IOS201-6 Interpretation of Statutes Notes PDF

NOTES Interpretation of Statutes IOS201-6 1. GENERAL INTRODUCTION 1.1. Definition Statutory interpretation as a subject...

NOTES Interpretation of Statutes IOS201-6 1. GENERAL INTRODUCTION 1.1. Definition Statutory interpretation as a subject of study is the body of rules and principles used to construct and justify the meaning of legislative provisions to be applied in practical situations. 1.2. Why can statutes not be interpreted in a mechanical or rule-like fashion? Many rules of interpretation overlap and cannot be neatly compartmentalised as:
the circumstances and sets of facts will differ from case to case, as well as the context of legislation;
the courts are not of one mind when it comes to the application of certain rules, resulting in no clear predictable pattern of application 1
the law is not objective, neutral and value-free: all interpreters have a particular frame of mind which will influence their understanding of legislation;
since the spirit and aim of the fundamental rights in the Constitution must be promoted, interpretation necessarily involves value-judgements;
Poor drafting, conflicting provisions or a lack of resources to research the current law. 1.3. Two different meanings of the phrase “interpretation of statutes” Before 1994 and the Constitution, interpretation of statutes was an orthodox system of maxims and rules for interpretation based on parliamentary sovereignty. Today interpretation is based on consti- tutional supremacy and the spirit and purport of fundamental rights are to be taken into account and thus value judgment can no longer be ignored. According to Devenish:
courts will be able to test and invalidate legislation;
all statute law will have to be interpreted to be compatible with letter and spirit of Constitution;
a value-coherent theory of interpretation should become prevalent;
a justiciable bill of rights is likely to indicate a new methodology and theory of interpretation. Interpretation of statutes transformed by six provisions of the Constitution: Section 1 The foundational provision Section 8 The application clause Section 2 Supremacy of the Constitution Section 36 The limitation clause Section 7 The obligation clause Section 39 The interpretation clause 1.4. How are the many rules and principles of statutory interpretation structured? Interpretation of statutes is neither mechanical nor objective and can never be reduced to a pre- conceived ‘road map’. The following three phase interpretation process is merely a teaching tool:
Initial phase Basic principles are used as a point of departure: (i) Constitution and Bill of Rights the cornerstones of legal order; (ii) most importantly, to ascertain and apply the purpose of the legislation in view of (i); (iii) text is read to find initial meaning bearing common law presumptions and a balance between text and context in mind.
Research phase All factors and consideration possibly having a bearing on the particular legislation are studied to determine the purpose.
Concretisation phase Legislative text, the purpose of legislation and the facts of the particular case are harmonised and the spirit, purport and aim of fundamental rights must be promoted during this process. 1 Which is the product of each interpreter’s unique history, background, experience and prejudices. IOS201-6 Page 2 of 30 2. WHAT IS LEGISLATION? 2.1. What is regarded as legislation in South African law? It is important to distinguish legislation from other types of law as the rules and principles of statutory interpretation only apply to legislation. Section 1 of the Interpretation Act The provisions of this Act shall apply to the interpretation of every law (as in this Act defined) in force, at or after the commencement of this Act, in the Republic or any portion thereof, and to the interpretation of all by-laws, rules, regulations or order made under the authority of any such law, unless there is something in the language or context of the law, by-law, rule, regulation or order repugnant to such provisions or unless the contrary intention appears therein. Legislation or enacted law-texts is one of the three formal sources of law in South Africa (judicial precedent and custom being the others) and is written law enacted by a body or person authorised to do so by the Constitution or other legislation. This excludes common-law, as does the following: Section 2 of the Interpretation Act, 33 of 1957 ‘law’ means any law, proclamation, Ordinance, Act of parliament or other enactment having the 2 force of law. The Interpretation Act refers to different types of legislation: Acts, ordinances, proclamations, by- laws, regulations, rules and any other enactment with the force of law. 2.2. Classification of different pieces and types of legislation Chronological (Historical origins) Legislation before 1806 Old Dutch placaaten (statutes) are viewed as common-law and no formal procedures required for their demise Old order legislation (enacted before interim Constitution took effect) Pre-Union legislation (1806-1910) Legislation of the British colonies and Boer Republics - most had been incorporated into legislation after 1910 or repealed Legislation between Union and Most existing legislation democratic era (1910-1994) Legislation in the new constitutional order All legislation enacted after the start of constitutional democracy in 1994, including the interim Constitution since 1994 Hierarchical (Status) The Constitution The supreme law of the Republic, any law inconsistent with it is invalid and the courts may test all legislation (old and new) Not an Act of parliament, drafted by Constitutional Assembly 3 Original legislation Acts of Parliament New provincial Acts (1994-) Provincial ordinances (1961-1986) Classification according to Legislation of the former homelands status Legislation of the former TBVC states New municipal legislation Delegated legislation Existing provincial proclamations and regulations (1968-1994) 4 (also subordinate) New provincial proclamations and regulations (1994-) Other proclamations and regulations The distinction between original and delegated legislation is relevant as delegated legislation may not be in conflict with enabling (original) legislation. 2.3. What is not legislation? Legislation must be published in an official Gazette before it can take effect, but not everything published in the Gazette is legislation. The following texts are not legislation:
legal notices;
reports;
draft Bills; 2 This definition excludes common law 3 Derives from the direct or primary legislative capactiy of an elected legislative body derived directly from the Constitution 4 Where original legislation is drafted in broad terms, delegated legislation then ‘adds the flesh’ IOS201-6 Page 3 of 30
various discussion papers;
advertisements;
policy documents issues by government departments in the process of formulating public policy to elicit public comment (Green Papers and White Papers); and
