Constitutional Interpretation

Question 1

How can the principles be concretized, made practical in real life situations?

Answer 1

These are complementary techniques that may be applied to constitutional interpretation

Question 2

What are the 5 techniques?

Answer 2

1. Grammatical interpretation.
2. Systematic Interpretation.
3. Teleological (value based) interpretation
4. Historical interpretation
5. Comparative interpretation.

Question 3

What is the grammatical interpretation about?

Answer 3

This aspect acknowledges the importance of the role of the language of the constitutional text. It focuses on the
linguistic and grammatical meaning of the words, phrases, sentences and other structural components of the text. It includes the rules of syntax. However this does not mean that we are going back to the orthodox approach.

Question 4

What is the systematic technique about?

Answer 4

This method focuses on understanding a specific part of the Constitution in relation to the entire Constitution. It recognizes that each section doesn’t exist in isolation—so the meaning of one provision must be interpreted within the broader framework of the Constitution.

Question 5

Which case can be used as reference for the systematic technique?

Answer 5

In Ferreira v Levin. In this case the Constitutional Court used the structure of the interim Constitution, as well as the
formulation of other fundamental rights, to interpret the right to freedom of the person

Question 6

What is the Teleological (value-based) interpretation about?

Answer 6

This method of interpretation focuses on the purpose and values behind a constitutional provision. It looks at the core values of the Constitution—like freedom, equality, and democracy—and ensures that laws and actions are measured against these values.

Question 7

Which case can be used as reference to the value based approach?

Answer 7

Matiso v commandig officer. In this case the judge said said these values (like openness and fairness) aren’t just fancy words—they must guide how judges think and make decisions.

Question 8

What is the historical technique about?

Answer 8

It looks at the background and original intentions of the interpreters when they were drafting the provisions. Things like the travaux préparatoires is considered, however they just serve as a guide not a deciding factor as we are growing and should focus on the future.

Question 9

What case can be used as reference for the historical interpretation technique?

Answer 9

S v Makhwanyane. Focus is on the future

Question 10

What is the comparative interpretation about?

Answer 10

Comparative interpretation is when a court looks at international law and foreign court decisions to help understand the Constitution, especially when interpreting the Bill of Rights, as required by section 39(1) of the Constitution.

Question 11

What case can be used as reference to to these technique?

Answer 11

S v Makhwanyane. We are interpreting the SA constitution and everything must be understood in light of South Africa’s own legal system, history, values, and the language of the Constitution.

Question 12

4. Avoiding the constitution?

Answer 12

When a court finds that a law goes against the constitution, It will declare it unconstitutional meaning that it will no longer take effect. However this can create a vacuum/gap in the law.

Question 13

How can the gap be closed, or how can the vacuum be avoided?

Answer 13

Competent courts will review the law and try to fix or adjust it so that it becomes relevant rather than completely throwing it out

Question 14

What techniques can be used to adjust the law?

Answer 14

Reading-down
Reading-up
Reading-in
Severance

Question 15

3. Which case laid down a number of principles to be considered before reading in is applies and can also apply to severance?

Answer 15

National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000

Question 16

What principles were laid down?

Answer 16

1. The results of reading in/reading up/severance must be consistent with the constitution and it’s values.
2. The result achieved should interfere with the existing law as little as possible
3. The court must be able to clearly explain how the law is being changed. Vague or confusing changes should be avoided.
4. The court should try to stick to the law’s original purpose or goal, as long as it doesn’t go against the Constitution.
5. The remedy of reading in should not be used if it would create excessive financial burdens on the government.

Question 17

What is it meant by reading down?

Answer 17

Narrowing the meaning of the law to make it constitutional.

Question 17

What does S25 and 232 of the interim constitution say about reading down?

Answer 17

sections 35(2) and 232(2) said that if a law appears to be unconstitutional, but can be interpreted in a narrower, more limited way that would make it constitutional, then the court should choose that constitutional interpretation. These were not included in the 1996 Constitution, the idea behind them is still very important. Today, it remains a general rule in constitutional interpretation that courts must try to interpret laws in a way that makes them valid and in line with the Constitution, if that’s reasonably possible.

Question 18

What does reading up mean?

Answer 18

The court chooses a broader or more inclusive interpretation so that the law stays in line with the Constitution.

Question 19

Which case been used as reference for reading up?

Answer 19

Daniels v Campbell

Question 20

What was held in the case of Daniel v Campbell?

Answer 20

In this case, the court looked at the Intestate Succession Act and the Maintenance of Surviving Spouses Act. These laws used the words “spouse” and “spouses”, but they didn’t include people married under Muslim law. This is unfair and unconstitutional, because it would discriminate against people in Muslim marriages.
So, to avoid declaring the law unconstitutional, the court read the word “spouse” in a wider way—to also include people married according to Muslim rites

Question 21

What is meant by reading in?

Answer 21

Reading-in is when the court adds words to a law that are not actually written there, in order to save the law from being unconstitutional. So, the court only uses this remedy in exceptional cases, and with great caution.

Question 22

Which case can be used as reference for reading in?

Answer 22

Gory v Kolver

Question 23

What was said in the case of Gory v Kolver?

Answer 23

the court dealt with the Intestate Succession Act. The law only mentioned “spouses”, but it didn’t include same-sex life partners, even if they were in a committed relationship and supported each other. The words “or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support” was include to make the Act constitutional

Question 24

What is meant by severance?

Answer 24

Severance is when a court removes (or cuts out) the unconstitutional part of a law, but keeps the rest of the law valid and in force. However, this can happen only in two instances.

Question 25

Which 2 instances can severance be made?

Answer 25

1. First, it must be possible to separate (sever or cut out) the unconstitutional (bad) part of the provision from the rest (the good) 2. , what remains of the provision must still be able to give effect to the purpose of the legislation (Coetzee v Republic of South Africa)