IOS2601/102/3/2019

Tutorial letter 102/3/2019

Interpretation of Statutes
IOS2601
Semesters 1 & 2

Department of Public, Constitutional and

International Law

IMPORTANT INFORMATION:
This tutorial letter contains important information
about the module.

Open Rubric
 CONTENTS

1 PRESCRIBED TEXTBOOK .......................................................................................................... 3

2 LINKING OF STUDY GUIDE WITH FIFTH EDITION OF THE PRESCRIBED TEXTBOOK ......... 3
3 ADDITIONAL INFORMATION FOR STUDENTS THAT HAVE PURCHASED THE FOURTH
EDITION OF THE TEXTBOOK.................................................................................................. .14
4 FURTHER TUTORIAL LETTERS AND THE EXAMINATIONS..........................................................14
5 BIBLIOGRAPHY………………………………………………………………………………………… 14
6 CONCLUSION ............................................................................................................................ 15

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Dear Student

This is an important tutorial letter for this module. We suggest you study this tutorial letter very
carefully as it contains very important information about the prescribed textbook for this module

1 PRESCRIBED TEXTBOOK
The prescribed textbook for this module is:

First Author Year Title Edition Publisher ISBN

Botha CJ 2012 Statutory Interpretation: An introduction for students 5th Juta 9780702198588

Due to the introduction of the updated textbook, your study guide and the fifth edition of the
textbook no longer correspond with one another. One of the purposes of this tutorial letter is to
highlight these discrepancies to you, which we will do in section 2 of this tutorial letter. We will
point out these differences chapter by chapter as set out in your study guide

2 LINKING OF STUDY GUIDE WITH FIFTH EDITION OF THE

PRESCRIBED TEXTBOOK

2.1 SECTION A: General introduction

2.1.1 Chapter 1: General introduction

• Paragraph 1.1 of the study guide which is entitled “What is the interpretation of statutes?” and
which can be found on page 3, is dealt with under paragraph 1.2 of the prescribed textbook
and can be found on pages 4 to12.

• On page 4 of the study guide you will find a section entitled “TIP” where you are requested to
study paragraphs 1.2, 5.2.3 (not 5.2.4 as indicated in the study guide) and chapter 10 of the
prescribed textbook. In this regard you now have to study paragraphs 1.3, 5.3.3 and chapter
9 of the prescribed textbook.

• Paragraph 1.2 of the study guide which is entitled “The new constitutional order” and which
can be found on page 5, is dealt with under paragraph 1.3 of the prescribed textbook and can
be found on pages 12 to 14. Under paragraph 1.2 of the study guide we state that Botha
describes the recent history of statutory interpretation. He focuses on the fact that a new
method of statutory interpretation has been introduced by the new constitutional order. This is
a key statement and a central theme of the whole textbook. Botha returns to it frequently.
Why Botha says that a new and uniform method was introduced by the new Constitution and
what that method entails are discussed in more detail in chapter 5, especially in paragraph
5.3 (not paragraph 5.2 as indicated in the study guide). You must study paragraph 1.2
together with paragraph 5.3 of the prescribed textbook.

• Paragraph 1.3 of the study guide refers to a glossary of definitions and terms that is found in
the fourth edition of the textbook. Please be advised that the definitions and terms explained
there are all dealt with in other sections of the fifth edition of the prescribed textbook and
need not be reiterated here.

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• Paragraph 1.4 of the study guide which is entitled: “The process of interpretation: a teaching
tool” and which appears on page 5 is not dealt with in the fifth edition of the prescribed
textbook. The information stated in the study guide in this respect also requires additional
discussion. On page 6 of this paragraph in the study guide you are told that Botha divides the
process or activity of interpreting legislation into three phases. The three phase model (which
is merely a teaching tool) suggested by Botha in this regard may be explained as follows:

Initial phase

During the initial phase the text of legislation is read to find the initial meaning of the text,
bearing in mind the common-law presumptions, and a balance between the text and the
context of the particular legislation. A number of basic principles are used as a point of
departure:

▪ The supreme Constitution in general, and the Bill of Rights in particular, are the
cornerstones of the legal order.
▪ The most important principle of statutory interpretation is to ascertain the purpose of the
legislation and apply it in the light of the Bill of Rights (Botha CJ Statutory interpretation:
An introduction for students (2005) 10).

Research phase

“During the research phase, the purpose of the legislation is determined by studying all the
factors and considerations that may have a bearing on the particular legislation: the
legislative text, the Interpretation Act 33 of 1957, common-law presumptions, aids outside the
legislative text and other contextual factors. When the purpose of the legislation has been
determined, the next stage comes into play” (Botha 2005: 10).

