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PEREMPTORY AND DIRECTORY PROVISIONS

PEREMPTORY AND DIRECTORY PROVISIONS. CHAPTER 9. AN ACT CAN REQUIRE TWO THINGS. EXACT COMPLIANCE - PEREMPTORY. SUBSTANTIAL COMPLIANCE - DIRECTORY. HERE THE QUESTION IS WHETHER SUBSTANTIALLY COMPLIED WITH. IF NOT EXACT – NULL AND VOID.

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PEREMPTORY AND DIRECTORY PROVISIONS

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  1. PEREMPTORY AND DIRECTORY PROVISIONS CHAPTER 9

  2. AN ACT CAN REQUIRE TWO THINGS EXACT COMPLIANCE - PEREMPTORY SUBSTANTIAL COMPLIANCE - DIRECTORY HERE THE QUESTION IS WHETHER SUBSTANTIALLY COMPLIED WITH IF NOT EXACT – NULL AND VOID

  3. HOW DO YOU DETERMINE WHETHER AN ACT REQUIRES SUBSTANTIAL OR EXACT COMPLIANCE? HOW DO YOU DETERMINE WHETHER AN ACT IS PEREMPTORY OR DIRECTORY?

  4. PURPOSE OF LEGISLATION Commercial Union Assurance v Clarke

  5. HOWEVER, COURTS HAVE GIVEN US SOME GUIDELINES ON HOW TO DETERMINE WHETHER AN ACT’S REQUIREMENTS ARE PEREMPTORY OR DIRECTORY – IN LINE WITH THE PURPOSE OF THE ACT

  6. Thus we look at: • PURPOSE • GUIDELINES GIVEN BY COURT

  7. SEMANTIC GUIDELINES DIRECTORY PEREMPTORY • “MAY” • POSITIVE LANGUAGE – “The plaintiff may present other evidence for the claim”. • FLEXIBLE AND VAGUE TERMS – “THE PLAINTIFF MAY PRESENT A DOCUMENT AS POSSIBLE EVIDENCE” • No real requirement as to what document – therefore, directory. If it was peremptory the legislation would have been exact about what document shall be presented. • “SHALL” • NEGATIVE LANGUAGE – “The plaintiff shall not be allowed to act as guardian of the child in the event of any legal actions against him / her”.

  8. JURISPRUDENTIAL GUIDELINES JURISPRUDENTIAL GUIDELINES DIRECTORY DIRECTORY PEREMPTORY PEREMPTORY • When a penalty is present – ‘Shall be 2 physicians present to obtain consent for donation of kidney, otherwise imprisonment’. • Historical context NB • Positive terms and no penal sanction • Choice on Termination of pregnancy Act. ‘During 0-12 weeks, 2 physicians must be present’. • If strict compliance would lead to injustice. • Historical context NB.

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