CHAPTER 7

RESEARCH : ASCERTAINING THE LEGISLATIVE

SCHEME (THE PURPOSE OF LEGISLATION)

7.1 Genaral introduction

* Fundamental principle: purpose of legislation must be

determined in the light of the spirit, purpose and objects of
the Bill of Rights in the Constitution.

* Interpreter may use wide range of aids; he will have to

research these factors.

* Du Plessis refers to this research process as

contextualisation. The aids fall into two categories:

 Internal aids (the legislation and all its parts);

and
 External aids (aids outside the text eg other
legislation, dictionaries, commission reports etc.

* Difference between textualists and proponents of the

purposive (text-in-context) approach as to when some of
these aids must be used:
- Textualists: only when the relevant words are
ambiguous and
unclear.
- Purposive supporters: all the external and internal aids
must be
taken into account right from the outset.

* Another difference of opinion between the two

approaches will be highlighted: that is, whichof these aids
to interpretation may be used, and to what extentmay the
interpreter use them to ascertain the purpose of the
legislation.

* When interpreting any legislation, the interpreter must

take into account the spirit, purport and objects of the B/R
(S 39(2) of the CON).
- The CON thus supports a purposive approach to the
interpretation of statutes.
- Courts must be able to use all the available data
(internal and external aids) at their disposal to ascertain
the aim and purpose of the legislation.
- In principle, the range of various aids should be
restricted as little as possible.
- The courts should have the discretion to decide on the
importance and relevance of a particular aid to
interpretation.

* Must be emphasised that the interpreter must study the

legislation as a consistent whole.
- Matiso v Commanding Officer, P E Prison: this is
known as interpretation ex visceribus actus, “all the
parts of the particular legislation have to be studied”.

7.2 Internal aids

7.2.1 The legislative text in another official language

* Prior to the commencement of the i/C, legislation in SA

was drafted in two official languages, and the text in the
other language was used to clarify obscurities.
- Devenish refers to this as ‘statutory bilingualism’.
- 1993 Constitution extended official languages to 11;
may have influence on statutory interpretation in future.

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(i) Original legislation

* During passing of original legislation draft must be

signed, alternatively in Afr. and Eng. Signed text was
enrolled for record in the Appellate Division. In case of
irreconcilable conflict the signed text prevailed.
- This principle was expressly included in the 1961 and
1983 Constitutions, as well as in the i/C.

* With regard to the 1996 CON, S 240 provides that the

English text will prevail in the event of any inconsistency
between the different texts.
- Ito the CON, the texts of all new national and provincial
legislation which have been signed by the president or
a provincial premier, must be entrusted to the CC for
safekeeping.
- The signed text will be conclusive eveidence of the
provisions of that legislation.

* The CON does not refer to irreconcilable conflicts

between texts of other legislation. In Du Plessis v De Klerk
the CC referred to the existing legal position regarding
conflicting versions of the same legislative text.
- Ito Item 27 of Schedule 6, these provisions do not
affect the safekeeping of legislation passed before the 1996
CON came into operation.

* The signed version of the legislative text does not carry

more weight simply because it is signed:

(i) Handel v R: Signed version is conclusive only when:

- Conflict arises between versions; and
- irreconcilable discrepancy between them.
- Signed version only used as a last resort to avoid
stalemate.

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(ii) Jaffer v Parow Village Management Board:

- May happen that meaning of one version of the text

is wider than the other (e.g. penalty of imprisonment
and a fine, and the other only a fine).
- Then common denominator rule is followed:
only fine will be imposed.

(iii) Janse van Rensburg v Minister of Defence (2000):

- Supreme Court of Appeal ruled that the common
denominator rule is not a rule of general application.
- One would rather give preference to the rule that an
individual has to be given the most preferential
treatment.

(iv) Zulu v Van Rensburg (1996):

- If there is a conflict, the versions compliment one
another and must be read together. An attempt
must be made to reconcile the texts with reference
to the context and purpose of the legislation.