Concretisation phase

“During this phase, the legislative text, the purpose of the legislation and the facts of the
particular case are harmonised to bring the process to a just, purposive and meaningful end
within the framework of the purpose of the legislation. During this process, the spirit, purport
and aim of the fundamental rights in the Constitution must be promoted” (Botha 2005: 10).

2.2 SECTION B: The legislative process

2.2.1 Chapter 2: What is legislation?

• Paragraph 2.1 of the study guide which is entitled “What is legislation?” and which can be
found on page 11, is dealt with under paragraph 2.1 of the prescribed textbook and can be
found on pages 15 to 17.

• Paragraph 2.2 of the study guide which is entitled “Categories of legislation” and which can
be found on page 11, is dealt with under paragraph 2.2 of the prescribed textbook and can be
found on pages 17 to 33.

• Paragraph 2.3 of the study guide which is entitled “What is not legislation” and which can be
found on page 12, is dealt with under paragraph 2.3 of the prescribed textbook and can be
found on pages 33 to 34.

• Paragraph 2.4 of the study guide which is entitled: “Structure of legislation” and which
appears on page 13, is dealt with under paragraph 2.4 (“Legislative structure and codes”) of
the prescribed textbook and can be found on pages 34 to 42. Under paragraph 2.4 in the
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study guide we state that it is important that you know how legislation is structured. The
extent to which these different structural components may be used to construe legislation is
discussed in detail in chapter 7 of the study guide and chapter 6 of the prescribed textbook.

• Paragraph 2.5 of the study guide which is entitled “Relationship between legislation and
common law” and which can be found on page 13, is dealt with under paragraph 2.5 of the
prescribed textbook and can be found on pages 43 to 44.

• On page 13 of the study guide you will find a section entitled “TIP” where you are requested
to study paragraph 5.2 in the study guide and the prescribed textbook. In this regard you now
have to study paragraph 5.2 in the study guide and paragraph 5.3 in the prescribed textbook.
This section also states that specific presumptions are discussed later in the textbook (see,
e.g. paragraphs 3.4, 4.6, 6.2.2, and 7.5). Please note that the presumptions are now
discussed in paragraphs 3.4, 4.5, 6.2.4, and 6.2.5 of the prescribed textbook.

• Paragraph 2.6 in the study guide and which is entitled: “The plain language movement” only
appears in the fourth edition of the textbook. As a result thereof, you can ignore this
paragraph in the study guide as it will not be examinable.

2.2.2 Chapter 3: Commencement of legislation

This chapter of the prescribed textbook corresponds with your study guide and therefore no
further comment is required.

2.2.3 Chapter 4: Demise and amendment of legislation

• Paragraph 4.1 of the study guide which is entitled “General” and which can be found on page
20, is dealt with under paragraph 4.1 of the prescribed textbook and can be found on pages
63 to 65.

• Paragraph 4.2 of the study guide which is entitled “Amendment to legislation” and which can
be found on page 20, is dealt with under paragraph 4.2 (“Changes to legislation”) of the
prescribed textbook and can be found on page 65.

• Paragraph 4.2.1 of the study guide which is entitled “Amendment of legislation (by a
competent legislature)” and which can be found on page 20, is dealt with under paragraph
4.2.1 of the prescribed textbook and can be found on page 65.

• Paragraph 4.2.2 of the study guide which is entitled “Modificative interpretation (by the
courts)” and which can be found on page 21, is dealt with under paragraph 4.2.2 of the
prescribed textbook and can be found on pages 65 to 66. Under paragraph 4.2.2 of the study
guide, the authors discuss the terms ‘reading down’, ‘reading in’ and severance. Please be
advised that in the prescribed textbook these terms are now explained under paragraph 9.4
which appears on pages 195 to 197. On page 21 of the study guide you will find a section
entitled “TIP” where reference is made to a more detailed discussion of modificative
interpretation in chapter 8 of the study guide and chapter 7 in the prescribed textbook. This
paragraph (i.e. paragraph 4.2.2) should be studied together with chapter 8 in the study guide
and chapter 7 in the prescribed textbook and, in particular, with paragraph 8.3 in the study
guide and paragraph 7.3 in the prescribed textbook.

• Paragraph 4.3 of the study guide which is entitled “Invalidation of legislation (by a court)” and
which can be found on page 22, is dealt with under paragraph 4.3 (“The demise of
legislation”) of the prescribed textbook and can be found on pages 66 to 67.
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• Paragraph 4.3.1 of the study guide which is entitled “Unconstitutional provisions” and which
can be found on page 22, is now dealt with under paragraph 4.3.1(a) of the prescribed
textbook and can be found on pages 67 to 68.

