JJUV ESSAYS

Term 1:

ASSESSMENT 1:

ESSAY 1:
Assume that the legislature passes an Act enacting a higher penalty for offences which involve
gender-based violence. The Act was promulgated on 1 April 2022, but specifically states that it
applies with retroactive effect to all cases currently pending before the courts. The reason for this
is because of the ever-increasing cases of GBV in South Africa and the need to implement
harsher measures to protect vulnerable people.

You are an advocate specialising in criminal law. You are briefed by an attorney to represent Mr
Abusive, who allegedly raped a woman on 1 January 2022. Assume that if Mr Abusive is
convicted, the minimum sentence that could be imposed on him in terms of the new Act is 25
years imprisonment, as opposed to the previous minimum sentence of 15 years. The criminal
trial is currently underway. Mr Abusive pleaded not guilty on 1 February 2022 and the trial is set
down for hearing on 1 June 2022.
The attorney asks you to write an opinion about whether the new minimum sentence legislation
will apply to Mr Abusive. Write your opinion in the form of an essay in which you explain the law
relating to retrospective and retroactive legislation and how you, as the advocate, would argue
that the new law should not apply to Mr Abusive (if he is found guilty).
Make sure you refer to the Constitution and case law in your answer.
[10 marks]

What is the difference between retroactive and retrospective?

-Retroactive means that legislation operates of a time prior to its enactment. This means that it
operates backwards and changes the law from what it was. Retrospective means that legislation
operates for the future only and has consequences for the events that occurred in the past and
could impose new results for them.

Explain the general rule of retroactive commencement:

- The general rule of retroactive commencement states that legislation comes into operation on the
day it is published on the government gazette, although it sometimes happens for legislation to
commence on an earlier date.

- The rule that says that legislation only comes into effect once it is published, exists because people
need to know of the law to be able to conform their behaviour/conduct to the law, according to the
case, President of the RSA v Hugo,

Preventing legislation from applying with retro effect:

The common law presumption before the constitution that says that legislation only applies to the
future stood in the way of the retro effect. This means that the legislation applies only to cases

That occurred after the legislation took effect unless the legislation itself specifically provides to the
contrary or is implied by necessity.

In the above scenario, the legislation specifically states that it applies with retro-effect, ‘ . The Act
was promulgated on 1 April 2022, but specifically states t
hat it applies with retroactive effect to all cases pending before the court. The common law
presumption will thus not be of assistance to the client as the legislation has trumped the
presumption.

Essay 2:

With reference to the five legislative instruments which appear below, write an essay in which
you explain the hierarchy of legislation. Make sure that you allocate a category to each of the five
legislative instruments and indicate their status

 The Promotion of Administrative Justice Act 3 of 2000

 Regulations enacted in terms of the Promotion of Administrative Justice Act 3 of
2000
 The Constitution of the Republic of South Africa Act, 1996
 The Labour Relations Act 66 of 1995
 The Supreme Court Act 10 of 2013
[10 marks]

The hierarchical categories classify legislation according to its status. The hierarchy is as follows, we
have the constitution, which is the supreme law of the Republic Law of South Africa, followed by
Original Legislation which is derived in 2 ways indirectly and directly from the constitution followed by
Subordinate legislation consisting of rules or regulations and proclamations which are authorised
executive authority (e.g., by the minister)
The Constitution is at the top of the Hierarchy and is followed by legislation. Section 2 of the
constitution states that it is supreme law of the Republic, and any legislation inconsistent with it is
invalid and the obligations imposed by it must be fulfilled. The Constitution of the Republic of South
Africa Act 1996 is at the top of the hierarchy.
Original legislation is legislation enacted by an elected, deliberative, law-making body that is a
legislature whether nationally or provincially. It consists of the following, Acts of parliament, Acts of
provincial legislatures, Municipal by laws, and other Acts…Although the Constitution is the supreme
law, some Acts of Parliament rank higher than other original legislation and these gives effect to
constitutional rights. PAJA ranks higher than other Acts, which are PAIA and PEPUDA.
The promotion of Administrative Justice Act 3 of 2000 is an example of Original Legislation which
comes under the Constitution in the Hierarchy, and it has a higher status as of section 5. Original
legislation is Acts of Parliament including National and provincial Legislation that is enacted by Law
making Body.
Acts of parliament with own superior status, e.g., acts that give effect to a constitutional right, but are
not specifically mandated in terms of the Constitution, e.g., the Labour Relations Act (1).
·       And other Acts of Parliament, e.g., the Companies Act (1).
Labour Relations Act 66 of 1995 and The Supreme Court Act 10 of 2013 both fall under Original
Legislation thus legally.
Regulations enacted in terms of the Promotion of Administrative Justice Act 3 of 2000 falls under
subordinate legislation. Subordinate legislations are proclamations or regulations put in place in terms
of original Legislation
Conclusion: The Hierarchy is as follows The Constitution, Original Legislation and Subordinate
Legislation. Original and Subordinate Legislation should promote the values of the Constitution which
is Equality Dignity and Freedom.
Essay 3:
Critisizing contextual approach

