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FACULTY OF LAW

SEMESTER II STUDY GUIDE

INTERPRETATION THEORY (ULL 0024) 2012


University of Johannesburg Copyright reserved

FACULTY OF LAW

INTERPRETATION THEORY SEMESTER II - STUDY GUIDE 2012 Table of content i. ii. iii. iv. v. vi. vii. viii. ix. x. 1. 2. 3. 4. 5. 6. 7. 7.1 7.2 7.3 7.4 7.5 Welcome and general introduction Administrative issues Assessments Calculating your semester mark Rules regarding aegrotat tests Study material Module programme Module outcomes Grievance Important concepts Introduction What is legislation? Commencement, amendment and demise of legislation Theories (theoretical positions) of statutory interpretation The impact of the Constitution The presumptions Methods of statutory interpretation Grammatical interpretation Systematic interpretation Teleological interpretation Historical interpretation Comparative interpretation 3 7 8 9 10 11 12 13 14 15 18 19 21 22 26 27 29 29 30 30 31 31 32
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Acknowledgements
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i.

Welcome and general introduction

Welcome to the module Interpretation Theory. At other Faculties this module is often referred to as Interpretation of Statutes (Uitleg van Wette) or Interpretation of Enacted Law (Uitleg van Wetstekste). In this module we will solely focus upon the interpretation of legislation. This is not to say, of course that other sources of law (such as common law or customary) or legal instruments (such as deeds, wills and contracts) are not subject to interpretation. There is unfortunately just not enough time within the course of a semester module to deal with all these matters (you will however deal with matters of interpretation that arise within, in example, contracts when you complete the module Contract Law and you might be surprised at the similarities with what you have done in this module). It is also true, however, that legislation has become an indispensable source of contemporary law (if not the most important source). Since the adoption of the Constitution of the Republic of South Africa, 1996 Parliament has adopted a staggering amount of new Acts. Between 1997 and 2012 Parliament adopted 825 Acts as well as 16 Constitutional Amendments at the rate of about 56 a year. It is therefore not surprising to discover that our courts are unremittingly grappling with legal issues, which concerns the ascertainment of the meaning and application of the statutory provisions of the law. Statutory interpretation has, especially within the last two decades, become an increasingly influential aspect of law. William Eskridge famously averred that statutory interpretation was the Cinderella of legal scholarship. Eskridge, however, also sees light for the Cinderella discipline: "Once scorned and neglected, confined to the kitchen, it now dances in the ballroom." The eminent German jurist Von Savigny opined that the interpretation of legislation is the foundation of science, while Prof L Fuller, the prominent American scholar, observed that the problem of interpretation occupies a sensitive, central position in the internal morality of law and at a more parochial level Van Tonder remarked that interpretation of statutes is a sleuteldissipline in die hele regswetenskap.
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Statutory construction is not the exclusive preserve of lawyers and the judiciary. It directly concerns all those whose activities are affected by Acts of Parliament. In a modern society this means everyone. Statutory interpretation therefore involves the lawmakers, the courts and the public. The interpretation of statutes is an intensely fascinating subject. Lord Wilberforce described as a non-subject, meaning that it is really about life and human nature itself too broad and deep and variegated to be encapsulated in any theory. The subject involves a kindred trilogy of phenomena: firstly it is concerned with linguistics (which in turn concerns semantics, syntax, and the rules of logic). Secondly, it involves not only statute law but also common law (the latter being essentially encapsulated in the presumptions of interpretation). Finally it is inextricably intertwined with jurisprudence or the philosophy of law. Steyn is thus correct to distinguish between linguistic and juridical interpretation. The interpretation of statutes is essentially concerned with the latter. The former is relevant but not conclusive and is only one element in the process of the interpretation of statutes. Statutory interpretation as a discipline is problematic because of the nature of words and language. Words are symbols of meaning. But in contrast to mathematical symbols they can never attain quantitative precision, since they are intrinsically qualitative and palpably inexact. Language is a means of communication; using words is therefore inherently flexible and is very often ambiguous, vague or general. In a sense statutory interpretation therefore also encounters the same problems as other written text genres such as literary texts (novels, poems or dramas), religious texts (such as the Bible or Koran), scientific texts (such as textbooks, articles in journals, mathematical formulas or research reports) etc. In the words of Chief Justice Innes in Venter v R:
No matter how carefully words are chosen there is a difficulty in selecting language which, while on the face of it expressing generally the idea on the framer of the measures, will not, when applied under certain circumstances go beyond it, and when applied under other circumstances fall short of it.

