Name: Phetho Machili

Student Number: ST10086199

Module: LEGAL INTERPRETATION

Module Code: LEIN5112

TAKE - HOME TEST

QUESTION 1
The right to life, as an entrenched fundamental right in the Bill of Rights, necessitates the need
for rules of interpretation when it comes to legislation. A simple reading of the language in Acts
would be insufficient to ensure a proper interpretation. This is because the language used in
legislation can often be vague or open to multiple interpretations. In order to give effect to the
intention of the legislature and protect the rights of individuals, courts employ various rules of
interpretation.

One such rule is the purposive approach, which looks beyond the literal meaning of the words
and considers the purpose and objectives of the legislation. This approach ensures that the
legislation is interpreted in a manner that is consistent with the principles and values of the
Constitution. In the case of Stransham-Ford v Minister of Justice and Correctional Services
and Others 1 , the court had to interpret the right to life in the context of euthanasia and assisted
suicide. The court considered the underlying values of dignity and autonomy in determining
whether the right to life includes the right to die.

Another rule of interpretation is the contextual approach, which takes into account the broader
context in which the legislation operates. This includes considering the historical and social
context, as well as the purpose and policy behind the legislation. For example, in Minister of
Justice and Correctional Services and Others v Estate Late James Stransham-Ford2, the court
considered the social and legal implications of granting the right to physician-assisted
euthanasia and suicide.

Case law plays a crucial role in the interpretation of legislation. Courts often rely on previous
judgments to establish legal principles and guide their interpretation. In the case of Stransham-
Ford v Minister of Justice and Correctional Services and Others 3, the court considered the
existing legal framework and precedent in determining the legality of euthanasia and assisted
suicide.

In conclusion, rules of interpretation are required because a simple reading of the language in
Acts would be insufficient to guarantee a proper interpretation of legislation. The right to life,

1 Stransham-Ford v Minister of Justice and Correctional Services and Others 2015 (4) SA 50 (GP).
2 Minister of Justice and Correctional Services v Estate Stransham-Ford (531/2015) 2016 ZASCA 197.
3 McQuoid-Mason, David. (2015). Stransham-Ford v. Minister of Justice and Correctional Services and Others:

Can active voluntary euthanasia and doctor-assisted suicide be legally justified and are they consistent with
the biomedical ethical principles? Some suggested guidelines for doct. South African Journal of Bi oethics and
Law. 8. 34. 10.7196/sajbl.446.
as an example, highlights the need to consider the purpose, context, and case law in
interpreting legislation to protect the rights and values enshrined in the Constitution.

QUESTION 2

The interpretation of legislation and the role of case law are important aspects of the South
African legal system. The Constitution of South Africa requires that all laws be consistent with
its provisions4. The country's legal system is a mixed one, influenced by Roman Dutch civilian
law, English common law, customary law, and religious personal law 5.

Case law plays a crucial role in the interpretation of legislation in South Africa. Rules of
interpretation are essential in ensuring that courts arrive at the correct interpretation of
legislation6. The right to life is an example of a fundamental right in South Africa that has been
the subject of interpretation by the courts. The courts have held that the right to life is a
foundational right that is essential to the enjoyment of all other rights7.

In interpreting legislation, courts in South Africa have relied on case law to guide their
decisions. For instance, in AZAPO, the Constitutional Court of South Africa relied on case law
to determine the constitutionality of the Truth and Reconciliation Commission Act8.

In conclusion, the interpretation of legislation and the role of case law are critical aspects of
the South African legal system. Case law plays a significant role in the interpretation of
legislation, and rules of interpretation are necessary to ensure that courts arrive at the correct
interpretation of legislation9. The right to life is an example of a fundamental right in South
Africa that has been the subject of interpretation by the courts, and case law has been relied
upon to guide such interpretations10.

4 Du Bois, F, ed. Wille's Principles of South African Law. 9th ed. Juta, (2007).
5 Davis D et al, Fundamentals of South African Law (2010).
6 Stransham-Ford v Minister of Justice and Correctional Services and Others 2015 (4) SA 50 (GP).
7 S v Makwanyane 1995 (3) SA 391 (CC).
8 AZAPO v President of RSA 1996 (4) SA 671 (CC).
9 Stransham-Ford v Minister of Justice and Correctional Services and Others 2015 (4) SA 50 (GP).
10 Davis D et al, Fundamentals of South African Law (2010).
QUESTION 3

The main approaches to statutory interpretation in South African law are the orthodox textual
approach and the text-in-context approach11.

The orthodox textual approach focuses strictly on the ordinary meaning of the text alone,
without consideration of external factors such as legislative history, context or purpose 12. This
approach was traditionally favored, as seen in cases such as Natal Joint Municipal Pension
Fund v Endumeni Municipality where the court interpreted legislation primarily based on a
textual analysis13.

The text-in-context approach considers not only the text but also the legislative history, context
and purpose to inform the interpretation14. This evolving approach allows statutes to be viewed
as "living trees" capable of growth and adaptation. It was applied in cases such as Minister of
Home Affairs v Watchchenko, where the court interpreted legislation flexibly based on altered
social conditions15.

The orthodox textual approach is restrictive, risking interpretations inconsistent with

contemporary circumstances16. In contrast, the text-in-context approach better serves South
Africa's evolving common law and transformative constitution by enabling responsive,
contextual readings attuned to constitutional imperatives and evolving societies.

