20 22.2. Delegation of authorities 12. Module 12 ~ Administrative Proceedings 12.1. Legislative Administrative Proceedings 12.2. Jugiclal Administrative Proceedings 12.2.1, Recommendation on the judicial proceedings 12.2.2. Powers of the court or tribunal 12.3. Purely Administrative Proceedings Module 13 — Judicial Review 13.1. Forms of contro! 13.2, Statutory appeal 13.3. Forms of revision Mandamus 13. 13. 13.5. Declaration of a right 13.6. Court interdict Module 14 — Fundamental Rules of Interpretation 14, 14.1. Fundamental rules 14.2, Golden rule of interpretation af! 15. Module 15 — Aids in the Interpretation of Laws 26 15.1. Internal Aids of interpretation 15.2. External Aids of Interpretation Os ' 15.3. _ Provisions Regarding interpretation of laws Glossary fs fi 28 List of References 3 ‘ 30 Syed Ss 31 33 QUSTIONS—SectionA | UESTIONS Section B: Scanned with CamScannersodule 1: INTRODUCTION TO PUBLIC LAW ‘What is Law — rules that regulates human behaviour by means of force to do or Desist. -If one breaks it retribution /punishment step in. 1¢s the relationship between the state, Subject 1.1. Public Law Public Law is that part of law that de (people) and other sta 1.1.1. BRANCHES OF PUBLIC LAW organisation and establishment of state ofgans: Composition and power of legislative, executive and judicial bodies. ve ions of officé bearers, International law — “procedural law = determines procedures to be followed in/ by ie courts. *Banises the relationship between the, court and the suitot. © administrative law 4 = Controls administration ofthe state. — Controls the way in which the state exercises its powers. — Controls iow policies are carried out. © criminal law = determines which acts of people are or will be deemed as criminal offences. - determines which punishment should be conflicted on a guilty verdict. She 1.2. Private law. “Private Law is, that part of law that determine the relationship between the. jects, person verstis another person “BRANCHES OF PRIVATE LAW Personal law determines the Jegal status of a person = determines a person as.a bearer of righ Is based on gender, age, etc. got family members. © Family law parents and children. {orders the relationship amo” - orders the relationship bs: + Personality law Nocha NNLAI PL NG 1 of 36 Scanned with CamScanner~ Relationship between individual and his/ good name. ~ protects person's personality against Violation By 6 * Law of contract/ performance/ commitmenVobligation perform according to the stipulations in a signed -where one has an obligation to contract. hg © Lawof wealth *Relationship between people and their properties. ~ This includes movable and immovable properties, Scanned with CamScannerMODULE 2-HISTORICAL REVIEW OF SOUTH AFRICAN LAW 2.4. Role played by Foreign Countries 2.1.2. Role played by Roman Duteh Law Arrival of Jan Van Riebik (1652) - had a great influence in our land and justice system. } He did not come with any intentions to change our law, but his arrival influence our # { Iaws. / 4% Romans Dutch Law remains the common law in the South Africa. a4 Arrivatof English in1806 also °F Our unwritten Jaws were changed into a waitten form because of the influencé Eaysed by the arrival Of Dutch and English 2.1.2. Role Played by English law ‘Came to South Africa in 1806. Did not replace Roman Dutch Law, but changed some aspects Tt focused on the administration of justice. Se, It used the law of procedure, criminal procedure and t alg ug ter vt e. National provincial local _ wveriifienit powers are executed or applied. Italso controls how The rales by which thé-couritry is governed — 5XOPS LL ce Jt determines and nies government authorities. 2.2.2. Constitutions law orders wielding and division of government authority of the State. . © Certain indiyiduats are vested with some powers to use, and they must therefore use them,“ «This tells that the given power must be used by given bodies e.g. a person has to perform according to his tittle. :3,. SOURCES OF SOUTH SFRICAN CONSTITUTIONAL LAW 2.3.1. Legislation - “Laws aj roved in the legislature. Is called statute law. Meaning must be found to deciare its validity. 3.2. Sommpon ew ~ “Rules valid for entire society. - Rules affecting our daily lives. - originates from Roman Dutch law. Nocha NNLAI PLING £36 Scanned with CamScanner23.4. Verdict cine 7 BesrOES or judgement of the cour. Allimporiant tases aré compiled Tato & book form. ‘The verdict can cause anew legal will other the following: Interpretation and application of present laws. Declaration of a right where there are no existing rights. * Revising previous verdicts. unwritten part of the South African Ias readitioy ‘erequisites for traditions to be source are as follows: 23.4, Pi + Long established ~ must be known for a long time © Reasonable - ~ Not against the law of the public interest (there must be a‘clear.redstin for its practice) a, © Definite ¥ cet tust be clear and fixed, and must be a proof for the eisténce. ‘* —Constant observance \-—~ — observed and acknowledged by the community»... 