Interpretation of Statutes IOS201-6
1. GENERAL INTRODUCTION 1.1. Definition Statutory interpretation as a subject of study is the body of rules and principles used to construct and justify the meaning of legislative provisions to be applied in practical situations. 1.2. Why can statutes not be interpreted in a mechanical or rule-like fashion? Many rules of interpretation overlap and cannot be neatly compartmentalised as: the circumstances and sets of facts will differ from case to case, as well as the context of legislation; the courts are not of one mind when it comes to the application of certain rules, resulting in no clear predictable pattern of application 1 the law is not objective, neutral and value-free: all interpreters have a particular frame of mind which will influence their understanding of legislation; since the spirit and aim of the fundamental rights in the Constitution must be promoted, interpretation necessarily involves value-judgements; Poor drafting, conflicting provisions or a lack of resources to research the current law. Two different meanings of the phrase “interpretation of statutes” Before 1994 and the Constitution, interpretation of statutes was an orthodox system of maxims and rules for interpretation based on parliamentary sovereignty. Today interpretation is based on constitutional supremacy and the spirit and purport of fundamental rights are to be taken into account and thus value judgment can no longer be ignored. According to Devenish: courts will be able to test and invalidate legislation; all statute law will have to be interpreted to be compatible with letter and spirit of Constitution; a value-coherent theory of interpretation should become prevalent; a justiciable bill of rights is likely to indicate a new methodology and theory of interpretation. Interpretation of statutes transformed by six provisions of the Constitution: Section 1 Section 2 Section 7 The foundational provision Supremacy of the Constitution The obligation clause Section 8 Section 36 Section 39 The application clause The limitation clause The interpretation clause
How are the many rules and principles of statutory interpretation structured? Interpretation of statutes is neither mechanical nor objective and can never be reduced to a preconceived ‘road map’. The following three phase interpretation process is merely a teaching tool: Initial phase Basic principles are used as a point of departure: (i) Constitution and Bill of Rights the cornerstones of legal order; (ii) most importantly, to ascertain and apply the purpose of the legislation in view of (i); (iii) text is read to find initial meaning bearing common law presumptions and a balance between text and context in mind. Research phase All factors and consideration possibly having a bearing on the particular legislation are studied to determine the purpose. Concretisation phase Legislative text, the purpose of legislation and the facts of the particular case are harmonised and the spirit, purport and aim of fundamental rights must be promoted during this process.
Which is the product of each interpreter’s unique history, background, experience and prejudices.
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2. WHAT IS LEGISLATION? 2.1. What is regarded as legislation in South African law? It is important to distinguish legislation from other types of law as the rules and principles of statutory interpretation only apply to legislation. Section 1 of the Interpretation Act The provisions of this Act shall apply to the interpretation of every law (as in this Act defined) in force, at or after the commencement of this Act, in the Republic or any portion thereof, and to the interpretation of all by-laws, rules, regulations or order made under the authority of any such law, unless there is something in the language or context of the law, by-law, rule, regulation or order repugnant to such provisions or unless the contrary intention appears therein....