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The most comprehensive coverage on the construction of Statutes. It includes parts of statutes,Extrinsic-Aids,Intrinsic aids, Reading down, Amendments,Repeals,codifications,Quasi-Judicial agencies,Non-obstante clause,Mandatory/Declatory provisions,Tax ,Beneficial, Criminal,Fiscal Statute's Interpretation and sub-ordinate legislations.Besides it contains the Rules of Interpretation and the Role of Judiciary.Citations are in abundance.

Thursday, June 3, 2010

Legality..Rule of Law..Contd..

In  a case whose link is provided below The Constitutional Bench of South Africa,observed that : "This is a matter of the application of the rule of law and the principle of legality which flows from the value of the rule of law enshrined in section 1 of the Constitution. This Court has held that:
“[t]he exercise of all public power must comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law.” 
[ see: Chaskalson P in Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) at para 20. See also Fedsure Life Assurance Limited and Others v Greater Johannesburg Transitional Metropolitan Council and Others [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) at paras 40 and 56] ...The doctrine of legality, which requires that power should have a source in law, is applicable whenever public power is exercised. Private power, although subject to the law and in certain circumstances the Bill of Rights, does not derive its authority or force from law and need not find a source in law. Public power on the other hand can only be validly exercised if it is clearly sourced in law.
Primarily the concept of legality is that all the statutes should be  consistent with the constitution , in so far, as the fundamental Rights are concerned. No legislation will try to over-ride this presumption unless explicitly stated so. Parliament can legislate on any subject. It has plenary powers. However, if the fundamental rights are compromised the intention of the legislature should be seen from the words of statute. 
It would be worth while to state that in the same ruling the following was also observed that is also one of the rules of Interpretation of statutes.
It is a fundamental tenet of our constitutional jurisprudence that all law, whether statute, common law, customary law or regulation must be read in a manner that is consistent with the Constitution. This principle is not limited to consistency with the spirit, purport and objects of the Bill of Rights as required by section 39(2), it is an implied principle of the Constitution as a whole that a constitutional interpretation should always be preferred to a non-constitutional interpretation. The principle has been stated by this Court as follows:"The purport and objects of the Constitution find expression in s 1, which lays out the fundamental values which the Constitution is designed to achieve. The Constitution requires that judicial officers read legislation, where possible, in ways which give effect to its fundamental values. Consistently with this, when the constitutionality of legislation is in issue, they are under a duty to examine the objects and purport of an Act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution” Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others [2000] ZACC 12; 2001 (1) SA 545 (CC)[2000] ZACC 12; ; 2000 (10) BCLR 1079 (CC) at para 22.

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