Systemic factors also favor the text-in-context approach, including South Africa's contextual,
purposive constitutional interpretive framework and mixed legal system drawing on multiple
sources exogenous to any single text.

The text-in-context approach therefore allows interpretations aligned with South Africa's
current needs as a constitutional democracy. For this reason, it has increasingly become the
preferred model in recent years to facilitate rights-aligned statutory application over rigid,
textualist readings.

11 Davis D et al, Fundamentals of South African Law (2010).

12 Davis D et al, Fundamentals of South African Law (2010).
13 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)
14 Minister of Home Affairs v Watchchenko 1987 (4) SA 101 (W).
15 Minister of Home Affairs v Watchchenko 1987 (4) SA 101 (W).
QUESTION 4

When the government uses special powers like policing, there are important rules everyone
must follow. While catching criminals is important, so is protecting the safety of people not
involved. In this case, the Minister of Police is using the presumption that government bodies
are not bound by their own legislation to defend the actions of the police officer involved in the
collision. In simple terms, this presumption suggests that government entities are immune
from legal liability for their actions, similar to the concept of "the King can do no wrong."

Semantic Guidelines: To explain this presumption clearly, let's break it down into two key
aspects: the rule of law and constitutional supremacy.

1. Rule of Law: The rule of law is a fundamental principle that states that everyone,
including the government, is subject to the law and must abide by it. However,
historically, there has been a controversial presumption that the government is exempt
from certain legal obligations. This presumption stems from common law, which is the
legal system developed by judges through their decisions in court cases.

2. Constitutional Supremacy: In South Africa, the Constitution is the supreme law of the
land17. It sets out the rights and principles that govern the country, including the
accountability of government bodies. Section 39(2) of the South African Constitution
emphasises the importance of interpreting legislation in a manner that promotes the
spirit, purport, and objects of the Bill of Rights18.

Jurisprudential Guidelines: To better understand the presumption, we need to consider two

approaches to interpreting legislation: the orthodox tax-based approach and the text-in-
context approach.

1. Orthodox Tax-Based Approach: This approach focuses on the literal meaning of the
legislation itself. It assumes that the government is not bound by legislation unless
explicitly stated. In other words, if the legislation does not explicitly apply to the
government, it is presumed that the government is exempt from its requirements.

2. Text-in-Context Approach: The text-in-context approach takes a broader perspective

by considering the purpose and context of the legislation. It recognizes that the
Constitution promotes equality and accountability, and therefore, legislation should be
interpreted in a manner that aligns with these principles. This approach challenges the
presumption of government immunity and emphasizes that the government should be
held accountable for its actions 19.

3. Presumptions about Specific Circumstances: It is important to note that the

presumption of government immunity is not absolute and can be challenged, especially
in cases where it conflicts with the provisions of the Constitution. In this case, the
delivery driver's family can argue that the actions of the police officer, including

17 GE Devenish. 2021. “THE STATE IS NOT PRESUMED TO BE BOUND BY STATUTE – A CONSTITUTIONAL AND
JURISPRUDENTIAL ANACHRONISM”. Obiter 30 (1). https://doi.org/10.17159/obiter.v30i1.12601.
18 Ibid.
19 GE Devenish. 2021. “THE STATE IS NOT PRESUMED TO BE BOUND BY STATUTE – A CONSTITUTIONAL AND

JURISPRUDENTIAL ANACHRONISM”. Obiter 30 (1). https://doi.org/10.17159/obiter.v30i1.12601.

 disregarding traffic rules and causing harm, should not be protected by the
presumption.

Conclusion: In summary, the presumption that government bodies are not bound by their own
legislation suggests that they are immune from legal liability. However, this presumption
should be evaluated in light of the rule of law and constitutional supremacy. The text-in-context
approach to interpreting legislation challenges this presumption, emphasizing the need for
government accountability. In this case, the family of the injured delivery driver can argue that
the actions of the police officer should not be protected by this presumption, especially
considering the harm caused.
REFRENCES

BOOKS

Du Bois, F, ed. Wille's Principles of South African Law. 9th ed. Juta, (2007).
CASE LAW

AZAPO v President of RSA 1996 (4) SA 671 (CC).

Minister of Home Affairs v Watchchenko 1987 (4) SA 101 (W).

Minister of Justice and Correctional Services v Estate Stransham-Ford (531/2015) 2016

ZASCA 197

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)

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

Stransham-Ford v Minister of Justice and Correctional Services and Others 2015 (4) SA 50
(GP).
LEGAL JOURNALS

GE Devenish. 2021. “THE STATE IS NOT PRESUMED TO BE BOUND BY STATUTE – A

CONSTITUTIONAL AND JURISPRUDENTIAL ANACHRONISM”. Obiter 30 (1).
https://doi.org/10.17159/obiter.v30i1.12601

McQuoid-Mason, David. (2015). Stransham-Ford v. Minister of Justice and Correctional

Services and Others: Can active voluntary euthanasia and doctor-assisted suicide be legally
justified and are they consistent with the biomedical ethical principles? Some suggested
guidelines for doct. South African Journal of Bioethics and Law. 8. 34. 10.7196/sajbl.446.