Question A IOS2601 Interpretation of Statutes

1. List the documents that, although published in the Government Gazette, do not constitute legislation.

2. Explain the ordinary civil method of the computation of days with reference to the case law.

3. Explain the concept of Ubuntu and whether it is part of the South African legal system.

4. List seven (7) internal aids that can be consulted when interpreting an act.

5. Name the various dimensions of the "practical inclusive method of interpretation" favoured by Botha Statutory Interpretation: An Introduction for Students

6. Briefly EXPLAIN the importance of each of the following cases for statutory interpretation in South Africa:

(i) National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (reading in); and

(ii) Nourse v Van Heerden (repeal of legislation).

7. Explain the "mischief rule". Refer to relevant case law.

8. In National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA1 (CC) the Constitutional Court laid down a number of principles to be considered and followed before reading in or severance is applied. One of the s ta te m e n ts b e l o w i s N O T a p r i n ciple laid down by the court with regard to reading in or severance.

a) the Courts must be able to define with sufficient precision how the legislative meaning ought to be modified to comply with the Constitution.

b) the Court should endeavour to be as faithful as possible to the constitutional scheme within the constraints of the relevant legislation.

c) the results of reading in/severance/reading up must be inconsistent with the Constitution and its values.

d) the remedy of reading in ought not to be granted where this would result in an unsupportable budgetary intrusion.

9. Section 13 of the Interpretation Act 33 of 1957 states that legislation may commence...

(a) when it is published in the Government Gazette or on a date specified in the legislation or on an unspecified date still to be proclaimed by the President or the Premier of a province.

(b) when it is published in the Government Gazette or on a date specified in the legislation or when it is published in a national newspaper.

(c) when it is published in the Government Gazette or on an unspecified date still to be proclaimed by the Minister of Justice and Constitutional Development.

(d) when it is published in the Government Gazette or on a date specified in the legislation or at the time when it becomes known throughout the country through mass information campaigns/sessions.IOS2601/101/3/2021

10. When interpreting a piece of legislation, external aids are used. Which of the aids mentioned below is NOT an external aid of interpretation?

(a) Debates during legislative process

(b) Preceding discussions

(b) Dictionaries and linguistic evidence

(c) The preamble of the act

11. A peremptory statutory provision...

(a) requires some compliance.

(b) may be complied with.

(c requires exact compliance.

(d) may be deviated from.

12. What does the term "reading-down" by the courts entail?

(a) The courts follow a restricted interpretation of the legislation in cases when there are conflicts with the Constitution, but such a restrictive interpretation keeps the legislation constitutional.

(b) Reading-down takes place when there is more than one possible reading of the legislative text, and a more extensive reading is adopted in order to keep the legislation in question constitutional.

(c) A more drastic remedy used by the courts in order to change legislation to keep it unconstitutional.

(d) The courts follow an expansive interpretation of the legislation in cases when there are conflicts with the Constitution, but such an expansive interpretation keeps the legislation constitutional

13. According to the practical inclusive method of interpretation, teleological interpretation ...

(a) considers the circumstances which gave rise to the adoption of the legislation and the legislative history (prior legislation and preceding discussions).

(b) is a value-coherent interpretation where the aim and purpose of the legislation must be ascertained against the fundamental constitutional values.

(c) refers to the process during which the court examines the interpretation of similar legislation by foreign courts, as well as international law.

(d) is concerned with the clarification of the meaning of a particular legislative provision in relation to the legislative text as a whole.

14. Indicate which statement is INCORRECT: According to Botha, the following principles govern conflicts arising between signed and unsigned legislation:

(a) The unsigned version of the legislative text may never be used to determine the intention of the legislature.

(b) The signed version is conclusive only when there is an irreconcilable conflict between the versions.

(c) If the one version of the text is wider than the other, then the common[1]denominator rule is followed.

(d) If the versions differ but there is no conflict, the versions complement one another and they have to be read together.

15. Repeal of legislation refers to ...

(a) the formal process whereby the legislation is deleted/removed from the statute book. (b) the process whereby legislation is declared to be legally unacceptable.

(c) legislation being invalidated by the courts on legal grounds.

(d) a mechanical exercise where legislation which is no longer in use is ignored.IOS2601/101/3/2021

16. Fill in the missing case name: In ... the Constitutional Court confirmed that the adoption of the purposive approach in our law has rendered obsolete all the previous attempts to determine whether a statutory provision is directory or peremptory on the basis of the wording and subject of the text of the provision.

(a) S v Jordan 2002 (6) SA 642 (CC) (2) S v Zuma 1995 (2) SA 642 (CC) (3) African Christian Democratic Party v Electoral Commission 2006 (3) SA 305 (CC) (4) Prince v Cape Law Society 2002 (2) SA 794 (CC)

17. The following are some of the semantic and jurisprudential guidelines and the presumptions about specific circumstances determining that a provision is directory. Identify the INCORRECT guideline.

(a) If strict compliance with the provisions would lead to injustice and even fraud, it is presumed that the provision is directory.