internal departmental memoranda and policy guidelines on how government departments apply legislation. Some of these may lead to legislation and may be used in the interpretation process. Legislation should be distinguished from “administrative quasi-legislation” (Baxter), which consists of depart- mental memos and directives (although enforceable ≠ delegated legislation). Legislation must comply with all the constitutional and other legal requirements dealing with authority, adoption and publication. Unwritten law (common-law rules and indigenous law) is not legislation, although a source of South African law and can become legislation once codified. 2.4. The basic structure or parts of legislation Legislation is drafted in a particular form and structure according to the drafting conventions and rules used by the state law advisors and other legislative drafters. Component Explanation Long title Short summary of the subject matter of the Act, which is part of the statute and is tabled for adoption in the legislature. Preamble States circumstances and background of, and reasons for the legislation and is usually placed after the long title. Enacting provision Acknowledges the authority of the body that is enacting the legislation. Section 43 of Constitution states: national legislative authority  vested in parliament provincial legislative authority  vested in provincial legislatures local authorities  vested in municipal councils Definitions Serve as an ‘internal dictionary’ for the particular legislation and is usually found at the beginning of an Act. Purpose and Such clauses are frequently included in post-1994 legislation and should interpretation explain the purpose of the Act and how it should be interpreted. Repeal / Done by means of an amending Act and when passed existing Acts needs amendment of to be amended or repealed. New Act must contain a section providing for legislation amendments or repeals and is conventionally dealt with a schedule at end. Short title Short title is the title of the Act and is usually the last section in an Act. Commencement No date  Commence on date of publication in Gazette Specific date  As specified in short title Unknown future date  Short title states come into operation on date to be fixed by President (Premier, provincial) by proclamation in Gazette. Schedules Used to deal with technical detail that will otherwise clog up the main body of an Act, used when several Acts are repealed or extensively amended. Numbering in Section 1; subsection (1); paragraph (a); sub-paragraph (i); item (aa); sub- legislation item (AA)  Full citation: 1(1)(a)(i)(aa)(AA) Where an additional section is inserted through amendment Act, it takes the next number and gets a capital letter after it – between 66 and 67 = 66A. In older Acts inserted sections were number bis, ter, quat. Amendments When amendment Act is published, there is a General Explanatory Note on second page, which includes the following: [ ] Words in bold type and in square brackets indicate deletions from existing enactments. ___ Words underlined with a solid line indicate insertions in existing enactments. Amendments (deletions and insertions) are also indicated clearly in the amended version of an Act. IOS201-6 Page 4 of 30 2.5. The relationship between legislative interpretation and common law Common-law is not sacred, untouchable or protected from constitutional scrutiny and any law that is inconsistent with the Constitution, the supreme law, is invalid. The spirit, purport and objects of the Bill of Rights must be promoted by the courts when developing common-law. In Carmichele v Minister of Safety and Security, the Constitutional Court held that a court is obliged to develop common law in view of the Constitution. In Pharmaceutical Manufacturers Association of SA, common-law was clearly put in a constitutional framework as it is not a body of law separate and distinct from the Constitution. There is only one system of law shaped by the Constitution and all law derives its force from the Constitution. The Constitution and express legislative provisions will override common-law rules, but certain common-law rules such as presumptions are used to interpret legislation insofar as they are not in conflict with the Constitution. Common-law presumptions of interpretation should have played a more important role during the interpretation process in the past. These presumptions may be described as preliminary presumptions as to the meaning of legislation and it is assumed that legislation has a particular purpose, which should accomplish an ideal predefined result. Before 1994 and in the absence of the Bill of Rights, one could have referred to a rebuttable ‘common-law bill of rights’. The principles of justice, fairness and individual rights were always part of our common-law, but ignored by parliamentary sovereignty. These principles can no longer be overturned and are entrenched in the Constitution thus some of the presumptions will be applied less and less in future due to disuse. 2.6. The Plain Language movement The Plain Language movement is a worldwide continuation of the Plain English campaign, which started in the United Kingdom in reaction to pompous and difficult legal language (legalese) and it aims reach beyond legislation to include all legal documents (eg contracts, legal notices, etc). Its golden rule is that authors of legal texts must write clearly and comprehensible so that the readers of legislation know what the law expects of them and legal certainty and accuracy will not be sacrificed. The drafter is forced to take the context of the end-used into account. ‘Plain’ in ‘Plain Language’ does, however, not mean single clause sentences, but emphasis is on comprehensible language. The ideas are not simplified, but the language used to convey them. Constitutional values of transparency, equality and a fair legal process can hardly be maintained if people do not understand legislation and in this respect the Plain Language movement may help to bring those values and principles underlying the Constitution closer to the people. The principles are already reflected in some of the newer legislation: shorter sentences, better structured paragraphs, ‘shall’ is replaced by the more comprehensible ‘must’, footnotes and diagrams, etc. 3. COMMENCEMENT OF LEGISLATION 3.1. Adoption and promulgation of legislation Adoption refers to the different stages through which legislation has to pass before it is accepted by the relative legislative body. When parliament has adopted (passed) an Act, the President has to sign it to become law. When provincial legislature has adopted an Act, the premier of the province has to sign it to become law. Promulgation refers to the process by which legislation commences and takes effect, thus when it is formally put into operation. Legislation is promulgated by publication in an official Gazette. 3.2. Requirement of publication In terms of Sections 80 and 123 of the Constitution, Acts take effect when published in an official Gazette or on a date determined in terms of those Acts. The same applies to municipal by-laws in terms of Section 162 of the Constitution. The underlying principle of publication: Law should be made known to whom it applies. Question: Since the Gazette may only appear days after publication in remote areas, does it then commence on date of publication or when it becomes known? In Queen v Jizwa the court held that legislation commences on the date of publication. This has been critised and Steyn suggest a period of days (eg. 8) between de facto (actual) publication and de iure (legal) promulgation of legislation. In President of the Republic of South Africa v Hugo the court addressed the issue for the need of accessibility of the law and held that a person should know the law to conform his/her conduct to the law. In terms of Section 16A of the Interpretation Act, President may prescribe alternative procedures by proclamation if the Government Printer is unable to print the Gazette by some reason. IOS201-6 Page 5 of 30 3.3. Commencement of legislation ‘Law’ in Section 13 of the Interpretation Act refers to any law, proclamation, ordinance, Act of parliament or any other enactment having the force of law. This includes delegated legislation and in terms of Section 16 it must also be published in an official Gazette. In terms of Section 17, a list of proclamations and notices under which delegated legislation was published must be tabled in parliament. Legislation will commence as follows:
Commencement on date of publication (i) Unless another date is provided in the particular legislation. (ii) Publication in the Gazette includes both the Government Gazette and the official Gazette of a province. (iii) Day begins immediately at the end of the previous day, being at 00:00 and thus a bit retrospective as publication is only a few hours later
Commencement on a date specified in the legislation Legislation as published may prescribe another fixed date for its commencement, which may be total or partial.
