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The Process of Interpretation: Three Steps for Legislative Analysis

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This document outlines a methodical approach to the interpretation of legislation in three phases: Initial, Research, and Concretisation. It emphasizes the importance of understanding the purpose of legislation in light of constitutional provisions and common-law principles. The case of Mr. Wang, who faced discrimination at a hostel under the Constitution and the Promotion of Equality Act, illustrates the practical application of these phases. By examining text, context, and purpose, one can achieve a just and equitable interpretation of the law, promoting the spirit of the Constitution.

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The Process of Interpretation: Three Steps for Legislative Analysis

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  1. ULL 214 25 January 2012

  2. THE PROCESS OF INTERPRETATION IN THREE STEPS

  3. INITIAL PHASE • Constitution and Bill of rights = cornerstone Ascertain purpose of legislation and apply in in light of the Bill of Rights • Common-law presumption – Presumption that legislation only applies to the future. • Balance between text and context.

  4. RESEARCH PHASE • Purpose of legislation determined (HOW?) Studying all the factors having bearing on legislation. For example: Text of legislation, Interpretation Act (back of book) Common law presumptions Other contextual factors

  5. CONCRETISATION PHASE • Legislative text • Purpose of legislation (as determined during research phase) • Facts of case Harmonized to bring to just, purposive and meaningful end within the framework of the purpose of the legislation. Spirit of Constitution must be promoted.

  6. University of Free State • Male hostel (X) refusing to allow Chinese students in the hostel. (Freedom of culture– section 31) Mr Wang wishes to be part of X but cannot due to Hostel X’s rules. He approaches equality court and states that the hostel discriminated against him in terms of section 9 of the Constitution and the Promotion of Equality Act): You are the judge! (Use the three phases)

  7. INITIAL PHASE • Constitution and Bill of rights = cornerstone Ascertain purpose of legislation and apply in in light of the Bill of Rights • Common-law presumption – Presumption that legislation only applies to the future. • Balance between text and context.

  8. Section 31 • - Cultural, religious and linguistic communities • 31. (1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community - • (a) to enjoy their culture, practise their religion and use their language; and • (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society. • (2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.

  9. Section 9 Equality • 9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. • (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. • (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. • (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. • (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

  10. Promotion of equality and prevention of unfair discrimination act – section4 of the schedule to the act

  11. BALANCING ACT

  12. RESEARCH PHASE • Purpose of legislation determined (HOW?) Studying all the factors having bearing on legislation. For example: Text of legislation, Interpretation Act (back of book) Common law presumptions Other contextual factors

  13. CONCRETISATION PHASE • Legislative text • Purpose of legislation (as determined during research phase) • Facts of case Harmonized o bring to just, purposive and meaningful end within the framework of the purpose of the legislation. Spirit of Constitution must be promoted.

  14. For 1 February • Explain how these three phases have been used in the S v Makwanyanecase

  15. Definitions

  16. ACT • CONDUCT OR • PARLIAMENTARY STATUTE OR LAW OF PROVINCIAL LEGISLATURE National legislature Provincial Legislature Local municipality

  17. CONCRETISATION PHASE • Legislative text • Purpose of legislation (as determined during research phase) • Facts of case Harmonized o bring to just, purposive and meaningful end within the framework of the purpose of the legislation. Spirit of Constitution must be promoted.

  18. Constitutionalism • Authorities bound by rule of law • What is that? • Law is supreme = Constituttion • Government derives its powers from Constitution and is bound by it.

  19. Constitutional State Two parts Material Formal

  20. Contextualisation • Text read within total context to obtain purpose • Promotion of Equality and Prevention of unfair discrimination Act. What is the total context? Purpose? Eradicate injustices of the past

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