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13 Cards in this Set
- Front
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Describe: Presumptions.
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- Presumptions in interpretation are guidelines used by courts in the process of interpretation - Presumptions are more like conclusions - Some say that presumptions are only used if there are any ambiguities in language - But Cross says even if there are no ambiguities, presumptions can be used by judges - However if the statute clearly states the opposite to the presumption, it is void. - Presumptions are made by certain assumptions made by the Courts. They are used only as a starting point. If they are disparoved then it is said the presumption is rebutted |
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What are the two types of Presumptions? |
1) Presumptions of General Application 2) Specific Presumptions |
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Presumption of General Application means? |
Presumptions that applies to all legislation across the board. As a result law makers need not list each such proceeding in all bills |
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Presumption of General Application |
1) Criminal statutes with crimes & punishments are generally interpreted in a restrict way 2) Even if the meaning is "plain", you try to obtain punishment that parliament intended to give 3) There may be harsh or lesser punishments 4) This is the purpose of the law 5) What kind of significance parliament attached to the crime, what kind of punishment attached to the crime 6) This presumption ensures that there are no unjust or harsh punishments 7) The range of punishment depends on discretion of judges 8) If the objective is unclear, presumptions of interpretation can be used to establish intention 9) Language is not the only factor - Objective - Scope - Political factors - Socioeconomic factors 10) Courts will also be influenced by severity of penalty, how hard the offence is to detect, whether the objective of statute would be defeated if strict liability were to be required |
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What are the 4 most important Presumptions?
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- A presumption against the change in the common law.
- A presumption that mens rea is required in criminal cases. - A presumption that the crown is not bound by any statute, unless specifically stated so. - A presumption that legislation does not apply retrospectively. |
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A presumption against the change in the common law.
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- It can be assumed that the common law will apply, unless Parliament has made it plain in the Act that the common law has been altered. * Leach V R - Question whether a wife could be made to give evidence against her husband, under CJA (1898). - Since the Act did not specifically say that this should happen, it was held that the common law rule that a wife couldn't be compelled to give evidence should stand. - if there were specific words stating the wife is compelled, the old law would have been void. |
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A presumption that mens rea is required in criminal cases. |
The basic common law rule is that no one can be convicted of a crime unless it is shown that they had the required intention to commit it. *Sweet V Parsley - Defendant was charged with being concerned with the management of premises, used for the purpose of smoking cannabis. - Defendant was the owner of premises which she leased out to tenants who smoked cannabis without her knowledge, (therefore no mens rea.) - The issue was whether mens rea was required, the act didn't say there was need for the knowledge. - She was found not guilty as the House of Lords deemed the presumption that mens rea was required. |
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A presumption that the crown is not bound by any statute, unless specifically stated so. |
- A presumption that the Crown is not bound by any statute unless expressly says so.
- If such a legislative intent appears when the relevant legislative provision is construed in a context which includes the presumption against the Crown and its instrumentalities or agents being so bound, that legislative intent must, as a matter of principle, prevail.
* Moore v. Smith "... a sacred maxim that the Crown is not bound by an act of Parliament, unless it is quite clear, from the language employed, that the Legislature contemplated including the Crown, and her Majesty, in giving her royal assent, assented that the Crown should be bound, and was fully aware that she was giving her assent to be subject to the provisions of the statute." |
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Legislation does not oust or restrict the jurisdiction of the courts |
- Steyn suggested that this presumption is an extension of the presumption that statutes do not bind the state
- The premise for his argument flows from the fact that whilst the presumption that the “state is not bound by its own legislation” pertains mainly to the executive, the presumption that “an enactment is not aimed at interfering with or ousting the jurisdiction of the courts”, applies to the judiciary (The doctrine of separation of powers requires that the legislature,the executive and the judiciary operate to a greater or lesser extent separately from each other ) - In accordance with the principle underlying this presumption, the legislature has to respect the “desired state of affairs” and not interfere with or oust the jurisdiction of the judiciary (that is, the courts). By the same token, the executive is also expected to maintain a similar attitude to the courts. - As the individual’s right to access justice in a court of law can be regarded as “one of the cornerstones of institutional justice”, political powers byway of the legislature and the executive are not expected to infringe or violate this right in any way. - It is therefore provided, that unless expressly stated or implied in legislation, it is presumed that the legislature does not wish to exclude or restrict the courts’jurisdiction (What this in effect means, is that if it is the intention of the legislature to restrict or oust the jurisdiction of the courts, this must be clearly indicated in the language of the statute that is being considered) * DeWet v Deetleefs where Solomon CJ maintained that “in order to oust the jurisdiction of a court of law, it must be clear that such was the intention of the legislature”. - Generally Parliament had the power to oust the jurisdiction of the courts where it was deemed to be in the public interest. * R v Padsha Innes CJ explained that “[i]t is competent for Parliament to oust the jurisdiction of courts of law if it considers such a course advisable in the public interest”. |
