University of the Western Cape

Legal Interpretation LEG221 (2020)

Lecture 2: Thursday 30 July 2020

FINDING THE APPLICABLE LAW (II): THE CONSTITUTIONAL CLASSIFICATION

(OR TYPOLOGY) OF STATUTORY LAW

1 Prescribed material

• The Constitution: Sections 43, 44, 104, 156, 239 and Schedules 4, 5 and 6 (as included in
the Constitutional extracts included in the folder of Lecture 1).

2 Study objectives:

At the end of the week you should be able to:

(1) Develop a fourfold constitutional classification (or typology) of statutory law according to
subject matter, sphere of application, democratic status (branch of origin) and historical sequence
(the four-S classification). In each case identify the classes involved (eg old and new order) and
comment briefly on the value or significance of the classification (eg is there anything unique to
new order legislation that makes it relevant or interesting as a category?)

(2) Use the typology developed above to classify different statutes and different statutory
disputes.

3 Basic research question

Consider the incident at the park again. (If you have not read through the Incident in the Park
please do so, it is available on the iKamva site.) Jabu arrived at the gate to the park and was
prevented from entering on the basis of a sign that reads “No vehicles allowed in the park”. To
resolve the dispute between Jabu and the City, we must find and interpret the prevailing law
applicable to access to public parks. We are still at the start of the research process, busy finding
the prevailing statute law that applies to the dispute. Our first task is to find out whether the sign
refers to a statutory provision.

In Lecture 1 we reconstructed a constitutional definition of legislation or statute law from all the
instances where the constitution refers to statutes or legislation. The sign will indeed refer to a
statutory prohibition if it refers to any national or provincial act or municipal by-law, whether
from the constitutional era or not, and any proclamation, declaration, regulation, rule, or directive

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made by an authorised regulator in the name of a provincial or national legislature. At the same
time, we know that the sign will not refer to a statutory provision if it refers to the rules of the
body corporate or private estate on whose property the park is situated, or if it refers to an
internal circular issued by the Mayoral Committee member for Parks and Recreation, on her own
initiative.

Based on this broad definition we can start or search for the statute to which the sign refers
(assuming that it does refer to a statute) and all other statutes applicable to the same issue. We
can look through all the national and provincial acts and their regulations and work our way
through the whole statute book. However, we might be able to do a more efficient job if we can
find a way to classify the issue and the statute in question and then use this classification to focus
on certain classes of legislation only. For instance, we know that whatever statute the sign refers
to deals with “municipal parks and recreation”. This is a functional area listed in Part B of
Schedule 5 of the Constitution. This means that it falls within the power of a Municipal Council
to regulate and that Parliament does not have the power to enact statutes dealing with access of
vehicles to municipal parks. It would be a waste of time to look for a national act or regulation
dealing with the issue. Similarly, if we eventually find that the sign refers to a municipal by-law
(original municipal legislation) we need not look further for any other regulations (regulations
may only be made under the authority of a national or provincial act).

In short, the proper classification of an issue, or more broadly any applicable statute, can guide
the research process to ensure that we find the applicable law without waste of time or resources.
Because time is money, the proper classification of statutory provisions is valuable and one of
the first things that a lawyer would do when dealing with a new issue.

There is a second, more technical, reason why it might be necessary to properly classify a statute.
When a High Court or the Supreme Court of Appeal declares a national or provincial Act
unconstitutional that declaration must be confirmed by the Constitutional Court. This is not the
case when a municipal by-law or any subordinate legislation is declared invalid. In several cases
the Court had to rule whether a particular statute classified as original provincial legislation.

Here is your challenge: Can you derive a classification of statutes from the comprehensive
constitutional definition of statutes? In lecture two we build on the definition of legislation or
statute law provided in Lecture 1, to arrive at a comprehensive constitutional classification of
four different classes of legislation and legislative issues (also called a typology of different
types of legislation and legislative issues). We call this the four-S classification or typology.

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4 Lecture summary

The fourfold constitutional classification or typology of statutory laws

From the definition of statutes developed in Lecture one, it is clear that the Constitution divides
statutes into four classes or types according to their subject matter, sphere of application,
democratic status (branch of origin) and historical sequence. A legal problem is usually regulated
by one or more of these classes or types of legislation. These statutes are collectively known as a
statutory scheme. By finding all the statutory laws applicable to a dispute we are in effect putting
together the legislative or statutory scheme.