Define the text on context approach, 2 to 4 marks.

4 things are important plus the constitution.

Read the wallis article to write this essay…slide 15

Use Wallis to critique on endumeni…

Term 2:
Unit 5 essays:

Captain Musa (M) is a correctional supervision officer at St Alban's Prison. On 1 April 2022, while M
was on duty, he was approached by Sam Baleka, a prisoner. Sam alleged that other prisoners
had threatened to stab him because he owed them money. Sam asked M to assist him by allowing him
to draw money to pay his creditors. M refused. A short while later, Sam again approached M, this
time with another prisoner, Jim Anderson. Jim informed M that he had the same problem as Sam.
Both men told M that they would probably be killed that night if they did not pay their debts.

M took their report seriously. He took a police van and drove them to an ATM teller about 20kms
away from the prison.  M waited in the van while Sam and Jim drew cash. He waited in vain. About
15 minutes later, he concluded that Sam and Jim were not returning to the van and had run away. M
returned to the Prison where he reported that the prisoners had escaped. 

Two weeks later, both Sam and Jim were rearrested and returned to prison. They were charged
with escaping from custody in contravention of section 48(1)(a) of the Correctional Services Act 111
of 1998. Section 48(1) provides as follows: Any prisoner who (a) escapes ... from the prison in which
he is placed shall be guilty of an offence and liable on conviction to imprisonment for a period not
exceeding five years.”

Sam and Jim argue that only a “prisoner” can contravene section 48 and that they did not escape from
prison.  As soon as they left prison with M, they ceased to be “prisoners” as defined in the Act and are
therefore not guilty. Alternatively, when M allowed them to draw money from the ATM, he
lost custody over them and they were therefore no longer “in custody” as referred to in section 48(1).

A “prisoner” is defined in the Act as: – “any person, whether convicted or not, who is detained in
custody in any prison or who is being transferred in custody or is en route in custody from one prison
to another prison …”

A “prison” is defined as: – “… any place established or deemed to have been established under this
Act as a place for the reception, detention, confinement, training or treatment of persons liable to
detention in custody or to detention in or placing under protective custody.”

Custody is not defined.

You are the magistrate trying the case and must write your judgment. You read the Act and note that:

 The long title of the Act states that it aims "[T]o provide for a correctional system and the
custody of all prisoners under conditions of human dignity". 
 The preamble records that the Act was enacted with "the object of changing the law governing
the correctional system and giving effect to the Bill of Rights ... and in particular its provisions
with regard to prisoners ...". 
 S2 is headed "Purpose of Correctional System" and provides that "The purpose of the
correctional system is to contribute to maintaining and protecting a just, peaceful and safe
society by— (a) enforcing sentences of the courts in the manner prescribed by this Act and (b)
detaining all prisoners in safe custody whilst ensuring their human dignity."

Explain which rules of legal interpretation you would use to interpret section 48 and to decide
whether Sam and Jim are guilty. Make sure that you refer to relevant case law in your answer.
[10]
IRAC
Issue:
How do we interpret section 48 of the Correctional services Act 111 of 1998?
With respect to the correct method of interpretation, should Sam and Jim be convicted?
Are they prisoners who have escaped from prison?
Were they in custody?

Rule/Law:

We use the text-in-context approach to interpretation. To explain what this means, we consider
meaning of words, the context of whole statute, external context, purpose, and the constitutional
values, according to the case, ‘Natal Joint Municipal v Endumeni Municipality’.