Commencement on an unspecified date still to be proclaimed Legislation as published may indicate that it will commence at a later unspecified date to be proclaimed, which may be in total or partial. 3.4. The presumption that legislation only applies to the future Unless the contrary appears expressly or by necessary implication, it is presumed that legislation only applies to the future based on the prevention of unfair results. In Curtis v Johannesburg Municipality the court held that legislation presumably applies to the future so that vested rights are not taken away.
Express retrospective application Section 35 of the Constitution deals expressly with retrospective operation of legislation:  S35(3)(1): A new offence may not be created retrospectively.  S35(3)(n): An accused has the right to the least severe of prescribed punishments if it has been changed since offence was committed and time of sentencing. Legislation may enact retrospective provisions other than penal provisions, but courts will have to ‘test’ such against the Bill of Rights to ensure that there is no violation of fundamental rights.
Retrospectivity by necessary implication The presumption is rebuttable if it appears that the legislature intended retrospectivity, which will be the case if the result of not applying legislation retrospectively would be absurd or unfair. In Kruger v President Insurance Co it was held to be easier to decide that legislation is retros- pective by necessary implication if vested rights won’t be affected and the purpose of legislation is to grant a benefit or to effect even-handedness in the operation of the law. (i) If the enactment deals with procedure General rule: Presumption won’t apply if it deals with rules of procedure and evidence unless expressly provided for. At times the distinction between procedural rules and substantive rights is fine, but courts will apply retrospective application of rules of procedure by necessary implication with caution. It must first be determined whether existing rights and obligations are affected and if they are enforceable by means of the new procedures. In Grand Wholesalers v Ladysmith Metal Industry it was held that the legislature didn’t intend the increase in jurisdiction of the Magistrate’s Court to apply to a matter in which pleadings had closed and costs had been incurred. (ii) If retrospectivity favours the individual The presumption will also not apply. However, if a person will receive a benefit without a vested right being taken away, the retrospective application of the legislation will be beneficial and the presumption becomes unnecessary  in line with Section 35(3)(n). In R v Sillas the new, more lenient sentence was imposed. (iii) If retrospectivity does not benefit the individual: If the amendment places the person in a worse position than before, the presumption will apply. In R v Mazibuko, where there was an appeal against the death sentence for robbery for which a more lenient penalty was imposed earlier, court held that if a penalty is increased by an amending Act, the presumption applies. This rule is redundant in view of the express provisions of the Constitution. IOS201-6 Page 6 of 30 4. DEMISE AND AMENDMENT OF LEGISLATION 4.1. General Common-law rules can become abrogated by disuse, but legislation must be repealed by a compe- tent body. Before 1994, courts could only invalidate delegated legislation which did not comply with common-law rules of administrative law. After 1994, courts can test all legislation against the Constitution. All legislation remains in force until amended, repealed or declared unconstitutional. 4.2. Amendment to legislation
By a competent legislature Legislation may be amended by a competent legislature, eg. parliament may amend an Act of parliament and a provincial legislature may amend provincial ordinances and provincial Acts, etc. If a number of Acts are amended at the same time, this will be done by a General Laws Amendment Act. Specific legislation will usually be amended by specific amending legislation.