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The legislature does not intend that which is harsh, unjust or unreasonable |
In terms of the operation of the presumption in statutory interpretation, the approach of the courts have therefore been that where a statute has been capable of more than one interpretation or where the slightest degree of doubt arises when construing a provision of a statute, one has to give expression to the presumption that the legislature must have intended that which was against injustice, inequality or unreasonableness
* Principal Immigration Officer v Bhula the court in applying the presumption stated that “[w]here . . . two meanings may be given to a section, and the one meaning leads to harshness and injustice, whilst the other does not, the court will hold that the legislature rather intended the milder than the harsher meaning”
- Steyn submits that the interpretation of such (onerous) provisions ought to be interpreted strictly so as to ensure that the outcome is least unreasonable or inequitable
^This submission was met with approval in Transvaal Investments Co v Springs Municipality - where Solomon JA held:“It is a well-established rule in the construction of statutes that where an Act is capable of two interpretations, that one should be preferred which does not takeaway existing rights, unless it is plain that such was the intention of the Legislature.” |
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Legislation does not oust or restrict the jurisdiction of the courts |
- Instances where this presumption is exclude: 1) Parliament is trying to take away the powers of courts 2) Parliament trying to create an executive organ that cannot be questioned by courts - In accordance with the principle underlying this presumption, the legislature has to respect the “desired state of affairs” and not interfere with or oust the jurisdiction of the judiciary (that is, the courts). By the same token, the executive is also expected to maintain a similar attitude to the courts. - As the individual’s right to access justice in a court of law can be regarded as “one of the cornerstones of institutional justice”, political powers byway of the legislature and the executive are not expected to infringe or violate this right in any way. - It is therefore provided, that unless expressly stated or implied in legislation, it is presumed that the legislature does not wish to exclude or restrict the courts’jurisdiction (What this in effect means, is that if it is the intention of the legislature to restrict or oust the jurisdiction of the courts, this must be clearly indicated in the language of the statute that is being considered) * DeWet v Deetleefs where Solomon CJ maintained that “in order to oust the jurisdiction of a court of law, it must be clear that such was the intention of the legislature”. - Generally Parliament had the power to oust the jurisdiction of the courts where it was deemed to be in the public interest. * R v Padsha Innes CJ explained that “[i]t is competent for Parliament to oust the jurisdiction of courts of law if it considers such a course advisable in the public interest”. |
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The presumption that legislation does not intend to change the existing law more than is necessary |
* This presumption means that legislation should be interpreted in such a way that it is in accordance with: - existing law; - legislation; - common law; - customary law; and - public international law or changes it as little as possible.
Common law * Seluka v Suskin and Sulkow The court pointed out that although it is presumed that legislation does not alter the common law, this presumption is rebutted if the legislation in question clearly provides that the common law is being altered.
* Gordon v Standard Merchant Bank If the legislator expressly alters the common law, the presumption does not arise and the changes must be implemented. This principle was reaffirmed in this Gordon case
Legislation With regard to legislation, the presumption means that in interpreting a subsequent (following) Act it is assumed that the legislator did not intend to repeal or modify the earlier Act. - Any repeal or amendment must be effected expressly or by necessary implication - These principles also apply to individual provisions of the legislation
* Wendywood Development (Pty) v Rieger An attempt should be made to read the earlier and the subsequent legislation together and to reconcile them |
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Statutes do not contain invalid or purposeless provisions |
- the variety of terms that are used to describe this particular presumption include “futile”, “nugatory”, “unnecessary”, “meaningless”,“invalid” and “purposeless”
- it ensures that when interpreting statutes, they must be construed to render them effective, intelligible and valid, rather than in a manner that would render them inoperative and purposeless.
- if there are two or more interpretations of a provision, the one that renders the provision valid and meaningful should be given effect to, rather than one that would result in invalidity or confusion
* South African Transport Services v Olgar if a provision is capable of two meanings, it is necessary to give effect to the meaning which is more consistent with the purpose of the legislation in question
- It is therefore provided that where uncertainty, confusion and conflict are likely to arise, the operation of the presumption ought to favour a construction eliminating these. |