We no longer use words as a primary as a primary index to interpretation, instead we balance the
text and the context. We take the context into account from the very start and the ambiguity of the
words does not matter. But if the language is clear then the context becomes less significant.

Under the context, we look at external and internal context.

Internal context:

We look at the preamble, definition clause, long title, objective clause, and the headings clause to
determine the meaning of the word prisoner in context with the Act/legislation.

External context:

We look at background information and the use of a Dictionary

Constitutional Context:

We should interpret the section in line with the constitutions entire value system.
Application:

If we were to interpret section 48(1) literally, it would be concluded that Sam and Jim were not
prisoners by the time they escaped from prison and therefore not convicted of a crime in terms of
section 48(1)(a).

But, due to the shift that came in 2012 in the Endumeni case, where the Superior Court of Appeal
confirmed the contextual approach to interpretation, and which was then confirmed by the
Constitutional Court. We therefore no longer use the text-based approach, instead we use an
approach which combines the text, context, and the purpose of the legislation with s39(2) of the
Constitution to find the meaning of the legislation as argued by Wallis JA on the Endumeni Case.

Internal Context:

When we look at the preamble of the Act, we find out that the Act was enacted to change the law
governing the correctional system and to give effect to the Bill of Rights ... and its provisions about
prisoners.

The long title of the Act states that the mischief of the Act is to provide a correctional system and
custody for all prisoners under the conditions of human dignity.

S2 of the Act provides for the purpose of the Act, which is to contribute to maintaining a just,
peaceful, and safe society.

External Context:

In Independent Institute of Education v KwaZulu Natal Law Society & Others, it was
stated/concluded that dictionaries can also be used to understand meaning of words used. We
therefore use a Dictionary to find the meaning of the term, ‘’custody’’.

We also need to make sure that the Act is interpreted in accordance with section 39(2) of the
Constitution which requires the courts to promote the spirit, purport, and objects of the BOR as
stated in the cases, Bato Star, Hyundai

Conclusion:

The section should be interpreted broadly, to include persons who escape in custody while out of
prison, the dictionary meaning of custody since it is not defined in the Act.

Sam and Jim were in custody in terms of the dictionary meaning of custody, which means they were
guarded by a policeman. Looking at the mischief of the Act and S2 of the Act which aims to keep
people who are convicted of a crime away from Society. We therefore conclude that Sam and Jim
are guilty and should be convicted!

JUNE EXAM ESSAY:

Test 2:

Question 3: Essay
You are an attorney.
Your client, Max Mathubi, has been charged for contravening the Regulations pertaining to the Control of
Use of Vehicles in the Coastal Area passed under the NEMA: Integrated Coastal Management Act 24 of
2008. Section 2 of the Regulations, headed "General Prohibitions", prohibits the use of a vehicle in a
coastal area without a permit.
Max is a recreational fisherman and used his brand new e-bike to ride along the beach, for approximately
5kms, to his special fishing spot. He was seen by an authorised environmental officer and charged for
contravening section 2. The bike was seized and impounded. Max faces a criminal conviction and a fine up
to a maximum of R500 000, or to imprisonment not exceeding two years, or both.
Vehicle is defined in the Regulations as "any self-propelled conveyance which is designed to transport one
or more persons on land including those designed for the construction or maintenance or infrastructure; (b)
a trailer; (c) any motorised aircraft which may land in the coastal area; or (d) a vessel which is able to
move on land."
"Use" includes driving, operating, being conveyed by, or being seated in the driver's seat of a stationary
vehicle.
Max wishes to argue that an e-bike is not a vehicle, because even though it has an engine, the bike requires
Max to pedal it to go forward, i.e. it is not self-propelled. Also riding is not included in the definition of
"use". Plus, he is not obliged to register his bike or have a license to ride it.
You study the Integrated Coastal Management Act and note the following:
·       The long title of the Act is to "establish a system of integrated coastal management in the Republic ...
to promote the conservation of the coastal environment, and maintain the natural attributes of coastal
seascapes";
·       The preamble of the Act records that "everyone has the constitutional right to have the environment,
including the coastal environment, protected for the benefit of present and future generations and that the
management of the coastal zone ... is essential to achieve the constitutional commitment to improving the
quality of life of all citizens, while protecting the natural environment for the benefit of present and future
generations;
·       The preamble also records that  "the rich natural heritage of our coastal zone is being squandered by
overuse, degradation and inappropriate management";
·       These goals are repeated in the Objectives section of the Act.
Max has to appear in court this week on the charge. He asks you whether he is likely to be convicted.
Using the rules of legal interpretation, explain how you would interpret the relevant section in the Act.
Make sure that you refer to case law in your answer.
10 marks