(iv) Commissioner of Inland Revenue v Witwatersrand

Association og Racing Clubs (1960):
- Even an unsigned version of the text may be
referred to in order to determine the intention of
the legislator.

(v) Since acts are signed alternately in different

languages, amendment Acts create a problem if
those Amendment Acts are then also amended.
Suppose the amendment Acts of a particular Act
are signed alternately in Eng. and Afr. Which one
will prevail in case of an irreconcilable conflict?

- Conflicting answers to this question:

- The most acceptable solution was put forward in
R v Silinga: The court suggested that the
amendment Act be regarded as part of the original
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 statute. The version of the originally signed statute
will prevail in the case of irreconcilable conflicts
between the texts of the Amendment Acts.

(ii) Subordinate legislation

* Past:
No constitutional guidelines will regard to conflicting texts of
subordinate legislation.
- In practice all subordinate legislation are signed.
- If texts do differ, they are read together to find the true
meaning.

* Irreconcilable conflict between the various texts:

Court will give preference to the one that benefits the
person concerned.
- This approach is based on the presumption that the
legislator does no intend legislation to be futile.
- If the irreconcilable conflict results in delegated
legislation that is vague and unclear, the court may
declare it invalid.

(iii) Criticism

* All legislative texts should be read together right from the

outset; they are all part of the structural wholeness of the
same ‘enacted law-text’. Legislators in SA have the
benefitof two versions of the same legislative text available
for comparison.
- Nevertheless the fact that the signed version
automatically prevails is merely a statutory
confirmation of the textual approach, because
the purpose of the legislation is ignored if there is
a irreconcilable conflict between the two
versions.

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 - It could well be that the unsigned version reflects
the true purpose of the provision, and that the
signed text is the incorrect one.
- In following the signed version blindly, the
purpose of the legislation could be defeated by
the court.

* In the light of
- the interpretation clauses in the CON (SS 39 and
233),
- as well as the principle that legislation should be as
far as possible be interpreted to render it
constitutional, the following solution is suggested:
> in the case of an irreconcilable conflict
between versions of the same legislative
text, the text which best reflects the spirit
and purport of the B/R must prevail.

7.2.2 The preamble

* Statutes beginning with a preamble are rare nowadays.

The Constitution has a preamble. It usually contains:
- A programme of action; or
- a declaration of intent with regard to the broad
principles contained in the particular statute.
- Preambles may be used during interpretation of
legislation, since the text as a whole should be
read in context.
- Although a preamble on its own cannot provide
the final meaning of the legislative text, post-
1994 preambles should provide the interpreter
with a starting point.

* Please read the preamble to the CON on p.78.

* Study the following cases:

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 (i) Green v Minister of Interior:
If provisions are clear and unambiguous, court may not
resort to the preamble. Such an approach is narrow and
textually orientated.
- The purpoae of the legislation should be should
be determined without any limitations.

(ii) Jaga v Dönges:

Court considered the preamble to be part of the context of
the statute.

(iii) S v Davidson:
The Zimbabwean court followed the orthodox textual
approach in deciding that the preamble may be referred to
only if the provisions of the Act are ambiguois and vague.

* However, in a number of recent cases the courts

acknowledged the unqualified application of the CON’s
preamble:
- Qozeleni v Minister of Law and Order and
- Khala v The Minister of Safety and Security.

(i) National Director of Public Prosecution v Seevnarayan:

The court rejected the arguement that a preamble may be
considered only if the text of the legislation is not clear and
ambiguous as an outdated approach to interpretation.

7.2.3 The long title

* It provides a short description of the subject matter of the

legislation.
- It forms part of the statute considered by the legislature
during the legislative process.
- The role played by long title in helping to ascertain the
purpose of the legislation will depend on the
information in it.
- Bhyat v Commissioner for Immigration:
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 Courts may refer to the long title to establish the
purpose of the legislation.

7.2.4 Express legislative purpose and interpretation

guidelines

* While the purpose clause and the interpretation

guidelines provide a more detailed description of the
legislative scheme than the long title, this can neverbe
decisive.
- To take such a view would merely be to create a new
and sophisticated version of legal interpretation.
- The interpreter must analyse the legislative text (as a
whole) with external aids.
- Examples of a purpose clause and an interpretation
clause are SS 1 and 3 of the Labour Relations Act.
Read carefully through these clauses on p.80 of your
textbook.

