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Criminal Law

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LINTPRTN

Criminal Law

Uploaded by

luyandadlamini110
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Notes for Test: Chapter 5 & Chapter 6

Chapter 5: Theory of Interpretation: A Decolonized Perspective (Learning Unit 5)

• Core Focus: This unit delves into the philosophical approaches that underpin
legal interpretation. It specifically aims to place the preferred approach to
interpretation in South Africa within a decolonised framework.

• Key Conflict Explored: A central theme is the tension between the two primary
approaches to legal interpretation in South Africa:

o The Orthodox Text-Based Approach (Textualism):

▪ Focuses primarily on the literal meaning of the words in the


legislation.

▪ This literal meaning is often equated with the "intention of the


legislature" if it is clear.

▪ The primary rule is that if the meaning is clear, it should be


applied.

▪ Only if the plain meaning is unclear, ambiguous, vague,


amorphous, misleading, or if a strict literal interpretation leads to
absurd results, may a court deviate. This deviation is known as the
golden rule of interpretation.

▪ Secondary aids (like the long title, headings, chapters) are


consulted only when the plain meaning is unclear or leads to
absurdity.

▪ Tertiary aids (like common-law presumptions) are only used if


secondary aids are insufficient.

▪ This approach is linked to the positivist approach, parliamentary


sovereignty, and formalism.

▪ It is criticised for being narrow, ignoring crucial aids and context,


making the legislative intention dependent on language clarity,
assuming only one possible interpretation, and stifling judicial law-
making (courts seen as mechanical interpreters).

o The Text-in-Context Approach (Purposive Approach):

▪ Views the purpose or object of the legislation as the dominant


factor from the outset.
▪ Interpretation is a holistic process that considers language within
its full context, including the socio-political context.

▪ The mischief rule is considered a forerunner to this approach.

▪ Requires a purpose-oriented approach that recognises the


context from the beginning, not just when the literal meaning fails.

▪ Balances grammatical meaning with overall contextual meaning.

▪ Acknowledges that courts have an inherent law-making power


during interpretation, provided the scope and purpose of the
legislation allow it.

▪ Common law presumptions are readily used as an aid.

▪ This approach is the proper and preferred approach in South


African law, guided by constitutional interpretation. It involves
reading words "from the outset... in the context of the document
as a whole and in the light of all relevant circumstances". This is
described as "essentially one unitary exercise" that does not stop
at a perceived literal meaning.

• Decolonised Perspective: Establishing a decolonised perspective is presented


as a process, not an event. It necessitates an "unabashed resort to indigenous
law to seek guidance in interpretation" and the incorporation of "other
marginalized voices of colour".

• Ubuntu and Indigenous Law: Ubuntu is highlighted as the "inevitable starting


point" and the root of indigenous legal thought and interpretation. Indigenous
law should be incorporated to seek guidance. The relationship between
legislation and indigenous law is a learning outcome in Unit 2.

• Critical Pages: Pages 108 – 120 of the prescribed textbook are specifically
mentioned as critical for your assignment. (While stated for the assignment in
the sources, this strongly suggests their importance for testing understanding of
this unit's content).

• Reading Material: Includes Chapter 5 of the prescribed textbook, various


prescribed additional materials, including court cases like Natal Joint Municipal
Pension Fund v Endumeni Municipality (paras 17-26), Alexkor Ltd and Another v
Richtersveld Community and Others, Jaga v Dönges NO & another, and articles
discussing decolonisation and interpretation.

• Learning Outcomes for Unit 5: Define/Explain the orthodox text-based


approach and the text-in-context approach, evaluate the approach to legal
interpretation in South African law, evaluate the impact of the Constitution,
explain the significance of Ubuntu and indigenous law, and evaluate the impact
of language on the theory of interpretation (though this last one is noted to be
moved to Unit 6 in one source).

• Estimated Notional Hours: This unit is estimated to take the average student
about 25 hours to master.

Chapter 6: The Practical, Inclusive Methodology to Legal Interpretation (Learning


Unit 6)

• Core Focus: This unit presents a method or a process for performing legal
interpretation in practice.

• Relationship to Unit 5: It builds upon Unit 5 by offering a "mechanical process".


However, it stresses that this method must be underlain by a decolonised
approach and informed by legal philosophies.

• The Methodology: It is termed the ‘practical, inclusive methodology’. It seeks


to integrate various areas of law by incorporating the text-in-context approach
and constitutional interpretation as the correct approach. It acknowledges that
practitioners must "juggle all these balls in the air", including the Interpretation
Act, common-law presumptions, different approaches, and underlying
philosophies. It aims to get "into the mind of the average legal practitioner".

• The 5 Steps: For assessment purposes, the sources state that you should view
the 5 steps outlined in this unit as the essential aspects to keep in mind during
legal interpretation. The learning outcomes articulate these steps:

1. Evaluating how language impacts the interpretation of statutes.


Language requires considering grammar, syntax, context, and purpose.
Punctuation can affect meaning.

2. Explaining the contextual and structural (holistic) dimension of legal


documents.

▪ Legislation must be read within the total legal picture.

▪ Includes reading the statute as a whole, considering intra-textual


(structure, language, punctuation) and extra-textual context.

▪ Reading the text as a whole, including the Constitution and other


relevant law, is necessary from the beginning to ascertain the
purpose.

▪ Legislation has a purpose. There's a presumption that legislation


does not contain futile or nugatory provisions. Courts must
ascertain the purpose and give effect to it, provided there's more
than one possible interpretation. This also applies to subordinate
legislation.

▪ Conflicts with the Constitution or other legislation are addressed


here. Techniques like reading-down, reading-up, reading-in, and
severance may be used to resolve conflicts with the Constitution
or keep legislation constitutional.

▪ Reading-down: A restricted interpretation is preferred if it makes


the legislation constitutional.

▪ Reading-up: A more extensive reading is adopted if it keeps the


legislation constitutional.

▪ Reading-in: The court adds something to the text's meaning in


exceptional circumstances to rescue it. It should be used
cautiously as it changes legislative meaning.

▪ Severance: The court cuts out an unconstitutional part to keep the


remainder constitutional, provided the parts are separable and the
remainder still gives effect to the purpose.

▪ A presumption that government bodies are not bound by their


own legislation exists unless the legislation provides otherwise.
This depends on the specific legislation and circumstances.

3. Evaluating the teleological (value-laden) approach to interpretation


(Step 3). This step incorporates the values found in sections 1 and 39 of
the Constitution.

4. Explaining the historical dimension to legal interpretation (Step 4).

▪ Includes consulting the Preamble to the Constitution.

▪ Considering Prior legislation (even repealed provisions) as part of


the context.

▪ Using Preceding discussions like parliamentary debates and


committee reports, although jurisprudence was initially conflicting
on this.

5. Explaining the comparative dimension to legal interpretation (Step 5),


specifically the impact of foreign and international law.

• Reading Material: Includes Chapter 6 of the prescribed textbook, and


prescribed additional materials, including cases like Jaga v Dönges NO &
another, Natal Joint Municipal Pension Fund v Endumeni Municipality (paras 17-
26), and Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport
(Edms) Bpk.

• Learning Outcomes for Unit 6: Evaluate the impact of language (Step 1), explain
the contextual/structural dimension (Step 2), evaluate the teleological approach
(Step 3), explain the historical dimension (Step 4), and explain the comparative
dimension (Step 5).

• Estimated Notional Hours: This unit is estimated to take the average student
about 20 hours to master.

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