IOS 2601 Student number 68525311

Assignment 1 Unique Number

Terence Charles Drummond

Student Number : 68525311

INTERPRETATION OF STATUTES

ASSIGNMENT 1

Due date : 18 May 2021

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Table of Contents Page

Question 1.1…………………………………….…….………………………….…….3

Question 1.2…….……………………………….……………………………….…….4

Question 1.3…………………………………….…………………………….………..4

Question 1.4………………………..…………………………………………….…….6

Question 2.1……………………………………………………………………….…...7

Question 2.2(i)……………………………………………………………………….…7

Question 2.2(ii)…………………………………………………………………………9

Question 2.3…………………………………………………………………………...10

Bibliography……………………………………………………………………..….....12

Honesty Declaration……………………………………………………………….….13

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IOS 2601 Student number 68525311
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IOS 2601 – Interpretation of Statutes

Assignment – 1

Question 1

Question 1.1 - List the documents that, although published in the

Government Gazette, do not constitute legislation.

As stated in ss 81 and 123 of the Constitution 1 and s 13 of the Interpretation Act 2,

legislation is promulgated and takes effect once published in the Gazette or on a
date determined by the Acts.3 The following list of documents, although they are
published in the government gazette, are not considered legislation. 4

1. Common-law rules and indigenous law rules

2. Case law, dealing with the interpretation, development and application of
the legal rules.
3. Policy documents such as the following.
 White papers
 Green papers
 Interpretation notes, explanatory memoranda and practice notes
4. Legal Notices
5. Discussion papers
6. Draft Bills

1
Constitution of the Republic of South Africa 1996.
2
Interpretation Act 33 of 1957.
3
Botha C Statutory Interpretation: An Introduction for students 5th Edition (Juta 1991) 46
4
Botha C Statutory Interpretation: An Introduction for students 5th Edition (Juta 1991) 33,34
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Question 1.2 – Explain the ordinary civil method of the computation of days
with reference to the case law.

The ordinary civil method (computatio civilis) is a common-law method of the

computation of time and is the opposite of the statutory method of calculation but
compliments s 4 of the Interpretation Act 5. This is the default method used to
calculate months and years. The first day of the prescribed time period is included
but the last day is excluded. The last day is deemed to be ending at the very
moment it begins.

Authority: Minister van Polisie v De Beer 1970 (2) SA 712 (T).

A claim for damages was instituted after a police car collided with a private
vehicle. Section 32 of the Police Act 7 states that a claim for damages against the
police must be instituted within 6 months if the action is executed according to the
Police Act. The collision occurred on the 5 August 1967 and the summons was
served on 5 February 1968, which is a day late as the ordinary civil method was
used by the court to calculate the time. In accordance with the civil method of
computation the last day is excluded and therefore the Supreme Court of Appeal
refused the action.

Question 1.3 – Explain the concept of Ubuntu and whether it is part of the
South African legal system

The concept of Ubuntu has its origins in the Nguni or Zulu language and is derived
from the African philosophy or way of life. At its essence, it is a unifying vision or
African world view enshrined in the Zulu principle, umuntu ngumuntu ngabantu,
meaning "a person is a person through other persons" 6. The word Ubuntu found
prominence in the lives of Nelson Mandela and Archbishop Desmond Tutu, two of
South Africa’s most prominent leaders. Archbishop Desmond Tutu in a famous
speech, described ubuntu as meaning "My humanity, is caught up, is inextricably
bound up, in what is yours."

5
Interpretation Act 33 of 1957 s4
6
Shutte, Augustine. Philosophy for Africa. Rondebosch, South Africa (UCT Press 1993)
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Following the fall of apartheid and the birth of our new constitutional democracy,
Ubuntu found its way into our legal system by including the following post amble in
the English text of our Interim Constitution 1993 7 “There is a need for
understanding but not for vengeance, a need for reparation but not for retaliation,
a need for ubuntu but not for victimization”. Although the Constitution 1996 does
not have ubuntu expressly included, does not mean it has been excluded from our
legal system. On the contrary, ubuntu found prominence in the landmark S v
Makwanyane case.8

Reading through our Constitution 1996, particularly the Bill of Rights, it is plain to
see that ubuntu and its application is the evidence of the living out of this concept
and has become an integral part of our principles and value system. Another legal
case highlighting the application of the concept of ubuntu was the PE Municipality
case.9 In recent years, a restorative justice theme has become evident in South
African jurisprudence which incorporates customary law, eviction, defamation, and
criminal law matters.10 There's a sense in which ubuntu as a concept, and the
African communal ethos, imposes a sense of moral obligation regarding each of
our responsibility for each other, perhaps even before we think of ourselves. 11
Ubuntu is inextricably linked to our new legal dispensation. These same values
and principles that are intertwined in the constitution must become our mantra as
legal scholars and practitioners in transforming society.