7.2.5 The definition clause

* Most statutes contain a definition clause, in which certain

words and phrases used in the legislation are defined.

* A definition in the definition section is conclusive, unless

the context in which the word appears in the legislation
indicates another meaning.
- In that case the court will follow the ordinary meaning
of the word.
- Brown v Cape Divisional Council

- Canca v Mount Frere Municipality:

Court will always examine the meaning given to a word
in a definition clause, to see whether it is in
accordance with the purpose of the legislation.

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 - Kanhym Bpk v Oudtshoorn Municipality:
The court held that a deviation from the meaning in
the definition clause will only be justified if the defined
meaning is not the correct interpretation within the
context of the particular provision.

7.2.6 Headings to chapters

* Headings to chapters or sections may be regarded as

preambles to those chapters or sections.
- Within the framework of text-in-context headings
should be used to determine the purpose of the
legislation.

- Chotabhai v Union Government:

Within the framework of the contextual approach all
factors, including headings, should be considered to
determine the purpose of the legislation.

- Turffontein Estates v Mining Commissioner

Johannesburg:
Value attached to headings will depend on the
circumstances of each case.

7.2.7 Paragraphing and punctuation

* Customarily punctuation was not considered to be part

of legislation. Division into paragraphs also was not part of
legislation.
- However, it is a grammatical fact that punctuation can
affect the the meaning of the text.
- Steyn: Correctly criticizes this approach. It is a
grammatical fact that punctuation can affect the
meaning of the text. (See tomb-stone example).
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- R v Njiwa:
Court gave preference to Steyn’s view and held that
punctuation must be taken into consideration during
interpretation.

- S v Yolelo:
Appellate Division left this question open but held that
an interpretation based on the purpose of the legislation
should take precedence over an interpretation based
solely on the division into paragraphs.

- Skipper International v SA Textile and Allied Workers’

Union:
Court must take punctuation into account during
the interpretation process since the punctuation was
considered during the passing of the legslation.

7.2.8 Sshedules

* They serve to shorten and simplify the content-matter of

sections in legislation. Their value in interpreting provisions
will depend on:
- the nature of the schedule;
- its relation to the rest of the legislation; and
- the language in which it is referred to in the
legislation itself.

* General rule: Schedules which expound sections of an

Act should have the same force of law as a section in the
main Act.

* Example of a schedule: schedule 1 of the CON (which

contains the description of the National flag).

* In the case of a conflict between schedule and section of

legislation, the section prevails.

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 - 1993 Constitution schedules were deemed to form part
of the Constitution.
- In certain cases the schedule will state that it is not
part of the Act and that it does not have the force of law, in
which case it may be considered as part of the context.
- Example: Schedule 4 of the Labour Relations Act,
which consists of flow diagrams explaining the procedures
for dispute resolution set out in the Act.

7.2 External aids

7.3.1 The Constitution

* The CON, being the supreme law, is the most important

aid to interpretation. No arguement about plain meanings
and clear texts could prevent the CON from being used or
referred to during interpretation.
- It describes how other legislation must be interpreted ,
contains the B/R, and is the repository of fundamental
values.

7.3.2 Preceding discussions

* It entails:
- Discussions about a specific Bill before Parliament.
- Debates and reports of various committees (part of
legislative process).
- Reports of commissions of inquiry.

* Whether courts may use such preceding discussions

(and to what extent) has been the subject of lively debates!
- One should distinguish between debates during the
legislative process, and the reports of commissions of
inquiry which precede the passing of legislation.

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(i) Debates during the legislative process

* Common law writer Eckhard: he believed that the

debates preceding the acceptnce of a Bill are important in
establishing the intention of the legislature, especially when
this is not evident from the wording of the legislation.