• Paragraph 4.3.2 of the study guide which is entitled “Invalid delegated legislation” and which
can be found on page 23, is now dealt with under paragraph 4.3.1(b) (“Invalid subordinate
legislation”) of the prescribed textbook and can be found on pages 68 to 69.

• Paragraph 4.4 of the study guide which is entitled “Repeal and substitution” and which can be
found on page 23, is now dealt with under paragraph 4.3.2(a) (“Substitution (repeal and
replace)”) of the prescribed textbook and can be found on pages 69 to 71.

• Paragraph 4.5 of the study guide which is entitled “Effect of repeal” and which can be found
on page 23, is now dealt with under paragraph 4.3.2(b) (“Repeal (deletion)”) of the prescribed
textbook and can be found on pages 71 to 76.

• Paragraph 4.4 in the prescribed textbook which is entitled “Suspension of legislation already
in force” is not dealt with in your study guide at all. Although paragraph 4.4 won’t be
examinable, it would be in your interests to familiarise yourself with the concepts explained
there.

• Paragraph 4.6 of the study guide which is entitled “The presumption that legislation does not
intend to change the existing law more than is necessary” and which can be found on page
23, is now dealt with under paragraph 4.5 of the prescribed textbook and can be found on
pages 78 to 80.

• Paragraph 4.6.1 of the study guide which is entitled “Common law” and which can be found
on page 23, is now dealt with under paragraph 4.5.1 of the prescribed textbook and can be
found on page 78.
• Paragraph 4.6.2 of the study guide which is entitled “Legislation” and which can be found on
page 23, is now dealt with under paragraph 4.5.2 of the prescribed textbook and can be
found on pages 79 to 80.

2.3 SECTION C: The interpretation process

• On page 28-30 of the study guide you will find a section entitled “TIP” which explains how
you should study the interpretive process as a whole.

▪ In the middle of page 29 of the study guide we state that when studying chapter 5,
it is best also to refer to the paragraphs in chapters 6, 7 and 8 in which the same
methodological debates are also discussed. Please note that now you need only
refer to chapters 6 and 7 in the prescribed textbook in this regard. The relevant
paragraphs are paragraph 6.1 (the difference between the intention of the
legislature and the purpose of legislation) in the study guide and paragraphs 6.4.4
(the mischief rule) and 7.2 (the law making function of the courts) in the prescribed
textbook.

▪ At the bottom of page 29 of the study guide we also state that specific legal rules,
principles and presumptions apply to the initial reading of legislation. With
reference to the research phase (chapter 7 in the study guide and chapter 6 in the
prescribed textbook), you need to know how to determine the purpose of
legislation and how to align that purpose with the purpose of the Constitution
(again, specific rules, principles and presumptions apply).
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▪ At the top of page 30 of the study guide we state that with reference to the
concretisation phase (chapter 8 in the study guide and chapter 7 in the prescribed
textbook), you need to know how the text and purpose are combined to determine
or concretise the meaning of legislation in a particular case. When studying this
section, your first aim should therefore be to separate the WHY questions from the
WHAT questions of statutory interpretation, and then to develop a clear
understanding of each. Chapter 5 deals primarily with the WHY and chapter 8 in
the study guide and chapters 6 and 7 in the prescribed textbook with the WHAT
questions. However, remember that the WHY question is again discussed in
certain paragraphs in chapters 6 and 7 (not chapter 8) of the prescribed textbook.

2.3.1 Chapter 5: How legislation is interpreted

• At the top of page 31 of the study guide you will find a NOTE: You do not need to study
paragraph 5.2 (not paragraph 5.3 as indicated in the study guide) in the prescribed textbook
and which is entitled “jurisprudential perspectives on statutory interpretation.”

• Paragraph 5.1 of the study guide which is entitled “Introduction” and which can be found on
page 32, is dealt with under paragraph 5.1 of the prescribed textbook and can be found on
page 83. Under paragraph 5.1 in the study guide we state that this chapter sets out the
theoretical differences between the textual and contextual approaches, and recounts the
history of these two approaches in our law before 1994 (see paragraphs 5.2.1 and 5.2.2 in
the study guide and paragraphs 5.3.1 and 5.3.2 in the prescribed textbook). Botha then
proceeds to argue that the new constitutional order has resulted in a move away from the
textual towards a contextual approach (see paragraph 5.2.3 in the study guide and paragraph
5.3.3 in the prescribed textbook). The chapter concludes with a comprehensive description of
the contextual approach as the “practical inclusive method of interpretation” (see paragraph
5.2.4 in the study guide and paragraph 5.3.4 in the prescribed textbook).

