Study Unit 5: Statutory Presumptions

Study material:
 Van Staden article on the comparative analysis of common law
presumptions.
 S v Okah
Study outcomes, you should be able to answer the following:
1) List the presumptions of statutory interpretation and describe the
role they were designed to achieve.
2) How were presumptions perceived prior to the advent of the
Constitutionalism? To what extent are the presumptions still
needed in the new dispensation?
3) There two vital questions to be considered in dealing with each
individual presumption:
i. Purpose and value - What is the purpose of the particular
presumption under a supreme Constitution and what is the
value it promotes?
ii. Is there still a need for the particular presumption under a
supreme Constitution? Are there not perhaps provisions in the
Constitution that are backed by Constitutional supremacy, that
seek to achieve the same purpose as the presumption?
What do you need to know for the exam?
1) What are Statutory presumptions, you must be able to define
them?
2) What are the functions of Statutory presumptions?
3) Are Statutory presumptions still relevant? Consult Van Staden, the
first part of the article, what do the 3 authors say? How does Van
Staden argue in favor of Statutory presumptions.
4) Briefly explain what each and the value it promotes?
What are the Statutory presumptions?
 Presumptions of Statutory interpretation have been described as
doctrinal shortcuts, rules of thumb that judges employ to quickly
and assuredly reach the proper balance of interpretative and policy
equities at play during statutory interpretation.
 Statutory presumptions are not conclusive or mandatory.
  Presumptions or canons of Statutory interpretation are
manifestations of values because they represent the political and
moral concerns of the community.

What are the functions of presumptions, OIPP?

1. Orients- It orients judicial readers to the text in order to help them
to ascertain its meaning in the particular case.
2. Instructions- May also be viewed as instructions from a legislature
as to how statutes should be interpretated.
3. Promotes- It promotes better law making as they minimize judicial
discretion.
4. Purposes- May serve purposes wholly apart from statutory
meaning interpretative instructions or the law making process.
How were presumptions perceived prior to the advent of
constitutionalism?
Presumptions: Prior to 1994
 When could they be used?
 Did everyone accept the view?
 Cohen says presumptions are …
 Wiechers says presumptions are…
 Some showed that courts are not consistent with this approach
and …
 What some advocate for?
 Some referred to the presumptions as?

 The rule was that Statutory Presumptions could only be used when
the language of a statutory provision was unclear.
 But not everybody accepted the rule.
 According to Cowen presumptions are legal principles.
 While according to Weichers presumptions are common law rules
 According to Van Staden some showed that the courts were not
consistent in this approach and did rely on these presumptions
even when the text was clear.
 While some authors advocated that they should be used form the
start.
  Some referred to these presumptions as the “Common law bill of
rights”.
Presumptions: Post 1994
To what extent are the presumptions still needed in the new
dispensation/ Are Statutory presumptions still relevant?
 You start of by saying:
 Constitutionalism has been a “blessing and a curse” to these
presumptions.
 According to Van Staden the dominant approach currently is the
Teleological approach which he argues that Statutory
presumptions are therefore relevant as they can be reconciled
as values with this approach.
 Therefore, these presumptions can be used as “values” right
from the start.
 According to Du Plessis all these presumptions are
verbalizations of values vital to sustenance of a just and
effective legal order.
 Although the courts have generally advanced constitutional
values through the Teleological approach, the Constitution is not
a catalogue of all possible values in our legal system.
 But it can be argued constitutional values are stronger in terms
of Section 39 of the Constitution through the call for the
development of the common law and its values.
How Du Plessis argues in favor of Statutory presumptions:
 According to Du Plessis Presumptions post 1994 can fulfill useful
functions in SA:
 They can supplement, facilitate and mediate resort to constitutional
values.
 Can advance foundational values consistent with but explicatively
spelled out in the Constitution.
 Can amplify foundational values embodied in the Constitution.
 Can guide constitutional interpretation itself and amplify certain of
its procedures.
STATUTORY PRESUMPTIONS
1. LEGISLATIVE POWERS ARE TO BE EXERCISED BY
DELEGATUS ITSELF
 In SA it has been accepted that when legislation delegates powers
and functions to a subordinate authority it is presumed that the
authority is not entitled to sub-delegate those powers and
functions.
 Even when a delegatus is granted the express power to sub
delegate in authorizing legislation, such a provision should be
restrictively interpretated in terms of this presumption.
 Sub- delegation of powers and functions will however depend
upon various factors:
- Nature of the power.
- Partial or whole transfers of powers.
- Transfer of power based on abilities or qualifications.
- Necessity
 Value promoted: Accountable government.