2.3.5. Authors Modern textbooks Z ~e” They exert an influence on the interpre give a'comprehensive expositions of legal rules, 2.3. In those books the jurists 2.3.7. Foreign law, , + Relationship between siates_ Created by intérnational customs and treaties SSeS Scanned with CamScannerMODULE 3 ~VASRIOUS SUBJECTIVE LAWS ‘This module discusses law in the subjective sense (specific) and the law in an objective sense 4 (general). > Objective sense refers to all legal rules that orders society (general rules), statutorily. ~~ > Subjective sense —refers to the zelationship between individual, articles to Which sich an individual has a right. 3.1. SUBJECTIVE LAWS (rights) y * Cases — These are physical or material things. ~ They involve the subjective right regarding the matter at hati, + Personal property \-~ = Character or right to a good name. . Texmaterial property (intellectual property) = Spiritual creations of human un creativity e. etcetera. iriveritions, trademarks, copyright, Performance x human conduct. Teme me ‘Law of performance is also called the law of demand. Rights and responsibilities. = Example can be law of contr ights are not absolute fe and unlimited. - Delict comes from Violation of subjective rights. There is aconnection between right and duties. ; Scanned with CamScanner{ODULE 4— DIVISION AND CLASSIFICSTION OF LAWS AND DIFFERENT COURTS ‘NB: students must know and understand the jurisdiction and power of each court, and the personnel or officials of the courts. ‘+ Powers of cach courts + Membership/personnel © Capacity * Period of service for members. wv PROCEDURAL LAW CAN BE DIVIDED INTO: © Civil procedural law © Criminal procedural law + Lawof proof 4.1, CLASSIFICATIONS OF COURTS 4.1.1. Los Counts in South Africa L ‘These are amongst others, the magistrate’s courts and regional courts, These courts took over “ from commissioner's courts fromi985. , Magistrate’s court: Water court Divorce court Equality court Chief's court Regional court Small claims court District court Maintenance court Sexual offence court Juvenile court \ 4.1.1.1, . Magistrate’s Courts ish certain minimum legal training Magistrate are just public se Magistrates have jurisdiction over the following: - Matters regarding individuals. - Regarding original of debts. fecha NNLAI PLING Page 6 of 36 od Scanned with CamScanner“Matters outside the jurisdiction of magistrate’s courts include the following: + Wills © Status of individuals ‘+ Court order for permanent silence phf4.1.1.2, Juvenile Courts. | X« Constitutional court swe Supreme court >¥* Court of appeal <* Special high court Yasar Courts of Appeal pea ise ) © This is not a griminal court, 4.1.25 * This is not a eriminal court and cannot find a child to be guilty or gentence him, * This court eoncems itself with the care and protection of the well-being of children, + Where the child is found guilty of misdemeanour or crime, the court ean punishing him her): - Place the child under the super ~ Place the child under the care - Refer the child to a reformator ng suitable person, or oF apply | both he above; or = Land claims court ~ Income tax court - Labour court of appeal y * cases cannot start here: 4.1.2.1.1. Functions of the Court © Hear appeals © Deliver.e vendict on legal points “Legal Capacity of the Courts of Appeal ¢ Tomaintain appeal © Deliver verdict upon what should have during a court case * Issues can order which demand justice. £412. Supreme Cours ‘inal case. © Have jurisdiction to hear any « © Cases can start directly in this court. + Only magistrate's or parties appearing for themselves may appear in this court. apistie.s 2 © This court is annually chaired by one judge Nocha NNLAL PLING Page 7 of 36 Scanned with CamScannerwhen hearing appeals from magistate’s court, there are two judges. 