* The use of debates has not been accepted by the

courts:

i) Bok v Allen and Mathiba v Moschke: preceding

discussions were rejected outright, although the court a quo
in the Moschke case had in fact taken preceding debates
into account.

ii) Ngobo v Van Rensburg: Dodson J made the following

remarks with regard to the use of explanatory memoranda
during the interpretation of statutes:

The weight of authority is very much against allowing such

documents to be used as an aid in the interpretation of a statute.
This authority has received considerable academic criticism.

However, the antagonism against the inclusion of debates

may be disappearing:

(i) De Reuck v Director of Public Prosecutions,

Witwatersrand Local Division:The court referred to
parliamentary debates, reports of task teams and the
views of academics in interpreting the Films and
Publications Act.

ii) Western Cape Provincial Government: In re DBV

Behuising (Pty) Ltd: The CC used parliamentary
debates during interpretation.

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iii) Case v Minister of Safety and Security; and
iv) Curtis v Minister of Safety and Security:
the CC referred to the speech by the then Minister of
Justice during the second reading of a Bill.

v-vii) S v Dzukuda, S v Tilly; and S v Tshilo:

the court referred to a report of the SA Law
Commission and a ministerial speach in parliament
during the interpretation of a statute.

(ii) Commission reports:

* Hopkinson v Bloemfontein District Creamery: Court held

that the prevailing law prevented the use of a commission
report about the Companies Act.

* Rand Bank Ltd v De Jager:

The court decided that the report of the commissioner of
enquiry, which was largely responsible for the Prescription
Act of 1969,was an admissible aid in construing the Act.

* Westinghouse Brake and Equipment (Pty) Ltd v Bilger

Engineering (Pty) Ltd:
The AD held that the report of a commission of enquiry
which preceded the passing of an Act may be used to
establish the purpose of the Act, if a clear link exists
between the recommendations of the report and the
provisions of the particular legislation.

* Steyn: the reasons given by the courts for not admitting

such material are not convincing. The speech given by the
minister at the second reading of a Bill and the explanatory
memoranda provided for members of parliament are
especially useful in understanding and explaining
legislation.

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* The deliberations and reports of the large number of
standing, ad hoc, joint and portfolio committees of
parliament (which play an important role during the
legislative process), may be used to help to ascertain the
purpose of the legislation.

* The arguement that not all debates in parliament apply

to the purpose of the legislation is not relevant.
- The courts are expected to use their discretion in
imposing punishment and in reaching decisions
amidst conflicting evidence.
- The judiciary in SA ought therefore to be able to
ascertain the relevant debates in parliament for
the purpose of statutory interpretation.

7.3.3 SURROUNDING CIRCUMSTANCES

* Surrounding circumstances are those conditions

prevailing before and during the adoption of the legislation;
- it refers to the context of the legislation which
encompasses a wide spectrum.

(i) The mischief rule entail?

* The historical context of the particular legislation is used

to place the provision in question in its proper perspective.
The use of these surrounding circumstances is also known
as the ‘mischief rule’.

* This rule was laid down:

- in the 16th century
- by Lord Coke
- in the famous Heydon’s case and
- forms the cornerstone of the contextual approach to
interpretation.

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* It poses 4 questions to establish the meaning of
legislation. What was:

- the legal position before legislation was adopted?

- the mischief or defect not provided for

by existing legislation or common law?

- what remedy was provided by the legislature to

solve this problem;

- what was the true reason for the remedy?

* the object of the rule is to examine the circumstances

leading to the measure in question. This rule has been
applied on numerous occasions by the courts.

* This rule was explained in the following cases:

(i) Santam Insurance Ltd v Taylor: on account of

incomprehensible language used in the
compulsory Motor Vehicle Insurance act court
was obliged to examine the historical background
in order to ascertain the purpose.

(ii) Qozeleni v Minister of Law and Order:

Froneman J observed that the suggested
approach to interpret the Constitution is not
foreign to the mischief rule.

(ii) Travaux préparatoires

* It refers to the discussions during the drafting of an

international treaty, but is increasingly used by drafters of a
supreme Constitution.