Furthermore words do not have an entire predictable character. They can be dynamic and even unruly in their performance. This is
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cogently conveyed by TS Elliot in Part V of Burnt Norton, the first of the Four Quarters:
Words strain, crack and sometimes break, under the burden, Under the tension, slip, slide, perish, Decay with imprecision, will not stay in place Will not stay still.

It is difficult to express ideas in words with complete accuracy; and the more complex the idea the greater difficulty. The law has to regulate an intricate and sophisticated society. Axiomatically this requires complicated laws involving language of a fair degree of sophistication, which compounds the difficulties inherent to the process of statutory interpretation, since the more sophisticated the language, the more open it is to interpretation. The process of interpretation is also problematic because the language of the law is a specialized, archaic or ancient and frequently impenetrable language. Even when statutes are drafted with great legal and linguistic insight, there will always be cases that the draftsman did not anticipate and for which the statute apparently does not make provision owing the lack of human prescience. In South Africa statutory interpretation is further complicated by the fact that many contemporary statutes in South Africa are today direct and literal translations of their corresponding Afrikaans versions. In many cases one gets the impression that the English version is a collection of English words rather than good and lucid English prose. A really good translation must capture the same spirit or genius as the original version. The converse has also occurred. Ambiguity is not the only phenomenon that makes language problematic. Vagueness, obscurity, and elasticity inter alia may give rise to semantic problems. Language is therefore inevitably an imperfect medium for expressing and conveying thought and intention, and it follows that it is frequently problematic to ascertain the meaning of the written word, and to decide on its application in various circumstances. However, the inherent flexibility of language creates the potential for liberal and equitable interpretation, which can be exploited in order to serve the cause of justice in the interpretation of oppressive legislation.
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As Du Plessis notes, traditionally a law lecturer teaching Interpretation of Statutes may be tempted to try and make students believe that (s)he is going to teach them how to interpret or construe laws/statutes correctly. Unfortunately, however, there is not just one correct (or even a best) way in which to construe any particular statutory provision in a given situation and there is also no trustworthy, always workable recipe for statutory interpretation that a lecturer can teach students. Interpretation of Statutes can thus be but an introduction to or, at most, an induction into the strategies on which jurists rely and the means they utilise to interpret statutes, and accepted or legitimate lines of reasoning on which jurists (may) rely to justify the particular interpretation of an statute for which they contend. Donaldson J explained this as follows in the British case Corocraft v Pan-American Airways [1968] 2 All ER 1059, 1071:
"In the performance of this [interpretative] duty the judges do not act as computers into which are fed the statute and the rules for the construction of statutes and from whom issue mathematically correct answers. The interpretation of statutes is a craft as much as a science, and the judges as craftsmen, select and apply the appropriate rules as tools of the trade. They are not legislators but finishers and polishers of legislation which comes to them in a state requiring various degrees of further processing".

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ii.

Administrative issues Marius van Staden A Ring 628 011 559 4017 084 517 1791 mvanstaden@uj.ac.za Eng: D1 Lab K01 Afr: D Les 407 Eng: Thursday 11:20 12:55 Afr: Tuesday 12:10 13:45 Thursday 13:00 15:00 (in office) Wednesday 10:00 13:00 (in office) Tuesday 14:00 15:00 (in office)

Lecturer:

Venue: Class times: Office hours:

In addition to the times that the lecturer is available on campus, a meeting may also be arranged. General enquiries may be made via e-mail. Note however that, as class attendance is compulsory, no information communicated in class will be repeated unless the student can justify his or her absence from the lecture. Queries concerning the topics covered in this module may be submitted to the lecturer in person (and not via e-mail). In fact, it is in your own interest to bring any matter that you might be struggling with under the lecturers attention.

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iii. 1.

Assessments Class tests: Class tests will be written in class. The date(s) hereof will be communicated to students by the lecturer in class and by a notice placed on Edulink if the student is required to prepare for the class test. Unprepared class test(s) may also be written and the date(s) hereof will not be communicated to students as class attendance is compulsory.

2.