Modificative interpretation by courts Sometimes words used in the legislation lead to absurd results or results which don’t serve the purpose of legislation. In such cases, courts have changed or adapted the initial meaning of the legislation in order to avoid these results. This is a completely legitimate, necessary exercise of judicial power. Constitutional Court may declare whole pieces of legislation unconstitutional, but the principle is that they should try everything in their power to keep the legislation in force as far as possible. In order to achieve this result, the Court has adopted the following remedies: (i) Reading down Sections 35(2) and 232(2) of the interim Constitution provided that if legislation is, on the face of it, unconstitutional, but is reasonably capable of a more restricted interpretation which will be constitutional and valid, such restricted interpretation should be followed (i.e. ''reading down"). These provisions have not been repeated in the 1996 Constitution, but the principle that courts should, as far as possible, try to keep legislation constitutional (and therefore valid) is a well-known principle of constitutional interpretation. (ii) Reading in This is a more drastic remedy used by the courts to change legislation in order to keep it constitutional and the court will "read" something into a provision in order to rescue a provision, or a part of it. It should be applied with caution, since the court then changes the legislation. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs Facts: The constitutionality of Section 25(5) of the Aliens Control Act, which allows the spouse or child of a person with the status of a permanent resident to immigrate to South Africa to join her/his spouse or parent, was disputed as gay and lesbian permanent residents were not allowed to rely on this section to arrange for the immigration of their life partners. This, they claimed, was a form of unfair discrimination against them on the basis of their sexual orientation. Legal issue: Reading in Finding: The Constitutional Court laid down the following principles to be considered and followed before "reading in" or severance is applied: - Results of reading in/severance must be consistent with Constitution and its values; - Result achieved must interfere with the existing law as little as possible; - Courts must be able to define with sufficient precision how the legislative meaning ought to be modified to comply with the Constitution; - Court should endeavour to be as faithful as possible to the legislative scheme(i.e. aim, purpose) within the constraints of the Constitution; - Remedy of reading in ought not to be granted where this would result in an unsuppor- table budgetary intrusion. It was held that the constitutional defect in Section 25(5) can be cured with sufficient precision by reading in after the word ‘spouse’ the following words: ‘or partner, in a permanent same-sex life partnership’ and that it should indeed be cured in this manner. (iii) Severance This is the opposite of "reading in" and the court will try to rescue a provision from the fate of unconstitutionally by cutting out the offending part of the provision to keep the remainder constitutional and valid. IOS201-6 Page 7 of 30 4.3. Invalidation of legislation (by a court)
Unconstitutional provisions In terms of Section 172 of the Constitution, the High Court, Supreme Court of Appeal or the Constitutional Court may declare legislation unconstitutional. Such a declaration may have immediate effect, or may be suspended to give the relevant legislature the opportunity to correct the defect. Such declaration by the High Court or Supreme Court of Appeal must be confirmed by the Constitutional Court. If an enabling Act is declared unconstitutional, the delegated legislation issued in terms thereof will cease to exist unless a court orders otherwise.
Invalid delegated legislation Delegated legislation may be invalidated by a court if it doesn’t comply with the requirements of administrative law. 4.4. Repeal and substitution Section 11 of the Interpretation Act – Repeal and substitution When a law repeals wholly / partially any former law and substitutes provisions for law so repealed, the repealed law shall remain in force until the substituted provisions come into operation. In Solicitor-General v Malgas the court held that, if the provisions of earlier legislation are incorporated into subsequent legislation, the incorporated provisions are not affected when the earlier statute is repealed. In Morake v Dubedube it was held that if legislation had been partially repealed, the remaining provisions must be interpreted in their own context, which includes the repealed provisions. 4.5. Effect of repeal Section 12 of the Interpretation Act – Effect of repeal of a law (1) Where a law repeals and re-enacts with or without modifications, any provision of a former law, references in any other law to the provision so repealed shall, unless the contrary intention appears, be construed as references to the provision so re-enacted. (2) Where a law repeals any other law, then, unless the contrary intention appears, the repeal shall not - (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any law so repealed or anything duly done or suffered under the law so repealed; or (c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any law so repealed; or (d) affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against any law so repealed; or (e) affect any investigation, legal proceeding, or remedy in respect of any such rights, privilege, obligations, liability, forfeiture, or punishment as in this sub-section mentioned. and any such investigation, legal proceeding, or remedy may be instituted, continued, or enforced, any such penalty, forfeiture, or punishment may be imposed, as if the repealing law has not been passed. Principle: Everything which was done or achieved or began before an Act was repealed remains in place or must be completed as if the Act was still in force. Nourse v Van Heerden 1999 (2) SACR 198 (W) Facts: In 1992 a physician was charged in terms of the Abortion and Sterilisation Act with the performance of illegal abortions. By 1997, his trial was not completed and his legal representative brought an application to have the charges against him dropped as his actions did not constitute a crime anymore. The application was based on the following arguments:
the provisions of the Abortion and Sterilisation Act became abrogated by disuse;
the Choice on Termination of Pregnancy Act repealed this Act; and
in view of the Bill of Rights, the prohibition on abortions is unconstitutional in retrospect. Legal issue: The application of the demise of legislation, Section 12(2) of the Interpretations Act, as well as retrospectivity. Finding: Court held that legislation cannot be abrogated by disuse and the existing legislation remains in force until repealed or declared unconstitutional. The trial started before the repeal and it must be completed as if there had been no repeal. Trial also commenced before either of the Constitutions and they are not retrospective. (The Abortion Act was never declared unconstitutional) IOS201-6 Page 8 of 30 4.6. The presumption that legislation does not intent to change the existing law more than is necessary Legislation should be interpreted in such a way that it is in accordance with existing law (legislation, common law, customary law and public international law) or changes it as little as possible.
Common law Legislature is free to change the common law whenever it sees fit, provided it does so in a way that leaves no doubt that the new legislation has replaced the old common law. Only then will the presumption not apply and changes must be implemented – Seluka v Suskin and Salkow and Gordon v Standard Merchant Bank. It this isn’t done, the presumption applies and legis- lation must be interpreted in the light of the common law rules which apply to the same issue.