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* Since S 39(2) of the CON has the practical effect that
every court will have to indulge in some cinstitutional
interpretation, this aspect will be discussed briefly.

* The contextual approach favours the use of all relevant

factors and circumstances during the interpretation
process.

* A supreme Constitution which includes a bill of

fundamental rights can be described as a ‘living tree’.
- It is a dynamic document
> which must be interpreted in the light of ever-
changing circumstances, values; and
perceptions.

* Constitutional drafters must leave room for development

and adaptability.
- In other words the travaux préparatoires of a
Constitution may be consulted as a ‘secondary
source’, but cannot be the deciding factor.

(iii) Contemporanea expositio

* It is an exposition of the legislation which is given

- at the time of its adoption or
- shortly afterwards.

* The following may all serve as contemporanea expositio:

- marginal notes;
- punctuation;
- division into paragraphs; and
- first application of the legislation.

* The implication is that the exposition was probably given

by persons who were involved in the adoption of the
legislation, or shortly afterwards during its first application.
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(iv) Subsecuta observatio

* Concerned with established use or custom which may

originate at any time after the adoption of the legislation
- which may be in conflict with the contemporanea
expositio.

* Rex v Lloyd:
The use of a measure by the courts over a long period of
time was a good indication of its meaning.

* Custom cannot dictate a particular interpretation but

- when two interpretations are possible the long term
use of a measure may be the deciding factor.

(v) ‘Ubuntu’

* The postamble of 1993 Constitution referred expressly to

ubuntu.

There is a need for understanding but not for vengeance, a need for
reparation but not for retaliation, a need fot ubuntu but not for
victimisation ...

* It is an indigenous African concept and refers to

- a practical humanist disposition towards the world,
- and to compassion, tolerance and fairness.

* The concept ubuntu was applied and explained by the

Constitutional Court in S v Makwanyane.
- P 85: know the quotation verbatim.

* It was not expressly mentioned in the 1996 Constitution;

will however not disappear from the legal scene:
- because it was used in the Makwanyane case it forms
part of the new SA Constitutional jurisprudence;
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- ubuntu lives on in numerous references to human
dignity in the Constitution; and
- ubuntu forms an important bridge between the
communal African traditions and Western traditions.

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 QUESTION 2

Discuss dictionaries and linguistic evidence as an

external aid when dealing with statutory
interpretation. Make use of relevant case law
throughout your answer. [5]

* As legislation is becoming ever more technical and highly

specialised, dictionaries are used more and more frequently by the
courts to define the meaning of words.

* Transvaal consolidated Land and exploration Co Ltd v

Johannesburg city council:

- Court used dictionaries in a contextual framework.

- Dictionary definitions can be used but the task remains of
ascertaining the particular meaning of the language intended
in the context of the relevant statute.

* De Beers Industrial Diamond Division (Pty) Ltd v Ishizuka:

- Court stated that the interpretation of a word could not finally
be determined by its meaning in a dictionary
> can only be a guideline.
- The context in which a word was used should be a decisive
factor.

S v Makhubela:

 The accused was charged with being behind the wheel of a

vehicle that was being pushed by a group of people on a public
road, without a driver’s licence.

 He was found guilty of driving a vehicle on a public road witout

a valid driver’s licence.

 On review, the court decided that the definition of the word

‘drive’, as found in the Road Traffic Act of 1973, was
inadequate.

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 The court held that the word ‘ drive’ should not be construed
only according to its dictionary meaning, but should be
understood within the context of the Act as a whole.

 The legislature had meant that a person driving a vehicle

propelled by its own mechanical power should be in
possession of a driver’s license.
 The conviction and sentence were set aside.

* Association of Amusement and Novelty Machine Operators v

Minister of Justice:
- Meaning of the word ‘pin tables’ was in dispute.
A.D. held that the testimony of language experts was not
admissible as an aid in construing legislation.

* Metro Transport (Pty) Ltd v National Transport Commission:

- Court decided that supplementary linguistic evidence was not
admissible.
- (On the other hand, are dictionaries not the written evidence
of linguistic experts?)

