CHAPTER 9 PEREMPTORY AND DIRECTORY PROVISIONS 9.1 General introduction * When legislation prohibits an act (conduct) or prescribes the manner in which it must be performed, it may be necessary to determine what the result will be if the prescribed formal requirements are not complied with. * If the legislation in question expressly prescribes what the consequences will be if the legislative requirements are not followed, there is no problem. * Difficulties arise if the particular provision fails to stipulate what the consequences will be of a failure to comply with the prescribed formal requirements. * In such cases the court have to determine whether the provision is: peremptory (obligatory) or merely directory (indicating). * A statutory provision that requires exact compliance is peremptory. Failure to comply with a peremptory provision will leave the ensuing act null and void. * A statutory provision requiring substantial compliance only, is merely directory. Non-compliance with a directory provision will not result in nullity of the ensuing act.
2 * Example: I.t.o. the Motor Vehicle Insurance Act a claim for compensation, accompanied by a medical certificate, had to be sent by registered post or delivered by hand. * What would the position be if a claim were sent by ordinary post? * In Commercial Union Assurance Co v Clarke the court found that there was substantial compliance with the provision. - It was not necessary to follow the requirements to the finest detail - as long as the purpose of the provision has been complied with. * The question is not whether mechanical (formal) compliance with the statutoty requirements is required, but rather substantial compliance. - Full compliance is not necessarily literal compliance, but substantial compliance. - In other words, substance over form, and compliance with the aim and purpose of the legislation within the context of the legislation as a whole. * The courts generally follow a purposive (contextual) approach to the interpretation of peremptory and directory provisions. The language of the provision is read - in its context, and - all intra- and extra-textual aids are used to
3 determine the manifest purpose of the legislation. * Strictly speaking it is incorrect to refer to peremptory and directory provisions. Wiechers points out that in principle all legislative provisions are peremptory. If it was not the case, they would not be binding legal rules, but merely non-obligatory suggestions for desirable conduct. The question is whether the prescribed formal requirements were complied with exactly or merely substantially. Unfortunately, these categories have become firmly entrenched in practice. In Weenen Transitional Council v Van Dyk : merely guidelines. What is important is the purpose of the provisions in question, as well as the consequences if the statutory requirements are not strictly adhered to. 9.2 Some guidelines * Although the purpose of the relevant legislation remains the deciding factor, a series of guidelines has been developed by the courts as initial tests or indicators of the purpose, almost like mini presumptions. * Devenish refers to some of these guidelines as presumptions.
4 * Wiechers points out that these guidelines are not binding legal rules but merely pragmatic solutions with persuasive force. - Any guideline, test or indication will only be tentative. * In Nkisimane v Santam Insurance Co Ltd the court held tha the intention of the legislature is always the decisive factor. * In the Sentrale Kunsmis Korporasie (Edms) Bpk case it was stressed that the form in which a requirement is set out will not necessarily be decisive. - The context of the words and other relevant considerations also play a part when it is to be determined whether an apparently peremptory provision is in fact peremptory. * The guidelines or tests discussed here are neither exhaustive, nor are they binding rules. They are merely guidelines. - The purpose of the legislation will always be decisive in establishing whether a requirement is peremptory or directory in nature. 9.2.1 Semantic guidelines * Certain semantic guidelines have been formulated by the courts. These are based on the inherent grammatical meaning of the language used in the provision:
5 * Messenger of the Magistrates Court, Durban v Pillay: A word or words with an imperative or affirmative character indicate a peremptory provision (eg the words shall or must ). - In Bezuidenhout v AA Mutual Insurance Association Ltd the court found that shall strongly indicated that the provision was a peremptory one. - In S v Takaendesa this principle was explained as follows: Where a statute prohibits the doing of something unless something else is done as a precedent to doing the thing prescribed, it is a general rule of interpretation that the provisions of the Act are obligatory and not directory. * However, in Motorvoertuigassuransiefonds v Gcwabe the court pointed out that shall need not necessarily indicate a peremptory meaning. * Amalgamated Packaging Industries v Hutt: Permissive words (like may ) indicate a discression and will be interpreted as being directory, unless the p u r p o s e of the provision indicates otherwise. * Samuel Thomas Meyers v Pretorius & Etc: Words in a negative form indicate a peremptory connotation.