• Paragraph 5.2 of the study guide which is entitled “Theories of interpretation” and which can
be found on page 32, is now dealt with under paragraph 5.3 of the prescribed textbook and
can be found on pages 91 to 110. Please note that in all instances where the study guide
makes reference to paragraph 5.2, you now need to refer to paragraph 5.3 in the prescribed
textbook. Paragraph 5.2 of the study guide begins with a section entitled “TIP” where you are
requested to study paragraphs 6.1 (the difference between the intention of the legislature and
the purpose of legislation); 7.3.3(i) (the mischief rule); and 8.2 (the law-making function of the
courts) with paragraph 5.2 in the study guide. These sections are now covered in paragraph
6.1 (the difference between the intention of the legislature and purpose of the legislation) of
the study guide and paragraphs 6.4.4 (the mischief rule) and 7.2 (the law making function of
the courts) in the prescribed textbook, and should be studied with paragraph 5.3. Please note
that in all instances where the study guide makes reference to paragraph 7.3.3(i), you now
need to refer to paragraph 6.4.4 in the prescribed textbook.

• Paragraph 5.2.1 of the study guide which is entitled “The orthodox text-based (literal)
approach” and which can be found on page 32, is now dealt with under paragraph 5.3.1 of
the prescribed textbook and can be found on pages 91 to 97. Please note that in all instances
where the study guide makes reference to paragraph 5.2.1, you now need to refer to
paragraph 5.3.1 in the prescribed textbook. On page 33 of the study guide we state that the
internal aids are further discussed in paragraph 7.2 and the external aids in paragraphs 7.3
and 7.4 of the study guide. Please note that in the prescribed textbook, the internal aids are
now discussed under paragraph 6.1.2 and the external aids under paragraph 6.1.3. On page
33 of the study guide we also state that a good legislature would not exclude the jurisdiction
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 of the courts (paragraph 7.5.2 in the study guide), nor would it attempt to change the existing
law more than is necessary (paragraph 4.6 in the study guide and paragraph 4.5 in the
prescribed textbook). Please note that paragraph 7.5.2 of the study guide which is entitled
“Legislation does not oust or restrict the jurisdiction of the courts” only appears in the fourth
edition of the textbook. As a result thereof, you can ignore this paragraph in the study guide
as it will not be examinable.

• Under the feedback for activity 2 which appears on pages 36 to 37 of the study guide we ask
you to include the criticisms leveled against the textual approach in paragraphs 5.2.2 and
5.2.3 and in chapters 6, 7 and 8. Please note that these additional criticisms can now be
found in paragraphs 5.3.2 and 5.3.3 and in chapters 6 and 7 of the prescribed textbook.

• Paragraph 5.2.2 of the study guide which is entitled “The purposive (text-in-context)
approach” and which can be found on page 37, is now dealt with under paragraph 5.3.2 of
the prescribed textbook and can be found on pages 97 to 99. Please note that in all instances
where the study guide makes reference to paragraph 5.2.2, you now need to refer to
paragraph 5.3.2 in the prescribed textbook. On page 37 of the study guide we state that
Botha is a defender of the contextual approach. He describes at various points how the
contextual or purposive approach works and how it differs from the textual approach (see
paragraphs 5.3.2, 5.3.3, 5.3.4, 6.2.2 and 7.2 in the prescribed textbook and not paragraphs
5.2.2; 5.2.3; 5.2.4; 6.1.4; 7.1 and 8.2 as indicated in the study guide).

• Paragraph 5.2.3 of the study guide which is entitled “The influence of the supreme
Constitution” and which can be found on page 40, is now dealt with under paragraph 5.3.3 of
the prescribed textbook and can be found on pages 99 to 105. Please note that in all
instances where the study guide makes reference to paragraph 5.2.3, you now need to refer
to paragraph 5.3.3 in the prescribed textbook. Also note that section 233 of the Constitution is
discussed under paragraph 6.5.2 which appears on pages 155 to 156 in the prescribed
textbook. On page 43 of the study guide we state that section 2 (not paragraph 2 as indicated
in the study guide) of the Marine Living Resources Act 18 of 1998, must be read purposively
and that this point is discussed in detail by Botha in paragraph 5.3.3 (not 5.2.4(ii)) of the
prescribed textbook. On page 43 of the study guide we also state that the spirit of the Bill of
Rights is contained in the foundational provisions of the Constitution and is discussed in
detail in paragraphs 5.3.3 and 9.3 (not paragraphs 5.2.4(ii), 5.2.4(iii) and 10.3) of the
prescribed textbook.