Issue:
How do we interpret section 27(a)(ii) of the Estate Agency Affairs Act 112 of 1976 be interpreted?
Does Sam within the ambit of persons who cannot become estate agents?

Law:

We use the text-in-context approach to interpretation. To explain what this means, we consider
meaning of words, the context of whole statute, external context, purpose, and the constitutional
values. In Natal Joint Municipal v Endumeni Municipality, the SCA judgement held that
‘’Interpretation is the process of attributing meaning to the words used in a document … having
regard to the context provided by reading the particular provision … in the light of the document as
a whole and the circumstances attendant upon its coming into existence.’’

When we look at the context, we regard the following, the language used in the light of the ordinary
rules of grammar and syntax, the context in which the provision appears, the apparent purpose to
which it is directed, and the material known to those responsible for its production. Where there is
more than one meaning possible, each possibility must be weighed in the light of all these factors.

The starting point to a purposive approach is to give the words used their ordinary meaning taking
note that every word used is important. We do this by using internal and external language aids

Internal language aids:

We look at the preamble, definition clause, long title, objective clause, and the headings clause to
determine the meaning of the word prisoner in context with the Act/legislation.

We also look at external aids, as held in Independent Institute of Education in Independent Institute
of Education v KwaZulu Natal Law Society & Others, it was stated/concluded that dictionaries can
also be used to understand meaning of words used.

External language aids:

We look at background information and the use of a Dictionary

Context:

At the same time, the context is also regarded- internally and externally to obtain the total legal
picture. This includes Act as a whole (intra-textual) and extra-textual, purpose of Act and the
Constitution with its values.

We no longer use words as a primary as a primary index to interpretation, instead we balance the
text and the context. We take the context into account from the very start and the ambiguity of the
words does not matter. But if the language is clear then the context becomes less significant.

An important rule of statutory interpretation is that words in a statute must be given their ordinary
grammatical meaning unless an absurdity results, but 3 points must be considered in relation to this,
statutory provisions must be, interpreted purposively, be properly contextualised, and be
interpreted consistently with Constitution. These factors are used to weigh the possible meanings of
a provision found to be ambiguous.

Constitutional Context:
 In Carmichele v The Minister of Safety and Security, it was held that courts must ensure that
legislation is interpreted to give effect to the Constitution's normative objective system, s39(2) of the
Constitution. This means that we should interpret the section in line with the constitutions entire
value system.

We need to make sure that the Act is interpreted in accordance with section 39(2) of the
Constitution which requires the courts to promote the spirit, purport, and objects of the BOR as
stated in the cases, Bato Star, Hyundai

Application:

If we were to interpret section of the Act it would be concluded that indeed section 6 has no
provision that explicitly says an occupier has a right to make improvements meant to bring her or his
dwelling to a standard suitable for human habitation and that could live in conditions that infringe
their right to dignity.

But, due to the shift that came in 2012 in the Endumeni case, where the Superior Court of Appeal
confirmed the contextual approach to interpretation, and which was then confirmed by the
Constitutional Court. We therefore no longer use the text-based approach, instead we use an
approach which combines the text, context, and the purpose of the legislation with s39(2) of the
Constitution to find the meaning of the legislation as argued by Wallis JA on the Endumeni Case.

When we look at the long title of the Act states that the mischief of the Act is to provide for measures
with State assistance to facilitate long term security of land tenure; to regulate the conditions of the
residence on a certain land, to regulate the condition on and circumstances under which the right of
persons to reside on land may be terminated and to regulate the conditions and circumstances under
which the persons whose right of residence has been terminated maybe evicted from land and to
provide for matters connected therewith.

