Tag archives: Statute

When are statutory requirements mandatory or directory?

By Patrick Bracher (ZA) on March 11, 2018 Posted in General

The failure to comply strictly with formalities and other procedural requirements imposed by a statute does not necessarily lead to invalidity. Even where the formalities required by statute are peremptory it is not every deviation from the literal prescription in the statute that is fatal. The question remains whether, in spite of the defects, the … Continue reading

The word ‘sale’ has various meanings

By Patrick Bracher (ZA) on March 5, 2017 Posted in Drafting tips

From an academic point of view a sale has taken place when the parties agree on the price and on the items sold even if they have not yet paid the price or delivered the item. It also has a wider meaning that requires delivery of the property to the buyer before the sale is … Continue reading

Commencement and repeal of laws

By Nadia Gamieldien on June 7, 2016 Posted in General

The Interpretation Act 1957 explains when laws commence and what happens when a law is repealed. Commencement of laws If a day is not set for the coming into operation of a law, that day will be the day when the law was first published in the Gazette as a law. If any act provides … Continue reading

Don’t forget the Interpretation Act

By Nadia Gamieldien on June 6, 2016 Posted in Drafting tips

The Interpretation Act 1957 applies to the interpretation of all laws, so it is a useful act to know. The act was last amended to incorporate the 1993 Interim Constitution. While there are some archaic and strange provisions, like the mention of the former colonies and the Royal Letters Patent of His Majesty King William … Continue reading

An official’s legislative powers must be exercised reasonably

By Patrick Bracher (ZA) on January 19, 2016 Posted in General

Decision-making powers granted by law to a government official must serve the particular purpose of the legislation that is the source of the power. The person making the decision must take into account those things specifically required by the statute, must not consider anything which the statute identifies as irrelevant to the decision, and may … Continue reading

Interpret statutes according to the purpose

By Patrick Bracher (ZA) on August 25, 2015 Posted in Drafting tips

In a recent decision the Constitutional Court reminded us that where there is a constitutional issue there is a new approach to interpreting statutes. The courts must seek an interpretation that promotes the spirit, purport and objects of the Bill of Rights. The courts will apply a generous construction over a merely textual or legalistic … Continue reading

Interpretation of statutes and contracts

By Patrick Bracher (ZA) on January 15, 2015 Posted in General

Where the language of a written contract is ambiguous, evidence is admissible to construe its meaning, by reference to its context or the factual circumstances under which the contract was concluded. The apparent purpose to which the contract was directed may also be considered when interpreting it. Evidence may be admitted as to what was … Continue reading

Interpretation of clumsy laws

By Patrick Bracher (ZA) on August 7, 2014 Posted in Drafting tips

Clumsy laws must be constructively dealt with. Even where laws are clumsily and inelegantly drafted, the courts should be slow to alter the words actually used. In Kalil v Mangaung Metropolitan Municipality the court said that it must guard against the temptation to substitute what the court regards as reasonable, sensible or businesslike for the words … Continue reading

The rule regarding retrospectivity of statutes

By Patrick Bracher (ZA) on August 3, 2014 Posted in General

A statute should not be interpreted as having retrospective effect unless there is an express provision to that effect or that the result is unavoidable from the language used. The plaintiff was born when the age of majority for the purposes of extinctive prescription was 21 years. The age of majority was changed to 18 … Continue reading

Peremptory provisions in a statute are not absolutely inflexible

By Patrick Bracher (ZA) on February 27, 2014 Posted in General

Even where formalities required by a statute are peremptory, not every deviation is fatal. The question remains whether the object of the statutory provision has been achieved. The facts of Cowan v Hathorn illustrate the point. Section 32(1)(b) of the Insolvency Act 1936 provides that, if a trustee fails to sue, a creditor may take over a … Continue reading