Legislation In interpreting a subsequent Act, it is assumed that the legislature did not intend to repeal or modify the earlier Act. Any repeal or amendment must be effected expressly or by necessary implication. An attempt should be made to read the earlier and subsequent legislation together and to reconcile them (Shozi v Minister van Justice, KwaZulu) and, if such reconciliation is impossible, it’s presumed by necessary implication that the later of the two provisions prevail, resulting in the amendment or repeal of the earlier one. This rule only applies if the objects of the two conflicting provisions are essentially the same. Legislative repeal by implication will be accepted by the court only if the subsequent legislation manifestly contradicts the earlier legislation - Minister of Police v Haunawa. Government of the Republic of South Africa v Government of KwaZulu Facts: By means of proclamation, the President stipulated that the Ingwavuma territory, which had belonged to KwaZulu, would no longer be part of that territory. Should the President have consulted the KwaZulu government or not? The proclamation had been issued in terms of Section 1(2) of the Self-Governing Territories Constitution Act, 21 of 1971, which provided that the territory of a self-governing territory could be altered only after consultation with the self- governing territory. Legal issue: Repeal of an earlier Act by necessary implication Finding: The Appellate Division heard the appeal against a decision of the Natal Provincial Division in which the proclamation taking away the Ingwavuma territory had been declared null and void. Appellants averred that the proclamation had been promulgated in terms of the Black Administration Act, 38 of 1927, which did not require consultation prior to the alteration of the territories of the national states. Court found that Section 25(1) of Act 38 of 1927 conflicted with Section 1(2) of Act 21 of 1971. As the two provisions could not be reconciled, it was presumed that the unrestricted powers conferred by the 1927 Act had, by necessary implication, been repealed by the specific provisions of the 1971 Act. 5. HOW LEGISLATION IS INTERPRETED 5.1. Introduction A basic understanding of the theoretical background of statutory interpretation is essential for a perspective on and understanding the subject. The two main approaches to statutory interpretation are the literal (text-based) approach and the purposive (text-in-context) approach. 5.2. Theories of interpretation
The orthodox text-based (literal) approach Interpreter should concentrate primarily on the literal meaning of the provision to be interpreted and the interpretation process should proceed along the following lines: (i) Primary rule: If the meaning of the words is clear, it should be put into effect and equated with the legislature's intention - Principal immigration Officer v Hawabu. (ii) Golden rule: If the so-called 'plain meaning’ of the words is ambiguous, vague or misleading, or if a strict literal interpretation would result in absurd results, then the court may deviate from the literal meaning to avoid such an absurdity - Venter v R. Then the court will turn to the secondary aids to interpretation to find the intention of the legislature (e.g. the long title of the statute, headings to chapters and sections, the text in the other official language, etc). (iii) Should the secondary aids to interpretation prove insufficient to ascertain the intention, then the courts will have recourse to the tertiary aids to construction (e.g. the common law presumptions). There are four factors which led to the adoption of the textual approach in England: (i) Misconceptions about the doctrines of the separation of powers (trias politica doctrine) and resulted in the idea that the court's function should be limited to the interpretation and IOS201-6 Page 9 of 30 application of the will of the legislature, which is to be found in the words of the legislation only. (ii) The doctrine of legal positivism: what is decreed by the state is law and the essence of the law is to be found in the command or decree - the role of the court is limited to the analysis of the law as it is. (iii) England has a common law tradition, in which the courts traditionally played a very creative role in regard to common law principles. As a result legislation was viewed as the exception to the rule, altering the traditional common law as little as possible. (iv) Legislation was drafted to be as precise and as detailed as possible, for the sake of legal certainty - Legislature has prescribed everything it wishes to prescribe. The approach was introduced into our legal system in De Villiers v Cape Divisional Council where it was held that legislation adopted after the British occupation should be interpreted in accordance with the English rules, which was a strange decision as English law prescribed that the conquered territory should continue to apply its own legal system. The Roman-Dutch rules of interpretation hold that the purpose of the legislation should prevail. Over the years, the courts came to regard the clear literal meaning as identical to what the ‘legislature intended’. The ‘plain meaning’ approach means that the words to be interpreted should be given a literal or grammatical meaning and the intention of the legislature should be inferred from the words used in the legislation – Union Government v Mack and Farrar’s Estate v CIR. If the legislature had a specific intention, it would be reflected in the clear and unambiguous words of the text – Ensor v Rensco Motors (Pty) Ltd and Engels v Allied Chemical Manufacturers (Pty) Ltd. Criticism of the textual approach: (i) The role played by the common law presumptions is reduced to a mere 'last resort'. (ii) In this narrow approach, the literal meaning of words are regarded as the primary index of the legislature's intention. (iii) Other important internal and external aids to interpretation are ignored unless the textual meaning is ambiguous or unclear. (iv) The intention of the legislature is dependant on how clear the language is to a court. (v) Few legislative texts are so clear that only one interpretation is possible. This approach leaves very little room for the court’s inherent law-making discretion and they are seen simply as mechanical interpreters of the law created by the legislature. According to the maxim iudicis est ius dicere sed non dare, the function of the court is to interpret and not to make law (Harris v Law Society of the Cape of Good Hope) and the inflexible approach to this rule results in a misunderstanding of the separation of powers doctrine, which is used to justify the literal approach, and most courts still follow the textual, plain meaning approach. The casus omissus rule (courts may not supply an omission in a law) is derived from the principle that the function of courts is to interpret law, not make it – Ex parte Slater, Walker Securities (SA) Ltd. Public Carriers Association v Toll Road Concessionaries Facts: A portion of the N3 between Johannesburg and Durban was declared a toll road in terms of Section 9(1) of the National Roads Act. Section 9(3) of the Act provided that a toll road shall not be declared unless “an alternative road to the intended toll road, along which the same destination or destinations may be reached” is available to road users. The alternative road which was provided overlapped the toll road for a total distance of 79km, but bypassed all the toll gates, thereby enabling motorists travelling along it to avoid paying toll charges. An association of public road carriers challenged the new toll road on the grounds that a proper “alternative road” had not been made available as required by Section 9(3) of the Act. The association claims that the phrase “an alternative