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Directory and peremptory provisions

Interpretation of Statutes (Midlands State University)

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CHAPTER 9
PEREMPTORY AND DIRECTORY PROVISIONS

9.1 General introduction

* When legislation prohibits an act (conduct) or

prescribes the manner in which it must be performed, it
may be necessary to determine what the result will be if
the prescribed formal requirements are not complied
with.

* If the legislation in question expressly prescribes

what the consequences will be if the legislative
requirements are not followed, there is no problem.

* Difficulties arise if the particular provision fails to

stipulate what the consequences will be of a failure to
comply with the prescribed formal requirements.

* In such cases the court have to determine whether

the provision is:
 peremptory (obligatory) or
 merely directory (indicating).

* A statutory provision that requires exact compliance

is peremptory.
 Failure to comply with a peremptory provision will
leave the ensuing act null and void.

* A statutory provision requiring substantial

compliance only, is merely directory.
 Non-compliance with a directory provision will not
result in nullity of the ensuing act.

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* Example: I.t.o. the Motor Vehicle Insurance Act a

claim for compensation, accompanied by a medical
certificate, had to be sent by registered post or
delivered by hand.

* What would the position be if a claim were sent by

ordinary post?

* In Commercial Union Assurance Co v Clarke the

court found that there was substantial compliance with
the provision.
- It was not necessary to follow the requirements to
the finest detail
- as long as the purpose of the provision has been
complied with.

* The question is not whether mechanical (formal)

compliance with the statutoty requirements is required,
but rather substantial compliance.
- Full compliance is not necessarily literal compliance,
but substantial compliance.
- In other words, substance over form, and
compliance with the aim and purpose of the
legislation within the context of the legislation as a
whole.

* The courts generally follow a purposive (contextual)

approach to the interpretation of peremptory and
directory provisions.
 The language of the provision is read
- in its context, and
- all intra- and extra-textual aids are used to

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determine the manifest purpose of the

legislation.

* Strictly speaking it is incorrect to refer to

‘peremptory’ and ‘directory’ provisions.
 Wiechers points out that in principle all legislative
provisions are peremptory. If it was not the case,
they would not be binding legal rules, but merely
‘non-obligatory suggestions for desirable
conduct.’
 The question is whether the prescribed formal
requirements were complied with exactly or merely
substantially.
 Unfortunately, these categories have become
firmly entrenched in practice.
 In Weenen Transitional Council v Van Dyk : merely
guidelines.
 What is important is the purpose of the provisions
in question, as well as the consequences if the
statutory requirements are not strictly adhered to.

9.2 Some guidelines

* Although the purpose of the relevant legislation

remains the deciding factor, a series of guidelines has
been developed by the courts as initial tests or
indicators of the purpose, almost like ‘mini
presumptions’.

* Devenish refers to some of these guidelines as

‘presumptions’.

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* Wiechers points out that these guidelines are not

binding legal rules but merely pragmatic solutions with
persuasive force.
- Any guideline, ‘test’ or indication will only be
tentative.

* In Nkisimane v Santam Insurance Co Ltd the court

held tha the ‘intention of the legislature’ is always the
decisive factor.

* In the Sentrale Kunsmis Korporasie (Edms) Bpk case

it was stressed that the form in which a requirement is
set out will not necessarily be decisive.
- The context of the words and other relevant
considerations also play a part when it is to
be determined whether an apparently
peremptory provision is in fact peremptory.

* The guidelines or ‘tests’ discussed here are neither

exhaustive, nor are they binding rules. They are merely
guidelines.
- The purpose of the legislation will always be
decisive in establishing whether a
requirement is peremptory or directory in nature.

9.2.1 Semantic guidelines

* Certain semantic guidelines have been formulated

by the courts. These are based on the inherent
grammatical meaning of the language used in the
provision:

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* Messenger of the Magistrates Court, Durban v Pillay:

A word or words with an imperative or affirmative

character indicate a peremptory provision (eg the
words ’shall’ or ‘must’).

- In Bezuidenhout v AA Mutual Insurance

Association Ltd the court found that ‘shall’
strongly indicated that the provision was a
peremptory one.

- In S v Takaendesa this principle was explained

as follows:

Where a statute prohibits the doing of something unless

something else is done as a precedent to doing the thing
prescribed, it is a general rule of interpretation that the
provisions of the Act are obligatory and not directory.

* However, in Motorvoertuigassuransiefonds v
Gcwabe the court pointed out that ‘shall’ need not
necessarily indicate a peremptory meaning.

* Amalgamated Packaging Industries v Hutt:

Permissive words (like ‘may’) indicate a discression
and will be interpreted as being directory, unless the
p u r p o s e of the provision indicates otherwise.