2.3, The Supreme Court of Appet! the Free State, ‘The Supreme Cour rt of Appeal is based in Bloemfontein in Dept or the Constitutional Coury, itis the highest court in South Affica and it only deals with cases sent to it from the High Court. | [Excent for the Constitutional Court, no other court can change a decision of the Supreme Court of Appeal ‘© Only the Supreme Court of Appeal ean change one ofits own decisions. judges listen and decide on all cases of the Supreme Court of Appeal. «The final decision of the Supreme Court of Appeal isthe one supported by most of the judges listening to the ease, we x? 44.24, _ Special higher Courts + These cours are convened regarding state security or public ly and an order. «They consist of THREE judges. . + Their capacity is commensurate to that of provincial divisioils of the supreme courts. ¥ 4.1.2.5, Constitutional Court Vo Consist of 11 (eleven) judges, ~~ "a Je The president of the cour is appointed bythe state preside Ye Other judges of this court are appointed in the following way: FOUR are appointed from the rks of judges ofthe supreme courts by the sate [PesSident after consultation withthe cabinet and the chiefiudge, + \é Tile othe six are appointed from the list of names compiled by the judicial service commission and the president in consultation with the cabinet. ice Commission must keep ~ When compiling this list of names, the Judicial S in mind that: ‘© “The court is composed of independent people; 6. The court is composed of able people. © The court must be representative of race and gender. = "The list must contain 10 (ten) namesVnd a maximum of 3 (three) names more than the number of vacancies available + Tobe legible tobe included in the list a person must [re BeaSouth fice cian, and * © Be able to serve in the constitutional court, 4.1.2.4.1, Requirements to be a Judge in This Court # Tobe a supreme co « To be qualified to be tted to practice as an advocate; Page 8 of 36 ‘Nocha NNLATPLNS Scanned with CamScannerHave practised for 10 (ten) years as an advocate, or have taught law at a imum of 10 (fen) years, of constitutional law on the basis of training and university for a mini «Have applicable knowled; ‘experience. «The president and other judges of this court have only 0 years. 4.12.42. Ability of the Court Regarding Its Capacity «This is the highest authority regarding all constitutional matters.(interpretation, 7 (Seven) _ protection and enforcement) ie « Itdecides whether any lavy or bills of parliament or provincial legislaturé, ot the conduct of any executive organ is coristitutional ornot._ > This court must also solve disputes between government institutions at'aniy level, This court has an important ability in certifying whether the constitution satisfies the constitutional principle. ee EY Scanned with CamScanner(MODULE 5 ~ LEGAL FUNCTIONARIES 5.1. Bational director of public prosecution \_—" + Chief state prosecutor. T_Pecide whether the case is going tobe prosecuted ot not * May refer certain eases to various highsoose $.2. State attomey (attomey general) \—— + Handle matters for the states, <— * Represent the states in trials. + Defend the state, Does same work as attorney, but all for the state, U- Compile documents and ‘Contracts for the states, ——— 5.3. Master of the high court \=~ * * Handles deceased estates. + Ensure all documents & formalities are processed * If dispute, the duty of master to divided, e.g. hei Interest of all concerned must be protected, espe * Ifboth parents of minor dies + _Supervisis & state divided accordingly. ‘Cannot be found, ial minors and unborn children, insolvent person. \ ervise the administration of companies and corporations, 5.4, Registrar of Deeds ~~ ’ + Register immovable property in name of new owner. © Register mortgages * Cession of registered mortgages. * Register Jease-holds or long leases & cancellations. © Anti — nuptial contracts. * Deeds of lease and minerals rights awarded by Government. * | Personal or land servitudes “Sab-letting and notarial deeds, 5.5. Public Protector si © State fundiwere distributed illegally. inistrati y officials or . Aehasmonisteation by o! Ficials « Somebody was illegally & Somebody was illegally disadvantaged. ; > Inconnection with matters of the > By a government employee. > At the cost of the state. se of power. coperly, directly or indirectly enriched or Noch NNUAL PLNS Page 10 of 36 Scanned with CamScanner«If matters is reported the Public Protector must immediately start inve report it. To the leader of parliament. } Within 7 (SEVEN) more days to the speaker of parliament. f > Speaker must inform parliament with 7 (SEVEN) days after start of next session, «If Public Protector fcels a crime was committed, he can inform the NDPP to prosecute, 5.6, Magistrate wo officer at the lower courts. © Presid i « ‘Arecivil servants who started their career as a public prosecutors. * «Must have a low degree or diploma. ge | «Take an oath but they are not immune to crime and civil suits. . . 