Interpretation of Statutes and Branches of Law (Video Notes)
Branches of law
Law is multifaceted and draws from numerous sources. At this stage, three branches of law are highlighted: International law, Foreign law, and South African national law. Each branch has distinct sources, applications, and relevance for interpreting legal rules in the South African context. International law consists of treaties or international conventions that are agreed to by a number of countries. These laws are generally uniform across signatory states, and the framework is overseen by the United Nations (UN), whose headquarters are in New York. The International Court of Justice (ICJ) is located in The Hague and can take action against UN member states that violate international law; countries that are not UN members can also agree to have cases heard by the ICJ when appropriate. In South Africa, there is an ongoing effort to comply with international law, particularly regarding socio-economic rights such as education, water, and sanitation. Section 39(1) of the Constitution provides that international law must be considered when interpreting the Bill of Rights, ensuring domestic interpretation reflects international norms where relevant.
Foreign law refers to the law of states other than South Africa. South African courts are not required to follow foreign law mechanically because it is not the law of South Africa and varies from country to country. Foreign law is not binding on South African courts; however, courts may refer to foreign law when it is appropriate to do so, for example to illuminate certain legal concepts or when a duty or standard can be informed by foreign practice.
South African national law is the law of South Africa and is derived from multiple sources: the Constitution of the Republic of South Africa, 1997; acts of Parliament/legislation/statute; common law (including Roman-Dutch and English law); indigenous or customary law; and it is organized into three main parts: public law, private law, and procedural law.
Public law
Public law governs the relationship between the state and its citizens and comprises three sub-branches. Constitutional law is derived from the Constitution (1997) and provides for fundamental rights, the distribution of the state's legal powers, and the functions of the various parts of government. Administrative law regulates the power of the state over private individuals and aims to prevent abuse of state power by officials or departments. Criminal law determines which actions are unlawful and prescribes the due punishment the State should impose for each crime.
Private law
Private law, also known as civil law, regulates relationships between private individuals. It has six branches: Mercantile Law (relating to companies and other areas of business, including labour law and insolvency); Law of obligations (rights with monetary value, including contract, delict, and unjustified enrichment); Property law (the law of things, ownership of objects or land); Law of persons (rules about being a legal subject and their rights and obligations); Family law (requirements for marriage and relations between parents and children); and Law of succession (how a person’s estate is dealt with after death).
Procedural law
Procedural law complements substantive law by focusing on how legal rules are enforced. It covers three aspects: the law of evidence (guides the court on proof standards in civil and criminal matters); criminal procedure (steps to prosecute a crime); and civil procedure (the process for enforcing non-criminal law, typically when one person sues another).
Civil procedure
Civil procedure can proceed via two routes: action or trial procedure, used when there is a dispute about wrongdoing and the parties need to question each other in court; and application procedure, a quicker, simpler process when there is no real dispute of fact between the parties. The application procedure involves an applicant and a respondent, starts with a notice of motion, and is designed to be faster and less expensive than full trial litigation.
Trial procedure
The trial procedure is used when there is a difference in opinions about what happened. It consists of four phases: pleadings, the trial itself, appeals and reviews, and enforcement of court judgments.
Phase 1: Pleadings
The plaintiff, through an attorney, issues a summons against the defendant. The Sheriff serves the summons in person or, if the defendant is absent, leaves it under the door or attaches it to the door. If the defendant intends to defend, they must file a notice of intention to defend, followed by a plea that sets out grounds of defence. The defendant may also raise a counterclaim, which is a separate claim another party must defend; both claims are heard together. If the defendant does not defend or files late, a default judgment may be granted once the summons was properly served. Pleadings are written summaries of the main facts and arguments, signed by the litigants or their representatives, and help the court understand the dispute.
Phase 2: The trial
The trial aims to determine whether the pleadings’ allegations are correct. After opening statements, witnesses are called and may be cross-examined. Witnesses testify under oath and are generally limited to verbal evidence. Judgments are given by a magistrate or judge, depending on the court. Witnesses can be re-examined to clarify cross-examination concerns, and closing statements summarize the case and desired judgments.
Phase 3: Appeals and reviews
Appeals occur when a party believes the lower court’s decision was incorrect in law; the appellant presents the appeal to an appellate court (Supreme Court of Appeal for non-constitutional matters, Constitutional Court for constitutional matters). Appeals rely on the typed record and the advocate’s explanation; no new evidence is heard. Reviews can be sought if the losing party believes the magistrate/judge was biased or the procedure used was flawed; a review tests whether the correct procedures were followed and whether the judge’s attitude was fair.
Phase 4: Enforcement of court judgments
A civil judgment typically requires the losing party (the judgment debtor) to pay money to the winning party (the judgment creditor). If payment is not made, a warrant of execution may be issued, and a Sheriff may list the debtor’s property. If non-payment persists, property may be attached and sold in a sale in execution. If the debtor’s financial situation prevents payment, the court may order payment by instalments.