Semester test 1: 16 August 2012 The venue will be confirmed by the lecturer in class and a notice will be placed on Edulink. Semester test 2: 8 October 2012 The venue will be confirmed by the lecturer in class and a notice will be placed on Edulink. Aegrotat test: 22 October 2012 The venue will be confirmed by the lecturer in class and a notice will be placed on Edulink. 9 November 2012 Refer to your Student Portal for information.

3.

4.

5.

Exam:

Assessment scripts will be handed back to students during lectures. Students who can justify their absence from the lecture may collect their assessment scripts from the lecturer within reasonable time. Assessment scripts handed back to students must be kept as proof. No queries about marks will be entertained without your script.

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iv. 1. 2. 3.

Calculating your semester mark Class tests: Semester test 1: Semester test 2: 20% 30% 50%

As class attendance is compulsory no aegrotat tests are available. No exceptions will be permitted (not even those accompanied by doctors letters or affidavits). It is however understood that unforeseen circumstances may occur that does not permit students from attending classes and for this reason more than two class test will be written although only the two best class test marks will count towards your semester mark.

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v. 1. 2. 3.

Rules regarding aegrotat tests Aegrotat tests may cover all work completed up to the date of the aegrotat test. Aegrotat tests may take the form of an oral test. Only students with a medical certificate or other acceptable documentation to support their assertion of inability to write the test will be allowed to complete the aegrotat test. Headaches, stomach-aches, stress etc. are not valid excuses. Please ensure that the medical practitioner indicates that the certificate was issued based on facts established during an examination by him- or herself and not based on what was told to him or her by yourself. Complete the prescribed form. Any application for writing the aegrotat test must be made at the Faculty of Law, not the lecturer, prior to or within 5 working days after the scheduled test. No late applications will be accepted. All applications must be handed in personally at the Departmental Secretary at A Ring 6 (Ms Pranitha Samsunder). No e-mailed applications will be considered. Your application will be considered by the lecturer and submitting an application does not automatically assure you of being permitted to write the aegrotat test. There will be no further opportunity to obtain a mark if the formal aegrotat test is missed. Thus, no further oral examination etc. will ever be available. It is the students responsibility to ascertain (after the scheduled test) the venue and time of the aegrotat test. All students are obligated to keep proof of applications for aegrotat tests and must ensure that they obtain same from the Departmental Secretary when handing in the prescribed form.

4. 5. 6. 7. 8. 9. 10.

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vi.

Study materials

Prescribed book: There is no prescribed textbook for this module. The following materials will however be available on Edulink: Class notes (will be made available after class) Du Plessis The presumptions in Du Plessis Re-interpretation of Statutes (2002) 149 195. Du Plessis Interpretation in Woolman, Roux and Bishop (eds) Constitutional Law in South Africa (2002) 32-i 32-193. South African Law Reform Commision Discussion Paper 112 Statutory Revision: Review of the Interpretation Act 33 of 1957
(2006).

Interpretation Act 33 of 1957. Recommended book: The following book is recommended and should be available in the bookshops on campus should you wish to do further reading for your own benefit. You will not be penalized for not buying this book. Botha Statutory Interpretation: An Introduction for Students (2005).

Additional study materials may be indicated after each topic herein. It is the students own responsibility to obtain a copy thereof and these materials must be studied.

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vii.

Module programme 2012 ENGLISH LECTURE 19-07 26-07 02-08 16-08 23-08 AFRIKAANS LECTURE 17-07 24-07 31-07 14-08 Unit Introduction What is legislation? Commencement, amendment and demise of legislation

1 2 3

4 5

Theories (theoretical positions) of statutory interpretation I 16-08: Semestertest 1 21-08 Theories (theoretical positions) of statutory interpretation II 28-08 The impact of the Constitution Recess 11-09 The presumptions I 18-09 The presumptions II 25-09 Methods of statutory interpretation: Grammatical interpretation 02-10 Methods of statutory interpretation: Systematic interpretation 08-10: Semestertest 2 09-10 Methods of statutory interpretation: Teleological interpretation 16-10 Methods of statutory interpretation: Historical interpretation 23-10 Methods of statutory interpretation: Comparative interpretation & Revision