5.7. Clerk of the courts V= + Toreceive fines. To take exhibits in court as evidence. ; To display exhibits in court as evidence...” = Tocollect fines. Does not take part i ‘Who Can Lodge A Complaint To The Public Protector? Government at any level, central, provincial, and local government. , © State own enterprises. Kay person perforning public functioning and is an employee. of the state, e.g policeman, electoral officer or companies such as Eskom and Telkom. Human Science Research Council. « Statutory councils, ¢. Scanned with CamScannera MODULE 6 - DOCTRINE OF SOVEREGNTY AND THE RULE OF LAW 6.1. The Doctrine of Sovereignty. According to this doctrine, in every state there must be a body of institution with which the highest quthority Such a body is not subject to any other body or authority. ~ _ Sovereignty is an independent authority over a /er a geographical are i authority and therefore sovereign, eg, state, This body cannot delegate its powers -Sennot delegate its powers: ‘6.2. The Doctrine of Division of Powers as Applied In South Africa. ~ power to gaigy out or execute laws} | authority — power to judge if laws was broken’e. ¢” Court Individual liberty should be upheld, # Eyervone in the state is equal before the law. No person may be punished if 2 law of the state was got broken, The branch of law must be established in Nobody is above the law. 6.4. The Case of Emergency measures before the State takes action or Declare War The safety of the land is the highest right of on the land, Before emergency measures are justified, two conditions must be met: If the danger must not be averted by the application of laws, The ‘action or emergency measure must be in proportion to the emergency e.g. if ‘somiéone hits you, you can hit back, but cannot shoot. Scanned with CamScannerODULE 7 -CIVIL LIABILITY OF THE STATE, 1d the state liable for the actions of its ‘This is usually a case when an ordinary citizen can officials “This happens between the state department and an ordinary citizen. e.g. when a citizen receive organ Ul reaisiecs fons ag, pA Anistesoftaw Qs Sec heen Any lawsuit against the state official is,triable in a court of law. ‘A lawsuit on the basic of the above, must be instituted against the executive aithority /the minister of the department. —— ‘The claim must be for an amount. .2. Conditions £.2- Cox The liability of the state is limited according to the action or ‘neglect of an official. Time limit must be initiated. ns must be prescribed. © Certain condi 73. Claims Base on unlawful action by the Official . The official must have been acting as.an official of the state (e.g. master of slave capacity. The official must have committed unlawful actions within the scope of his! her official powers. Scanned with CamScannerct MODULE 8-ADMINISTRATIVE LAW & THE PRINCIPLE OF LEGALITY ‘Administrative law is the par of Public Law which organises, powers and actions of civil ‘servants when doing their administration. + Itdeals with the executive authority of government. > It focusses on the 3 (three) administrative acts/ proceedings that are discussed lengthily in module 12. These are as follows: « Legistative acts/ proceedings. + Judicial acts/ proceedings. + Pure acts ‘proceedings. Principle of legality: means that all powers of the state administrative bod! must be authorised t ~ SECTION 33 of the Constitution of the Republic of South Africa explains ‘this principle as follows ¥ Everyone has a right to administrative action which is lawful, reasonable and procedurally fair. - - ¥ Everyone whose right has been adversely affected by the administrative action has a right to be given written reasons, and National legislation must be enacted to give effect to these rights, and must: Provide for the review of administrative action by a court, or where appropriate an independent or impartial tribunal. Impose a duty on the state to give effect to the rights above, and Promote an efficient administration, Application of the Principles of Legality > Administrative action must comply with the rules f natural justice/ lawfulness. < Nemo judex in cauza svar no one should be made a judge in his own case. = Audi alteram partem ~ no one should be condemned unheard’ hear the other party. > Must pursue a lawful aim. > Must be fair. > Must be reasonable > Must comply with both. = Common law refe No body must be wronged._ Nobody musi be punished ifthe law of the state was not broken. vv ‘Nocha NNLATPLNS Page 14 of 36 Scanned with CamScannerthe same court. io discrimination against individuals. > >» Weare all equal and everybody is triable in > Authority must not cause extreme hardship. > Legislation must be in publ Scanned with CamScanner{;onULE 9 - SOURCES OF ADMINISTRATIVE LAW i / ga. Lestat ‘Ths the most important source and appears in statues, regulations and other measures where the authority and functions of government body are set out according to administrative law. ‘The principle of legality must be applied to see whether the measure has legislative status. (Van Hoeve and Van Wyk: 1996) ott. Const ‘Most important legal rules regarding the political system. Define and limits authority of government institutions and bodies. + Determines the relationship between the government and citizen. 