Peremptory and directory provisions Flashcards
(28 cards)
What is meant by peremptory provisions?
These provisions require exact compliance with statutory requirements. If these requirements are not, the act will be regarded as void or null. It focuses on strict adherence.
What is meant by directory provisions?
These are the provisions that allow substantial compliance with statutory requirements. It allows flexibility, the act will not be regarded as void as long as the essential elements or the purpose of the rule is met.
What case does directory provisions apply to?
Commercial Union Assurance Co v Clarke (1972)
What happened in the case of commercial union assurance co v clarke?
In this case, a law said a car insurance claim had to be sent:
By registered post OR
Delivered by hand
But clarke sent the claim by regular mail (not registered).
No, it’s fine — because the goal of the rule was still achieved. So this was substantial compliance, not total failure.
According to Wieschers, Why is incorrect to to refer to peremptory provisions and directory provisions?
He points that all legal legal provisions are peremptory and if this was not the case, If this were not the case, they would not be binding legal rules, but merely ‘non-obligatory suggestions for desirable conduct’.
What does wischer then suggest?
The real focus should be whether the prescribed formal requirements were complied with exactly or merely substantially.
What did the court say in the case of Weenen Transitional Council v Van Dyk 2002):
the court emphasised that these
categories are merely guidelines: what is important is the purpose of the provisions in question, as well as the consequences if the statutory requirements are not strictly
adhered to.
What approach do courts use when interpreting peremptory provisions and directory provisions?
Courts use a text-in-context (purposive) approach, whereby intra-textual aids such as definitions of the law as well as extra-textual aids such as case laws are used to determine the purpose of the legislation
What can courts do to determine whether the provisions are peremptory of directory?
They use guidelines. However these guidelines are not used as overriding factors. They are just helpful suggestions.W
What is the deciding factor that the course should look at when interpreting whether the provision is peremptory or directory?
The purpose of the law
What are the guidelines that are just merely suggestion?
- Semantic guidelines
- Jurisprudential guidelines
What is the semantic guidelines about?
Courts look at the specific words used in a law. This guideline is based in grammar/word choice in the law
Which words can clearly show that the provisions is peremptory?
Words like “shall” or “must”
Which case can be used as reference for the peremptory words?
In Bezuidenhout v AA Mutual Insurance Association (1978), “shall” again was seen as a strong indicator that the rule was peremptory.
Which state that shall is not always preremptory?
Gcwabe
Which words can show that the rule is directory?
may
Which case can be used as reference for the may word?
Amalgamated Packaging Industries v Hutt. It was said that the word may shows that there is a discretion unless the purpose of the law says otherwise.
What happens in the case where the words are negative, positive, or vague?
In cases where the words are positive or vague it will be regarded as directory and in cases where the words are negative then its peremptory.
What are jurisprudential guidelines?
These are legal tests and principles developed by the courts whereby the focus is not on grammar but on real-life consequences of how the law is interpreted and what happens if the rule is not followed exactly?
Which case is an example of where the juri guidelines developed?
Pio v Franklin
What will the provision be regarded as if the wording is positive but there’s no punishment?
The provision will be suggested as directory
What does steyn says about this?
if there’s no penalty, then declaring the act invalid may be the only way to uphold the law’s intent.
What happens in cases where following the rule strictly will result in unfairness and there’s no penalty?
Suggested as directory
what was decided in the case of Standard Bank v Estate van Rhyn?
the court said even if there’s a penalty, the purpose of the law might still allow flexibility.