We also need to make sure that the Act is interpreted in accordance with section 39(2) of the
Constitution which requires the courts to promote the spirit, purport, and objects of the BOR as
stated in the cases, Bato Star, Hyundai

If we were to interpret section of the Act it would be concluded that Sam did not contravene with
the Act as the Afrikaans text of section 27(a)(ii) of the Act refers to an offence where dishonesty is an
element and those offences are, fraud, corruption, and theft.

But, due to the shift that came in 2012 in the Endumeni case, where the Superior Court of Appeal
confirmed the contextual approach to interpretation, and which was then confirmed by the
Constitutional Court. We therefore no longer use the text-based approach, instead we use an
approach which combines the text, context, and the purpose of the legislation with s39(2) of the
Constitution to find the meaning of the legislation as argued by Wallis JA on the Endumeni Case.

When we look at the translated text of the section, it says, an offence of which dishonesty is an
element. We therefore use this one since it has a wider meaning than the Afrikaans text.

We also look at the following:

External Language Aids:

When we look at the internal dictionary of the Act, the Act does not define, ‘’dishonest’’ but the
dictionary meaning of “dishonest” is “[B]ent, cheating, corrupt, crafty, crooked, deceitful,
deceiving, deceptive, designing, disreputable, double-dealing, false, fraudulent, guileful,
immoral, knavish, lying, mendacious, perfidious, shady, snide, swindling, treacherous, unethical,
unfair, unprincipled, unscrupulous, untrustworthy, untruthful, wrongful”. In Independent
Institute of Education v KwaZulu Natal Law Society & Others, it was stated/concluded that
dictionaries can also be used to understand meaning of words used. We therefore use a Dictionary
to find the meaning of the term, ‘’dishonest’’.

Therefore, the possession of child pornography is included since it is a wrongful doing.

We therefore look at the purpose and Constitutional context of the Act since the words are clear
enough.

Internal Context:

When we look at the main purpose of the Act, we find out that the Act was enacted to protect
consumers in their dealings with Estate Agents.

Constitutional Context:

We also need to make sure that the Act is interpreted in accordance with section 39(2) of the
Constitution which requires the courts to promote the spirit, purport, and objects of the BOR as
stated in the cases, Bato Star, Hyundai

Conclusion:

Sam does fall within the ambit of persons who cannot become estate agents as section 26 of the Act
prohibits any person without a fidelity fund certificate and Sam does not have one since the
Chairperson of the Board argued that Sam’s criminal conduct, namely the possession of child
pornography, is morally repugnant and thus dishonest thus did not issue him a certificate.

Question 2:

In an article written in 2006, Devenish, a legal academic, wrote that "When interpreting legislation,
finding the intention of the legislature was the cardinal principle of statutory interpretation under
the previous political and judicial dispensation. This has changed fundamentally because the
intention of the legislature does not apply in a system of judicial review based on the supremacy of
the Constitution."

Write an essay in which you analyse the meaning of this statement and discuss whether it is true of
legal interpretation in South Africa today.

10 marks

Answer:
Prior 1995, Before the adoption of the text-in-context approach, South Africa’s Courts used a literal
approach to legal interpretation. In Jaga v Donges, this approach was used in the majority
judgement. The Courts uses a step-by-step mechanical process to legal interpretation in order to
ascertain the legislatures intention. It uses a primary rule of interpretation, ‘’ golden rule of
interpretation’’ as referred to in Venter v R, that courts may only depart from the meaning of
legislation if the words used are vague or ambiguous or have an absurd result. Secondary aids of
interpretation, such as other parts of the legislative text, may be used to find the intention of the
legislature where the meaning of the words in the text are not clear. Here the common law
presumptions are tertiary aids of interpretation and can only be used if the secondary aids to
interpretation do not reveal the intention of the legislature. Therefore, a wider context of legislation
is considered only if the plain meaning of the text is unclear. In R v Hildick-Smith It was stated that
there is only one kind of interpretation with one definite object, and that is to ascertain the true
intention of the legislature as expressed in the Act.