4.1 Classification according to subject matter

The easiest way to classify statutes is according to their subject matter. The major indices of
statutes provided by LexisNexis and Jutastat make use of this type of classification. The statute
book shown in Lecture 1 also classifies statutes according to the issue they deal with. All statutes
dealing with housing, for example, are grouped together under the heading “Housing”. The same
applies to “Education” and “Migration” and “Land” and “Parks and recreation”. The
Constitution goes one step further and classifies the list of subjects or topics into five groups.
This classification is contained in Schedules 4 and 5. The aim of the classification is to allocate
various legislative topics (or competences) to various legislatures.

All statutes fall into one of five groups: (i) Topics not listed in the schedules; (ii) Topics listed in
part A of Schedule 4; (iii) Topics listed in Part B of Schedule 4; (iv) Topics listed in Part A of
Schedule 5; and (v) Topics listed in Part B of Schedule 5.

Subject matter Example

Type X (unlisted) Elections; Immigration; Tertiary (university) education
Type 4A Basic and higher education; tourism
Type 4B Child care facilities
Type 5A Ambulance services
Type 5B Licencing of undertakings that sell food to the public (street
vendors)

Exercise

Look at the extracts from the Constitution uploaded in the Lecture Folder on the iKamva site.
Find Schedules 4 and 5 and the list of topics included. Find two examples from each of the five

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classes. In which class does “Parks and recreation fall”? Could you find any examples of issues
that fall within Type X?

By itself this classification does not seem to be of much use. However, when it is combined with
the classification of legislation according to sphere of application, the logic of the classification
becomes clear.

4.2 Classification according to sphere of application

A statute only applies within the territory over which the legislature which enacted the statute
has jurisdiction. South Africa is territorially divided into three spheres of government. This is
also known as the devolution of government or the vertical separation of powers. We saw in
Lecture one that the devolution of powers was the first solution adopted in 1994 to the problem
created by the limited legislative capacity of Parliament. As a result, the national sphere of
government has jurisdiction over the whole country; each of the nine provincial spheres only
over its respective province; and each of the 240 municipalities in the municipal sphere only over
its town, city or district. The second classification of statutes divides statutes into national,
provincial and municipal legislation.

If we combine the subject classes provided in Schedules 4 and 5 with the spheres of government
then we get a clear picture of which legislatures can make original legislation over which issues.
In some instances a legislature will have exclusive legislative competences (for example, only a
provincial legislature can make a law that deals with liquor licences; only parliament can make a
law dealing with elections, deportation of foreigners, or tertiary education). In some instances,
two or more legislatures will have concurrent legislative competences (for example, both
national and provincial legislation may be made dealing with primary and higher education).

Subject matter Legislative authority (competence)

Type X (unscheduled Parliament only
Type 4A Parliament and provinces
Type 4B Parliament, provinces, and municipalities
Type 5A Provinces only
Type 5B Provinces and municipalities only

4.3 Classification according to democratic status (or branch of origin)

We saw in Lecture one that the basic definition of legislation was extended sideways or
horizontally, within each sphere of government, to relieve the legislative burden on Parliament
and provincial Legislatures. The Constitution allows the national and provincial legislatures to

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delegate legislative power to a regulator within the executive branch of government (usually the
Minister in charge of a state department) or another independent regulator (such as the Electoral
Commission). The definition of legislation includes subordinate or delegated legislation. This
forms the basis of the classification of statutes according to their democratic status. Legislation
that was passed by a democratically elected and deliberative legislature (national and provincial
Acts and municipal by-laws) is called original legislation and has a higher democratic status than
subordinate or delegated (derived) legislation, issued by a member of the executive
(proclamations and regulations) or unelected members of a Board or Commission on the
authority of a provincial or national Act.

As a result of the racial fragmentation of government during apartheid, it might be difficult to

classify some statutes as original or subordinate legislation. The classification problem arises
because old order legislation that was in force when the Constitution commenced remained in
force and is also included under the constitutional definition of legislation (see below). During
the 1980s the country was divided in to four provinces, governed by ordinances made by
provincial councils, and four so-called independent homelands or bantustans, governed by
homeland acts and, after two military coups in Ciskei and Transkei, by military decree.
Provincial councils were abolished in 1986 (when the negotiated transition to a new democratic
constitutional order started) and the four provinces were thereafter governed by proclamation.
(The voting rights of white citizens were removed, to bring white citizens on par with black
citizens, whose citizenship was restored in 1986 but without the right to vote. White and black
citizens finally gained the equal right to vote in provincial elections in 1994).

