The Interpretative approach adopted by South African Courts
1) INTRODUCTION:
The enactment of both interim and final Constitutions ushered in a new approach to statutory interpretation. In this essay I argue that the statement made by the court in Daniels v Campbell 2003 (9) BCLR 969 ( C ) at 985 is TRUE.
2) THE INTERPRETATIVE APPROACH ADOPTED BY SOUTH AFRICAN COURTS PRE- 1994:
Before 1994 South Africa was a country based on Apartheid rules and regulations. The Parliament was the highest legislative body and it interpreted laws as it pleased, mostly in favour of ‘white Christians’. Any other race or religion was treated in an unfair and sometimes inhumane way. These laws were mainly based on Roman-Dutch law and influenced by English law.
The Parliamentary Acts did not favour anyone but themselves and overruled any court decision. Laws were interpreted and developed as the Government pleased and no court could rule against the Government.
Prior to 1994 formal ‘power maps’ provided a system where courts had no power to test the legislation and government conduct. This system was known as Parliament Sovereignty, where the Parliament has supreme power.
Mixed marriages were taboo , and Muslim marriages were contra bonos mores by South African law . A civil marriage in South Africa had to be monogamous by the context of our common law, case law et cetera which shows how clearly western Christian values excelled .
The Statutory interpretation was severely criticized. As stated by Botha “Traditionally interpretation of statuses in South Africa was saddled with unnecessary and unacceptable baggage: a confusing system of maxims and canons of interpretation, tentative principles, a golden rule, overriding principles, so-called primary, secondary and tertiary rules”.
The Republic of South Africa, a country dying for change…
3) THE INTERPRETATIVE APPROACH ADOPTED BY SOUTH AFRICAN COURTS POST 1994:
In 1992 Devenish (1992: 290-291) stressed the need for a new way of interpreting statuses in a constitutional democracy.
The enactment of both interim and final Constitutions ushered in a new approach to statutory interpretation. In this essay I argue that the statement made by the court in Daniels v Campbell 2003 (9) BCLR 969 ( C ) at 985 is TRUE.
2) THE INTERPRETATIVE APPROACH ADOPTED BY SOUTH AFRICAN COURTS PRE- 1994:
Before 1994 South Africa was a country based on Apartheid rules and regulations. The Parliament was the highest legislative body and it interpreted laws as it pleased, mostly in favour of ‘white Christians’. Any other race or religion was treated in an unfair and sometimes inhumane way. These laws were mainly based on Roman-Dutch law and influenced by English law.
The Parliamentary Acts did not favour anyone but themselves and overruled any court decision. Laws were interpreted and developed as the Government pleased and no court could rule against the Government.
Prior to 1994 formal ‘power maps’ provided a system where courts had no power to test the legislation and government conduct. This system was known as Parliament Sovereignty, where the Parliament has supreme power.
Mixed marriages were taboo , and Muslim marriages were contra bonos mores by South African law . A civil marriage in South Africa had to be monogamous by the context of our common law, case law et cetera which shows how clearly western Christian values excelled .
The Statutory interpretation was severely criticized. As stated by Botha “Traditionally interpretation of statuses in South Africa was saddled with unnecessary and unacceptable baggage: a confusing system of maxims and canons of interpretation, tentative principles, a golden rule, overriding principles, so-called primary, secondary and tertiary rules”.
The Republic of South Africa, a country dying for change…
3) THE INTERPRETATIVE APPROACH ADOPTED BY SOUTH AFRICAN COURTS POST 1994:
In 1992 Devenish (1992: 290-291) stressed the need for a new way of interpreting statuses in a constitutional democracy.