Chapter 7

Judicial law making during concretisation

 Concretisation- the final stage in the interpretation process, where legislation is

realized and where the legislative text, purpose and facts of the situation are
brought together to reach a conclusion.
 This is the moment of the abstract law becomes practical and reality, done when
the legislation is applied.
 The text of the legislation, all the possible presumptions and all the aids such as
principles and contextual information is used to determined the purpose of the
legislation, which is then applied to the facts of the case to reach a conclusion.

Concretisation occurs regardless of the approach used to interpret the

legislation:

1. Text-in-context- argues that contextualisation proved more date to the

interpreted, providing them with the ability to exercise better discretion when
interpreting and applying.
a. Lavuschange- courts have a subordinate function, in relation to law-
making, as they function as the final link in the legislative chain, thus
their power to do so must be restricted and maintained.
b. Du Toit- to interpret legislation successfully one must look at the
current realisations of all the possible and original meanings of the text

2. Text- based- the context that is required for the accurate interpretation is
given within the legislation
a. Ludicis est ius dicere sed non dare principle- judges state the law, they
do not make it
Law making functions of courts:
1. Text-in-context view- the courts do have a creative law-making function
during the statuary interpretation phase
a. They must not take over the legislative function, instead reconstruct
the generally formed provisions of an act to the particular
circumstances
2. Text-based view- only when the wording of the legislation seems ambiguous
or inconsistent may the court use secondary and tertiary aids of interpretation
a. They must follow the clear and unambiguous will of the legislatures

Restrictions on the courts law making Authority:

 Principle of democracy- preamble s1
o Courts cannot over rule the values of the democracy unilaterally
 The separation of powers- s43, courts cannot exceed the authority they are
limited to
 Common law presumptions- courts should not change the law more that what is
needed
 Principles of legality- the courts must support and maintain limited by the
constitution
 Penal and restrictive provisions

Factors to support judicial law making:

 Reading-down principle
 S39(2) of the constitution
 BoR
 Constitution, being the supreme law
 Common law presumptions legislator does not intent futile legislation
 Independence of the judiciary
Factors which support & limit judicial law-making during statutory
interpretation

 The so-called law-making function of the court is not unbounded (absolute /

uncontrolled)
 6 factors which serve to restrict the creative discretion of the courts when
abstract legislation is applied to concrete facts:
 Note: these factors should ensure that courts apply their law-making function
within the boundaries set by the core principle underlying modificative
interpretation = the aim & purpose of the legislation (intention of the
legislature / legislative scheme) must support the modification within the
framework of the Const

1. Principle of democracy

One of the fundamental constitutional values – although the courts are guardians of
the constitutional values, they are not allowed to take over the constitutional role of
the legislature
Du Plessis case: the function of the courts is:
(a) to ensure that legislation does not violate fundamental rights
(b) to interpret legislation in a manner that furthers the values expressed in
the Const; and
(c) to ensure that CL & custom outside of the legislative sphere is developed
in such a manner as to harmonise with the Const

2. Principle of separation of powers

Ensures that state power is shared btw 3 branches of government = formal built-in
checks & balances to curb abuse of power by the government

3. CL presumption holds that the legislature does not intend to change the existing
law more than is necessary
4. Rule of law principle (including principle of legality)

5. Judicial officers are accountable & responsible for their actions on 3 levels:
 personal responsibility: they have to take personal moral responsibility for their
decisions
 formal responsibility: consisting of formal constitutional & other legislative
controls over the judiciary; and
 substantive accountability: judicial decisions are open to public debate &
academic criticism

6. Penal provisions / restrictive provisions in legislation & presumption against

infringement of existing rights
 Limit discretion of the courts to modify the initial meaning of the text

Possible outcomes of the process of concretisation:

1. There is no problem with the correlation between the decision, by the court and
the possible meaning of the legislature
2. There is slight modification of the meaning required, in order to maintain the
aims of the constitution
3. A retractive interpretation is needed- when the legislation seems to exceed
the powers it is based on and it must be limited through interpretation
a. When eh words embrace more than their purpose
b. Limits/reduces a wider initial meaning of the text to a narrower purpose
c. Cessante ratione legis, cessa et ipsa lex- when the reason for the
law ceases, the law falls away
d. Eiusdem generis- ‘of the same kind’ meaning of words are qualified by
their relationship to other words
i. Specific words refer to a definite genus
ii. General words are defined by the specific words
1. Extensive interpretation- when the meaning must be extended to include the
case at hand
a. The meaning is boarded form the initial meaning

2. Interpretation by implication- extending the textual meaning on the grounds of a

reasonable and essential implication which is evident from the legilaation
a. Ex contrariis- implications arise from oppositse
b. Ex consequentibus- when legislation demands/allows a certain result,
everything needed and reasonable to bring about the result is thus implied
c. Anatura ipsius rei- implied inherent relationship
d. Ex correlativis- mutual or reciprocal relationship causes implication

3. There is no modification possible- when the legislation deviates too far from the
constitution or other limiting factors placed on it
a. When the purpose is unclear and thus it cannot be adapted or modified

4. Interpretation & application- when there is no need for interpretation

a. There may only be a modificative interpretation if it is permitted by the
purpose of the legislation, the purpose of the legislative may not be in
conflict with the constitution