IURI 213 SU 9 Flashcards

Flashcards on IURI 213 SU 9: Constitutional Interpretation

Constitutional interpretation

Refers to the judicial review of legislation and government action under section 172, focusing on ascertaining foundational constitutional values.

Matiso v Commanding Officer, Port Elizabeth Prison (Constitutional interpretation)

Constitutional Interpretation focuses on foundational values.

Statutory Interpretation focuses on whether legislation conforms to those values.

The Constitution (as lex fundamentalis)

The fundamental law through which all law and government action is interpreted and assessed, reflecting South African society's values, aspirations, and identity.

Lex fundamentalis

The fundamental/supreme law.

Supreme constitution - 2 interlinked foundations

Distinguishes a constitutional state (Rechtstaat) from ordinary states by having formal (institutional structures) and substantive/material foundations (fundamental values).

Karpen's view on constitutions (2 interlinked foundations)

A combination of value-oriented (human aspirations) and structure-oriented (mechanical structures) components.

Constitution as a Formal Power Map

Deals with institutional and organisational structures and procedures of the state.

Substantive Constitutionalism

Includes a justiciable Bill of Rights and binds the state to higher norms; the state may only act within constitutional limits structurally and substantively.

S v Makwanyane (Constitution reflects)

• National values

• Aspirations

• A decisive break from the apartheid past

• A commitment to democratic, egalitarian ideals.

Strydom (1996) Critique on whether South Africa is truly a constitutional post-apartheid state

Questioned whether post-apartheid SA is truly a constitutional state, citing:

• Weak administration of justice,

• Lack of legal certainty, and

• Inadequate personal security.

The Constitution is richly symbolic (3 views):

Mureinik's view on the Constitution

• A bridge from a 'culture of authority' to a 'culture of justification'.

Du Plessis's view on the Constitution

• A monument (celebration) and a memorial (commemoration).

Mahomed CJ (S v Acheson) view on the Constitution

• A mirror reflecting the national soul and values.

Sui generis (Nortje case)

A unique document prioritizing values over technical precision.

Constitutional Guidelines on Interpretation

1. Section 39(1) – Bill of Rights Interpretation

2. Section 1

3. Section 2

1. Courts must promote the values of human dignity, equality, and freedom; must consider international law; and may consider foreign law from democratic, constitutional systems.

2. Founding values (human dignity, equality, non-racialism)

3. Supremacy clause; inconsistent laws = invalid

Purposive Interpretation

The Constitution must be interpreted generously and purposively, not literally, considering social circumstances, future impact, and evolving norms.

Liberal Interpretation

Flexible and generous interpretation, considering:

• The text and spirit,

• The framers' intent, and

• The objectives of the rights.

Contextual and Systemic Reading

Must read rights in context of the whole Constitution, not in isolation.

Value-Oriented Approach

Promote human rights and constitutional values at every stage, acknowledging evolving societal realities and transformative goals.

Avoid Literalism (Nyamakazi)

Interpretation must be 'open-ended', engaging with text in context, not in isolation.

Forward-Looking Interpretation (Khala v MoSS, Qozoleni v MoLO)

Constitution is a framework for the future; interpret with society's transformation in mind.

Judicial Responsibility (S v A Juvenile)

The Constitution gives courts a sacred trust to protect rights; laws inconsistent with the Constitution are invalid.

Methods of Constitutional Interpretation

1. Grammatical Interpretation

Focuses on the language and syntax of the constitutional text, seeking the linguistic and grammatical meaning of words, phrases, and structure.

Methods of Constitutional Interpretation

2. Systematic / Contextual Interpretation

Interprets provisions in the context of the whole Constitution, considering internal coherence and external context (social, political, historical).

Methods of Constitutional Interpretation

3. Teleological / Value-Based Interpretation

Focuses on the purpose and values underpinning the Constitution, aiming for a value-coherent construction aligned with constitutional ideals.

Methods of Constitutional Interpretation

4. Historical Interpretation

Refers to travaux préparatoires (the records of constitutional drafting); original intent can inform but not dominate interpretation.

Methods of Constitutional Interpretation

5. Comparative Interpretation

Courts may consult international law and foreign constitutional judgments, considering South Africa’s unique context.

Avoiding Unconstitutional Legislation

When legislation is found unconstitutional, it becomes invalid and unenforceable; courts try to preserve legislation where possible using corrective techniques.

Corrective Techniques

1. Reading-Down

If a provision can reasonably bear a constitutional interpretation, it should be interpreted that way to preserve constitutionality.

Corrective Techniques

2. Reading-Up

When more than one possible interpretation, the broader/more extensive interpretation is chosen to preserve validity.

Corrective Techniques

3. Reading-In

Adds words or meaning to a statute to make it constitutional; a drastic remedy used cautiously due to separation of powers.

Corrective Techniques

4. Severance

Unconstitutional parts are removed, leaving the rest intact, provided the bad part is separable and the remainder still fulfills the legislative purpose.

The Counter-Majoritarian Difficulty

A persistent tension: Should unelected judges be able to override the will of a democratically elected government?

2. The Challenge of Constitutional Values and their Interpretation

Interpretation often reflects the biases and pre-understandings of the interpreters. Concepts like “non-sexism” or “dignity” may carry different meanings in different cultural contexts in a diverse society

3. Fostering a rights culture

The judiciary plays a role in promoting:

• Constitutionalism and the RoL, and

• Substantive rights culture

4. Constitutional interpretation and social justice

Promotes fairness and equality in society. It addresses systemic inequalities through legal interpretation, aiming to transform social structures and empower marginalized groups.