In Mdodana v Premier, Eastern Cape 2014 (5) BCLR 533 (CC) the Constitutional Court held
that the following three factors must be considered to determine the current status of these old
provincial ordinances, proclamations and military decrees: “(a) its original source ; (b) its history
from the time of enactment until the enactment of the Constitution ; and (c) the history beyond
the enactment of the Constitution”. The last-mentioned factor is the most important. The
question is whether the democratically established provincial legislature has adopted the old
statute as its own original legislation, for example, by amending the old statute by means of a
provincial act, or incorporating provisions from the old statute into a provincial act. In Khohliso
v S 2015 (2) BCLR 164 (CC) the Court held that a Presidential Decree issued by the military
government in the former Transkei (now part of the Eastern Cape) that banned the possession of
vulture feet did not have the status of a provincial act (it was enacted by a military leader in an
undemocratic manner and has never been amended or otherwise incorporated by the Eastern
Cape government. The Court concluded its judgment with the following statement (para 53):

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 “It is rather odd that – 20 years into our constitutional democracy – we are left with a
statute book cluttered by laws surviving from a bygone undemocratic era remembered for
the oppression of people; the suppression of freedom; discrimination; division; attempts to
break up our country; and military dictatorships. When these laws determine criminal
liability, the situation looks even worse. It is not clear from the facts of the matter why this
is the case. It is clear, though, that people like Ms Khohliso and the rest of us - and indeed
our much-valued vultures and other wildlife - [we] deserve to be guided and protected by
democratically elected Legislatures through clearer laws on a cleaner statute book”.

Cleaning up the apartheid statute book is an urgent and ongoing necessity given the recognition
of all old order legislation in 1994. This bring us to the last of the four classifications in the four-
S classification.

4.4 Classification according to historical sequence

The third solution to the limited legislative capacity of a newly elected legislature was to retain
all statutes that were enacted by previous legislatures and regulators. We do not start from
scratch after each election, not even if a new party or government takes over. This principle also
applied to the first post-apartheid legislature. The first democratically elected Parliament did not
have to reinvent the wheel by making every statute in operation from scratch. All the legislation
made by previous colonial and apartheid Parliaments (and even the military government of the
former Transkei) remained in force as valid statutory law. The definition of legislation includes
old order legislation. This is the basis of the classification of legislation according to historical
sequence. Different historical dates can be used to arrive at different historical classifications of
legislation. All these classifications depend on the potential perpetuity or permanence of
legislation. Once legislation has been enacted it stays in force forever or until it is repealed.
Statutes cannot be abrogated by disuse.

We saw in Lecture 1 that each act is numbered according to the sequence in which the act is
enacted. For example, the first act passed in 2019 is numbered act 1 of 2019 (The Electoral Laws
Amendment Act) and the last act passed in 2019 is numbered act 35 of 2019 (The Hydrographic
Act). All of the commercially available statute books (both in print and online versions) contain a
chronological index of all statutes in the numbered order or sequence that each was passed. The
Constitution simply divides this historical sequence into two period (before and after 27 April
1994 when the old order ended and the new order started). However, it might be useful to refine
this crude classification somewhat and to distinguish between a few more historical periods:

Historical period 1: Origins to 1652

No statute law in force. Indigenous communities governed by means of living customary law.

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Historical period 2: 1652-1806

The idea of law was not brought to South Africa in 1652, when the Dutch East India Company
(one of the first multi-national trading companies in the world) obtained permission from the
Dutch government to establish a permanent harbour and refreshment station at the Cape.
However, the settler colonists did introduce the long European tradition of written statute law to
South Africa. The Dutch settlement at the Cape was governed by statutes enacted by the
authorities in Amsterdam and colonial Batavia (Jakarta in present day Indonesia). All the statutes
issued during this period were subsequently collected in the Groot Plakaetboek (literally Great
Poster Book). This first “statute book” operative in South Africa is today regarded as a source of
the common law and no longer as binding statutes. This era is therefore irrelevant as a source of
substantive statutory law but reminds us that the Roman-Dutch approach to statutory
interpretation initially played a key role in our law (until the English approach was adopted in
1875). The implications of this change is discussed in more detail in Lectures 10 and 11 and the
second part of this module.