road” means an alternative roadway and not an alternative route. It was thus argued that, for there to be an alternative road, two physically separate roadways must exist for the motorist to choose from. Since the use of the so-called alternative road involved travelling a total of 79 km along the toll road, it was not an “alternative road” as required. The toll road operators argued that “alternative road” means “an alternative route”. In this sense two roads (or routes) are alternative roads, even though parts of them are common to both. Legal issue: How should the phrase “an alternative road” be interpreted? Finding: One of the last authoritative statements of the textual approach before the introduction of the new constitutional order. It also suggested that the purpose of the legislation could solve interpretation problems as a last resort when the textual approach could not. The court thus partially recognised the value of the purposive or text-in-context approach, but restricted its application to cases where the textual approach had failed. The case provides a bridge between the old textual approach and the new contextual approach. IOS201-6 Page 10 of 30 The court decided the case in favour of the toll road operators. It began its reasoning by applying the rules of the textual approach to the question. It stated that the primary rule in the construction of statutory provisions is to ascertain the intention of the legislature. The court proceeded to say that it is now well established that one seeks to achieve this, in the first instance, by giving the words of the enactment under consideration their ordinary grammatical meaning, unless to do so would lead to an absurdity so glaring that the legislature could not have contemplated it. Subject to this proviso, no problem would normally arise where the words in question were only susceptible to one meaning: effect had then to be given to such meaning. In other words, the court turned to the dictionary, hoping to find a clear meaning for the terms “road” and “alternative”. Having consulted the dictionary, the court discovered that the words “an alternative road” are not linguistically limited to a single ordinary grammatical meaning. The phrase could mean either “a different roadway” (as the association argued) or “a different route” (as the toll operators argued). Because both interpretations were linguistically feasible, the court turned to the so-called secondary aids of textual interpretation. However, it found that none of the recognised internal or external aids helped to indicate which one of the two meanings of the term “road” was intended by the legislature. The court then turned to the common law presumptions. However, none of the presumptions helped to indicate which of the two possible meanings of the term “road” we should accept as the legislative intention. The textual approach therefore didn’t provide any solution to the problem. To resolve the dispute, the court decided to look at the purpose of the provision. The court declared that it should adopt the interpretation which best served that purpose. “It must be accepted that the literal interpretation principle is firmly entrenched in our law and I do not seek to challenge it. But where its application results in ambiguity and one seeks to determine which of more than one meaning was intended by the legislature, one may in my view properly have regard to the purpose of the provision under consideration to achieve such objective.” The court proceeded to state that the purpose of Section 9(3) was to ensure that road users who wished to do so could reach their original destination without paying the new toll fees. That being the primary object of Section 9(3), the court held that “an alternative road” meant “an alternative route” and not “an alternative roadway”. It was not necessary to provide a wholly separate roadway in order to achieve the object of the Act. All that was required was a route that bypassed the toll gates. It followed that the declaration of the relevant portion of the N3 as a toll road was valid.
The purposive (text-in-context) approach The purpose or object of the legislation is the dominant factor in interpretation. To determine such purpose, the context of the legislation, including social factors and political policy directions, are taken into account. The mischief rule stand in contrast to the literal approach and is the basis of a purposive, contextual approach to interpretation. It acknowledges the application of external aids such as the common-law prior to enactment of the legislation, the mischief in the law not provided for, the new remedies and the reasons for such remedies to provide the interpreter with the purpose and meaning of the provision. This approach establishes a balance between the grammatical, literal meaning and the overall contextual meaning as the interpretation of the provision cannot be complete until the purpose and extent of the legislation are also taken into account. This harmonises the flexibilities and peculiarities of language, and all internal and external factors, in the lifespan of the legislation. Jaga v Dönges Facts: Jaga was caught selling unwrought gold and was sentenced to 3 months imprisonment suspended for 3 years. The Minister declared Jaga an undesirable inhabitant of the Union and a warrant for his deportation to India was issued. Jaga challenged his deportation on the basis that he hadn’t been sentenced to imprisonment and the Minister argued that a suspended sentence of imprisonment is still a sentence of “imprisonment” within the ordinary meaning of the provision. Jaga argued that “imprisonment” meant actual (as opposed to merely potential) imprisonment and he wasn’t actually and physically held in prison. Legal issue: How should the phrase “sentenced to imprisonment” be interpreted? Finding: The majority of the court decided to adopt the textual approach and it was held that “imprisonment” meant that the sentence imposed on the offender contained a period of imprisonment (suspended or not) as an element and the warrant was legally issued as Jaga did receive a sentence of imprisonment. In his minority judgment, Schreiner JA, by contrast adopted a contextual approach and came to the opposite conclusion. He identified the following guidelines for interpretation of statutes:  From the outset, the interpreter may take the wider context of provisions (e.g. its ambit and purpose) into consideration with the legislative text in question. IOS201-6 Page 11 of 30  Irrespective of how clear or unambiguous the grammatical meaning of the legislative text is, the relevant contextual factors must be taken into account.  The wider context may even be more important than the legislative text.  Once the meaning of the text and contact is determined, it must be applied, irrespective of whether the interpreter is of the opinion that the legislature intended something else. The contextual approach was supported in Mjuqu v Johannesburg City Council and University of Cape Town v Cape Bar Council. This approach is more flexible in that it allows the courts to modify and adapt the initial meaning to accommodate the purpose of the legislation, which supports the court’s inherent law-making discretion. The court’s discretion is, however, limited by the prerequisite that such modification or adaptation of the meaning is only possible when the purpose and extent of the legislation are absolutely clear to support such a modification or adaptation. This approach is not intended to limit the legislature’s legislative function, but rather to broaden the court’s powers during the interpretation and application of legislation. The provision of the legislation is not modified, but rather the meaning attached thereto to give effect to the true intention of the legislature.