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7.3.5 The source of a provision

* Courts sometimes must interpret a section of an English statute

that has been incorporated verbatim into SA legislation. Should SA
courts follow the interpretation given to original English legislation
by the English courts?

* SA courts will use the interpretation by the English courts as a

guideline, but will always construe legislation in the light of
the SA common law.
- The drafters who incorporated English legislation word-
for-word into SA legislation, did so for reasons of
effectiveness, and not in order to compel the SA courts to
follow the English interpretation.

* If the SA legislation is identical to the the language of the

English legislation and the interpretation of the English
courts is not in conflict with SA common law principles, the
SA courts may take cognisance of the English cases.
- Mjuqu v Johannesburg City Council

* This is now further qualified by the Constitution.

- S.39(2): when our common law is developed by any
court, tribunal or forum, the spirit, purport and
objectives of the B/R must be promoted.
- It is not only the rules of common law that determine
whether our courts refer to foreign law, but the supreme
Constitution as well.

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7.4 The Interpretation Act

7.4.1 General

* The act consists of six parts.

- We will deal with only three aspects of part one, which
contains general provisions regarding the interpretations
of statutes that apply in the RSA or any part thereof.
- Parts II to V contain particular provisions applying in the
different provinces, and
- part VI expressly provides that the Act binds the state.

7.4.2 The time factor

7.4.2 The meaning of ‘month’

* According to S 2 ‘month’ means a calendar month and

not a lunar month of 28 days.
- Application of this definition is ambiguous, as the term
calander month may be construed in two ways:
> a month as it appears on the calendar, e.g. 1 to 31
January
(as in service contracts); and
> a month as it is measured in e.g. prison terms from a
certain day of a month to the corresponding day of
the next month, e.g. 9 June to 9 July.
- It would be more appropriate to use calendar
month for 1 to 31 January and month for
19 June – 19 July.

(ii) Computation of time

* This matter is very important, because large numbers of

statutory and contractual provisions
- prescribe a time or period in which or after which
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 certain actions are to begin, or to be executed,
abandoned or completed.

* Although S 4 of the Interpretation Act deals with

computation of time, it should be read with the common
law methods of computation of time.

 The statutory method (S 4 of the Interpretation Act)

4 Reckoning of number of days

When any particular number of days is prescribed for the
doing of any act, or for any other purpose , the period shall
be reckoned exclusively of the first and inclusively of the
last day, unless the last day happens to fall on a Sunday or
any public holiday, in which case the time shall be
reckoned exclusively of the first day and exclusively also of
every such Sunday or public holiday.

* “Number of days shall be reckoned exclusively of the

first and inclusively of the last day unless the last day
happens to fall on a Sunday or any public holiday
exclusively of the first day and exclusively also of every
such Sunday or public holiday.

* S4 refers to days only – not to periods of months or

years.
- It will be applied only when the legislature has made
no other arrangements in the legislation concerned.

* In cases where S 4 is not applicable, our ordinary civil

method applies, as it corresponds to common law.

* Another method will be used only if a contrary intention

is apparent in the legislation concerned.
- (Kleynhans v Horkshire Insurance Co Ltd.)

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* In Brown v Regional Director, Dept of Manpower it was
held
- that if it is clear that S 4 has to be used, it must be
interpreted as follows:
> The purpose of the calculation is to determine the
end and not the beginning of the particular
period.
> The beginning of the period is when the
particular right in question arises.

 Common law methods

* There are three common law methods of computation of

time. They do not form part of the Intrpretation Act.

 Computatio civilis

* This method is directly opposed to the statutory method

of S 4 of the Interpretation Act.
- The time is computed de die in diem.
- The first day of the prescribed period is included and
the last day is excluded.

Minister van Polisie v De Beer:

 The cause of action in this case was a motor car collision
involving a police vehicle.
 Ito S 32 of the Police Act, a civil suit brought against the
police as a result of an action executed ito the Police Act
must be instituted within six months.
 The collision took place on 5 August 1967.
 The summons was served on 5 February 1968.
 On appeal the Supreme Court found that the ordinary
civil method should be used to calculate the time.
 The last day was therefore excluded and the serving of
the summons was therefore one day too late.