7
Interim Constitution of the Republic of South Africa 1993
8
S v Makwanyane 1995 (3) SA 391 (CC)
9
PE Municipality v Various Occupiers 2005 (1) SA 217 (CC)
10
Chuma Himonga “Reflections of Judicial Views of uBuntu” 2017 P.E.R.
11
James Ogude “ I am because we are: The African Philosophy of uBuntu
https://www.ttbook.org/interview/i-am-because-we-are-african-philosophy-ubuntu (Date of
use 21 April 2021)
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Question 1.4 – List seven (7) internal aids that can be consulted when
interpreting an act.

While interpreting the provision of the statute, internal and external aids can be
used by the courts.12 Internal aids are those aids taken from within the statute and
include the following.13

 The Short Title

 The Long Title
 The Preamble
 Headings to chapters and sections
 Marginal notes
 Illustrations
 Express purpose clauses and Interpretation clauses
 Definition clauses
 Schedules

Question 2.

12
Rai D. Internal Aids to Construction https://blog.ipleaders.in/internal-aids-to-construction/
(Date of use 20 April 2021)
13
Botha C Statutory Interpretation: An Introduction for students 5th Edition (Juta 1991) 115-
122

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Question 2.1 – Name the various dimensions of the “practical inclusive
method of interpretation” favoured by Botha Statutory Interpretation: An
Introduction for Students.14

 The Language dimension.

 The Holistic dimension.
 The Value-laden (teleological) dimension.
 The Historical dimension.
 The Comparative dimension.

Question 2.2 – Briefly explain the importance of each of the following cases
for statutory interpretation in South Africa.

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

Reading-in is one of the technique’s applied by competent constitutional review

courts to “rescue” invalidated or unconstitutional legislation in order to keep it alive
and constitutional. The case National Coalition for Gay and Lesbian Equality v
Minister of Home Affairs 2000 (2) SA 1 (CC) advanced that there must be several
principles to be considered and applied before reading-in can take place,
namely;15

 Reading words into a statute and results thereof should be consistent with
the Constitution and its fundamental values;
 The result achieved should interfere with the existing law as little as
possible.
 The courts must be able to define with sufficient precision how the
legislative meaning ought to be modified to comply with the Constitution.
 The courts should endeavour to be as faithful as possible to the legislative
purpose or aim within the constraints of the Constitution.

14
Botha C Statutory Interpretation: An Introduction for students 5th Edition (Juta 1991) 111-
154
15
Botha C Statutory Interpretation: An Introduction for students 5th Edition (Juta 1991) 195-
196
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 The remedy of the reading-in ought not to be granted where this would
result in an unwanted additional expenditure.
 Where reading-in would, by expanding the group of persons protected,
sustain a policy of long standing or one that is constitutionally encouraged,
it should be preferred to one removing the protection completely.

Facts

In the National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
case the Cape High Court referred this case to the Constitutional Court whereby s
25(5) of the Aliens Control Act 96 of 1991 was declared unconstitutional. The
subsection omitted to give persons, who are partners in permanent same-sex life
partnerships, the benefits it extended to “spouses” under this section of the Act.

Law

The applicable law is the following;

 Section 25(5) of the Aliens Control Act 96 of 1991.

 Section 9 of the Constitution of the Republic of South Africa 1996 being the
right to equality.

The Court found that section 25(5) unfairly discriminated against gays and
lesbians on the grounds of sexual orientation and marital status, thereby limiting
their equality rights and their rights to dignity. The Court had only two ways to
remedy this provision; (a) declare the whole of s 25(5) invalid; (b) by reading
words into the section to remedy the inconsistency.

Conclusion

By applying the reading-in rule and confirming with the principles highlighted
above, the Court decided that the words “or partner in a permanent same-sex life
partnership” should be added to the section.

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2.2(ii) – Nourse v Van Heerden (repeal of legislation)

Section 12(2)(e) of the Interpretation Act 33 of 1957 provides that “where a law
repeals any other law, then unless the contrary intention appears, the repeal shall
not affect any investigation, legal proceeding or remedy in respect of any such
right, privilege, obligation, liability, forfeiture or punishment”16

Facts

In 1992 a gynecologist from Durban was charged in terms of the Abortion and
Sterilization Act 2 of 1975 for performing illegal abortions. The Abortion and
Sterilisation Act was repealed by the Choice on Termination of Pregnancy Act 92
of 1996 relating to abortion. In accordance with the Bill of rights s 12(2)(a) and (b)
one has the right to make decisions regarding their own body and reproductive
health.

The trial started on 27th November 1992 and was not yet finalised in 1997. On 1
July 1997, his attorney brought an application to have the charges against his
client dropped, since at that stage, abortions were no longer illegal and therefore
no crime was committed. The physician’s legal defense based their application on
the following arguments;

 The provisions of the Abortion and Sterilization Act 2 of 1975 governing

illegal abortions have not been applied since the establishment of the
Interim17 and final Constitution 1996.18 Therefore these provisions have
become abrogated by disuse.
 The Abortion and Sterilisation Act was repealed by the Choice on
Termination of Pregnancy Act 92 of 1996 in that it related to abortion.
 In terms of the fundamental rights and values referred to in section 1 of the
Constitution 1996, as well as the Bill of Rights, s 12(2)(a) and (b), s 14 and
s 27 the prohibition on abortions is retrospectively unconstitutional.