The influence of the supreme Constitution (i) The supremacy clause – Sections 1 and 2 Section 2 of the Constitution – Supremacy of the Constitution This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. This must be read with: Section 7, which states that the Bill of Rights is the cornerstone of the South African democracy and that the state must respect, protect, promote and fulfill the rights in the Bill of Rights; Section 8(1), which states that the Bill of Rights applies to all law and binds the legislature, executive, judiciary and all organs of state; Section 8(2), which provides that the Bill of Rights applies to both natural and juristic persons; and Section 237, which states that all constitutional obligations must be performed diligently and without delay. All law and conduct, all traditions, dogmas, perceptions, rules, procedures and all theories, canons and maxims of interpretation are, therefore, influenced and restricted by the Constitution, which is supreme and everything and everybody is subject to it. This entails that the Interpretation Act, Roman-Dutch common-law or traditional common-law cannot be used to interpret the Constitution and the interpretation now also involves balancing competing fundamental rights and freedoms. Section 1 of the Constitution – Republic of South Africa The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms. (b) Non-racialism and non-sexism. (c) Supremacy of the constitution and the rule of law. (d) Universal adult suffrage, a national common voter’s roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness. (ii) The interpretation provisions – Sections 39 and 233 Section 39(2) of the Constitution – Interpretation of Bill of Rights 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. Section 233 of the Constitution – Application of international law When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law. These are peremptory and, without stating it expressly, the interpreter is compelled to revert to external aids and, in effect, follow the contextual approach as the interpreter is, from the outset, required to promote the spirit, purport and objects of the Bill of Rights and interpret law so that it is consistent with international law. It is thus clear that the interpretation of statutes will not be properly served when using the textual approach as the mere plain meaning of the text would not necessarily reflect this purpose. IOS201-6 Page 12 of 30 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism Facts: The case concerned the allocation of quotas in the fishing industry. The amount of fish that may be caught by a deep-sea fishing trawler is limited by a quota system, which is determined by the Minister of Environmental Affairs and Tourism in terms of the Marine Living Resources Act. Section 2 of the Act is headed “Objectives and principles” and lists the objectives of the Act, including to achieve sustainable development, to further biodiversity, and to restructure the fishing industry in order to achieve equity. The section states that the Minister must “have regard to” these objectives when he allocates quotas. Section 18(5) deals specifically with the allocation of fishing quotas. It again states that the Minister must make allocations that will achieve the objective contemplated in Section 2. Bato Star was allocated a quota for the year, but complained that its quota was too small and approached the court to have the allocation of quotas set aside. The case turned on the question whether the Minister did “have regard to” the objective of achieving equity in the fishing industry when quotas were allocated. Legal issue: How should the phrase “have regard to” be interpreted? Finding: The Supreme Court of Appeal asked, in a textualist fashion, what the ordinary meaning of the words “have regard to” was and to answer this question, the court looked at the way in which the phrase has been applied by our courts for many years. These cases made it clear that “to have regard to” meant no more than “to take into consideration” or “to take into account” or “not to overlook”. This meant that, when granting quotas, the Minister had to take the principle of equity mentioned in Section 2 into consideration, but did not have to make it his special concern. It was clear from the facts that the Minister did take the need to transform the fishing industry into account when quotas were allocated. The quotas were therefore validly allocated. Bato Star appealed to the Constitutional Court claiming that the Supreme Court of Appeal had interpreted the phrase “have regard to” incorrectly. Bato Star argued that the phrase “have regard to” equity not only meant that equity should be “taken into account” (as the ordinary meaning of the words suggests), but that equity should be “promoted as the overriding concern”. This alternative meaning is suggested by the context in which the phrase operates. The Constitutional Court agreed. It was held that the starting point when interpreting any legislation is the Constitution and that, firstly, the interpretation must advance at least one identifiable value enshrined in the Bill of Rights and, secondly, the legislation must be capable of such interpretation. This case thus confirms that the primary and golden rules of textual interpretation do not apply in our law any more and the Constitutional Court agreed that an alternative meaning should be ascribed to a provision regarding fishing quotas as suggested by the context in which it operates. Ngcobo J expressed concern about the textual method of interpretation followed in the court a quo and insisted that it is no longer the ordinary meaning of words that must be applied, but the purpose of legislation and the values of the Constitution. He also referred to the minority judgment in Jaga v Dönges (see above) with approval. Investigating Directorate: Serious Economic Offences v Hyundai Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit Finding: The constitutional foundation of the interpretation methodology was explained by referring to Section 39(2) of the Constitution. It was held to mean that all legislation must be interpreted to promote the spirit, purport and objects of Bill of Rights. Therefore, when interpreting the Constitution, the context in which we find ourselves and the Constitution’s goal of society based on democratic values, social justice and fundamental human rights must be recognised. The constitutional venture is, as a whole, characterised by the spirit of transition and transformation. Holomisa v Argus Newspapers Ltd Finding: The interpretation clause of the Constitution was held to be “…not merely an interpretive directive, but a force that informs all legal institutions and decisions with the new power of constitutional values”. (iii) The values underlying the Constitution The three core values: Freedom Equality Human Dignity The spirit, purport and objects of the Bill of Rights must be promoted during the process of statutory interpretation, thus the courts are the guardians and enforcers of the values underlying the Constitution. Since the values underlying the Constitution is not absolute, the interpretation of legislation is also an exercise in the balancing of conflicting values and rights and can no longer be a mechanical reiteration of what was supposedly ‘intended’ by parliament, but rather what is permitted by the Constitution. IOS201-6 Page 13 of 30 Unfortunately the courts still apply the literal approach as in Kalla v The Master where the view of a supreme constitution was not held that, but rather that the traditional rules of statutory interpretation were not affected by the interim Constitution. Also in Geyser v Msunduzi Municipality an orthodox approach was followed.