9.1.2. parliament, Laws passed in parliament describe the’ corpo: administfative bodies. ° «Laws are promulgated for the establis tion and function of thment of organs to execute them. 9.1.3. Provinces (ordinances) _ © Authorised by parliamental le provine 9.1.4, Proclamations «Announcement by the state president. Announcement by the state presi | Also’ the premier is allowed to declare. , 9.1.5. Regulations _ Includes by-laws by municipalities. Includes rules of the city coun 29.2. Legal verdicts judteature) © Courts have ge ‘hority to review administrative actions. J The verdict on slaw can lead tothe development of legal rules with regards to administraive lew 9.3, Common law Nocha NNLALPLNG asset Scanned with CamScanner Page 16 of 36- This is the law valid to everyone Common law principles derived from Roman Dutch Law + Rules regarding the interpretation of law. 2 Rules regarding the compensation of the state + Rules regarding legal powers of legislative actions. + Rules determining the invalidity of an action which is in conflict with a stipulation of law. + Rules for procedures where administrative bodies do not have procedures. ( ~ Common law principles derived from English law. eked * This is the law valid to everyone. ‘tad / + Derived from royal prerogative, / * Itis ultra —vires doctrine. * The division of administrative action into quasi-judicial ar and pure administrative action. © Rules determining liability of the state. Administrative practices For the administrative practices to be recognised as a sources they must meet the following requirements © Long established. + Reasonable . “General used , and © Cons. quently applied. : 1 9.5. Morden textbooks and authors demics write. books and articles which become a useful source urce of law. « “Authors may critic stiticise the law, speculate on it and 0 er solutions. levelopments. © Authors explain legal position With respect to legislation, common law and case law. * Opinions of modern authors can lead fo amendments of legislation. . & x ON F2A Scanned with CamScannerQDULE 10 - ADMINISSTARTIVE RELATIONSHIPS qwo Types of Relationships that exist 1, Private relationship where two individuals are involved in a legal relationship e.g sontract. 2, “Administrative law relationship — For this kind of relationship exist, one of the subject (parties involve) must be a Bovermment hody, Must be vested with government authority and must be using it.- To know if an institution is a government body, TWO tests must be applied simultaneously: ‘Was the body instituted by the government? Was the organ slotted into hierarchy of power? 2.2.Material Test ‘What is the nature of the activities of the organ 2(what does it do) Is the organ a bearer of governmenit authority? If one an answer to any of the aboye tésts is no, then it means the institution is not a government body, and the relatiofiship that will exist can only be private. bjects in a relationship ~ parties involved in a relationship. 2 ol Sica fra relationship — issue /purpose of relationship. ‘Nocha NNLAI PLN Dage 18 of 36 Scanned with CamScannerr a F 11 - INTERNAL RE opuL! RNAL RELATIONSHIP BETWEEN GOVERNMENT BODIES s\p THE DELEGATIN OF AUTHORITIES ax? relationships > ae relationship develops when two goverment bodies within the same power ase Oppose each other. e.g, Minister & Director General. = > Independent control relationship deve Indeper nship develops when one organ h: thority to a the actions of the other organ. Corgan has ne cunen gene 11.2. DELEGATIONS OF GOVERNMENT POWERS. - Simplest of delegate, - Higher organ instructs lower organ to do something without uéing his/her description. ~ The higher orgen remains responsible for the actions, 11.2.2. De-Conentration, - Powers are transferred from the higher to the lower organs, and the lower organs can again delegate those powers .g. DG - Manager - Supervisor. — - The higher organ can at any time withdraw those delegated powers. zol the actions of the delegate i.g. by means of repo ~The higher organ must still Jisation\ 11.2.3, Decentralisation + Ye ' j - Powers are transferred to any autonomous body. = This autgnomous.body execute those actions in its name i.e. the delegate cannot interfere in the actions of the delegate after the powers have been delegated ~The delegate remains in control ic. by means of appointment of board members. Nocha NNLAI PL NS Page 19 of 36 Scanned with CamScanneronULE 12 ADMINISTRATIVE PROCEDINGS / pris means that the administration of the state is in progress / 12.1. Legislative Ad =a / « This proceeding deals with decrees — _ . ese pre only be created, altered or terminated by general relation. ae HP means relationship that involves a number of subjects (citizen). + Legisltive Administrative