UNIVERSITY EXAMINATIONS UNIVERSITEITSEKSAMENS UNISA lesen 1082601 (472647) October/November 2016 INTERPRETATION OF STATUTES Duration 2 Hours 400 nrarks EXAMINERS FIRST ADV NC MALATSI SECOND MS CA HILLS Closed book examination. This examination question paper remains the property of the University of South Africa and may not be removed from the examination venue This paper consists of 9 (NINE) pages TURN OVER2 1082601 OctiNov 2016 QUESTION 1 2 According to the textualist viewpoint, courts will only use tho secondary and tertiary aids to interpretation ... a a) to determine the intention of the legislature (2) when the words in the legislation seem unclear and ambiguous (3) to determine the abstract purpose of the text (4) to determine the purpose of the legislation The eiusdem generis rule can be applied where a (1) the specific words have already exhausted the genus (2) there 1s a common quality or common denominator (3) the legislature's intention does not support restrictive interpretation (4) the order in which the words appear is of high importance A peremptory statutory provision requires ... O) (1) Some compliance (2) May be complied with (3) Exact compliance (4) May be deviated from TURN OVER5. 3 1082601 OctINov 2016 Please indicate which statement 1s NOT correct Followers of the contextual schoo! claim the following, a) (1) The court should interpret legislation only within the framework of the words in the legislation (2) The court has a creative law making function during statutory interpretation (3) {tis the task of the court to ensure that the legislative process has a just end (4) Only when the court applies legislation does it become a real and complete functional statute What does the term “repeal” refer to in the context of statutory interpretation? (1) (1) The process whereby legislation 1s declared unconstitutional (2) The process whereby legislation is validated (3) The process whereby legislation 1s removed from the statute book (4) The process whereby courts declare a statute legally unacceptable Botha identifies three false assumptions that textualists make about the law-making function of the courts. Which of the following is NOT one of the assumptions? (1) (1) They confuse the modification of the meaning of legislation with the literal modification of the text or language of the legislation (2) They are willing to accept a Iteral interpretation of a statute which goes beyond the purpose of the legislation (3) They rely on the doctrine of parliamentary supremacy which has been replaced by the Constitution (4) The common-law presumption that the legislature does not intend futile, meaningless and nugatory legislation TURN OVER4 tos2601 OctiNov 2016 The judicial act of cutting out the offending part of a provision in a piece of legislation in order to rescue it from the fate of unconstitutionality is known as (1) (1) severance (2) reading in (3) substitution (4) reading down The presumption that legislation applies only to the future, 1s based on... . O} (1) the prevention of fair and reasonable results (2) predictability and illegality (3) unpredictability and legality (4) the prevention of unfair and unreasonable results The following are semantic guidelines determining that a pro Identify the incorrect guideline (ty (2) (3) (4) Permissive words such as "may" indicate discretion and will be interpreted as being directory, unless the purpose of the provision indicates otherwise Posttive language suggests that the word is merely directory A.word or words with an imperative character indicate a directory provision If the provision 1s formulated in flexible and vague terms, it is an indication that it 1s directory TURN OVER10 1". 12. 5 10s2601 Oct/Nov 2016 Comparative interpretation entails. (ay (1) That the travaux preparatoires of the constitution may be consulted as an external aid, but they cannot be the deciding factor (2) | Aprocess during which the court examines international law and the constitutional decisions of foreign courts (3) An acknowledgement of the importance of the role of the language of the constitutional text (4) That the values and moral standards underpinning the Constitution must be taken into account throughout Fill in the missing words. Interpretation by implication involves .. the textual meaning on the grounds of a reasonable and . implication, which is evident from the legislation. (t) (1) limiting, unambiguous (2) extending, ambiguous (3) limiting, unimportant (4) extending, essential Grammatical iniarpretation focuses oh (4) (1) The clarification of the meaning of a particular constitutional provision in conjunction with the Constitution as whole (2) A value coherent construction with aim and purpose of the provision must be ascertained against the fundamental constitutional values (3) The refers to the process dunng which the court examines international law and the constitutional decisions of foreign courts (4) The linguistic and grammatical meaning of the words, phrases, sentences and other structural components of the text TURN OVER13, 14, 15 6 1os2601 OctNov 2016 Which ONE of the following cannot be classified as legislation? () (1) Act of Parliament (2) Common law rules (3) Subordinate legislation made in terms of a provincial act, (4) Subordinate legislation made in terms of an act of parliament Which one of the factors listed below supports judicial law-making? a) (1) penal provisions or