RVW UNIT 11

What does interpretation of statutes involve(systematic)

a balance between the legislative text and its content

What is systematic interpretation

primarily an instance of contextualisation that requires an interpretation of an individual legislative provision by reading it in relation to and in light of other provisions and components of the legislated text it forms part of

what does systematic interpretation involve

intra-textual contextualisation and extra-textual contextualisation

What is emphasised in systematic interpretation

the interpretive value of the “scheme of the text” is strongly emphasised

hyper-integration

links text components which according to the scheme of the text are not inherently coherent

dis-integration

turns a blind eye to the systematic interconnectedness of text components and tries to understand them in isolation from one another

intra-textual contextualisation

interpretation within the specific legislated text itself (with an interrealted reading of various components of the stat text)

how does Von Savigny refer to intra-textual interpretation

refers to intra-textual interpretation procedures as logical interpretation

what is the common law euqivalent of intra-textual systematic interpretation

the common-law equivalent of intra-textual systematic interpretation is ex visceribus actus approach

how does langauge in context relate to systematic interprettaion

treating language as language in context is a reading strategy of intratextual systematic interpretation

extra-textual contextualisation

consieration of (external) macro text by looking at signifiers that generate meaning in the textual environment

how does Von Savigny refer to extra-textual interpretation

Von Savigny sees the function of statutory interpretation as forging links with the macro text

The legal system as a whole (external signifers)

legal precepts and institutions, constitutional and political order, international legal order, society’s legal interests

what does systematic interpretation use to understand a specfic provision

this utilises various textual elements within the legislation to understand a specific provision

What are intra-textual aids of systematic interprettaion

pre-amble, short title, long title, headings, marginal notes, footnotes, divisions into paragraphs, schedules

Preamble, Statements of Purpose pre-1994

preambles used to shed light on an uncertain/ambiguous provision

Preamble, Statements of Purpose pre-1994 frequency of use

less frequently used and mainly used for Acts of a solemn nature (e.g., dealing with const matters) and private Acts

Preamble, Statements of Purpose pre-1994 - 1983 constitution

sometimes used for interpretations that are sympathetic to the marginalised

How should we view the preamble of the 1996 Constitution

we must not dismiss it as merely aspirational, as it connects up, reinforces and underlies the text that follows

what does the preamble of the const establishes

to understand the basic design and fundamental purpose of the constitution

what does the const preamble help with (const makers)

we can use it to make the const mean what the framers wanted it to say gathered from the document as a whole

How has reliance on pre-ambles and long titles been

courts (CC and other courts) have relied on them readily without qualification that reliance is warranted only where language of the provision is unclear and ambiguous

Long titles

verbalise the subjects a legislative instrument deals with and states it objects

what do we gain from recourse to the long title

gives an idea of the legislative' instrument’s scope and purpose

which long titles are taken seriously

long title couched in solemn,business-like, matter of fact manner are taken seriously and structurally accepted to be part of an Act

does a long title take away from the language of specific provision

this does not derogate from the unambiguously, clearly formulated specific provision

how do we rely on short titles for statutory interpretation

at time referred to for purposes of interpretation but as a rule, they are not seen as particularly helpful

what is the trend now in regards to purpose of an Act

it is now customary to include sections that state the purpose and objects of the instrument + lay down interpretive guidelines within statutory texts

what do the directives laid down in statute law now do

these directives minimise the order of primacy of canons requiring specific provisions to be read and reconciled with them so they do in a more detailed way what the long titles do

how must we better see preambles and long titles

these are not just structural aids of interprettaion but also statements of purpose showing how systematic and purposive interpretation work hand in hand

what is a schedule

attached to the end of a legislative instrument to streamline them and it contain information such as earlier repealed and amended enactments and specimen to be used to connection with provisions in the enactment

how can we use schedules in interpretation

these facilitate attribution of meaning to linguistic signifers , sustaining grammatical interpretation, and act as sources of intra-textual interpretation that elucidate and calrify even where provisions are not ambiguous and unclear

marginal notes

act as summaries of content in a section and they can be used as aids of statutory interpretation especially where they originated during adoption or first application of the legislative instrument

headings

detailed desctription of the legislative scheme

how can we use headings for interp

they can be used to determine the meaning of doubtful and ambiguous provisions within the section they refer

how were heading used for interp

in the past, courts that adhered to the literal approach would sometimes use the heading to determine the purpose of the provision/statute

how do we use footnotes in interpretation

these are useful in systematic interpretation to understand a specific provision in the context of the text as a whole

extra-textual aids to systematic interpretation

systematic interpretation makes use of textual elements outside of the legislation to undersatnd a specific provision

extra-textual aids to systematic interpretation

constitution, Interpretation Act, preceding discussions (debates during legislative process and commissioner reports), sources of the provision, surrounding circumstances, dictionary and linguistic evidence

what is a casus omissus

a casus omissus occurs where purposeful concretisation leads to the conclusion that a statutory has nothing/nothing meaningful to say about a specific situation

3 possibilities with casus omissus

the provision is not applicable to the specific set of facts, the legislative text as it stands may contain casus omissus , the legislative text as it stands may be using wrong/inappropriate language

what must an interpreter ask themselves then in a casus omissus situation

if the provision indeed applies to that specific situation, if the legislative text contains a casus omissus, if an interpretive alteration of the ipsissima verba of the provision may be appropriate

does the provision indeed apply to that specific situation

if a certain situation by concretisation cannot be brought within the scope of a provision, the provision does not apply to that situtaion/ there may be another provision that deals with that specific situation more appropriately

does the text contain a casus omissus

if considering the scope and purpose of the text, a provision fails to cater for a situation it must be expected to provide for

is an interpretive alteration of the ipsissima verba of the provision appropriate

a provision says something that presumably could have been expressed in another day meaning the interpreter must rephrase

why must the situations of cassus omissus be undersood as instances of systematic interpretation

filling in gap and adjusting formulations should preferably be done with reference to the scheme of the enactment itself as opposed to surmising and conjecture — iudicis