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STATUTORY REVISION: REVIEW of the INTERPRETATION ACT 33 of 1957 (Project 25)

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STATUTORY REVISION: REVIEW of the INTERPRETATION ACT 33 of 1957 (Project 25) DISCUSSION PAPER 112 STATUTORY REVISION: REVIEW OF THE INTERPRETATION ACT 33 OF 1957 (Project 25) SEPTEMBER 2006 CLOSING DATE FOR COMMENTS: 31 December 2006 ISBN: 0-621-36904-7 (ii) (iii) Introduction The South African Law Reform Commission was established by the South African Law Reform Commission Act, 1973 (Act 19 of 1973). The members of the Commission are – Madam Justice Y Mokgoro (Chairperson) Advocate JJ Gauntlett SC Mr Justice CT Howie Madam Justice L Mailula Professor IP Maithufi (Full-time member) Ms Z Seedat Mr Justice W Seriti The Acting Secretary is Mr Michael Palumbo. The Commission’s offices are on the 12th Floor, Sanlam Centre, corner of Andries and Schoeman Streets, Pretoria. Correspondence should be addressed to: The Secretary South African Law Commission Private Bag X668 PRETORIA 0001 Telephone: (012) 392-9550 Fax: 0866 863 971 or (012) 320 0936 E-mail: [email protected] Website: http://www.doj.gov.za/salrc/index.htm The researcher responsible for the investigation is Mr Pierre van Wyk. The Commission wishes to express its appreciation to the following persons and agencies for their involvement in this investigation – Professor Cora Hoexter of the School of Law of the University of the Witwatersrand who served as the project leader of this investigation until December 2004; the Deutsche Technische Zusammenarbeit (German Agency for Technical Co-operation (“GTZ”)) for its technical and financial assistance in this investigation, and particularly its representatives Claudia Lange and Dr Lothar Jahn; Mr Gerrit Grove, a legal consultant of Pretoria who was commissioned by the GTZ for the drafting of the Bill; and Prof Christo Botha, Head of the Department of Public Law at the University of Pretoria, who was commissioned by the GTZ to assist in the investigation. (iv) (v) Preface This Paper has been prepared to elicit responses and to serve as basis for the Commission’s further deliberations. It contains the Commission’s preliminary recommendations. The views, conclusions and recommendations which follow should not be regarded as the Commission’s final views. The Paper (which includes draft legislation) is published in full so as to provide persons and bodies wishing to comment with sufficient background information to enable them to place focused submissions before the Commission. A summary of preliminary recommendations and questions for comment appear on pages (vii) – (xvi). The proposed draft legislation is contained in Annexure A on pages 467 – 498 of this Paper. The Commission will assume that respondents agree to the Commission quoting from or referring to comments and attributing comments to respondents, unless representations are marked confidential. Respondents should be aware that the Commission may in any event be required to release information contained in representations under the Promotion of Access to Information Act 2 of 2000. Respondents are requested to submit written comment and representations to the Commission by 31 December 2006 at the address appearing on the previous page. Comment can be sent by post or fax, but comments sent by e-mail in electronic format are preferable. This Discussion Paper is available on the Internet at www.doj.gov.za/salrc/index.htm. Any enquires should be addressed to the Secretary of the Commission or the researcher allocated to the project, Mr Pierre van Wyk. Contact particulars appear on the previous page. (vi) (vii) PRELIMINARY RECOMMENDATIONS AND QUESTIONS FOR COMMENT 1. The Commission has been mandated with the task of revising the South African statute book for constitutionality, redundancy and obsolescence. One of the Acts to be revised is the Interpretation Act 33 of 1957. The Interpretation Act which was drafted during an era of parliamentary sovereignty, is in line neither with the current constitutional dispensation nor with the principles and practices of drafting and interpretation which the legislature and the courts have adopted since 1994 (par 1.1 and 1.2). 2. In other jurisdictions a review of the relevant interpretation statute has been combined with the drawing of a drafting manual to set down uniform standards for drafting of new legislation. The drawing of a drafting manual to set down uniform standards for drafting of new legislation is beyond the ambit of our brief and would be a very time-consuming exercise. Furthermore, there is a South African drafting manual, compiled by the office of the Chief State Law Advisor. It is considered that the problem is not so much the lack of a uniform drafting manual, but rather the availability of the manual to drafters at all levels of government (par 1. 21 and 1.28). 3. It is proposed that the new interpretation Act be named the “Interpretation of Legislation Act”. The term “legislation” is preferred over “statutes” to avoid confusion. The Act will govern principles relating to all types and categories of legislation. It is also proposed that a general long title be included in line with present drafting practice (par 2.3 and 2.4). 