Relationship may only be repealed, amended ot promulgated if the correct legislative administrative prescriptions were followed Legislative powers of an administrative ot i organ are tut baa rgan are set out in the consttition and cannot ~ Schedule 5 of the Constitution lists the issues on which provinces e: Laws. (Ordinances) - — ~ Schedule 4 of the Constitution lists the issues on which municipalities can make administrative rules, proclamations, regulations & ake laws. laws. —— — Laws. (By-laws) 12.2, Judicial Administrative Proceeding _( 2 / ‘+ These are remedies where administrative powers have not been properly used or where requirements of law have not been followed. Any person whose rights have been materially or adversely affected by administeative action can request written reasons. If the administrator fails to furnish adequate reasons for en administrative action, the person may institute proceeding in court or tribunal for judicial review. 12.2. Wiechers recommends the following to determine whether a proceeding is, Judicial. > Verdict by a tribunal or court must be binding & final. > Verdict must not be subject to higher approval. > Dispute or disagreement between parties must exist between justifiable bodies > Method used by the legislative body. The nature of the final decision of ac 12.2.2. The Court or Tribunal Have the Power to Judicially Review an Administrative Action Under the following: «Ifthe administrator was 121 authorised to do so by the empowering provision. «If the administrator acted under delegated authority which was not authorised by law. Ifthe administrator was biased or reasonably suspected of biasness. ‘Nocha NNLAI PLING Page 20 of 36 Scanned with CamScannerspies re presananr is, [cece cocaine ifthe action was taken for eae Lg Sama ir ¢ Ultenor motive _ 7 Unmstorised ot wneud dices, % action in tad fath tata fide rae) Arbitranly of capriciously pursly Administrative Proceeding If pot judicial or legislative it is pure administration, me t0 indicate normal proceeding. » Itused a Proceeding _/-— | ‘Two Types of Purely Administrative Proceeding ~ This refers to the co-operation of more than one subject in on individual _relationship Exaples: - Collective labour agreements. = City and town planning schemes - Contract with officials | - Agreement for the supply of services. 12.3.2. Unilateral Administrative Proceeding ~~ ‘These administrative proceedings arc called decrees. They are prescriptive in nature and leaves nothing to someone's discretion. They are divided into the following two types: Mechanical Administrative Procesding- - These ca “legated. (with or without authorisation) Any official can be assigned to do it ‘These can be executed within limits of prescribed instructions. Limited discretion. «executed within the limits of a narrowly prescribed discretion, This proceeding is e ~ This cannot be delera This cannot, zg, only liquor licensing board can issu nated. e license. is that: Difference between the two 1 Wocha NNLAI PLING Scanned with CamScanner5- JUDICIAL CONTROL 2 f Se col bY. yptrol Gort gated by the ombudsman, gee from lower courts to higher cours . Fpreal bi from high court to the supreme court of appeal. ‘appeal bY satutory body. —— * f Revision courts by means of notice of motion. jommon Law revision of proceedings of administartive authorities. vision of proceedings of statutory bodies. |, Revision of cases from lower | Re 13.4. Mandamus what the body an order from a superi out to eny adesinisuative bod. 20 4° «This js obliged to do or not to do under law. 1 |, Administrative body is compelled to exercise its statutory authority, but fandamus cannot influence how the diseretion should be exercised. with an dispute or uncertainty ‘This occurs when there is an ob administrative organ. 7 “The court can issue adeclaration of @ right to Courts cannot declare a right fora purely academic dispute. solve a problem. rt order 136. Interdiet or “this medical remedy can be applied ifn applicant can prove thata certain action will derimental or will impinge on his right, he can apply for it «The onus to prove rests with the applicant, and she must prove that: oe No other judicial remedy was available during the time of application. He will suffer irreparable damage if the interdict is not granted. 3.6.1. Types of interdict 6.1.1, Prokibitory interdict ge 23 of 36 [Noche NNLAIPE Ne Scanned with CamScanner7, Se ge el ee compelling a it sii 3B 8 Person to either abstain from: jtting a threat 7 oe eyed ‘Wrong; or . 1 Conia a ting wrong. Mandatory interdict “61 order compelling a person to: 8 sis some positive act to rem Pp a soe 1edy a wrongful state of affairs, which that party has art a is in law obliged to do so if the other party is not Ped . Where act must be performed by a public official. (also ©! 