* Samuel Thomas Meyers v Pretorius & Etc:

Words in a negative form indicate a peremptory
connotation.

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* R v Sopete:
Positive language suggests that the provision is merely
directory.

* Leibrandt v SA Railways:
If the provision is formulated in flexible and vague
terms , it is an indication that it is directory.

9.2.2 Jurisprudential guidelines

* ‘Jurisprudential’ guidelines are those tests based on

legal principles which have been developed and
formulated by the courts.

* In Sutter v Scheepers and Pio v Franklin certain

‘tests’ or guidelines were proposed to determine
whether provisions are peremptory or directory.
- These guidelines are more influential than the
semantic guidelines and involve an examination of
the consequences, one way or another, of the
interpretation of the provisions:

 If the wording of the provision is in positive terms,

and no penal sanction (punishment) has been
included for non-compliance of the requirements,
it is an indication that the provision should be
regarded as being merely directory.

 Johannesburg City Council v Arumugan:

If strict compliance with the provisions would lead
to injustice and even fraud (and the legislation
contains neither an express provision as to

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whether the action would be null and void, nor a

penalty), it is ‘presumed’ that the provision is
directory.

 In some instances, the historical context of the

legislation (in other words, the mischief rule) will
provide a reliable indication whether the provision
is peremptory or merely directory.

- Rooiberg Minerals and Development Co Ltd v

Du Toit:
Adding a penalty to a prescription or
prohibition is a strong indication that the
provision is peremptory.

- Standard Bank v Estate Van Rhyn:

Nevertheless, in this case this so-called
‘presumption’ was rebutted by the manifest
purpose of the legislation.

- Conversely, the addition of a penal clause may

be an indication that the legislature intended
the penalty to be sufficient, and that the action
should not be declared null and void as well.

 R v Lewinsohn:
If the validity of the act would defeat the purpose of
the legislation,this is an indication in favour of nullity.

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9.2.3 Presumptions about specific circumstances

* A number of ‘mini presumptions’ have been

developed by the courts with regard to specific
circumstances. These ‘presumptions’ are nothing more
than initial assumptions and may be ‘rebutted’ or
overruled by the purpose of the legislation:

- With regard to provisions which protect the

public revenue (ie rates,taxes and levies due
to the state), a presumption against nullity
exists, even if a penal clause has been added.

- Where legislation confers a right, privilege or

immunity, the requirements are peremptory
and the right, privilege or immunity cannot be
validly obtained unless the prescribe
formalities are complied with.

- If other provisions of the particular legislation

would become superfluous (meaningless)
when non-compliance with prescribed
requirements would result in the nullity of the
act, there is a presumption that the
requirements are merely directory.

- If other provisions of the particular legislation

would become superfluous (meaningless)
when non-compliance with prescribed
requirements would result in the nullity of the
act, there is a presumption that the
requirements are merely directory.

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- Where the freedom of the individual is at

stake, the court will stress the peremptory
nature of a requirement.

- In Macara v Minister of Information,

Immigration and Tourism the court found that
if legislation provides that a detained unlawful
immigrant has to be informed in writing of the
reasons for his detention, it is
peremptory.

- Le Roux v Grigg-Spall:
If a provision requires that a certain act has to
be performed within a prescribed time and the
court has not been empowered to grant an
extention of the time limit, the requirement is
presumed to be peremptory.

* The Constitution also contains a number of

peremptory provisions. Some of the most important of
these for statutory interpretation are the following:

Section 2 deals with the supremacy of the Constitution:

 The Constitution is the supreme law of the Republic:

 any law or conduct inconsistent with it is invalid,
 and the obligations imposed by it must be fulfilled.

Section 7(2) deals with the application of the Bill of

Rights:

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 The State must respect, protect, promote and fulfil

the rights in the Bill of Rights.

Section 39(2); the interpretation clause:

 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.

* The courts have developed a large number of

guidelines to assist them to determine whether exact
compliance or merely substantive compliance with
prescribed statutory requirements is necessary.

* However, the supreme CON, as well as specific

requirements in important legislation must always be
born in mind where the issue of exact compliance or
substantive compliance is considered during statutory
interpretation.

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Learning outcomes

1 When is a provision peremptory and when is it directory?

Elucidate your answer by making use of relevant case
law. [5]

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2 The guidelines discussed in this chapter are not binding

rules; they
are merely guidelines. List in this regard the semantic
guidelines which
are used by Devenish.
[5]

3 “Jurisprudential’ guidelines are based on legal principles

which have been developed by the courts. Discuss this
statement by making use
of relevant case law.
[7]

4 Which peremptory provisions in the Constitution are

regarded by
Botha as the most important?
[6]

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