Statutory Interpretation
Statutory Interpretation: An Introduction for Students
Part 1: Statute Law
Lawyers need proficiency in the technical aspects of legislation.
Includes types and categories of legislation.
Covers legislative components and challenging relationships between old and new laws.
Law consists of common law, statute law, Indigenous (customary) law, and case law.
A law is a written statute enacted by legislative bodies with the authority to make laws.
Legislation includes Acts of Parliament, provincial legislation, municipal by-laws, proclamations, and regulations.
"Act" (uppercase) refers to parliamentary or provincial legislation.
"act" (lowercase) refers to actions or conduct.
Common law consists of unwritten rules accepted as law, forming basic legal principles (Roman-Dutch law).
Common law differs from codifications - statutory compilations of legal principles.
Indigenous law is the traditional law of Indigenous Black people, either unwritten or codified.
Case law is law decided by courts, with a precedent system (stare decisis) where higher court judgments bind lower courts.
Legislation's importance is increasing due to rapid societal changes and technological developments that common law can't address.
Apartheid was based on interlocking legislation, requiring statute law knowledge and new legislation for remediation.
What is Interpretation of Statutes?
Interpretation of statutes involves rules and principles to construct the correct meaning of legislative provisions for practical application.
Du Plessis describes it as making sense of the total relevant legislative scheme.
Requires more than just reading provisions; not a mechanical process.
Law stating that it is a criminal offence to sleep in any railway station serves as example.
The law prevents, homeless people (vagrants, squatters, or tramps) from using railway stations as shelters.
Two men appear in court on a charge of contravening the law in question.
One man brought a blanket to the station and settled down for the night on one of the benches, was arrested while still fully awake.
Other man is a regular commuter who sat upright but dozed off while waiting for the train.
Interpretation requires navigating language difficulties, historical background, and value judgments.
Section 11 of the Bill of Rights: "Everyone has the right to life."
In S v Makwanyane the Constitutional Court held that the right to life means that the state may not take a person's life in retribution, and the death penalty was declared unconstitutional.
In Makwanyane and Ex parte Minister of Safety and Security: in re S v Walters It was held that the existing right to kill a person in self-defence was not abolished by the Constitution.
Soobramoney v Minister of Health, Kwazulu-Natal decision effectively means that the constitutional right to life does not mean the state has a duty to keep all terminal patients alive in all circumstances.
Carmichele v Minister of Safety and Security - Constitutional Court linked rights to life and freedom/security to the state's duty not to infringe them.
Legal text interpretation requires understanding how law operates and its objectives.
Corocraft Ltd v Pan American Airways Inc. - Judges act as craftsmen, selecting and applying rules as tools.
Involves technical and substantive aspects, including constitutional values and fundamental rights.
Factors for Interpreters to Keep in Mind:
Provisions must be read and applied within the framework of the supreme Constitution and the Bill of Rights.
Consider the impact of other legislation.
Determine if the legislation is still in force and if it has been amended.
Interpret a provision within the entire Act, including definitions and schedules. Read regulations with enabling legislation and assess their validity.
Understand the context of the legislative text.
Use external aids like dictionaries or commission reports to determine meaning.
Recognize potential poor drafting, conflicting provisions, or lack of resources.
Interpretation requires language skills, legal knowledge, and research.
'Legalese' is complex language used by lawyers in legal documents, defined by wordiness, Latin expressions, passive verbs, and legal doublets.
Plain language drafting is preferable, but interpreters must still deal with convoluted language.
Legislative acknowledgement of the link between understandable language and access to justice is growing.
What Is In A Name: Purpose Or Intention?
Statutory interpretation determines what legislation accomplishes in the legal order.
Terms 'intention of the legislature', 'purpose of the legislation’ are often used; closely linked to the principle of sovereignty of parliament.
Steyn defined it as determining the legislature's will from the words used.
The correct interpretation does not depend on which term is used but on how that purpose is ascertained and construed.
The New Constitutional Order
Statutory interpretation was devalued and unsystematic.
Criticized for a confusing system of maxims, canons, tentative principles, and misconceptions about language.
Acceptance of the new supreme Constitution could be compromised by orthodox interpretation of 'ordinary' legislation.
A supreme constitution is the highest law; conflicting legislation is invalid.
Traditionally, interpretation was based on parliamentary sovereignty.
Courts couldn't test parliamentary Acts against fairness or equality standards.
The interim Constitution in 1994 changed interpretation, emphasizing fundamental rights.
Courts can no longer ignore value judgments.
The Constitution of 1996 retained changes, transforming statutory interpretation.
Interpretation was influenced by six constitutional provisions (sections 1, 2, 7, 8, 36, 39).
What is Legislation?
Distinguish legislation from other sources of law, as rules of statutory interpretation apply only to legislation.
Legislation (statute law) is written law enacted by an authorized body or person.
Du Plessis refers to legislation as 'enacted law-texts'.
'Enacted' means adopted per legal requirements.
'Legislation' includes Acts, statutes, ordinances, regulations, proclamations, rules, notices, and by-laws.
Categories of legislation include chronological timeline and hierarchical power structure.
Definitions from the Interpretation Act:
Section 1: Provisions apply to the interpretation of every law in force, including by-laws and regulations.
Section 2: 'law' means any law, proclamation, ordinance, Act of Parliament, or other enactment having the force of the law.
According to the Interpretation Act, legislation consists of laws, proclamations, ordinances, Acts, by-laws, rules, regulations, and other enactments with the force of law.
Section 239 of the Constitution defines legislation as national and provincial legislation and subordinate legislation.
Legislative menu includes national and provincial legislation, proclamations, regulations, old order legislation (enacted before the interim Constitution), post-1994 legislation, and municipal by-laws.
Various types of legislation must be understood in terms of time, space, and hierarchy.
Categories of Legislation
Categories relate to historical origins (chronological) and status (hierarchical).
Hierarchical categories differ fundamentally, impacting commencement and demise, administrative law, human rights law, and constitutional law.
Chronological Categories
Historical origins of existing legislation
Legislation Before 1806
Dutch statutes and placaaten of Holland may still be in force, part of common law, no formal procedures for demise.
Old Order Legislation
Enacted before the interim Constitution in 1994.
Pre-Union Legislation (1806-1910)
Legislation of British colonies and Boer Republics.
Legislation Between Union and the Democratic Era (1910-1994)
Known as `old order legislation