• Paragraph 5.2.4 of the study guide which is entitled “Practical inclusive method of
interpretation” and which can be found on page 46, is now dealt with under paragraph 5.3.4
of the prescribed textbook and can be found on pages 105 to 110. Please note that in all
instances where the study guide makes reference to paragraph 5.2.4, you now need to refer
to paragraph 5.3.4 in the prescribed textbook.

2.3.2 Chapter 6: Basic principles

• Paragraphs 6.1, 6.1.1 and 6.1.2 of the study guide which are respectively entitled “The
purpose of the legislation”, “The constitutional demands” and “Why not the intention of the
legislature?” were discussed in full in chapter 5 of the fifth edition of the prescribed textbook
and need not be repeated here.

• Paragraph 6.1.3 of the study guide which is entitled “The meaning of the text” and which can
be found on page 51, is now dealt with under paragraph 6.1.1 (“basic principles”) of the
prescribed textbook and can be found on pages 111 to 115.

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• Paragraph 6.1.4 of the study guide which is entitled “Balance between the text and context ”
and which can be found on page 51, is now dealt with under paragraph 6.2.2 of the
prescribed textbook and can be found on pages 131 to 132.

• Paragraph 6.2.1 of the study guide which is entitled “Legislation must be read as a whole”
and which can be found on page 52, is still dealt with under paragraph 6.2.1 (“Legislation
must be construed within the total legal picture”) of the prescribed textbook and can be found
on pages 128 to 131.

• Paragraph 6.2.2 of the study guide which is entitled “The presumption that legislation does
not contain futile or nugatory provisions” and which can be found on page 52, is now dealt
with under paragraph 6.2.4(a) of the prescribed textbook and can be found on pages 133 to
138. Please note that in all instances where the study guide makes reference to paragraph
6.2.2, you now need to refer to paragraph 6.2.4(a) in the prescribed textbook.

2.3.3 Chapter 7: Research: ascertaining the legislative scheme

• Paragraph 7.2 of the study guide which is entitled “Internal aids” and which can be found
on page 57, is now dealt with under paragraph 6.1.2 of the prescribed textbook and can
be found on pages 115 to 122. One internal aid to statutory interpretation that is not
discussed in the fifth edition of the textbook is “Paragraphing and punctuation.” Botha
describes this as follows:

Customarily, punctuation was not considered to be part of the legislation. However, it is a grammatical
fact that punctuation can affect the meaning of the text. In R v Njiwa 1957 (2) SA 5 (N) held that
punctuation must be taken into consideration during interpretation. In S v Yolelo 1981 (1) SA 1002 (A)
the Appellate Division held that an interpretation based on the purpose of the legislation prevails over
an interpretation based only on the division into paragraphs. Finally in Skipper International v SA
Textile and Allied Workers Union 1989 (2) SA 612 (W), a court held that since the punctuation was
considered by the legislature during the passing of the legislation, it must be considered during the
interpretation. (Botha 2005: 81).

• Paragraph 7.3 of the study guide which is entitled “External aids” and which can be found on
page 59, is now dealt with (to an extent) under paragraph 6.1.3 of the prescribed textbook
and can be found on pages 123 to 128.

▪ Paragraph 7.3.1 of the study guide which is entitled “The Constitution” and which
can be found on page 59, requires some additional information:

The Constitution, being the supreme law, is the most important aid to interpretation. No
argument about plain meanings and clear texts could prevent the Constitution from being
used or referred to during interpretation. It prescribes how other legislation must be
interpreted, contains the Bill of Rights, and is the repository of fundamental values (Botha
2005: 82).

▪ Paragraph 7.3.2 of the study guide which is entitled “Preceding discussions” and
which can be found on page 60, is now dealt with under paragraph 6.4.3 of the
prescribed textbook and can be found on pages 150 to 151.

▪ Paragraph 7.3.3 of the study guide which is entitled “Surrounding circumstances”

and which can be found on page 60, is now dealt with under paragraphs 6.3.2
(“Ubuntu”), 6.4.4 (“The mischief rule”); 6.4.5 (“Contemporanea expositio”), 6.4.6
(“Subsecuta observatio”) and 9.3.2(d) (“Travaux préparatoires”) of the prescribed
textbook and can be found on pages 148, 152 to 154 and 194.

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 ▪ Paragraph 7.3.4 of the study guide which is entitled “Dictionaries and linguistic
evidence” and which can be found on page 60, is now dealt with under paragraph
6.1.3(a) of the prescribed textbook and can be found on pages 123 to124.

