted by our Constitution.

Grammatical interpretation

Recognizes the significance of the words used in the constitutional text, focusing on the grammatical and linguistic significance of the words, phrases, sentences, and other textual constructions, including the syntactic rules, which deal with the arrangement of words in a sentence, but acknowledges the authoritative constitutional language as a crucial component in the problem of constitutional interpretation.

Systematic (or contextual) interpretation

Focuses on elucidating the significance of a specific constitutional provision in relation to the Constitution as a whole, and includes all contextual factors, including the social and political contexts in which it is implemented.

Teleological (value-based) interpretation

This necessitates a value-coherent construction; the aim and purpose of the law must be determined in light of the core constitutional values.

Travaux préparatoires

Conversations that take place when a treaty is being drafted, but it is also increasingly used in reference to the considerations made by those who are writing a supreme constitution.

A living tree

It is a living record that must be understood in the context of constantly shifting events, beliefs, and perceptions, but the discussions of the constitutional drafters are not permitted to serve as the decisive factor.

Comparative interpretation

The procedure whereby the court considers international law and the constitutional rulings of other countries, but this must be done while taking into account the Constitution's special domestic context; we must remember that the South African Constitution must be construed, not some international agreement or another country's constitution.

Mahomed J in S v Makwanyane, paragraph 266

To examine the relevant provisions of the Constitution, their text and their context; the interplay between the different provisions; legal precedent relevant to resolution of the problem both in South Africa and abroad; the domestic common-law and public international law impacting on its possible solution; factual and historical considerations bearing on the problem; the significance and meaning of the language used in relevant provisions; the content and sweep of the ethos expressed in the structure of Constitution; the balance to be struck between different and sometimes potentially conflicting considerations reflected in its text; and by a judicious interpretation and assessment of all these factors to determine what the Constitution permits and what it prohibits.

Constitutional review

The process of comparing proposed legislation to the Constitution, and may attempt to amend or adapt the proposed law in order to preserve its constitutionality using corrective procedures (reading-down, reading- up, reading-in, and severance).

National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC)

The reading-up, reading-in, and severance decisions made must be in accordance with the Constitution and its principles; the final outcome ought to cause the least amount of disruption to the current system of law; in order to change the legislative meaning in a way that complies with the Constitution, the courts must be able to specify how to do so with sufficient clarity; in accordance with the limitations imposed by the Constitution, the court should make an effort to adhere as closely as possible to the legislative plan, such as the purpose of the legislation; and where doing so would cause an unjustifiable budgetary intrusion, the remedy of reading-in should not be permitted.

Reading-down (Sections 35(2) and 232(2) of the interim Constitution)

If a piece of legislation appears to be unconstitutional, but can reasonably be given a more limited interpretation that would make it constitutional and valid, that narrower interpretation should be used.

Reading-up

Occurs when there are multiple plausible readings of the legislative text, and a more thorough reading is chosen in order to maintain the constitutionality of the law in question.

Reading-in

The courts may utilize to alter legislation while maintaining its constitutionality, the court may 'read' something into the intent of a provision in order to save the entire provision or a portion of it, but should be used with caution.

Severance

The court will attempt to save a provision from being unconstitutional by cutting off a portion of the provision while maintaining the rest of the provision's validity and legality, and the unconstitutional (bad) portion of the law must be able to be separated from the rest (severed or removed).

Constitutional interpretation

Is an ongoing process that will never be complete because circumstances, opinions, and ideals will alter; and may take the form of a principled judicial dialogue especially between members of this Court, then between our Court and other Courts, the legal community, law schools, parliament, and indirectly with the general public.

Counter-majoritarian difficulty

Is it acceptable and legal for an unelected court to impede the democratic aspirations of the majority?

The Constitution

Act as a fortress to safeguard citizens' basic liberties and advance the ideals enshrined therein calls on the court to serve as an impartial referee who enforces the fundamental rules of the (political) game set forth in the bill of rights, because it includes a Bill of Rights.

Section 1 of the Constitution

The fundamental constitutional values, that is the starting point when interpreting any legislation, and a court must promote the spirit, purport, and objects of the Bill of Rights

Section 39(1)

That the Constitution serves as a link between a past marked by injustice and oppression and a future marked by equality, the pursuit of social justice and peace, and the recognition of human rights and liberties.

Key constitutional role of the judiciary

The establishment and implementation of a rights culture in South Africa, by foster respect for constitutionalism, the rule of law, and a rights culture, the judiciary and the Constitution play important roles in South Africa's transformation process.

The modern constitutional state

The state must serve as an agent of empowerment and a safeguard against government intrusion, a bill of rights can be a helpful road map to opportunities, services, resources, and empowerment.

Socioeconomic rights

To energize and animate the core constitutional values in general and to concretize social justice in particular is the current task for constitutional interpretation; everyone who was marginalized by society must be able to take use of the Bill of Rights' protections.