6 7 8 9 10

30-08 13-09 20-09 27-09 04-10

11 12 13

11-10 18-10 25-10

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viii. Module outcomes


Module name UJ module code Module NQF level NQF credits Interpretation ULL0024 6 16 Theory Purpose of the module Upon the successful completion of the module, a student will have acquired the necessary knowledge to explain and apply in the actual interpretation of a law the theory, rules and principles of interpretation theory. Module learning outcomes The learner will be able to: 1. demonstrate that he/she has acquired the necessary knowledge to explain and apply in the actual interpretation of legislation, the theory, rules and principles of interpretation theory Module assessment criteria The learner will be competent if he or she: 1.1 is able to analyse the rules and principles applicable to interpreting a particular law/statute and then proceed to apply those rules and principles in a case study

2. show an understanding of the 2.1 is able to contrast the common-law influence of the Constitution on statutory presumptions of interpretation with the interpretation theory and principles of Constitutional interpretation 3. appreciate that legislation is the 3.1 is able to explain why legislation is most important source of the legal the most important source of the legal system and affects all people system today 3.2 is able to demonstrate with examples the influence that a changing society has on the legal system and how it is reflected in legislation 3.3 is able to illustrate how other disciplines of the legal system are affected by legislation 4. understand that the rules and principles underlying the interpretation of legislation is also applicable to other legal documents, such as contracts 4.1 is able to demonstrate the application of the rules and principles underlying statutory interpretation to other documents, such as contracts 4.2 is able to illustrate the difference between interpretation of wills and contracts as opposed to the interpretation of legislation

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ix. 1. 2.

Grievance A student must discuss any problem encountered with the presentation or assessment of a module with the lecturer who is responsible for the presentation of the module. If the student is not satisfied with the lecturers decision, the student may submit the problem in writing to the Head of the Department in which the module is offered (Dr J Calitz) and the student must make an appointment with the HOD for a discussion of the problem. The HOD considers a complaint only after the student has discussed the problem with the lecturer. The HOD decides the matter only after the lecturer has been consulted. If the student is not satisfied with the HODs decision, the student may submit the problem in writing to the Dean. The Dean only considers a complaint after the HOD has given a decision on the matter. The Dean only takes a decision after consultation with the HOD.

3. 4. 5. 6. 7.

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ix.

Important concepts

ACT-(capital A)-Parliamentary statute or the legislation of a provincial legislature. Without a capital letter, act, refers to conduct such as the act of a government official or an organ of state. CONSTITIONALISM-The government derives its powers from the Constitution and is bound by the Constitution. CONSTITUIONAL STATE-Constitution is supreme. Two foundations underpin a constitutional state: formal one which includes separation of powers, checks and balances on the government, and the principle of legality; and a material one which refers to a state underpinned by a system of fundamental values such as justice and equality. ENTRENCHED-Provisions in the Constitution which are not easily altered. INTRA VIRES-Government acts within the scope of its powers. JUDICIAL LAW MAKING-The judiciary may modify or adapt the ordinary meaning of a legislative provision in such a way that it conforms to the purpose or the aim of the legislation. JURISDICTION-Competency of a court to hear a matter. Determined by the geographical area and the type of case. LAW-Consists of all forms of law. Legislation; enacted law texts or statute law; namely acts of parliament, provincial legislation, municipal by-laws, proclamations and regulations. Common law is made up of rules of law which were not written down originally, but came to be accepted as the law of the land. (Roman Dutch law)
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Indigenous law refers to the traditional law of indigenous black people of South Africa. Could be unwritten customary law. Case law also known as judicial precedent is the law as decided by the various courts. The precedent system also known as stare decisis means that judgements of higher courts bind lower courts and courts of equal status. LEGALITY-Government by the law and under the law. LEGISLATURE-The elected body which has the legal power to enact laws. LEGITIMACY-Refers to the faith of the population in a system or situation. LOCUS STANDI-One has a place of standing in the court. determines whether a person has a right to be heard by the court. It

PARLIAMENTARY SOVEREIGNTY-Parliament is supreme. Parliament is the highest legislative body, capable of enacting laws, and no court may test the substance of parliamentary acts. PROCLAMATION-A specific category of subordinate legislation. PROMULGATION-Legislation is made known to the population by promulgation and comes into operation when it is published in an official gazette such as the government gazette. PURPOSE-Aim or scope of legislation. SUPREME CONSTITUTION-The constitution is the highest law of the land.