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 The action was refused.

 Computatio naturalis (natural method)

* The prescribed period is calculated from the hour (or

even minute) of an occurence to the corresponding hour (or
minute) on the last day of the period in question (de
momento in momentum).

 Computatio extraordinaria (extraordinary civil

method)

* Both the first and the last day of the period concerned
are included according to this method.
- With regard to both the statutory and the common law
methods of computing time, the purpose of the legislation
will remain a decisive factor.

7.5 Other common law presumptions

7.5.1 Government bodies are not bound by their own

legislation

* As a general rule the State is not bound by its own

legislation, unless the legislation provides otherwise
expressly or by necessary implication.

* In Union Government v Tonkin the court confirmed that

the intention that the state should indeed be bound can be
inferred
 not only from the wording of the law,
 but also from the surrounding circumstances and
 other indications.

* Hahlo & Kahn define this presumption as follows:

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An enactment does not apply to the state or its executive arm or to
a provincial council, local authority or public body from which it
emanates.

* It seems that this presumption sanctions unbridled

lawlessness by government agencies, similar to the
principle ”The king can do no wrong” in old English law.
However it does not create a carte blanche (unfettered
power) but rather a principle of effectiveness to ensure that
the state is not hampered in its government functions.

* Du Plessis: Proper care should therefore also be

exercised in order to ensure that the presumption is
invoked in such a way that it serves the purpose of
maintaining a public order of law.

* Wiechers holds the view that the state should always be

bound by its own legislation except in those instances,
where it would be hindered in the performance of its
government functions. In S v De Bruin, however, the court
rejected this viewpoint in the light of previous precedents.

* The application of this presumption was later again

confirmed by the AD in Administrator, Cape v Raats
Röntgen & Vermeulen (Pty) Ltd. (1992).

* In Evans v Schoeman the court held that the

presumption against the state being bound is not limited to
instances where the state’s prerogatives are involved. The
following are also indications that the state is not bound:
 If the state would be rendered subject to the authority
of or interference by its own officials.
 If the state would be affected by penal provisions (as
in S v Huyser) (see below).

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 Whether the state is bound depends upon the
particular legislation and specific circumstances.
Each case has to be judged on its own merits.

 The following are examples of the practical

application of the presumption:

(i) Government bodies and state

controlled agencies are bound by
town planning schemes.
(Drakensberg Administration Board v
Town Planning Appeals Board).

(ii) A security official who contravenes a

statutory provision when acting
outside the scope of his duties (?)
cannot rely on the presumption
against the state being bound (S v
Reed).

(iii) The driver of a fire engine may

disregard a red traffic light while fire-
fighting (S v Labuschagne).

(iv) An agricultural official who combats

stock diseases and at times has to
cull stock is not bound by statutory
requirements regarding hunting
permits (S v Huyser).

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 QUESTION 3

‘The question whether the state is bound depends on

the particular legislation and specific circumstances.
Each case has to be judged on its own merits’. In this
regard discuss the case of S v DeBruin 1975 (3) SA 57
(T). [6]

 The accused was caught exceeding the speed limit.

 He was charged with contravening the fuel saving regulations

and convicted in the magistrates’ court.

 On appeal De Bruin claimed that he was a public servant who,

on the day in question, had been running late for an on-site
inspection on the state’s behalf.

 If he had arrived late, this could have been to the state’s

detriment.

 The court found that being bound by the provisions in question

could have obstructed essential state services and jeopardized
state security.

 In addition the court found that De Bruin’s decision to exceed the

speed limit was reasonable, and set aside the conviction.

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* Steyn correctly points out that this presumption applies to both
original and subordinate legislation.

* As Labuschagne indicates with reference to R v Thomas, that

strictly speaking, this presumption deals with the state being bound
by particular provisions.
- He argues that the state might be bound by one
provision of the legislation, but not by another.

 Since S 39(2) of the Constitution clearly stipulates that rules of

common law have to be developed in the light of the
fundamental rights in the Constitution, it is submitted that this
particular presumption should no longer be applied under the
new constitutional order.

