Judicial law-making during concretisation

Question 1

What is concretization?

Answer 1

Concrescence is the final step in which the interpreter applies their entire abstract understanding of the law to the facts of a specific practical case.

Question 2

What is concetization according to du plessis?

Answer 2

It is the final stage of interpretation in which the legislation becomes reality.

Question 3

What happens during the process of concretization?

Answer 3

the legislative text and purpose, as well as the facts of a particular situation are brought together to reach a
conclusion.

Question 4

What are the synonyms of concretization?

Answer 4

correlation, harmonisation, and actualisation.

Question 5

What does the interpreter do in the process of concretization?

Answer 5

moves from the abstract to the practical reality to apply the particular legislation.

Question 6

When does concretization take place?

Answer 6

It always takes place as the final step, irrespective of the approach used.

Question 7

What do people who support the in-text approach say?

Answer 7

argue that contextualization provides more data to the interpreter, which will help them make better choices and apply the law more accurately to the situation.

Question 8

What does Du Toit say about concretization?

Answer 8

The real meaning of the law is shown when it’s applied to a specific, real-life situation.

Question 9

What does Lategan say about concretization?

Answer 9

That concretization is not just applying the law, but moving from interpretation to practical application, by connecting the abstract law and its purpose with the actual facts of the case, all within the constitutional framework.

Question 10

What is the text-based approach?

Answer 10

The approach focuses on the literal words written.

Question 11

What is the text-in-context approach?

Answer 11

The approach focuses on what the interpreter meant instead of just what’s written.

Question 12

What is the text-based approach’s viewpoint on the law-making function of the court?

Answer 12

Only if the words are unclear or contradictory can courts use extra tools (like context or background) to help interpret. But even then, courts must stay within the boundaries of the words used by the legislature.

Courts must not change or add to the law — that job belongs to Parliament.

Question 13

Which principle confirms that the courts should not change or add to the law?

Answer 13

udicis est ius dicere, sed non dare

Question 14

What does the “udicis est ius dicere, sed non dare” principle entail?

Answer 14

It is the judge’s job to declare the law, not to make it.”

Question 15

What was said in the Engels case (1993), Hannah J ?

Answer 15

If the court fixes a problem that Parliament could’ve fixed, the court is stealing the legislature’s job and making law, which it shouldn’t do.

Question 16

What is the text-in-context approach’s viewpoint on the law-making function of the court?

Answer 16

This view says that courts do play a small, creative law-making role when interpreting laws, especially when applying them to real-life cases.

But this doesn’t mean courts are replacing Parliament or taking over its power

Question 17

What does Du Plessis say about the text-in-context approach to interpretation?

Answer 17

He said that interpretation is not only about repeating the plain meaning of words. Instead, it’s about reconstructing the law’s general wording so that it can actually work in a specific, real-world situation. Even though interpretation is a creative process, the courts should respect the lawmakers’ authority and don’t go as far as rewriting or making new laws.

Question 18

How does Labuschagne explain why the courts end up shaping the law?

Question 19

What questions are being asked when it is said that the courts help make law through interpretation?

Answer 19

1. Where do we draw the line?
2. Who is drawing these lines?

Question 20

Which fundamental principles restrict the law-making discretion of the courts?

Answer 20

1. The principle of democracy (The preamble and S1 of the constitution)
2. The principle of separation of powers.
3. Common-law presumption
4. The rule of law and principle of legality
5. Judicial officers are accountable
6. Extra limits.

Question 21

What was said in the case of Du Plessis v De Klerk about the courts when it comes to fundamental principles?

Answer 21

Courts must:
Ensure laws don’t violate rights
Interpret laws to support constitutional values
Develop the common law to align with the Constitution

Question 22

2. What is the separation of powers principle about?

Answer 22

This principle ensures that state power is shared between the three branches of government.

Question 23

What is it made to ensure that no one branch becomes more powerful?

Answer 23

Checks and balances are made.

Question 24

Which section can be used as reference for separation of powers?

Answer 24

Section 43 of the CC

Question 25

3. What is the common law presumption?

Answer 25

It holds that the legislature does not intend to change the existing law more than is necessary.

Question 26

What is the rule of law and the principle of legality about?

Answer 26

They must be applied throughout, meaning: 1. Everything courts do must be based on law, not personal opinion. 2.Courts must follow rules and legal principles and stay within their limits

Question 27

4. According to Froneman, what are the judges responsible for in three levels?

Answer 27

1. personal responsibility, because they have to take personal moral responsibility for their decisions. 2. Formal responsibility, they are controlled by the Constitution and laws 3. substantive accountability, in that judicial decisions are open to public debate and academic criticism (with reference to the constitutional values of accountability, responsiveness, and openness expressed in s 1(d) of the Constitution

Question 28

5. What are the extra limits to judicial law-making?

Answer 28

Penal provisions or restrictive provisions in the legislation, as well as the presumption against infringement of existing rights, are also factors that limit the discretion of the courts to modify the initial meaning of the text.

Question 29

Which are the factors that support judicial law making during interpretation?

Answer 29

1. The reading down principle 2. Section 39(2) of the constitution. 3. The Bill of Rights is the cornerstone of SA 4. The Constitution is the supreme law 5. The common law presumption 6. The independence of the judiciary

Question 30

Where can the reading down principle be found?

Answer 30

ss 35(3) and 232(3) of the interim Constitution of 1994

Question 31

1. What do these reading down principles mean?

Answer 31

If a law seems unconstitutional — like it goes against fundamental rights or the Constitution — BUT there’s a way to interpret it in a more limited or narrowed way that would make it constitutional, then the court should choose that interpretation.

Question 32

Are these reading down principles repeated in the 1996 constitution?

Answer 32

No, however, the principle that courts should as as possible try to keep the law constitutional is a well-known principle of constitutional interpretation.

Question 33

2. What does section 39(2) of the constitution say?

Answer 33

states that during interpretation the courts must try to reconcile the aim and purpose of the legislation with the spirit and purport of the Bill of Rights in particular

Question 34

3. What it meant by the Bill of Rights being the cornerstone of SA?

Answer 34

The state must respect, protect, promote and fulfil the rights in the Bill of Rights (s 7 of the Constitution), and it applies to all law and binds the judiciary as well (s 8(1) of the Constitution)

Question 35

4. What do they mean by saying that the constitution is the supreme law of the country?

Answer 35

This is the end of the sovereignty of the parliament. The constitution binds everyone, including the parliament. (S2 of the CC)

Question 36

5. What is the common law presumption that supports the judicial law making?

Answer 36

There’s a common-law principle that Parliament doesn’t make useless laws. So, if a law seems pointless, judges can interpret it in a way that gives it real effect, supporting the idea that courts sometimes need to “shape” laws.

Question 37

What is the independence of the judiciary about?

Answer 37

The independence of the judiciary (s 165(2) of the Constitution) also strengthens the argument in favour of judicial law-making during interpretation.