▪ Paragraph 7.3.5 of the study guide which is entitled “The source of a provision”
and which can be found on page 60, is now dealt with under paragraph 6.5.1 in
the prescribed textbook and can be found on page 154.

▪ Paragraph 7.3.6 of the study guide which is entitled “Explanatory memoranda,

examples and footnotes” and which can be found on page 60, is now dealt with
under paragraphs 6.4.5 (“Contemporanea expositio”) and 6.1.3(b) (“Examples and
footnotes”) of the prescribed textbook and can be found on pages 152 and 124
respectively.

• Paragraph 7.4 of the study guide which is entitled “The Interpretation Act 33 of 1957” and
which can be found on page 61, is now dealt with under paragraph 6.1.3(d) (“the clock is
ticking: computation of time”) of the prescribed textbook and can be found on pages 124 to
128.

• Paragraph 7.5.1 of the study guide which is entitled “Government bodies are not bound by
their own legislation”” and which can be found on page 61, is now dealt with under paragraph
6.2.5 of the prescribed textbook and can be found on pages 138 to142.

• Paragraph 7.5.2 of the study guide which is entitled “Legislation does not oust or restrict the
jurisdiction of the courts” and which can be found on page 61, is not dealt with in the fifth
edition of the prescribed textbook. As a result thereof, this section can be ignored and will not
be examinable.

2.3.4 Chapter 8: Concretisation: correlation of text and purpose in the light of the
Constitution

• On page 64 of the study guide you will find a section entitled “TIP”. In it we state that this is
an extremely important chapter in the textbook. It is divided into two parts: The first part deals
with the theoretical nature or WHY questions of the interpretation process (yet again). It
consists of paragraphs 8.1 and 8.2 in the study guide and paragraphs 7.1 and 7.2 in the
prescribed textbook. The second part deals with the more practical aspects or WHAT
questions of the application (or concretisation) of legislation. It consists of paragraph 8.3 in
the study guide and paragraph 7.3 in the prescribed textbook.

• Paragraph 8.1 of the study guide which is entitled “What is concretisation” and which can be
found on page 64, is now dealt with under paragraph 7.1 of the prescribed textbook and can
be found on pages 159 to 160. Under paragraph 8.1 of the study guide we state that in the
concretisation phase all the hard and difficult thinking is done during the interpretation
process. Botha uses a number of terms to describe the nature of the process. However, the
process is characterised, the process is a creative one that involves the court’s exercise of its
own interpretive discretion. This point is further discussed in paragraph 7.2.2 (not 8.2.2 as
indicated in the study guide) and paragraph 7.2.4(a) (not 8.2.4(i) as indicated in the study
guide) in the prescribed textbook. These paragraphs should be studied together. Please note
that in all instances where the study guide makes reference to paragraph 8.2.2, you now
need to refer to paragraph 7.2.2 in the prescribed textbook.

• Paragraph 8.2 of the study guide which is entitled “The law-making function of the courts”
and which can be found on page 65, is now dealt with under paragraph 7.2 of the prescribed
textbook and can be found on pages 160 to 165.
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• Paragraph 8.2.1 of the study guide which is entitled “The orthodox viewpoint” and which can
be found on page 65, is now dealt with under paragraph 7.2.1 (“The text-based viewpoint”) of
the prescribed textbook and can be found on page 160.

• Paragraph 8.2.2 of the study guide which is entitled “The purposive viewpoint” and which can
be found on page 65, is now dealt with under paragraph 7.2.2 (“The text-in-context
viewpoint”) of the prescribed textbook and can be found on pages 160 to 161.

• Paragraph 8.2.3 of the study guide which is entitled “The myth that courts merely interpret the
law” and which can be found on page 66, is now dealt with under paragraph 7.2.3 of the
prescribed textbook and can be found on pages 161 to 163.

• Paragraph 8.2.4 of the study guide which is entitled “Factors that support and limit judicial
law-making during statutory interpretation” and which can be found on page 66, is now dealt
with under paragraph 7.2.4 of the prescribed textbook and can be found on pages 163 to
165.

• Paragraph 8.2.4.1 of the study guide which is entitled “Restrictions on the law-making powers
of the courts” and which can be found on page 66, is now dealt with under paragraph 7.2.4(a)
(“Restrictions on the law-making discretion of the courts”) of the prescribed textbook and can
be found on pages 164 to 165.

• Paragraph 8.2.4.2 of the study guide which is entitled “Factors which support modificative
interpretation” and which can be found on page 67, is now dealt with under paragraph
7.2.4(b) (“Factors which support judicial law-making”) of the prescribed textbook and can be
found on page 165.