(b) If the wording of the provision is in negative terms, and a penal sanction (punishment) is included for non-compliance with the requirements, it is an indication that the provision in question should be regarded as directory.

(c) If other provisions in the legislation could become superfluous (meaningless) when non- compliance with prescribed requirements results in the nullity of the act, there is a presumption that the requirements are merely directory.

(d) If the provision is formulated in flexible or vague terms, it is an indication that it is directory.

18. Which of the following is the best description of the "golden rule" in statutory interpretation?

(a) Words must be given their plain, ordinary meaning unless to do so would produce an absurd result.

(b) Words must be given their plain, ordinary meaning.

(c) Words must be interpreted to find the mischief intended by the legislatures

(d) Words must be interpreted to find the underlying purpose of the legislation. Question

19. Fill in the missing words. Various types of legislation are categorised in terms of both a ... timeline and a ...... power structure.

(a) chronological; judicial

(b) historical; judicial

(c) mathematical; hierarchal

(d) Chronological; hierarchal

20. The maxim cessante ratione legis means....

(a) if the reason for the law ceases, the law itself falls away.

(b) words are known by those with which they are associated.

(c) if a principal thing is forbidden or permitted, the accessory thing is also forbidden or permitted.

(c) the power to issue a regulation implies the power to withdraw it.

21. Which part of an Act provides a quick reference about where to find particular provisions?

(a) Definitions

(b) Table of contentsIOS2601/101/3/2021 23

(c) List of regulations

(d) List of amendments

22. Retroactive commencement refers to .....

(a) the normal circumstances where the date of publication will coincide with the day of commencement provided for in the legislation.

(b) where an Act commences on a date to be determined.

(c) publication on a specific date, but the legislation is deemed to have commenced earlier on a date prior to publication.

(d) where the legislation prescribes a date of commencement.

23. Indicate the instance where the principle that legislation only applies to the future will not apply:

(a) If the enactment deals with procedure

(b) If the retro-effect favours the state

(c) If the enactment deals with financial implications

(d) If the retro-effect is announced by the state

24. Invalidation of legislation happens ...

(a) where legislation is deleted, removed from the statute book by the courts.

(b) when legislation is declared to be legally unacceptable by the courts.

(c) where the Constitutional court repeals invalid legislation because it violates a constitutional principle.

(d) where the High court repeals invalid legislation because it violates a constitutional principle.

25. Which section of the Interpretation Act deals with the repeal of legislation?

(1) Section 12(1)

(2) Section 2

(3) Section 13(1)

(4) Section 10

26. The following are criticisms against the literal approach to interpretation. Indicate which criticism is INCORRECT

(a) Very few texts are so clear that only one final interpretation is possible.

(b) Important internal and external aids to statutory interpretation are ignored.

(c) Words are regarded as the secondary index to legislative meaning.

(d) The text-based approach leaves little room for judicial law-making.

27. The following statement can be seen as an important element of the contextual approach to statutory interpretation.

(a) The interpretation process cannot be complete until the object and scope of the legislation are taken into account.

(b) If the meaning of legislation is clear, it should be equated with the intention of the legislature.

(c) The court should interpret legislation only within the framework of the words in the legislation.

(d) Words must be given their ordinary grammatical meaning.IOS2601/101/3/2021

28. The Constitution...

(a) provides that the spirit and purport of the Bill of Rights must be promoted when interpreting legislation.

(b) influenced the interpretation of statutes only in cases of delegated legislation.

(c) provides that international law may not be used to choose between different interpretations of the same legislation.

(d) provides that legislation must be published at least 10 days before its commencement.

29. Adoption refers to ...

(a) the process of putting legislation officially and legally into operation.

(b) a state of affairs where legislation operates as of a time prior to its enactment, in other words, it operates backwards in time, and changes the law from what it was.

(c) the constitutionally prescribed and other legal processes and procedures required for the draft legislation to become law, including preparation of a draft Bill, introduction of the Bill in the legislature, and public participation (if required), as well as the committee stages, voting and assent.

(d) construing enacted legal texts with reference to and reliance on other legal texts, concretising the text to be construed so as to cater for the exigencies of an actual or hypothesised concrete situation.

30. In Nourse v Van Heerden 1999 (2) SACR 198 (W) the court found that ...

(a) legislation can be abrogated by disuse.

(b) legislation must be repealed by a competent legislature.

(c) the case had to be decided in terms of the Choice of Termination of Pregnancy Act 92 of 1996.

(d) the Abortion and Sterilisation Act 2 of 1975 was unconstitutional.

31. The judicial act of cutting out the offending part of a provision in a piece of legislation in order to rescue it from the fate of unconstitutionality is known as:

(1) severance.

(2) reading in.

(3) substitution.

(4) reading down

32. When interpreting a piece of legislation, internal aids are used. Which of the aids mentioned below is not an internal aid of interpretation?

(1) The long title.

(2) The definitions clause.

(3) Commission reports.