n Tydskrif vir die Suid-Afrikaanse Reg - The dispute resolution digest 2013 : the Tokiso report on the state of labour dispute resolution in South Africa, Tanya Venter (ed.) : book review

Volume 2013, Issue 4
  • ISSN : 0257-7747
  • E-ISSN: 1996-2207



As a fundamental tenet of South African law, all law students are taught the mischief rule, a rule dating back to the sixteenth century: "To arrive at the real meaning [of a provision] we have ... to consider, (1) what was the law before the measure was passed; (2) what was the mischief or defect for which the law had not provided; (3) what remedy the Legislator had appointed; and (4) the reason of the remedy" ( 1949 1 SA 842 (A) 852-853; the rule was first set out in the case 1584 3 Co Rep 7a 7b). In addition to serving as an important interpretative aid, the rule acknowledges the fact that legislation is designed to serve particular societal ends in subduing an identified mischief and promoting the remedy adopted for its elimination (Du Plessis (2002) 117). Law, it is often said, does not exist in a vacuum, and the same is true of labour law. When an act becomes disconnected from the purposes it has been designed to achieve and is ineffectual in subduing mischief, then it becomes apparent that the amendment of the legal regime or part of it must be considered.

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