IOS2601
ASSIGNMENT 1
STUDENT NO:
NAME:
66682681
V.M. Chokoe
Question 1
1. In Section 13(1) of the Interpretation Act 33 of 1957, adoption is expressed as
the different stages through which legislation has to pass before it is accepted or
approved by the legislative body. On the other hand “commencement” refers to the
day on which that law comes or came into effect and that day shall, subject to the
provisions of subsection (2) and unless some other day is fixed by or under the law
for the coming into operation thereof, be the day when the law was first published
in the Gazette as a law this is also known as the promulgation of the legislation.
2. In the case of the National Coalition for Gay and Lesbian Equality v Minister of
Home Affairs 2000 (2) SA 1 (CC), the Constitutional Court of South Africa
established several requirements before a reading-in or severance could take
place. These requirements include:
- Consistency with the Constitution: Results of reading in/severance must be
consistent with the Constitution and its values;
- Minimal Interference: The alteration should interfere as little as possible with the
legislature’s laws.
-Courts must be Precise: Courts must be able to define with sufficient precision
how the legislative meaning ought to be modified to comply with the Constitution;
- Courts must be faithful to the Legislative Scheme: The Court should
endeavour to be as faithful as possible to the legislative scheme (i.e. aim, purpose)
within the constraints of the Constitution;
- Remedy of reading in ought not to be granted where this would result in an
unsupportable budgetary intrusion.
These principles are put in place to ensure that when the court makes changes
while in pursuit of upholding its constitutional mandates, it can still respect the
legislative intent.
3. Explain the terms “reading-down”, “reading-in” and “severance”.
Reading-down: This is a legal method where legislation is interpreted in a way that
makes it constitutionally valid but limits its or application to ensure compatibility with
constitutional principles or rights.
Reading-in: This occurs when the court adds words to a statute to make it
constitutionally compliant without altering the original text.
Severance: is a process whereby a part of an unconstitutional statute is removed
while the remainder is left intact and can still be enforced to achieve legislative
purpose.
4. With reference to the case of Commercial Union Assurance Co v Clark 1972
(3) SA 508 (A) and Weenen Transitional Council v Van Dyk 2002 (4) SA 653
(SCA) explain and distinguish between the directory and peremptory
provisions.
Directory provisions are guidelines that should be adhered to in law, however, they
are not strictly binding but they merely suggest a procedure to be followed. In
instances where the procedure is not followed, it does not invalidate the act or
decision to which it relates. Directory provisions use words of permissive natures
that insinuate that there is an element of discretion. Words like “may” indicate a
directory provision.
On the other hand, peremptory provisions are mandatory and they require full
compliance. An act can be nullified if it does not comply with this provision. The
inference is that the words used when making a peremptory provision indicate an
obligation. The words “must or shall” and thus indicate a peremptory provision.
In Commercial Union Assurance Co v Clark 1972 (3) SA 508 (A), the court
explained the distinction between directory and peremptory provisions. Directory
provisions are those that prescribe procedures or steps to be followed but are not
considered mandatory in the sense that failure to comply would not invalidate the
act. Peremptory provisions, however, are mandatory requirements, and noncompliance would render the act void.
In this case, the court concluded that the provision was directory, not peremptory,
allowing for the claim to be enforceable even though there was non-compliance with
the exact procedure stipulated by the Act.
In Weenen Transitional Council v Van Dyk 2002 (4) SA 653 (SCA), the court
further demonstrated this distinction by emphasizing that peremptory provisions are
fundamental to the legislative scheme and non-compliance would undermine the
purpose of the law, whereas directory provisions are procedural and can be
overlooked without nullifying the act.
5. What effect has section 39(2) of the Constitution had on statutory
interpretation in South Africa?
Section 39(2) of the Constitution has played a major role in statutory interpretation
in South Africa. The Act states that “when interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or forum must
promote the spirit, purport and objects of the Bill of Rights.”
Section 39(2) aims to interpret laws in a way that promotes constitutional mandates
such as human dignity, equality, and freedom. This provision enables the law to
evolve in line with the principles and societal values of the Constitution. This is
achieved by encouraging a contextual and dynamic approach to statutory
interpretation.
Courts are encouraged to interpret the legislation with purpose and in a broad
manner that advances the values and rights enshrined in the Bill of Rights.
Section 39(2) promotes harmony within our laws with constitutional values,
ensuring that statutory provisions are interpreted in a manner consistent with the
Constitution. It has led to the development of the common law to align with
constitutional principles.
The provision requires courts to balance competing interests and rights, leading to
a more nuanced and rights-conscious approach to statutory interpretation.
REFERENCE
STATUTORY INTERPRETATION AN INTRODUCTION TO STUDENTS, CJ BOTHA, 2012,
INTERPRETATION ACT 33 OF 1957
COMMERCIAL UNION ASSURANCE v CLARK 1972 (3) SA 508 (A)
INTERPRETATION OF STATUES IOS2601 STUDY GUIDE
https://lawlibrary.org.za/akn/za/judgment/zasca/1972/8/eng@1972-03-16
WEENEN TRANSITIONAL COUNCIL v VAN DYK, 2002 (4) SA 653 (SCA)