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TESTING LEGISLATION-Constitutional review or judicial review. Legislation which is alleged to be in conflict with the Constitution is reviewed or tested by the court. ULTRA VIRES-The Act or the conduct of a government organ, which goes beyond the authority conferred upon it, is ultra vires or outside the scope of its powers.

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1.

Introduction

Study material: Class notes Guidelines: At the end of this study unit you should be able to answer the following: What is statutory interpretation? What are the other sources of law besides statute law? What is the relationship between statutes and the common law? What is the role of precedent in statutory interpretation? What is the significance of statute law? What are the advantages of statute law? What are the disadvantages of statute law? What is the difference between statutory and constitutional interpretation? Who are the interpreters of statutes and the Constitution?

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2.

What is legislation?

Study material: Class notes Section 2 of the Interpretation Act 33 of 1957 and section 239 of the Constitution of the Republic of South Africa, 1996 Citation of Constitutional Laws Act 5 of 2005 Du Plessis The status and role of legislation in South Africa as a constitutional demoracy: some exploratory observation 2011 PER

Guidelines: At the end of this study unit you should be able to answer the following: What is legislation? What is not legislation? Get a copy of any piece of legislation or newly tabled bill of parliament and identify the following elements: o cover page, o general explanatory note, o long title, preamble, o enacting provisions, o table of content, o headings, o definitions and interpretations, o repeal/amendment of laws, o transitional provisions, o short title and commencement, and o schedules. Sort the different types of statutes chronologically and in terms of hierarchy. Can delegated legislation trump original legislation? What is subsidiary constitutional legislation and what is the significance of these statutes?
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How do we cite/refer to the different kinds of legislation and their subdivisions?

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3.

Commencement, amendment and demise of legislation

Study material: Class notes Sections 11, 12 and 13 of the Interpretation Act 33 of 1957 Section 172 of the Constitution of the Republic of South Africa, 1996 Du Plessis Interpretation in Woolman, Roux and Bishop (eds) Constitutional Law in South Africa (2002) 32-138 32-142 Van Rooyen v The State 2002 5 SA 246 (CC)

Guidelines: At the end of this study unit you should be able to answer the following: Differentiate between adoption of legislation and the commencement thereof. Explain the requirement of publication. When does a bill obtain the formal status as an act of Parliament? When does an act become operative? What is the difference between amendment (changes) to legislation by the legislature on the one hand and by the courts on the other? What is the difference between reading down, reading up, reading in and severance of legislation? Explain how legislation may be invalidated and by which institutions. Explain the effect of appeal in terms of section 12 of the Interpretation Act 33 of 1957.

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4.

Theories (theoretical positions) of statutory interpretation

Study material: Class notes Du Plessis Interpretation in Woolman, Roux and Bishop (eds) Constitutional Law in South Africa (2002) 32-28 32-56 African Christian Democratic Party v The Electoral Commission and Others 2006 3 SA 305 (CC) Department of Land Affairs & others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 6 SA 199 (CC) Aviation Union of South Africa v South African Airways (Pty) Ltd 2012 1 SA 321 (CC) Devenish African Christian Democratic Party v Electoral Commission: The new Methodology and Theory of Statutory Interpretation in South Africa 2006 South African Law Journal 399-408 Le Roux Directory provisions, section 39(2) of the Constitution and the ontology of statutory law. African Christian Democratic Party v Electoral Commission SA Publiekreg/Public Law 21(2) (2006) 382-401 Devenish Department of Land Affairs v Goedgelegen Tropical Fruits - a triumph for teleological interpretation, an unqualified contextual methodology and the jurisprudence of ubuntu 2008 South African Law Journal 231-240 Background: It is very important that you understand exactly what is meant with theories (or theoretical positions) of statutory interpretation. Theories of interpretations should not be confused with methods of interpretation. With regards thereto Du Plessis poses the following questions: How is the term theory normally used in law and in particular in the discipline conventionally known as Interpretation of Statutes? What