Historical period 2: 1806-1910

The British defeated the Dutch during the Battle of Blaauwberg in 1803 as part of the war
against Napoleon, and permanently took over the administration of the Cape in 1806. All the
statutes enacted between this date and the Unification of South Africa in 1910 (after the British
had also systematically defeated the Xhosa Kingdom in the ninth Xhosa War (1877-1879), the
Zulu kingdom in the Anglo-Zulu War (1879) and the Afrikaner republics in the South African
War (1899-1902)) were repealed by the Pre-Union Statute Laws Revision Act 24 of 1979 (with a
few exceptions listed in the Schedule to the Act). This period therefore also has very little
practical relevance as a source of statutory law.

Historical period 3: 1910 to 1994 (old order legislation)

All statutes enacted after the unification of South Africa in 1910 remain in force, unless the
statute has been repealed or declared unconstitutional by a court. Although the Constitution
distinguishes between old order legislation (apartheid legislation) and democratic legislation, this
historical classification has no effect on the force and validity of the statutes in question. Old
order legislation dating back to 1910 which remains in force (the oldest being the Rhodes’ will
(Groote Schuur devolution) Act 9 of 1910) has the same force as legislation recently passed in
2020.

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Historical period 4: 1994 to the present day

This period is marked by an extensive legislative programme mandated in part by the

Constitution itself, as a means of undoing the legacy of colonialism and apartheid. One of the
promises of the negotiated constitutional transition and transformative constitutionalism was that
democratic political power would translate into a large-scale socio-economic transformation of
South Africa into the caring and socially just society talked about in the preamble of the
Constitution. The constitutionally mandated legislative programme has largely been enacted. Yet
there is wide-spread consensus that it has not managed to bring about the promised socio-
economic transformation anticipated by the founding generation. Why not?

Perhaps the founding generation overestimated the steering power of written statutes in a
postcolonial context. The codes or statutes mandated by the Constitution confronts deep-seated
cultural practices and customs. Living customary law is even defined, as part of a post-colonial
strategy of resistance and revival, in opposition to any form of legislation. At the same time the
democratic power to enacted statutes confronts white monopoly capital dominating the
globalisation of capitalism. Think of the power of the ratings agencies which determine South
Africa’s creditworthiness on the global credit market and South Africa’s looming sovereign debt
crisis. Legislative programmes that cost too much is under severe strain. Parliament recently
appointed a High Level Panel of Experts to look into the lack of transformative impact its
legislation is having. In the Report of the High Level Panel on the Assessment of Key Legislation
and the Acceleration of Fundamental Change the panel points to serious implementation
problems and calls for a new generation of statutes and the creation of a professional and capable
developmental state. This is another reason why this module and the ability to find, read and
apply statutes is so important for the future of transformation in our society. Please take up the
challenge. See further:
https://www.parliament.gov.za/storage/app/media/Pages/2017/october/High_Level_Panel/HLP_
Report/HLP_report.pdf

Some political parties have sought to place the blame for the failures of the democratic
legislative programme on the Constitution, claiming that the Constitution prevents the effective
exercise of legislative power, especially in the case of legislation dealing with land reform,
restitution and redistribution. The Constitutional Court, who is at the coal face of the failure to
effectively implement the democratic legislative programme, recently had the following to say
about the situation in the case of legislation (“a colossal statutory promise”) securing the land
rights of labour tenants. Again the focus falls on the ability to properly apprehend the nature of
the statutory duties involved and a general failure to take statute law seriously:

Mwelase v Director-General for the Department of Rural Development and Land Reform [2019]
ZACC 30; 2019 (11) BCLR 1358 (CC); 2019 (6) SA 597 (CC) (20 August 2019)

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 [12] All this entailed a colossal statutory promise, of life-changing importance to especially vulnerable
people. In expectant response, thousands upon thousands of labour tenants timeously lodged claims with the
Department. But then . . . nothing seemed to happen. Or almost nothing: what the fifth applicant, the
Association for Rural Advancement (AFRA), called “administrative lethargy” ensued. And prevailed. The
applicants presented indisputable evidence that the majority of labour tenant applications have simply not
been processed.

