The historical dimension Flashcards
Lest we forget (28 cards)
What historical examples can be used when interpreting the law?
- The preamble
- Prior legislation
- Preceding discussions
- Mischief rule
- Contemporanea expositio
- Subsecuta observatio
What is the Preamble to the South African Constitution?
It is the introduction that explains the purpose and values behind the Constitution.
How did the court in S v Mhlungu view the Preamble?
As meaningful and important, it connects and supports the rest of the Constitution, not just symbolically.
What does the Preamble acknowledge about the past?
It recognises past injustices and honours those who suffered for justice and freedom.
How can the Preamble help with legal interpretation?
It acts as a guide to understanding laws through the lens of constitutional values like dignity and justice.
What did the court say in S v Mhlungu about the preamble?
That the preamble is actually super important! It connects to everything in the Constitution and helps us understand its deeper meaning.
What di the court say in the case of Mkontwana v Nelson Mandela Metropolitan Municipality?
The Constitution is not just a bunch of rules—it’s a tool for transforming South Africa and fixing the unfairness of the past.
What happens about prior legislation?
In Morake V Dubedube, the court decided that repealed parts of a law can help us understand what the rest of the law means, even though they can’t be applied directly anymore.
What are Preceding discussions?
These talks and documents that happen before the law is passed are called preceding discussions.
What counts as “preceding discussions”?
- Debates in parliament.
- Reports from committees.
- Commissions of enquiry.
Can courts use these discussions to interpret a law?
It’s debated how much they should rely on them and which ones are more useful. They should look at debates and commission of enquiry.
Does the court use the debates in parliament when interpreting the law?
In the past, the debates were not used. (Bok v Allen
Currently, the debates are used to figure out the purpose of the law. (The constitution used the debates in The Western Cape case)
Does the court use commission reports to interpret the law?
In the Hopkinson case, the commission inquiry was rejected.
In the Rand Bank v De Jager case, it was accepted.
What is the mischief rule?
This rule is about looking at the past to understand why a new law was made. Judges use it to figure out why a law was made and what problem it was trying to solve.
Who make up with the mischief rule?
Lord Coke in the Heydon’s case.
Which questions does the mischief rule ask?
- What was the law before this new law came along?
- What was the “mischief” or problem with that old law?
- What solution (remedy) did the new law bring in?
- Why did they choose that specific solution?
Why is the Mischief Rule important?
Because not all law are perfectly written, some laws are confusing and vague. So using this rule might give us an idea of what the law was trying to achieve.
Which case can be used as reference for the mischief rule?
Santam Insurance Ltd v Taylor
What is it meant by Contemporanea Expositio?
How people explained or applied a new law when it first came out.
How does it help the court?
It helps the court find out what the law was trying to do when it was first made.
What is a example of a contemporanea expositio?
Explanatory memoranda.
What is the explanatory memoranda?
A Bill that often comes with a purport, a memo that serves as a “cheat sheet” explaining why the law was made and what it’s intended to do.
Which case law can be used an example to reference the contemporanea expositio?
Shoprite Checkers (Pty) Ltd v Ramdaw (2001)
What is meant by Subsecuta Observatio ?
How a law has been used or applied over time by government departments and agencies.
