The Judical Officer - Dec 07 - Joasa.org.za

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12 Superintendent: Superintendent: Superintendent: Superintendent: Wes Wes----Koppies Wes Wes Koppies Koppies Koppies Hospitaal, Hospitaal, Hospitaal, Hospitaal, en en en en Nasionale Nasionale Nasionale Nasionale Minister Minister Minister Minister van van van van Gesondheid Gesondheid Gesondheid Gesondheid CCT CCT 26/01 26/01 Government Government Government Government Gazette Gazette Gazette Gazette 22750 22750 of of 19 19 October October 2001 2001). 2001 The application of the Bill of Rights requires us to take note of the interpretation clause (i.e. section 39) of the South African Constitution. 4 4 THE THE INTERPRETATION INTERPRETATION CLAUSE CLAUSE 4.1 4.1 Section Section 39(2) 39(2) Section 39(2) of the Constitution stipulates that * when INTERPRETING ANY ANY legisl legislation legisl legislation ation; ation and * when DEVELOPING the the [South [South [South African] African] COMMON COMMON law law law or or or INDIGENOUS INDIGENOUS law law: law every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. Please note that such promotion of the spirit, purport and objects of the Bill of Rights, implies a revolution with regard to the INTERPRETATION of of statutes statutes in South Africa (cf. Botha 1998: v). To elaborate: In Public Public Public Public Carriers Carriers Carriers Carriers Association Association Association Association v v v v Toll Toll Toll Toll Road Road Road Road Concessionaries Concessionaries Concessionaries Concessionaries 1990 1990 (1) (1) SA SA 925 925 (A) (A) the Supreme Court of Appeal declared * that the OBJECT of of the legislation (or act) [which is established by means of contextual contextual interpretation] is a concrete or real concept; and * that the the INTENTION [“BEDOELING”] of of the legislator [which was before 1994 established by means of textual textual interpretation] is a historical search for the imaginary will or intention of a group of persons. The important implication appears to be the following:
* under the doctrine of parliamentary supremacy we tend to speak of the IN INTENTION IN TENTION of the legislator legislator; legislator but 13 * under the doctrine of constitutional supremacy we must speak of the OBJECT OBJECT of the the legislation legislation (cf. Botha 1998:48-49). Please note that today the most important principle of interpretation of statutes is * To determine the the OBJECT OBJECT of of the the legislation legislation in the light of the Bill of Rights; and * To apply this determined OBJECT of the legislation to the FACTS of the case (Botha 1998: 47-50). The spirit, purport and objects of the Bill of Rights are determined in terms of section 39(1). 4.2 4.2 Section Section 39(1) 39(1) Section 39(1) of the Constitution stipulates that when INTERPRETING the Bill Bill of Rights Rights: Rights every every court, tribunal or forum (a) must must promote the values that underlie an open and democratic society based on [the core core core core values values values values of] human human human human dignity, dignity dignity dignity equality equality equality equality and freedom; freedom freedom freedom (b) must consider international law; and (c) may consider foreign law. Please take note of the following remarks with regard to this section 39(1): (1) When the South African Constitution is read as a whole, it is imperative to view it as resting (or being built) upon three pillars (or core values) :
Page 1 and 2: 1 THE JUDICIAL OFFICER Journal of t
Page 3 and 4: 3 THE JUDICIAL OFFICER - GUIDELINES
Page 5 and 6: 5 (3) POLITICS OF LAW which, in the
Page 7 and 8: . 7 Consequently, full recognition
Page 9 and 10: The Constitution stipulates that *
Page 11: * the Bill of Rights, as the result
Page 15 and 16: 5 5 THE THE SUPREMACY SUPREMACY CLA
Page 17 and 18: 17 such an amendment: contrary to t
Page 19 and 20: 19 * the purpose of this limitation
Page 21 and 22: 21 Section 172(1) of the Constituti
Page 23 and 24: 23 * if a statute prescribes ground
Page 25 and 26: 25 Please note that according to Br
Page 27 and 28: (6) sex; (7) ethnic or social origi
Page 29 and 30: 29 With regard to the mentioned nat
Page 31 and 32: manner. 31 * to affect a person adv
Page 33 and 34: 33 white” males nor women [from a
Page 35 and 36: in terms of the remarked results. *
Page 37 and 38: 37 “In the Public Servant’s Ass
Page 39 and 40: 39 * relates to the onus of PROOF a
Page 41 and 42: 12.1 12.1 Section Section 26(1) 26(
Page 43 and 44: 43 that a human right has been infr
Page 45 and 46: 45 Schwikkard, PJ., Van der Merwe,
Page 47 and 48: 47 In the oft quoted case of Richte
Page 49 and 50: 49 In Kanis v Kanis 1974 (2) SA 606
Page 51 and 52: 51 JUDICIAL IMMUNITY: THE CIVIL AND
Page 53 and 54: 53 This is just an article to set o
Page 55 and 56: 55 The irregularity in the proceedi
Page 57 and 58: 57 In Moeketsi v Minister van Justi
Page 59 and 60: And: 59 ‘To sum up: In different
Page 61 and 62: 61 it is the existence of mala fide
Page 63 and 64:
63 a sjambok for contempt of court
Page 65 and 66:
65 punishment took place not in ter
Page 67 and 68:
67 in elke saak waarin hulle per ab
Page 69 and 70:
69 There are many aspects that come
Page 71 and 72:
71 delivered the judgment for the m
Page 73:
73 Cases of indecent assault do not
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The Judical Officer - Dec 07 - Joasa.org.za

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