16
Interpretation Act 33 of 1957 s 12(2)(e)
17
The Interim Constitution of the Republic of South Africa 1993
18
The Constitution of the Republic of South Africa 1996
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Legal issue:

The application of the demise of legislation, Section 12(2) of the Interpretations

Act, as well as retrospectively.

Conclusion

The court found that the legislation cannot be abrogated by disuse but must be
repealed by a competent legislature body. Existing legislation remains in force until
repealed or declared unconstitutional. The trial started before the repeal of the
Abortion Act and as per section 12(2) of the Interpretation Act, the trial must be
completed as if the Abortion Act had not been repealed.

In addition, the trial started before the Interim Constitution or the 1996 Constitution
were in force and since neither of the Constitutions are retrospective, the trial must
be completed in terms of the law existing at the time of the start of the trial.

Question 2.3 – Explain the “mischief rule”

The mischief rule in practice, is when the historical context of a certain piece of
legislation is used to place the provision in question in its proper perspective. 19 In
other words this rule requires the court to look to what the law was before or on
the day the statute was passed in order to discover what gap or mischief the
statute was intended to cover. The court is then required to interpret the statute in
such a way to ensure that the gap is covered. In other words, the act of looking at
the Act in the historical context is termed “the mischief rule”. The mischief rule is at
the heart of the text-in-context approach to statutory interpretation.

The genesis of the mischief rule is to be found in Heydon's Case (1584) 3 Co Rep

7a (76 ER 637). When we read a statute or Act it is certainly not like reading a
newspaper or a book. The legislative text must be read in accordance with the
principles and rules laid down by the judges and statute itself. 20 Judges use this
rule

19
Botha C Statutory Interpretation: An Introduction for students 5th Edition (Juta 1991) 152
20
Rao S. Mischief Rule of Statutory Interpretation 5 September 2014
https://www.lawctopus.com/academike/mischief-rule-statutory-interpretation/ (Date of use
20 April 2021)
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when there is ambiguity in the construction of material words in the statutory
legislation and want to find out the true meaning of the legislation.

The Heydon case, instructs four questions to be asked to establish the meaning of
the legislation, namely;

 What was the existing law (legal position) before the legislation in question
was adopted?
 Which problem (mischief or defect) was not adequately addressed by the
existing law before the new legislation was adopted?
 What remedy or solution is proposed by the new legislation to solve the
problem?
 What is the true reason for the prosed remedy?

The circumstances that lead to the adoption of the legislation is examined through
the lens of the mischief rule and has been practically applied in our courts. The
Santam Insurance Ltd v Taylor21 case was the result of the incomprehensible
language used in the Compulsory Motor Vehicle Insurance Act 56 of 1972, in
which the courts used the mischief rule to examine the historical context of the Act
to determine its true purpose. Another case which used the mischief rule to
examine the provision was the Corkery v Carpenter (1951) 1 KB 10222 where a Mr
Corkery was sentenced to one months’ imprisonment for being drunk while
pushing his bicycle in public. In this case the 1872 Act made no reference to
bicycles. The courts, while using the mischief rule to decide the matter, found that
the original intention of the Act was to prevent people from using any form of
transport on a public highway whilst in a state of intoxication. The bicycle was
found to be a form of transport and the courts upheld the charge.

21
Santam Insurance Ltd v Taylor 1985 (1) SA 514 (A)
22
Corkery v Carpenter (1951) 1 KB 102
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Bibliography

Botha C Statutory Interpretation: An Introduction for students 5th Edition (Juta

1991).

Chuma Himonga “Reflections of Judicial Views of uBuntu” 2017 P.E.R.

Constitution of the Republic of South Africa 1996.

Corkery v Carpenter (1951) 1 KB 102

Interim Constitution 1993.

Interpretation Act 33 of 1957.

James Ogude “I am because we are: The African Philosophy of uBuntu”

https://www.ttbook.org/interview/i-am-because-we-are-african-philosophy-ubuntu
(Date of use 21 April 2021)
PE Municipality v Various Occupiers 2005 (1) SA 217 (CC)

Rai D. Internal Aids to Construction https://blog.ipleaders.in/internal-aids-to-

construction/
(Date of use 20 April 2021)

Santam Insurance Ltd v Taylor 1985 (1) SA 514 (A)

Shutte, Augustine. Philosophy for Africa. Rondebosch, South Africa (UCT Press
1993).

S v Makwanyane 1995 (3) SA 391 (CC)

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Academic honesty declaration

Declaration

1. I understand what academic dishonesty entails and am aware of Unisa’s

policies in this regard.

2. I declare that this Assignment is my own, original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in, this assignment from
the work or works of other people has been referenced according to this
style.

3. I have not allowed, and will not allow, anyone to copy my work with the
intention of passing it off as his or her own work.

4. I did not make use of another student’s work and submitted it as my own.

5. I am aware that marks can be deducted for poor / no referencing in this

examination.

NAME: TERENCE DRUMMOND

ID NUMBER / PASSPORT NUMBER: 6208015141081

STUDENT NUMBER: 68525311

DATE: 18 MAY 2021

_________________________________________________________________

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