But now the Constitution is Supreme, and the legislature is no longer sovereign. It is therefore
difficult to ascertain the intention of the legislature because the intention is a subjective concept. In
Endumeni, the literal approach was rejected and the SCA held that the text-in-context approach
should be used to interpret legal texts as this is a purposive / contextual approach to interpretation
We, therefore, refer to the purpose of the legislation where the aim is to determine the objectives of
the legislation in issue with reference to the context and the directive in section 39(2). This means
that even before a particular legislative text is read, s 39(2) ‘forces’ the interpreter to promote the
values and objects of the Bill of Rights. The interpreter consults extra-textual factors before the
legislative text is even considered. Factors and circumstances outside the legislative text are
immediately involved in the interpretation process. Instead of working with a check list,
contextualists have to regard the words used in conjunction with the context and the background to
ascertain legislative meaning. We now use the text-in-context approach to interpretation. To explain
what this means, we consider the meaning of words, the context of the whole statute, external
context, purpose, and the constitutional values, according to the case, ‘Natal Joint Municipal v
Endumeni Municipality’. So, purpose, context and words combine to give meaning and are
considered from the start. not only as secondary aid.

In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004, Ngcobo J stated
that the Constitution is the starting point when interpreting any legislation. First, the interpretation
that is placed upon a statute must where possible, be one that would advance at least an identifiable
value enshrined in the Bill of Rights; and second, the statute must be capable of such an
interpretation. The emerging trend in statutory construction is to have regard for the context in
which the words occur, even where the words to be construed are clear and unambiguous. Section
39(2) of the Constitution deals with the interpretation of legislation other than the Bill of Rights. The
Constitution does not expressly prescribe a contextual (purposive) approach to statutory
interpretation. However, s 39(2) is mandatory, which means that all courts, tribunals, or forums
must review the aim and purpose of legislation in the light of the Bill of Rights: plain meanings and
so-called clear texts, clear/unambiguous texts are no longer enough.
Tut 13 June :
Before we had s39(2) parliament was sovereign…..

Question 1:
Read the extracts set out below from the Extension of Security of Tenure Act (ESTA) and Daniels v
Scribante 2017 (4) SA 341 (CC), which addressed the issue of whether an occupier in terms of ESTA
was entitled to make improvement to her dwelling on a farm. Then answer the questions which
follow. Please number your answers.

“[27] The respondents argue that … section 6 has no provision that explicitly says an occupier has a right
to make improvements meant to bring her or his dwelling to a standard suitable for human habitation.  But
surely the matter cannot end there.  Whether the right exists must depend on what an interpretative
exercise yields.  The respondents are correct in saying that in terms of section 25(6) of the Constitution an
occupier enjoys rights to the extent provided in ESTA.  The question is whether – on a proper
interpretation of ESTA – the right contended for by Ms Daniels indeed does not exist.
[29] The respondents’ argument places focus only on the rights of an occupier that section 6 of ESTA
specifically itemises.  It disregards all else: context counts for nothing; so does the purpose for which
ESTA was enacted; and section 39(2) of the Constitution is not taken into account at all.  This reading of
section 6 is unduly narrow.  Part of the context is section 5 of ESTA, which the respondents’ interpretation
ignores.  That section decrees that occupiers enjoy certain fundamental rights, including the right to human
dignity.  On the respondents’ interpretation, occupiers have a right that could well be empty.  They could
live in conditions that infringe their right to dignity.”
QUESTIONS