[40] This is because here, over nearly two decades, and indisputably since 2006, the Department has
manifested and sustained what has seemed to be obstinate misapprehension of its statutory duties. It has
shown unresponsiveness plus a refusal to account to those dependent on its cooperation for the realisation of
their land claims and associated constitutional rights. And, despite repeated promises, plans and undertakings,
it has displayed a patent incapacity or inability to get the job done.

[41] In this, the Department has jeopardised not only the rights of land claimants, but the constitutional
security and future of all. South Africans have been waiting for more than 25 years for equitable land
reform. More accurately, they have been waiting for centuries before. The Department’s failure to practically
manage and expedite land reform measures in accordance with constitutional and statutory promises has
profoundly exacerbated the intensity and bitterness of our national debate about land reform. It is not the
Constitution, nor the courts, nor the laws of the country that are at fault in this. It is the institutional
incapacity of the Department to do what the statute and the Constitution require of it that lies at the heart of
this colossal crisis.

5 Conclusion

Relying on the constitutional classification (or typology) of legislation, you are now in a position
to classify any piece of legislation or regulatory issue. For example: the Interpretation Act 33 of
1957 could be classified as unscheduled, original, national, old order legislation. The Regulations
issued in 2012 by the MEC for Education in Gauteng (see the FEDSAS case in the Reader) could
be classified as Schedule 4A, subordinate, new order, provincial legislation.

This classification is not merely an academic exercise. It is practically useful. First, the
classification gives you a rough idea where in the legislative scheme the statutory provision in
question is located. If you know that the statute falls within class 4B and that it is old order
municipal legislation, you can reasonable expect to find more recent national and provincial
legislation on the same topic. If the topic falls within class 5A and is new order subordinate
legislation, you know for certain that there must also be original provincial legislation on the
topic (regulations must be issued in terms of an Act) and that there will not be any national
legislation on the topic (Parliament does not have legislative power over the subjects listed in
Part A of Schedule 5). Armed with this knowledge, you know exactly where to look for the law
on a topic and where not. Second, in cases of concurrent legislative competence, where more
than one statute applies to the same problem, the classification determines which of the
competing statutory provisions should be applied. We will return to this use of the classification
in Lectures 8 and 9 below.

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Test yourself

(1) Look at the Parks by-law of 1972 (included in “The incident in the park”) and answer the
following questions:

(i) How would you classify the by-law? [Schedule 5B, old order, original, municipal
legislation.]
(ii) Was the by-law issued by Parliament, a provincial legislature or a municipality? [A
municipality.]
(iii) Is the by-law still regarded as legislation even though it was made in 1972 during
apartheid? [Yes, the constitutional definition of legislation includes legislation which was in
force when the Constitution came into force in 1997.]
(iv) Identify and write down the wording of the following: Section 2(1); section 5. Does the
by-law contain any paragraphs? Does it contain any items? [Complete this question by
yourself.]
(v) Must the principles of statutory interpretation be used to interpret the by-law? [Yes, the
by-law is a piece of legislation and the Interpretation Act and all the common law canons of
interpretation thus apply to its interpretation.]
(vi) Finally, write in words what the following citation means: “Sec 2(3)” [Section 2,
subsection 3; or subsection 2(3).]

(2) Go to the UWC Library website. Open the My LexisNexis data basis. Open the chronological
index of national legislation and find five statutes from the apartheid era that are still in force in
South Africa [Find examples for yourself, the obvious one is the Criminal Procedure Act 51 of
1977.]

(3) New order democratic legislation has not had the transformative impact that was expected
and anticipated by the founding generation. What are the main reasons for the lack of
effectiveness? If the Constitutional Court is correct (see above) that the problem does not lie with
the Constitution or the law-making powers of Parliament, where does the problem lie? How can
this problem be addressed? What responsibility rests on your shoulders as a member of the born-
free generation and a student of legal interpretation in 2020 to keep the transformative
aspirations of the founding generation alive? Is the duty to use legislation as an effective tool to
bring about social justice only the duty of the state Department responsible for the
implementation and application of the legislation? Do lawyers in private practice also share the
responsibility to maximise the transformative impact of legislation when they represent their
clients, or is that not their brief? Is there enough scope for interpretation whenever legislation
must be applied that those responsible for determining the proper interpretation (courts) should
shoulder part of the responsibility? [These are questions that will generate different opinions and

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answers. There is no correct answer or viewpoint here. We are interested in what you think.
Please think about these issues for a moment and express your own view.]

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