Legal Interpretations - Extra Notes

March 28, 2018 | Author: Tayla Williams | Category: Statutory Interpretation, Virtue, Society, Social Institutions, Crime & Justice



Legal interpretations – extra notes1. Theories a) Literalism – exact words of statute irrespective of absurdities - Argument: literalism best method as you remain objective - Golden rule: - Grey v Pearson - Clear and ordinary language is vey rarely found, one often needs to narrow - down the meaning of text (intention of legislature lies in the language) Literalism-cum-intentionalism: combination of literalism and invention b) Intentionalism - Purpose is to give effect to true intention of legislature - Post 1994: moved away from finding out the pure intention of the legislature: - no longer sovereign Now: use the intentionalism method with grammatical method: what does the - text say and what were the legislature aiming to say Applied to achieve purposive and teleological method c) Contextualism - Everything exists in context - S v Zuma - Ex Visceribus Actus: read the statue as a whole (interact-textual context) – - cannon of construction of contextualism as it developed Contextualism and purposivism: interpretive twins Mischief rule: d) Purposivism: - Intention is to get ball in the net for the purpose of scoring a goal - What is the effect of what they intend to do - Purpose can only be ascertained with regard to context - Where purposivism and language: conflict – purposive approach prevails e) Historical Interpretation: an instance of contextual interpretation - Mischief rule : 4 questions - Combines purpose and context f) Comparative 2. Theoretical positions to note (beyond purposivism) a) Judicial activism: judicial or free theories - Based on the idea that judges have a creative role in statutory interpretation and application thus context is used to - narrow down the meaning Clarity and unambiguity: suppose to be at the for front of statutory instrument.2.S v Zuma Case . interpretation act and definition clauses Language not used unnecessarily . e. so ordinary meaning is taking an array of meanings and trying to narrow it down using secondary and tertiary - 3.Judiciary is legislatures delegates . Grammatical interpretation . THUS often leads to more meanings than a single meaning De Beers Industrial Diamond Division (196 e-f: dictionary meaning is only a - guide) Identifying the ordinary meaning of a text but towards a limited amount of - meanings Each person may interpret a text differently.Not much response in our case law .g.ACDP case - a) Canons of grammatical interpretation Primary rules of contraction:: ordinary meaning rule. 3. functions of readers assessment of language. 3. golden rule Secondary rules of construction: venturing into contextualism in order to make sense in a grammatical way. rules of contractions Usage and conventions of natural language: Dictionaries Syntax Technicalities Archaism Definition clauses Interpretation Act assist with grammatical meaning ( extra textural context) Dictionary aspects: actual dictionaries.Statute only really obtains meaning once it is applied in a concrete situation .- Entails filling in the gaps: judiciary uses common law to remedy legislative defects b) Objectivism .1. Using the statute instead of just a dictionary - to make sense of text Tertiary aids in construction: presumptions - ORDINARY MEANING RULE: Very often that a text can have more than one meaning. understanding is shaped by a pre- understanding.Function statute: specific circumstances 3.3. context of relating to efficient running of elections.- Every word in a statute has a meaning (signifiers) No surplusage Can also be seen a canon of construction Except: ex abundanti cautela: some statutes are repetitive to caution again misinterpretation. - Substantive compliance peremptory and directory provisions: e.Thus purposive reading takes into account the contextual framework .Mischief rule .1. “effect directed approach” or “value based approach” . purpose prevails – especially if rights are affected a) Purpose: Act as a whole. you risk subjectivity and arbitrary - application of law Effect of the constitution: introduced a value laden aspect to the purposive - interpretation of legislation Section 39 (2) See ACDP text: legislative text and purpose were at odds.reference to Weenen case on what substantive compliance means a) Correct approach – common sense approach (define common sense - approach) Measure conduct against intention of legislature as ascertainable by means of language.“teleological approach”.Indicates the purpose of legislation . 4.g. right to vote and participate in elections etc. - purposive approach prevails (see ACDP ) If you go to far into purposivism. promoting multi-party democracy. Must v may See ACDP case . purport and purpose of the Act as a whole. - Multilingualism and legislation 11 official languages Statutes are written in English and Afrikaans – not all 11 languages s 240 and s 82 of constitution: deal with conflict in languages and translation – which text will prevail (usually English) 4. 3. Purposive interpretation .Language is not a primary consideration: when in conflict with purpose. and in terms of the - specific requirement at hand Constitutional context justified deviation from clear text due to effect-directed and value-laden approach .4. - Considerations that informed this argument : poltical rights section 1(d).Derived from common law 5.Therefore onerous provisions get narrow interpretation (encroachment on - existing rights.Ratio (context approach) 5. section 19. Rules of interpretation that fits into methodology . Constitutional interpretation ( chapter 9) . 5. inequitable or unreasonable . Presumptions (see Botha text book) – can be used anywhere a) Statute law is not unjust . 39(2)etc. imposing burdens and penal provisions – as small as possible) Preference for the Least Onerous Interpretation (because we assume that statue - law is not unjust. Presumptions . but  Can be excluded  Confirm existing law  Clarify or settle doubt  Procedural matters  Benefits the subject i) Statue law is not invalid or purposeless (section 172) j) Reference to valid conduct k) Delegated powers exercised by delegatus l) Remedial statutes must be construed generously ( works together with number 1) m) Statue law has no extra-territorial effect n) Same words and phrases bear same meaning 6. except presumption (f) g) Statue law does not alter existing law more than is necessary (section 12) h) Statues do not apply with retrospective effect.1.Mischief rule (context approach) .Eiusdem Generis rule (context approach) . inequitable or unreasonable) Non discriminatory content Audi alteram partem Dealing with absurdities ( deal with it as far as possible to ensure that it is not ^) b) c) d) e) f) - Statute law applies generally Statue law promotes public interest Statute law does not interfere with jurisdiction of courts Statue Law does not violate international law Statutes do not bind the State ( been eradicated due to the introduction of Constitution) Presumptions have existed for many years and all still comply with the Constitution.Ordinary meaning rule (literal approach) .2.Golden Rule (literal approach) . 172: substantive constitutialism: the constitution contains material - and substantive foundation for the interpretation of all law Methods: grammatical.5 methods were used by CC . . operates inclusively.This how they used it and where they used it. systematic. not in isolation 7. historical and comparative. S v Zuma assignment: . teleological. for example) and “interpretation of ordinary law in - light of constitution” Section 2.- Interpretation of any law so that it will be in line with or tested against the - constitution Section 39 (1)(2): we must promote the contents of Bill of Rights: we always - measure any law against constitution S v Zuma : distinguish between “interpretation of the constitution” (what is the meaning of section 12.
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