 S 8(1) of the Constitution expressly provides that government

at all levels are bound by the Bill of Rights. The Constitution is
the supreme law of the Republic, and all law and government
conduct must be tested against the spirit, purport and
objects of the fundamental rights entrenched in the Bill of
Rights.

 After all it would be illogical and absurd if government organs

were bound by the CON (as the supreme law), but if it were at
the same time presumed that those organs are not bound by
their own legislation, which is subordinate to the supreme CON.

 The Constitution abounds with references to principles such as

- accountability and openness;
- supremacy of the Constitution;
- the values underlying an open and democratic
society based on freedom, equality and human
dignity;
- the state is bound by the Contitution, as well as

29
 - respecting, protecting, promoting and fulfilling the
Constitution and the Bill of Rights and
- the official oath of judicial officers.
All of these merely strengthen the argument that this
presumption can no longer be invoked.

* As Du Plessis points out, Wiechers’ viewpoint that this

presumption should be applied the other way round, has
been proved correct after all these years.

Study the quotation on p. 92 of your textbook.

* Fedsure Life Assurance Ltd v Greater Johannesburg

Transitional Metropolitan Council:
The CC explained the principle of legality in the new
constitutional order as follows:

It seems central to the conception of our constitutional order

that the Legislative and Executive in every sphere are constrained
by the principle that they may exercise no power and perform no
function beyond that conferred on them by law. At least in this
sense, then, the principle of legality is implied within the terms of
the i/C . Whether the principle of the rule of law has greater content
than the principle of legality is not necessary for us to decide here.
We need merely hold that fundamental to the i/C is a principle of
legality.

* State organs should always be bound by their own

legislation, unless a particular government organ can prove
that it would be hampered in the execution of its duties and
functions if it were bound by its own legislation.

7.5.2 Legislation does not oust or restrict the

jurisdiction of the courts

* Tefu v Minister of Justice:

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Unless expressly stated or necessarily implied in the
legislation, it is presumed that the legislature does not wish
to exclude or restrict the courts’ jurisdiction.

* In De Wet v Deetlefs it was held that the intention of

the legislator clearly indicate that a court’s jurisdiction is to
be excluded.

* Sometimes legislation confers the power to make

decisions
- on certain persons (eg immigration officers) or
- bodies (eg licensing boards).
- Whether the courts were competent to review such
decisions depended on the particular enabling Act.

* The High Court’s jurisdiction to review administrative

decisions
- (eg those of police officers)
was often ousted by security legislation during the various
states of emergency of the late 1980s, but under a
supreme justiciable Constitution this will not be possible
any more.

* Even if such legislation expressly excluded the court’s

jurisdiction, their power to review such a decision was not
totally excluded.
- The High Court always have had an inherent common-
law jurisdiction to review such decisions
* eg on the ground of mala fides (bad faith).

Mathope v Soweto Council:

 This presumption was applied in the Mathope case.

 The court found that S 12 of the Community Councils Act
of 1977 does not exclude the jurisdiction of the
Magistrate’s courts or the Supreme Court.

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 S 12 provides that a civil action between a black person
and a community council shall be heard by the erstwhile
commissioner’s court.
 The court referred to an individual’s fundamental right to
approach the ordinary courts, and found that the
provision concerned contains nothing that rebuts this
presumption.

* Du Toit v Ackermann:
A statutory provision which denies or restricts the right of
an individual to appeal to a court was also interpreted
strictly.

* The principle underlying the common law presumption

that the jurisdiction of the courts is not ousted by legislation,
is now also entrenched as a fundamental right in the
Constitution.

* Section 34 provides:
Everyone has the right to any dispute that can be resolved
by the application of law decided in a fair public hearing
before a court, or where appropriate, another independent
and impartial tribunal or forum.

* Read with S 33 (the right to just administrative action)

and S 35(3) (every accused person has the right to a fair
trial), means that the legislature can no longer (as in the
past) oust or limit the jurisdiction of the courts at will with
ouster clauses.

32