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is a theoretical position? How does someone interpreting a statute (a judicial officer, for instance) decide on a theoretical position? Read through the following passage (from Du Plessis University of Stellenbosch Interpretation of Enacted Laws Module Guide (2011)) and try to answer the abovementioned questions: A theory, on the one hand, is an explanation or explication. Scholarly or scientific theories are examples of such explanatory models. On the other hand, a theory can also be an idea accounting for a situation or, especially in law, justifying a course of action. The theory then advances the principles on which the practice of an activity is based. Theories of statutory interpretation are explanatory and justificatory at the same time and are therefore associable with what may also be called approaches to the interpretation of statutes. A statutory interpreters theory of interpretation causes him or her to relate the issues of statutory interpretation, with which (s)he may be confronted in a concrete situation, to fundamental questions regarding, amongst others, the true nature of the law and the possibility of justice. An interpretive theory also situates an interpreter and his or her interpretive endeavours in a legal tradition which, amongst others, includes a particular understanding of the nature and division of power as well as the role appropriate to authorised interpreters of the law in the system. An approach to (statutory) interpretation is premised on and shaped by theoretical assumptions about the matters just mentioned and by numerous other matters too. These assumptions, constituting an interpreters theoretical position as it were, pilot the procurement of a particular interpretive outcome. To make an assumption involves making a choice. Theories of interpretation emanating from choices thus made are therefore also an ordering or hierarchisation of interpretive preferences. A theoretical position, which is a theoretical disposition at the same time, is not in its entirety consciously or even rationally decided on. Especially jurists in practice (including judicial of ficers) do not habitually devote time to reflect specifically on (and explain or justify) their theoretical positions. Their theoretical positions mostly become visible in the arguments they use to justify particular interpretive
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outcomes. A theoretical position may nonetheless be reflected on, contested, defended, explained and (consciously) changed. It may also be shared with others. A theoretical position is made up of multifarious interacting factors and forces some of which result from conscious, reasoned choice while others emanate from intuitive perception. Covert and subconsciously held (theoretical) assumptions, precisely because of an interpreters uncritical unawareness of them, often have a more decisive impact on interpretive outcome than overt and consciously reasoned assumptions. It will be an oversimplification to assume that the South African judiciary as a whole has traditionally assumed a single theoretical position on statutory interpretation and that constitutionalism stands to transform that position into something else. The reality is much more complex. The theoretical position of a particular judge may, as a matter of fact, vary from case to case depending on the exigencies of each case and the measure of latitude that the law and the canons of construction allow for deciding the specific issues involved in that case. However, there is a theoretical position that has dominated the approach of South African interpreters of statutes (especially the judiciary and legal practitioners) and that has served as template for additional (or auxiliary) positions on and approaches to statutory interpretation. This template position blends literalism and intentionalism into a literalist-cum-intentionalist approach. Recognised additional or auxiliary positions can, broadly speaking, be classified as contextualist and purposive or (preferably) teleological. Guidelines: At the end of this study unit you should be able to answer the following: State briefly but critically what each of the conventional theoretical positions on statutory interpretation entails. The following theoretical positions must be considered: o Literalism (letterknegtigheid). o Intentionalism (intensionalisme).
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o Literalism-cum-intentionalism (letterknegtigheid-cumintensionalisme). o Contextualism (kontekstualisme). o Purposivism (doelbewustheid/doeldienendheid). Take note of the difficulties attendant on unqualified and excessive reliance on purposive interpretation and of the so-called teleological approach as possible corrective. Also note that purposive and contextual statutory interpretation are closely related. and Which of these positions has gained the widest acceptance and still dominates the scene in South Africa? Constitutionalism has undoubtedly had a far-reaching impact on the conventional literalist-cum-intentionalist approach to statutory interpretation in South Africa. You must be able to give the reasons for this. What does the linguistic turn in legal and statutory interpretation entail? What does objectivism entail?

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5.

The impact of the Constitution

Study material: Class notes Sections 1, 2, 7, 8, 36 and 39 of the Constitution of the Republic of South Africa, 1996 Du Plessis Interpretation in Woolman, Roux and Bishop (eds) Constitutional Law in South Africa (2002) 32-22 32-28 and 32-138 32-142 Guidelines: At the end of this study unit you should be able to answer the following: How does sections 1, 2, 7, 8, 36 and 39 of the Constitution of the Republic of South Africa, 1996 effect the interpretation of statutes? What does a broadening of the community of interpreters entail? What are the differences and similarities between the Constitution and other forms of enacted law? Is there a difference between ordinary and constitutional interpretation? What does reading in conformity with the Constitution entail?

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6.