• Paragraph 8.3 of the study guide which is entitled “Possibilities during concretisation” and
which can be found on page 67, is now dealt with under paragraph 7.3 of the prescribed
textbook and can be found on pages 165 to 174. Under paragraph 8.3 in the study guide we
state that because you will be studying the different forms that modificative interpretation can
take, it is not necessary to concentrate too much on paragraphs 7.3.1 (not 8.3.1 as indicated
in the study guide) and 7.3.3 (not 8.3.3 as indicated in the study guide) in the prescribed
textbook. We shall therefore turn directly to paragraph 7.3.2 (not 8.3.2 as indicated in the
study guide) in the prescribed textbook.
• Paragraph 8.3.1 of the study guide which is entitled “Modification of the meaning is
necessary” and which can be found on page 67, is now dealt with under paragraph 7.3.2 of
the prescribed textbook and can be found on pages 166 to 167.

• Paragraph 8.3.1.1 of the study guide which is entitled “Restrictive interpretation” and which
can be found on page 67, is now dealt with under paragraph 7.3.2(a) of the prescribed
textbook and can be found on pages 167 to 172. Under activity 2 on page 69 of the study
guide, we state that Botha refers to the case of S v Kohler in paragraph 8.3.2. Please note
that in the fifth edition of the textbook, you will find the reference to S v Kohler under
paragraph 7.3.2(a).

• Paragraph 8.3.1.2 of the study guide which is entitled “Extensive interpretation” and which
can be found on page 70, is now dealt with under paragraph 7.3.2(b) of the prescribed
textbook and can be found on pages 172 to 174.

2.4 SECTION D: Noncompliance with legislation

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2.4.1 Chapter 9: Peremptory and directory provisions

• Paragraph 9.1 of the study guide which is entitled “General introduction” and which can be
found on page 75, is now dealt with under paragraph 8.1 of the prescribed textbook and can
be found on pages 175 to 177.

• Paragraph 9.2 of the study guide which is entitled “Some guidelines” and which can be found
on page 76, is now dealt with under paragraph 8.2 of the prescribed textbook and can be
found on pages 177 to 180.

2.5 SECTION E: Constitutional interpretation

2.5.1 Chapter 10: Constitutional interpretation

• Paragraph 10.1 of the study guide which is entitled “Introduction” and which can be found on
page 85, is now dealt with under paragraph 9.1 of the prescribed textbook and can be found
on pages 183 to 184. Under paragraph 10.1 in the study guide we state that the Bill of Rights
is applicable to all legislation, while legislation is frequently designed to apply only to one
narrowly defined problem area. These differences are captured in the prescribed textbook in
the quotes from the Matiso and Nortje cases in paragraphs 9.1.1 (and not 10.1.1 as indicated
in the study guide) and 9.2.3 (not 10.2.3 as indicated in the study guide) respectively.
• Paragraph 10.2 of the study guide which is entitled “Why is a supreme Constitution different”
and which can be found on page 86, is now dealt with under paragraph 9.2 of the prescribed
textbook and can be found on pages 185 to 188. Under paragraph 10.2 in the study guide,
we state that Botha explains that there are many reasons why the text of the Constitution is
different from the text of ordinary legislation. It is the supreme text of the legal order (see
paragraph 9.1.2 in the prescribed textbook and not 10.1.2 as indicated in the study guide).
We also state that Botha says that the Constitution should be the most important national
symbol and continues to discuss a number of metaphors that have been used to describe
this central symbol (see paragraphs 9.1.2; 9.2.3, and especially paragraph 9.5.3 in the
prescribed textbook; and not paragraphs 10.1.2; 10.2.3, and paragraph 10.4.3 as indicated in
your study guide).

• Paragraph 10.3 of the study guide which is entitled “How to interpret the Constitution” and
which can be found on page 87, is now dealt with under paragraph 9.3 of the prescribed
textbook and can be found on pages 188 to 195.

• Paragraph 10.3.1 of the study guide which is entitled “Constitutional guidelines” and which
can be found on page 87, is now dealt with under paragraph 9.3.1 of the prescribed textbook
and can be found on pages 189 to 192. Please note that in all instances where the study
guide makes reference to paragraph 10.3.1, you now need to refer to paragraph 9.3.1 in the
prescribed textbook.

