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. 

 AAA Investments (Proprietary) Limited v Micro Finance Regulatory Council and Another (CCT51/05) [2006] ZACC 9; 2006 (11) BCLR 1255 (CC); 2007 (1) SA 343 (CC) (28 July 2006)

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.

Presumption Of Legality

Section 6 of the New Zealand Bill of Rights Act 1990 (NZ) provides as follows:

6 Interpretation consistent with Bill of Rights to be preferred

Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

Early in the life of the Act, Cooke P said that the ‘preference’ which s 6 commanded would:

come into play only when the enactment can be given a meaning consistent with the rights and freedoms. This must mean, I think, can reasonably be given such a meaning. A strained interpretation would not be enough.[ Ministry of Transport v Noort [1992] 3 NZLR 260, 272; see also Police v Smith and Herewini [1994] 2 NZLR 306, 313 (Cooke P).]

In 1997, in Quilter v Attorney-Genera l[ [1998] 1 NZLR 523.]Tipping J (with whom Richardson P, Gault and Keith JJ agreed) said that for the purposes of s 6 a statutory provision could only be given a meaning consistent with a relevant right if the meaning was available ‘by a legitimate process of construction’. In 2007, in Hansen, [2007] 3 NZLR 1. Tipping J endorsed academic commentary to the effect that s 6 ‘has been read on the basis that an alternative meaning must be reasonably or properly open. It must be fairly open and tenable’.
In his Honour’s view, s 6 ‘cannot be used to give a meaning to an enactment which is clearly contrary to the meaning which Parliament understood its words to convey.’ Rather, an approach which inquires whether a suggested meaning is reasonably possible, seems to me to come as close as possible to capturing the way in which the statutory ‘can’ in s 6 must be applied. It is by this measure of reasonable possibility that I would distinguish at least some English discussions on the subject: they seem to adopt a meaning which is unreasonably possible from an interpretative point of view. I say that because alternative meanings have been found in England, under the aegis of s 3, despite an acknowledgment that this defeats Parliament’s purpose. In England s 3 appears at times to have been construed as mandating a judicial override of Parliament, if Parliament’s meaning is inconsistent with a right or freedom. That, for me, would be to use s 3 (the New Zealand s 6) as a concealed legislative tool. Whether it is appropriate in England is not for me to say, but I am satisfied it is not appropriate in New Zealand.


Elias CJ said in Hansen[2007] 3 NZLR 1. that, for a meaning to be available under s 6, it must be ‘tenable on the text and in the light of the purpose of the enactment.’ To similar effect, McGrath J described s 6 as being applicable ‘whenever the Court can identify a tenable meaning of an enactment’. But the Court may not ‘go beyond the reasonably available meaning of [a] word in its legal context’.


As Claudia Geiringer has pointed out in her illuminating analysis of Hansen, [Claudia Geiringer, ‘The Principle of Legality and the Bill of Rights Act: A Critical Examination of R v Hansen’ (2008) 6 NZJPIL 58, 76.] McGrath J drew a parallel between the interpretive obligation under s 6 and the common law ‘principle of legality’. He said:

Section 6 should ... be seen as requiring that judges apply the  presumption that legislation is to be interpreted in accordance with fundamental rights, as part of the statutory reassertion of the importance of New Zealand’s commitment to human rights in the interpretation exercise, which requires an approach to interpretation which is sympathetic to protected rights.

...

To qualify as a meaning that can be given under s 6 what emerges must always be viable, in the sense of being a reasonably available meaning on that orthodox approach to interpretation. When a reasonably available meaning consistent with protected rights and freedoms emerges the Court must prefer it to any inconsistent meaning. Hansen [2007] 3 NZLR 1, 80.

Ms Geiringer notes, Elias CJ had drawn the same parallel in earlier decisions under the Bill of Rights Act 1990 (NZ). Thus, in Ngati Apa Ki Te Waipounamu Trust v The Queen, [2000] 2 NZLR 659. her Honour referred to specific rights contained in the Act and said:

Such basic rights cannot be overridden by general or ambiguous words in a statute ... This principle of legality, recognised by the common law, has been expressly enacted by s 6 of the New Zealand Bill of Rights Act 1990.

Similarly, in R v Pora, [2000] NZCA 403; [2001] 2 NZLR 37. the Chief Justice had said:
By s 6 the New Zealand Parliament has adopted a general principle of legality ... . Such principle was applied as a principle of the common law before the United Kingdom Human Rights Act 1998 ... 


Cited from:Cited from:R v Momcilovic [2010] VSCA 50 (17 March 2010),Supreme Court of Victoria - Court of Appeal