2. LEGISLATION APPLIES TO INSTANCES IN GENERAL AS

OPPOSED TO SPECIFIC INSTANCES
 This presumption may therefore be relied on when it is averred
that the particularity of circumstances requires that the generally
applicable provisions should not be applied.
 Value promoted: Equality before the law.

3. LEGISLATION DOES NOT ALTER THE EXISTING LAW MORE

THAN IS NECESSARY
 Legislation should deviate as little as possible from existing
law.
 What about the mandate to develop common law?
 For Scalia and Garner the rule is a relic of courts, historic
hostility towards amendment of common law by means of
statutory interventions.
 Value: Legal certainty
4. LEGISLATION DOES NOT BIND THE STATE IN THE EVENT
THAT IF THE STATE WERE BOUND IT WOULD HAMPER THE
FULFILMENT OF AN ESSENTIAL FUNCTION
 The system fitted a system of parliamentary sovereignty.
 But is justified as it aligned with public policy post 1994.
  S v De Bruin- this case involved the failure of police officer to
comply with speed restrictions. The court acknowledged that if the
police officer were to comply with restrictions, it would have
impeded the fulfilment of the duties of the officer.
 Value: Effective government.

5.LEGISLATION DOES NOT CONTAIN A CASUS OMISSUS

A casus omissus can be described as “a contingency not provided for by
the legislature or put differently a gap in the statute that has not been
fulfilled.”
 Courts should not be entitled to “fill in gaps” in the provision except
to the extent that it might be necessary to give effect to the
purpose of the Statute.
 Value promoted: Separation of powers

6.LEGISLATION DOES NOT CONTAIN INVALID OR

PURPOSELESS PROVISIONS
 This presumption means that no part of a provision should be
redundant.
 Legislation must best serve its purpose.
 Value promoted: Legality
7.LEGISLATION DOES NOT HAVE EXTRATERRIORIAL EFFECT
 This presumption means that Legislation adopted by the SA
parliament will be presumed to have effect only within the territory
of SA.
 Value promoted: Integrity of States
8. LEGISLATION DOES NOT OPERATE RETROSPECTIVELY
 This presumption presupposes that legislation applies
retrospectively to future matters.
 Value: Principle of legality and the rule of law.
When does legislation apply retrospectively?
1. Where a statute expressly requires retrospectivity.
2. Where a statutory provision confirms the existing law.
 3. If a statute is merely interpretative or declaratory of the existing law
without amending it.
4. If the statute is intended to operate to a benefit of all.
5. If the state is procedural in nature.
6. Where the law introduces some exception or exemption.
9. LEGISLATION DOES NOT VIOLATE INTERNATIONAL LAW
 This presumption means that legislation is construed in conformity
with international law.
 The value promoted: Section 39 of the Constitution.
10.LEGISLATION DOES OUST OR INTEREFERE WITH THE
JURISDICTION OF THE COURTS
 This presumption means that legislation does not interfere with the
jurisdiction of courts.
 According to Scalia and Garner this presumption amounts to self-
serving judicial arrogance.
 The value promoted: Separation of powers, access to courts.
11.LEGISLATION IS NOT UNREASONABLE OR UNJUST
 This presumption was used in the Bula case there were 2 possible
interpretations and the court preferred the one that is not unjust.
 The value promoted: Section 39 of the Constitution.
12. LEGISLATION IS PRESUMED TO BE CONSTITUTIONAL
 In Van Royen v The State the CC stated that legislation must be
construed consistently with the Constitution.
 This presumption may be seen as a manifestation of the
Supremacy of the Constitution.
13.LEGISLATION PROMOTES PUBLIC INTEREST
 The problem with this presumption is that it is utilitarian in nature
and has the potential to infringe upon individual rights.
 Value promoted: legality
14. REFERENCES IN LEGISLATION TO ACTS AND CONDUCTS ARE
REFERENCES TO LEGALLY VALID ACTS AND CONDUCT
 This presumption seeks to advance legality which is a requirement
of the rule of law.
  Value promoted: Legality and the rule of law.
15. Remedial or corrective legislation must be construed generally
 Although SA courts have used this presumption not everyone
agrees with it.
 Scalia and Garner deny the notion that remedial status should
be liberally construed.
 Value promoted: Equality before the law.
16. The existing meaning of words and phrases must be reserved.
 In terms of this presumption courts will attach a meaning to a
statute which was given to a previous corresponding statute.
 Value promoted: Legal certainty
17. WORDS AND PHRASES BEAR THE SAME MEANING THROUGHT
A LEGISLATIVE TEXT
 This presumption assumes that legislatures use words and
phrases in a consistent manner.