On equating ‘mays’ with ‘musts’: When can a discretionary power be interpreted as a mandatory one?
| dc.contributor.author | Draga, Lisa | |
| dc.date.accessioned | 2022-05-17T15:30:00Z | |
| dc.date.available | 2022-05-17T15:30:00Z | |
| dc.date.issued | 2021 | |
| dc.description.abstract | In this article I investigate when the otherwise permissive term 'may' in an empowering provision can be interpreted as imposing a duty on the recipient of that power to act. In the first part, I examine our courts' pre-democratic approach to answering this question through an analysis of pre-democratic judgments. In particular, I scrutinise certain factors that the courts have traditionally relied on in this regard. Thereafter, I consider the present-day rules of statutory interpretation and its application to the may/must question. Next, I analyse the Constitutional Court's approach to determining when the use of 'may' to confer a power through statute can be interpreted as requiring the power be exercised. I undertake an analysis of a dissection of relevant Constitutional Court judgments. These judgments are dissected for purposes of illustrating the continued relevance of the traditional factors that were employed before democracy. Finally, I focus on the may/must question in the typical public-law context of this interpretative exercise. I examine potential grounds of review where the holder of the power has failed or refused to execute a duty attached to permissive language. I also consider separation-of-powers concerns that may likely arise. | en_US |
| dc.identifier.citation | Draga, Lisa ‘On Equating ‘mays’ with ‘musts’ – When can a Seemingly Discretionary Power be Interpreted as a Mandatory One?’ SALJ 138:3 (2021) pp. 649–681 | en_US |
| dc.identifier.uri | http://hdl.handle.net/10566/7409 | |
| dc.language.iso | en | en_US |
| dc.publisher | Juta | en_US |
| dc.subject | Courts | en_US |
| dc.subject | Statutory interpretation | en_US |
| dc.subject | Pre-democratic judgments | en_US |
| dc.subject | Public-law | en_US |
| dc.subject | Constitutional court judgments | en_US |
| dc.title | On equating ‘mays’ with ‘musts’: When can a discretionary power be interpreted as a mandatory one? | en_US |
| dc.type | Article | en_US |