restrictive provisions in the legislation, as well as the presumption against infringement of existing rights, (2) __ the common-law presumption that the legislature does not intend futile meaningless and nugatory legislation (3) the principle of separation of powers (4) the principle of legality Peremptory provisions are indicated ... aM (1) by a word or words with an imperative or affirmative character (2) by a word or words with a permissive character (3) ifthe wording of the provision is in positive terms, and no penal sanction 1s included for non-compliance with the requirements (4) if stot compliance with the provisions would lead to imustice and even fraud (and the legislation contams neither an express provision as to whether the action should be null and void nor a penalty) TURN OVER16 17. Adoption refers to a) (2) (3) (4) 7 1082601 OctNov 2016 a the process of putting legislation officially and legally into operation when legislation operates as of a time prior to its enactment, in other words, it operates backwards in time, and changes the law from what it was the constitutionally prescribed and other legal processes and procedures required for the draft legislation to become faw, including preparation of a draft Bill, introduction of the Bill in the legislature, and public participation (if required), as well as the committee stages, voting and assent construing enacted taw-texts with reference to and reliance on other law-exts, coneretising the text to be construed so as to cater for the exigencies of an actual or hypothesised concrete situation According to section 12(2) of the Interpretation Act 33 of 1957, where a law repeals any other law, then, unless the contrary intention appears, the repeal shall not- (1) (ay (2) (3) (4) affect the previous operation of any law so repealed or anything duly done or suffered under the law so repealed affect any right, privilege, obligation or liability acquired, accrued, or incurred under any law so repealed affect any penalty, forfeiture, or punishment incurred in respect of any sentence imposed by the law so repealed affect any investigation, legal proceeding, or remedy in respect of any such night, privilege, obligation, liability, forfeiture, or punishment TURN OVER18. 19. 8 tos2601 Oct/Nov 2016 What does the term “reading down” by the courts entail? (ty a) The courts follow a restricted interpretation of the legislation in cases when there are conflicts with the constitution, but such a restrictive interpretation will keep the legislation constitutional (2) Takes place when there is more than one possible reading of the legislative text, and a more extensive reading 1s adopted in order to keep the legislation m question constitutional (3) Amore drastic remedy used by the courts in order to change legislation to keep it unconstitutional (4) The courts follow an expansive interpretation of the legislation in cases when there are conflicts with the Constitution, but such an expansive interpretation will keep the legislation constitutional Complete the following sentence Legislation remains in force until .. or .... by relevant competent law makers. ay (1) amended, modified (2) amended, repealed (3) amended, promulgated (4) amended, disused TURN OVER9 1082601 ‘OctNov 2018 20 The Constitution... a” (1) provides that the spint and purport of the Bill of Rights must be promoted when Interpreting legislation (2) influenced the interpretation of statutes only in cases of delegated legislation (3) provides that international law may not be used to choose between different interpretations of the same legislation (4) provides that legistation must be published at least 10 days before its commencement [20] QUESTION 2 21 Compare the orthodox text-based approach to statutory interpretation to the textin- context approach to statutory interpretation You must make use of case law in your answer (20) 22 Discuss the impact of the interpretation clause of the Constitution (article 39(2)) on the approach adopted by courts when interpreting statutes Please make use of case law in your answer (20) [40] QUESTION 3 31 Bnefly discuss how dictionanes may be used as an external aid to determine the objectwe of a piece of legislation 6) 32 Distinguish between the statutory and common law methods of computation of days (10) 33 Explain the mischief rule as it was laid down in the 16" century by lord Coke in the famous Heydon's case ©) 34 List 10 guidelines for constitutional interpretation (10) 35 Brefly list and explain five (5) factors that limit judicial law-making dunng statutory interpretation (10) [40] © nies 2016,Cd ‘3SaRwa UNIVERSITEIT VAN SUID-AFRIKA UNIVERSITY OF SOUTH AFRICA UNISA EXAMINATION MARK READING SHEET EXSAMEN-ERFLEESBLAD = " Pinicauaracneeens i = ae eo = -] =- Sena eae = suena =-e : =" Meee eee ee estes a ets ctecte nde For use by examination invigilator 2 Gigias guine © Vir gebruik deur eksamenopsiener f = 2 huimas v0ue. om fl ho coarse AE tech chia e ciea Sen a Mena a a eho a cn aren areal Meters eecasens fo areas] : mn o tas 2 5 fo eas ; * 5 bh dar aseaesy ctr ers eras ho dnaianen avaaares nven ceca es a prety ease Hig cae di eh bs eo Spee a so ets eases te ety qeeaeeas es Teas ea cen Mae Gena! gst ah abe em aco csMARK READING SHEET INSTRUCTIONS Your mark reading sheet is marked by computer and should therefore be filled in thoroughly and correctly. 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