6 * R v Sopete: Positive language suggests that the provision is merely directory. * Leibrandt v SA Railways: If the provision is formulated in flexible and vague terms, it is an indication that it is directory. 9.2.2 Jurisprudential guidelines * Jurisprudential guidelines are those tests based on legal principles which have been developed and formulated by the courts. * In Sutter v Scheepers and Pio v Franklin certain tests or guidelines were proposed to determine whether provisions are peremptory or directory. - These guidelines are more influential than the semantic guidelines and involve an examination of the consequences, one way or another, of the interpretation of the provisions: If the wording of the provision is in positive terms, and no penal sanction (punishment) has been included for non-compliance of the requirements, it is an indication that the provision should be regarded as being merely directory. Johannesburg City Council v Arumugan: If strict compliance with the provisions would lead to injustice and even fraud (and the legislation contains neither an express provision as to
7 whether the action would be null and void, nor a penalty), it is presumed that the provision is directory. In some instances, the historical context of the legislation (in other words, the mischief rule) will provide a reliable indication whether the provision is peremptory or merely directory. - Rooiberg Minerals and Development Co Ltd v Du Toit: Adding a penalty to a prescription or prohibition is a strong indication that the provision is peremptory. - Standard Bank v Estate Van Rhyn: Nevertheless, in this case this so-called presumption was rebutted by the manifest purpose of the legislation. - Conversely, the addition of a penal clause may be an indication that the legislature intended the penalty to be sufficient, and that the action should not be declared null and void as well. R v Lewinsohn: If the validity of the act would defeat the purpose of the legislation,this is an indication in favour of nullity.
8 9.2.3 Presumptions about specific circumstances * A number of mini presumptions have been developed by the courts with regard to specific circumstances. These presumptions are nothing more than initial assumptions and may be rebutted or overruled by the purpose of the legislation: - With regard to provisions which protect the public revenue (ie rates,taxes and levies due to the state), a presumption against nullity exists, even if a penal clause has been added. - Where legislation confers a right, privilege or immunity, the requirements are peremptory and the right, privilege or immunity cannot be validly obtained unless the prescribe formalities are complied with. - If other provisions of the particular legislation would become superfluous (meaningless) when non-compliance with prescribed requirements would result in the nullity of the act, there is a presumption that the requirements are merely directory. - If other provisions of the particular legislation would become superfluous (meaningless) when non-compliance with prescribed requirements would result in the nullity of the act, there is a presumption that the requirements are merely directory.
9 - Where the freedom of the individual is at stake, the court will stress the peremptory nature of a requirement. - In Macara v Minister of Information, Immigration and Tourism the court found that if legislation provides that a detained unlawful immigrant has to be informed in writing of the reasons for his detention, it is peremptory. - Le Roux v Grigg-Spall: If a provision requires that a certain act has to be performed within a prescribed time and the court has not been empowered to grant an extention of the time limit, the requirement is presumed to be peremptory. * The Constitution also contains a number of peremptory provisions. Some of the most important of these for statutory interpretation are the following: Section 2 deals with the supremacy of the Constitution: The Constitution is the supreme law of the Republic: any law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. Section 7(2) deals with the application of the Bill of Rights:
10 The State must respect, protect, promote and fulfil the rights in the Bill of Rights. Section 39(2); the interpretation clause: When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. * The courts have developed a large number of guidelines to assist them to determine whether exact compliance or merely substantive compliance with prescribed statutory requirements is necessary. * However, the supreme CON, as well as specific requirements in important legislation must always be born in mind where the issue of exact compliance or substantive compliance is considered during statutory interpretation.
11 Learning outcomes 1 When is a provision peremptory and when is it directory? Elucidate your answer by making use of relevant case law. [5]
12 2 The guidelines discussed in this chapter are not binding rules; they are merely guidelines. List in this regard the semantic guidelines which are used by Devenish. [5] 3 Jurisprudential guidelines are based on legal principles which have been developed by the courts. Discuss this statement by making use of relevant case law. [7] 4 Which peremptory provisions in the Constitution are regarded by Botha as the most important? [6]