• On page 88 of the study guide under the subsection entitled “Principles formulated by the
courts”, we refer you to a list in paragraph 10.2 which should be supplemented with the
principles discussed in paragraph 10.4. In this regard you now have to refer to the list in
paragraph 9.2 which should be supplemented with the principles discussed in paragraph 9.5
of the prescribed textbook. Please note that in all instances where the study guide makes
reference to paragraph 10.4, you now need to refer to paragraph 9.5 in the prescribed
textbook. On page 88 of the study guide you will also notice a subheading entitled “a
comprehensive methodology”. Please be advised that this section of the work is now dealt
with under paragraph 9.3.2 of the prescribed textbook and can be found on pages 192 to
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 IOS2601/102

195. Please note that in all instances where the study guide makes reference to paragraph
10.3.2, you now need to refer to paragraph 9.3.2 in the prescribed textbook.

• In activity 1 on page 89 of the study guide, you are referred to a quote from the Makwanyane
case. This quote can be found under paragraph 9.3.2 and on pages 194 to 195 in the fifth
edition of the textbook. At the bottom of page 89 under paragraph 10.3.1 in the study guide,
reference is also made to the Prince case. This reference can be found under paragraph
9.3.1 and on page 192 in the fifth edition of the textbook. In activity 3 on page 91 of the study
guide we refer you to paragraph 10.3.1. In the fifth edition of the textbook you should actually
refer here to paragraph 9.3.1.

• Paragraph 10.4 of the study guide which is entitled “Whose Constitution is it anyway?” and
which can be found on page 92, is now dealt with under paragraph 9.5 of the prescribed
textbook and can be found on pages 197 to 204. Under paragraph 10.4 in the study guide,
we state that except for the principles mentioned above under paragraph 9.3 (not 10.3 as
indicated in the study guide), the issues that are discussed in paragraph 9.5 (not paragraph
10.4 as indicated in the study guide) fall outside the scope of this introductory course and
need not be studied.

3 ADDITIONAL INFORMATION FOR STUDENTS THAT HAVE

PURCHASED THE FOURTH EDITION OF THE TEXTBOOK
3.1 SECTION B

3.1.1 Chapter 2: What is legislation?

• Paragraph 2.1 of the study guide which is entitled: “What is legislation?” and which appears
on page 11 requires some additional information. “According to the Constitution the
legislative menu consists of the following:

▪ national and provincial legislation;

▪ proclamations, regulations and other instruments of subordinate legislation;
▪ assigned legislation;
▪ old order legislation (defined in item 1 of Schedule 6 of the Constitution as any
legislation enacted before the interim Constitution took effect on 27 April 1994);
▪ legislation in the new constitutional order since 1994; and
▪ municipal by-laws.” (Botha 2012: 16.)

• Paragraph 2.6 of the study guide and which is entitled: “The plain language movement” and
which appears on page 13 and pages 27-29 of the fourth edition of the textbook can be
ignored and is not examinable.

3.2 SECTION C

3.2.1 Chapter 5: How legislation is interpreted

• On page 43 of the study guide we state that section 2 (not paragraph 2 as indicated in the
study guide) of the Marine Living Resources Act 18 of 1998, must be read purposively and
that this point is discussed in detail by Botha in paragraphs 5.2.3(ii) (not 5.2.4(ii) as indicated
in the study guide) of the fourth edition of the textbook.

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• On page 43 of the study guide we also state that the spirit of the Bill of Rights is contained in
the foundational provisions of the Constitution and is discussed in detail in paragraphs
5.2.3(i), 5.2.3(iii) and 10.3 (not paragraphs 5.2.4(i) and 5.2.4(iii) as indicated in the study
guide) of the fourth edition of the textbook.

3.2.2 Chapter 7: Research: ascertaining the legislative scheme

• Paragraph 7.5.2 which is entitled “Legislation does not oust or restrict the jurisdiction of the
courts” and which appears on page 61 of the study guide and pages 93-94 of the fourth
edition of the textbook can be ignored and is not examinable.

4 FURTHER TUTORIAL LETTERS AND THE EXAMINATIONS

During the semester, you will be receiving additional tutorial letters for this module. Tutorial
Letter 201 will contain feedback on assignment 01 and 02, the format of the examination paper
and some additional self-evaluation questions.

5 BIBLIOGRAPHY
Botha CJ Statutory interpretation: An introduction for students (2005) fourth edition Juta,
Cape Town

Botha CJ Statutory interpretation: An introduction for students (2012) fifth edition Juta, Cape
Town

Le Roux WB, Moodley I & Nkuna IL Interpretation of statutes: Only study guide for IOS2601
(2010) University of South Africa, Pretoria

6 CONCLUSION
Please do not hesitate to contact us if you experience any problems with understanding the
study material and need help. A little bit of study every day is worth far more than cramming a
week before the exam!

Good luck with your studies.

IOS2601 Lecturers

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