Application procedure details
In matters not requiring a full trial, the application procedure is used. The applicant seeks relief, and the respondent defends. Applications start with a notice of motion that states the relief or compensation sought. Characteristics include speed, lower cost, and suitability where there is no real dispute of fact. Oral evidence is not necessary; parties rely on affidavits, which are statements sworn to be true and signed before a Commissioner of Oaths. The founding affidavit is the initial affidavit accompanying the notice of motion.
Legal subjects
A legal subject (legal person or person) has legal capacity—the ability to exercise legal rights and to take or face legal action. Legal subjects possess legal personality and can bear rights and duties. They can be natural persons (human beings) or juristic persons (artificial entities such as companies, schools, banks, universities, municipalities, and the State). Natural persons’ capacity varies with age and other factors. Juristic persons are separate from their directors and shareholders; they have their own rights and duties and can sue or be sued in their own name.
Understanding how juristic persons work in terms of a company
Companies qualify as juristic persons, are separate legal entities, and are distinct from their directors and shareholders. Directors are not automatically personally liable for company debts if they act responsibly. Shareholders do not own company profits personally; profits are held by the company until dividends are declared. The company itself bears rights and duties and bears legal consequences for its actions, including litigation.
Companies vs sole proprietorships and partnerships
Sole proprietorships and partnerships are owned by individuals and are not separate legal persons like companies. If such entities cannot pay debts, creditors can pursue the owners or partners personally, unlike with companies where liability is separated from directors and shareholders.
Legal rights recap
Legal subjects bear various rights and duties. Rights can be real rights, which stem from ownership and operate against the world (others must respect ownership). An example is a real right over stationary you own. Personal rights arise from agreements and constrain specific other people, typically arising from contracts where one party must perform. For instance, in an employment contract, the employee’s performance is the agreed-upon work, and the employer has a personal right to expect performance.
Interpretation of statutes
Theme 3; Part 2
Why do we need to interpret statutes?
Statutes regulate civil and criminal matters and are composed of provisions (specific requirements or rules). While statutes are often clear, interpretation is required when provisions contradict one another, when a provision is unconstitutional, when adaptation to technological advances is needed, or when wording is ambiguous. Interpretation is required to give practical effect to statutes.
Interpretation of a provision
When a provision is not clear, the court must interpret it to give effect to the legislature’s intention. The court looks to determine the legislature’s thinking behind a provision, which includes identifying the purpose and aims of the legislation and how the provision applies to a given case. Contextual factors are considered, including the environment in which the legislation was drafted.
History of interpretation in South Africa
During Apartheid, Parliament held sovereignty for interpretation, and courts merely gave effect to legislation. This approach was criticised for being ambiguous. After the Interim Constitution in 1994, South Africa shifted to constitutional supremacy: interpretation must align with constitutional values, and the Constitution is the supreme law guiding interpretation of statutes.
Theories of statutory interpretation
1) Literal approach (text-based): When words are clear and unambiguous, effect is given to them; if ambiguous, words are interpreted by their ordinary grammatical meaning using dictionary definitions. This approach is common but not exclusive in practice.
2) Purposive approach (contextual or text-in-context): Provisions are interpreted from a broader perspective, considering intra-textual (language) and extra-textual (purpose, consequences) factors to avoid defects and to give effect to legislative intentions. This approach is often used when the literal approach is exhausted.
3) Functional approach: The ordinary meaning is assigned unless that meaning would create absurd results or defeat the legislature’s intent. This approach emphasizes effectiveness and validity of legislation.
4) Historic approach: Interpreting by considering the historical context of the legislation (parliamentary history, preceding legislation, speeches, investigations, policy documents). It is widely criticised and is usually reserved for constitutional matters, where rights and provisions reflect negotiations and historical dialogues.
Interpretation Aids
Courts may use internal and external aids to interpret legislation. Internal aids are embedded in the statute and include elements such as the short title, date of assent, date of commencement, long title/preamble, definitions, purpose; interpretation and application; provisions. These aids help explain the statute’s content and application (and how to interpret its terms).
The Constitution and interpretation
The Constitution requires that the Bill of Rights and other constitutional provisions be the starting point for interpretation. Several constitutional provisions reinforce this approach: Section 1(c) establishes SA as sovereign and democratic and founded on the rule of law and constitutional supremacy; Section 2 declares the Constitution supreme; Section 7(2) obliges the state to respect, protect, promote, and fulfill the rights in the Bill of Rights; Section 8(1) binds all law to the Bill of Rights and obliges the legislature, executive, judiciary, and all organs of the state to be bound by it. These provisions collectively ensure that interpretation in SA aligns with constitutional values and supremacy.