2 anaraus)- * % 13.613: Restitutory interdict (Not for TVET Exams) 7 perf ‘povslt! 10 be Med é possession of property of nlawfally, (even before the qrder of the court compelling a person to restore whose possession of such property was disturbe the dispute are investigated by a cout). ores the status quo ante and is known as mandamenten van spolie another merits 0} ‘This order res gree een here ee Scanned with CamScanner- Vv AMENTAL RULE und! RULES OF INTERRPRETATION 3 ty 3 ie tn expression of the intention ofthe legislator Laws Pi he wll ae une rmisunderstandings..In such a case there must rent or. Therefore the rules fr the in interpretation of ba e om JO cer must interpret the law in iterlly. a yj’ pe | tne interpreter must understand an interpret using Gra" ponds must be eae CO have their usual meaning. 1 Npewords ofthe law must be first ‘and major source of the i Fatcontents ofthe Legislative will re gilator uses the word ores will oni subjects. Words are understood as they arc ‘commonly used by subjects. formation regarding the Common words be interpreted with their common usage. If the prescription of law is for isfor common: situations, the application should also be common. ach word must have meaning: ~L” The eget choose hisfher wording caret, The legislator must not include idle or senseless words. Interpreter may not seP iitside the meaning of words. ra deviation from the words inthe [ow is permitted oF allowed, = The word of the stature never should in th subtracted from, without necessity - The function of the court js to interpret and not’ interpretation be added 10 OF to legislate. 42, The Golden Rule of Interpretation -phis rule declares that the interpreter must determine ot seck to(understand the, tention of the legislator. Fhe interpreter oust implement the intention of the legislator. ‘This ru'e becomes the bases sf all other rules which coming into being gon from literal interpretation. to authorise . ' ‘ y on literal interpretation and golden ruleis as follows: 7” difference betwee cate seeks for the true meaning of the intention of the legislator: ot grammatical fas tion, follows the meé any ‘Noche NNLAIPLNS Scanned with CamScannerthere are different copi ae emations and regulations a fla, the one signed by te state presi prc oot need to be signed, but thes hav atest Reeeentt , but they have the same legal spramble. suates the reason for legislation, ‘Shows the meaning of legislator. : \ AN 4. Chapter & article headings __- They determine the These are used to gi Used by courts to determine the purpose of legis ue meaning of the law. eaning to those doubtful parts of the law. it is not clear. \ Blaborated title This is a short summary Itdetermines the purpose of the law. Js applied when the words and sentences of law are unclear. of the subject matter of the law. ‘Addendums/ annexures ‘This is usually found at the end of law. Used to shorten and simplifies the content. Forms lists of schedules at the end of lew. Lee head np legislator. rehend the meaning of the be interpreted in that light. his is used to compt Law must Any Jaw based on the Roman Dutch ipheral circumstance % his sheds light in the of stipulation ofthe law or the law itself. an the law is unclear ve refer 10 the Girgummstances to which the law refers. This must not forget the meaning and intention. Noche NNLALPLNG Scanned with CamScannereS gene Zs there is an ambiguity on the mes Pees. é meaning of law, i figs. dealing with the same me law, itis necessary to refer to the earlier, oo helps to find the intention ofthe lessatr, Jaws _ jagrained customs end interpretation i se i is unclear it helps to see how it was applied in the past | fa particular meaning was accepted in the past itis accepted as 2 correek OMS: 5. Text books May be used to explain the confusing words ofthe legislator. 2.6. Vocabulary _ tf eaning of words, «Dictionaries are used to find common meanin 1g the interpretation of laws (antetiretation Act 33 of 1987) 3, Provisions regardin Janation of the Law pretation are valid for the exe! rw of intel Act! law. after the passing of the the law are valid for any law in which they are used. tudes individual company with Tegal, personality, divisional or without legal Em councils, municipal councils and people with put excludes the state. is used as a calend: ‘The stipulation of the la which was in force at or Definitions of words in “The word ‘person’ incl 1 ‘person ‘councils, personality, ©) The word ‘month’ ted, the first day is exeluded and the | month. + If the number of days are stipula included, Sundays ‘and public holidays are not counted in. far month, from the first day to the last day of the ast day 1S ‘The end of Referral Notes Scanned with CamScanner