The presumptions

Study material: Class notes Du Plessis The presumptions in Du Plessis Re-interpretation of Statutes (2002) 149 195. Guidelines: At the end of this study unit you should be able to answer the following: What is the role presumptions have to play in statutory interpretation? How were presumptions perceived prior to the advent of constitutionalism? To what extent are the presumptions still needed in the new dispensation? There are two vital questions to be considered in dealing with each individual presumption: 1. What is the purpose of the particular presumption under consideration and what are the objects and values it seeks to promote? 2. Is there, in view of 1. still a need for the particular presumption under a supreme Constitution? Are there not perhaps provisions or mechanisms in the Constitution that, backed by constitutional supremacy, seek to achieve the same purpose as the presumption? The presumptions that will be dealt with are the following: 1. The presumption that statute law is not unjust, inequitable or unreasonable. 2. The presumption that a statute applies to instances in general as opposed to specific instances. 3. The presumption that statute law promotes public interest. 4. The presumption that statute law is not aimed at ousting or interfering with the jurisdiction of the courts.
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5. 6. 7. 8.

9. 10. 11. 12. 13. 14.

The presumption that statute law does not violate international law. The presumption that statutes do not bind the state. The presumption that a statute does not alter the existing law more than is necessary. The presumption that a statute does not operate retrospectively. Here it is also important to establish whether all the accepted exceptions to the presumption, are always indeed exceptions. The presumption that a statute does not contain invalid or purposeless provisions. The presumption that references in a statute to acts and conduct are references to legally valid acts and conduct. Delegated legislative powers are to be exercised by the delegatus itself. Corrective legislation must be construed generously. Legislation does not have extraterritorial effect. Words and phrases bear the same meaning throughout a statutory text.

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7.

Methods of statutory interpretation

Study material: Class notes Du Plessis Interpretation in Woolman, Roux and Bishop (eds) Constitutional Law in South Africa (2002) 32-159 32-191 Guidelines: At the end of this study unit you should be able to answer the following: What is the origin of the methods of statutory interpretation? What is the function of the methods of statutory interpretation? How are the methods of statutory interpretation different from the theories of statutory interpretation? List the five methods of statutory interpretation. 7.1 Grammatical interpretation

What, in general, is the role of grammatical interpretation in the interpretation process? How is the ordinary-meaning rule conventionally understood and applied? Is it necessary and possible to understand and apply this rule in a different way and perhaps even reformulate it? Can interpreters make use of dictionaries? How should archaic and technical language be dealt with? How do definition clauses function? How do we calculate time periods? What is the purpose and effect of the rule that each signifier in an enactment is to be afforded its own meaning? What is the relevance of multilingualism for statutory and constitutional interpretation? What is the position under the Constitution?

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What is the role of punctuation and paragraph and section divisions in the interpretation of enacted law? 7.2 Systematic interpretation

What is systematic interpretation in general? Explain what the most desirable way of dealing with lacunae and ostensible mistakes in an enacted law-text. What are the different forms (and the limits of) restrictive and extensive statutory interpretation? What is the role of the following textual elements in the interpretation of enacted law: o the preamble, statements of purpose and the long title (note the changes that have occurred since the advent of constitutionalism); o schedules; o headings and marginal notes and o footnotes. 7.3 Teleological interpretation

What does this form of interpretation entail in general? What is the difference between peremptory and directory provisions? Does the adage iudices est ius dicere sed non dare still have a place in the construction of enacted law? What is the position with statutory provisions couched in general language?

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7.4

Historical interpretation

What does this form of interpretation entail? How can custom play a role in statutory and constitutional interpretation and what kind of customs will mostly be considered for this role? How does reference to other enactments facilitate interpretation? Can reference be made to ordinary statutes in order to help construe the Constitution? How can the historical source from which an enactment derives be relied on to construe that enactment? Can the genesis of the constitutional text be taken into account in construing the Constitution? 7.5 Comparative interpretation

How can international law and foreign law be used to interpret legislation and the Constitution?

My own notes _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ 2012 University of Johannesburg 31 MJ van Staden _______________________________________________ _______________________________________________

Acknowledgements Du Plessis University of Stellenbosch Interpretation of Enacted Laws Module Guide (2011). De Ville Constitutional and Statutory Interpretation (2000).
Devenish Interpretation of Statutes (1992).

My own notes _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ 2012 University of Johannesburg 32 MJ van Staden _________________________________________