1. The court means that the manner in which section 5 of ESTA has been interpreted is
unduly narrow, which that the following rules to legal interpretation were used, these are, the
literal rule which means that judges read the whole context intensively and they try to give
the context its plain ordinary meaning if the words are not clear, golden rule used where the
literal rule leads to absurdity results, it is used where the section was interpreted narrowly, as
in this rule, the courts investigate whether the wording conveys the parliaments intention. The
golden rule to interpretation has been used which means that when the legislation was
interpreted, the meaning of the legislation was used to interpret the section unless ambiguity
arose. Therefore, a wider context of legislation is considered only if the plain meaning of the
text is unclear. In R v Hildick-Smith It was stated that there is only one kind of interpretation
with one definite object, and that is to ascertain the true intention of the legislature as
expressed in the Act. The reason behind the Act or section 5 was not considered, mischief
rule. The purpose approach was also not considered, they did not refer to the purpose of the
legislation where the aim is to determine the objectives of the legislation in issue with
reference to the context and the directive in section 39(2). This means that even before a
particular legislative text is read, s 39(2) ‘forces’ the interpreter to promote the values and
objects of the Bill of Rights. The interpreter consults extra-textual factors before the
legislative text is even considered. Factors and circumstances outside the legislative text are
immediately involved in the interpretation process. Instead of working with a check list,
contextualists have to regard the words used in conjunction with the context and the
background to ascertain legislative meaning. We now use the text-in-context approach to
interpretation. To explain what this means, we consider the meaning of words, the context of
the whole statute, external context, purpose, and the constitutional values, according to the
case, ‘Natal Joint Municipal v Endumeni Municipality’. So, purpose, context and words
combine to give meaning and are considered from the start. not only as secondary aid. the
section violates the rights in the Constitution, the right to human dignity the section has been
interpreted literally, whereby they did not refer to the Constitution. s 39(2) which is
mandatory, and means that all courts, tribunals, or forums must review the aim and purpose
of legislation in the light of the Bill of Rights was not used in this interpretation. Secondary
aids of interpretation, such as other parts of the legislative text, were then used to find the
intention of the legislature where the meaning of the words in the text are not clear.
counts for nothing which means that the Courts uses a step-by-step mechanical process to
legal interpretation in order to ascertain the legislatures intention. It uses a primary rule of
interpretation, ‘’ golden rule of interpretation’’ as referred to in Venter v R, that courts may
only depart from the meaning of legislation if the words used are vague or ambiguous or have
an absurd result. Secondary aids of interpretation, such as other parts of the legislative text,
may be used to find the intention of the legislature where the meaning of the words in the text
are not clear. Here the common law presumptions are tertiary aids of interpretation and can
only be used if the secondary aids to interpretation do not reveal the intention of the
legislature. Therefore, a wider context of legislation is considered only if the plain meaning
of the text is unclear. In R v Hildick-Smith It was stated that there is only one kind of
interpretation with one definite object, and that is to ascertain the true intention of the
legislature as expressed in the Act.
2.
3. Promulgation is the publication of the Act into the government gazette so that the Act can
commence as law. Adoption of legislation is the process to pass legislation/ it is when the Act
is passed in a parliament and is signed by the president.
The court means that the manner in which section 5 of ESTA has been interpreted is unduly
narrow, which that the following rules to legal interpretation were used, these are, the literal
rule which means that judges read the whole context intensively and they try to give the
context its plain ordinary meaning if the words are not clear, golden rule used where the
literal rule leads to absurdity results, it is used where the section was interpreted narrowly, as
in this rule, the courts investigate whether the wording conveys the parliaments intention. The
golden rule to interpretation has been used which means that when the legislation was
interpreted, the meaning of the legislation was used to interpret the section unless ambiguity
arose. Therefore, a wider context of legislation is considered only if the plain meaning of the
text is unclear. In R v Hildick-Smith It was stated that there is only one kind of interpretation
with one definite object, and that is to ascertain the true intention of the legislature as
expressed in the Act. The reason behind the Act or section 5 was not considered, mischief
rule. The purpose approach was also not considered, they did not refer to the purpose of the
legislation where the aim is to determine the objectives of the legislation in issue with
reference to the context and the directive in section 39(2). This means that even before a
particular legislative text is read, s 39(2) ‘forces’ the interpreter to promote the values and
objects of the Bill of Rights. The interpreter consults extra-textual factors before the
legislative text is even considered. Factors and circumstances outside the legislative text are
immediately involved in the interpretation process. Instead of working with a check list,
contextualists have to regard the words used in conjunction with the context and the
background to ascertain legislative meaning. We now use the text-in-context approach to
interpretation. To explain what this means, we consider the meaning of words, the context of
the whole statute, external context, purpose, and the constitutional values, according to the
case, ‘Natal Joint Municipal v Endumeni Municipality’. So, purpose, context and words
combine to give meaning and are considered from the start. not only as secondary aid. the
section violates the rights in the Constitution, the right to human dignity the section has been
interpreted literally, whereby they did not refer to the Constitution. s 39(2) which is
mandatory, and means that all courts, tribunals, or forums must review the aim and purpose
of legislation in the light of the Bill of Rights was not used in this interpretation. Secondary
aids of interpretation, such as other parts of the legislative text, were then used to find the
intention of the legislature where the meaning of the words in the text are not clear.