4. It is proposed that a preamble be included in the Bill (par 2.8). 5. Two lists of definitions are included in the Bill, namely one which defines in Chapter 1 of the Bill terms or words used in the Bill and the second in Chapter 4 of the Bill which defines words or expressions which occurs in any legislation (par 2.14). 6. Section 2 of the Interpretation Act provides that “[t]he following words and expressions shall, unless the context otherwise requires or unless in the case of any law it is otherwise provided therein, have the meanings hereby assigned to them respectively . .“. It is proposed that the introductory wording to the definition provision should be as follows, namely “in this Act, unless inconsistent with the context or clearly inappropriate . means . .” (par 2.15 and 2.17) 7. The following definitions are included in the Bill: assigned legislation, duty, extrinsic information, function, intrinsic information, legislation, national legislation, (viii) old order legislation, organ of state, original legislation, power, previous Constitution, provincial legislation, provision, subordinate legislation (par 2.17.1 – 2.17.17). 8. The purpose provision of the Bill makes it clear that its purpose is to align the interpretation of legislation with constitutional supremacy as envisioned by the Constitution, to facilitate the interpretation and understanding of legislation, and to promote uniformity in the use of language in legislation (par 2.25). 9. The proposed Interpretation of Legislation Bill should apply to the interpretation of all legislation, ie to existing legislation as well as legislation to be enacted in future. If a provision of the proposed Bill is inconsistent with any specific legislation, that provision must, to the extent of the inconsistency, be disregarded in the interpretation of that legislation. If a provision of the Bill is excluded from applying to any specific legislation, that provision must, to the extent of its exclusion, be disregarded in the interpretation of that legislation. There are also a substantial number of statutes that refer to the present Interpretation Act. Consequential amendments need to be effected to existing statutes that refer to the Interpretation Act. These amendments are reflected in the Schedule to the Bill (on page 493 in Annexure A of this paper). Existing legislation needs to be scrutinized to ensure a proper application of the proposed Interpretation of Legislation Bill. In some instances it will be obvious that the proposed provisions of the Bill need to apply to existing provisions, such as those provisions which refer to the tabling, approval and the effect of disapproval of regulations as provided for by the present Interpretation Act. The corresponding new provisions of the Interpretation of Legislation Bill on the transfer of legislation, powers and functions by the President to other Cabinet members clearly also need to apply to existing legislation and consequential amendments need to be effected to those statutes. In other instances the question will arise whether the new provisions should apply with qualifications since there is existing legislation which provides that person has the meaning assigned to it by the Interpretation Act (par 2.34 – 2.35 and also 3.262 – 3.263). 10. How does the Bill deal with the supremacy of the Constitution? When interpreting legislation the supremacy of the Constitution is paramount, the spirit, purport and objects of the Bill of Rights in Chapter 2 of the Constitution must be promoted, and any reasonable interpretation that is consistent with the Constitution must be preferred over any alternative interpretation that is inconsistent with the Constitution (par 2.49). 11. When interpreting legislation the meaning of a provision in that legislation (ix) must be determined by its language and its context in the legislation read as a whole. Any reasonable interpretation of a provision that is consistent with the purpose and scope of that legislation must be preferred over any alternative interpretation of that provision that is inconsistent with the purpose and scope of that legislation. The constituent parts of a provision to be taken into account in determining the meaning of legislation are – the short or long title of the legislation, the enacting statement, the preamble, the table of contents, any of the segments into which the text of the legislation is divided, a segment heading, a schedule or annexure to the legislation, or any distinct part of or phrase contained in any of the constituent parts, but not any marginal note, foot note, end note, information statement, memorandum or any explanatory or other information published in or together with the text of legislation. A provision in assigned or subordinate legislation must be interpreted also in the context of its enabling legislation (par 2.69). 12. How should legislation be interpreted in the light of changing circumstances? The Bill provides that enactments apply to circumstances as they arise in accordance with the contemporary meaning of its language as this will enable the courts to take account of changing circumstances in interpreting the law.
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