Practical inclusive methods of interpretation Du Plessis and Corder suggested 5 methods of constitutional interpretation. The techniques are complementary and should be applied in conjunction with one another: (i) Grammatical interpretation It acknowledges the importance of the role of the language of the legislative text. It focuses on the linguistic and grammatical meaning of the words, phrases, sentences and other structural components of the text, without implying a return to the literal approach. (ii) Systematic (or contextual) interpretation It is concerned with the clarification of the meaning of a particular legislative provision in relation to the legislative text as a whole. Words, phrases and provisions cannot be read in isolation. The emphasis on the 'wholeness' is not restricted to the other provisions and parts of the legislation, but also takes into account extra-textual factors such as the social and political environments in which the legislation operates. (iii) Teleological interpretation It emphasises the fundamental constitutional values and a value-orientated interpretation. The aim and purpose of the legislation must be ascertained against the fundamental constitutional values. The fundamental values in the Constitution form the foundation of a regulating, value-laden jurisprudence against which legislation and actions are evaluated. (iv) Historical interpretation It refers to the use of the 'historical' context of the legislation, including factors such as the circumstances which gave rise to the adoption of the legislation (mischief rule) and the legislation history (prior legislation and preceeding discussions). Although an important aspect, this method cannot be decisive on its own. (v) Comparative interpretation This refers to the process (if possible and necessary) during which the court examines international human rights law and the constitutional decisions of foreign courts. All these techniques were identified in Minister v Land Affairs v Slamdien: The purposive approach made clear by the Constitutional Court requires: - ascertain the meaning of the provision to be interpreted by an analysis of its purpose and, in doing so; - have regard to the context of the provision in the sense of its historical origins; - have regard to its context in the sense the statute as a whole, the subject matter and broad objects of the statute and the values underlying it; - have regard to its immediate context in the sense of the particular part of the statute in which the provision appears or those provisions with which it is interrelated; - have regard to the precise wording of the provision. 6. BASIC PRINCIPLES 6.1. The purpose of legislation
The constitutional demands The most important rule of interpretation is to establish the purpose of the legislation and to give effect to it (‘intention of the legislature’). In Matiso v Commanding Officer, Port Elizabeth Prison it was pointed out that, since the Constitution is supreme and not the Legislature, the rule of ascertaining the intention of the legislation doesn’t belong in our system. The purpose of legislation must be ascertained and applied in the light of the Bill of Rights and the Constitution and, therefore, a contextual approach is prescribed rather than a textual or literal approach.
Why not the ‘intention of the legislature’? It originated from parliamentary sovereignty and Steyn defines statutory interpretation as “the process by which the will or thoughts of the legislature are ascertained from the words used by the legislature to convey their will or thoughts”. Intention indicates a subjective state of mind, which is inconceivable when it comes to all the members of a legislative body because: (i) a large number of persons are involved in the legislative process; (ii) some members usually oppose the legislation, resulting therein that legislation ultimately reflects the intention of majority; IOS201-6 Page 14 of 30 (iii)some members may support legislation for the sake of party unit, although they are personally opposed to it; (iv) not all parliamentarians can be expected to understand complex, technical legislation; (v) bills are drafted by drafters acting on the advice of bureaucrat from State departments and not by parliamentarians; (vi) some members may be absent when the voting on a bill takes place. In Public Carriers Association v Toll Road Concessionaries (Pty) Ltd court tried to make a distinction between the ‘intention of legislature’ and the purpose of the legislation and pointed out the following: (i) it is important to distinguish between the purpose of the legislation and the reasons why the members of the legislative body voted for the measure; (ii) the purpose of the legislation can be determined logically, where the ‘intention of the legislature’ is a matter of speculation; (iii) the purpose of the legislation should be determined by objective means and cannot be found by mere guesswork. The ‘intention of the legislature’, when used in a narrow sense, is a disguise for the literal approach and in R v Kirk it was held that the intention of the legislature can only be arrived at by construing the actual words used and words cannot be inserted or intention assumed. The ‘intention of the legislature’ when used in a broad sense, imply a more purposive approach and in Stellenbosch Farmers’ Wineries v Distillers Corporation it was held that, to find the true intention of the words, the goal of the legislature and the reason for it must be ascertained. The most important rule of statutory interpretation is that the interpretation must reflect the purpose of the legislation. However, the application of legislation that dates from the years of Apartheid cannot be restricted by what the parliament originally intended, but must be directed by the question of what function that legislation plays in today’s constitutional democracy and human rights culture (without any reference to the intention of the apartheid legislators). Thus, it’s better to speak of the purpose of legislation.
The meaning of the text The literal approach no longer applies, although text is still read for its meaning. It is, however, the purpose of the legislation viewed against the fundamental rights in the Constitution which will qualify the meaning of the text. (i) The initial meaning of the text The process begins with the reading of the legislation attaching the ordinary meaning to the words. However, this normal principle of language was elevated to the primary rule of literary interpretation. The ordinary meaning principle is only the starting point of the process; the context of the legislation must also be taken into account from the outset. In technical legislation that applies to a specific trade or profession, words that have the specific meaning in that field must retain that meaning if it differs from the ordinary. (ii) Every word is important Derived from (i) above, is the principle that a meaning must be assigned to every word and legislation should be interpreted in such a way that no word or sentence is regarded as redundant or superfluous. Sometimes it is essential to regard a word as unwritten as overlapping and repetition often occur as a result of overly cautious drafters. Provisions should be read as a whole in order to obtain the meaning. The principle that a meaning should be assigned to every word is not absolute and the purpose should be the deciding factor in determining whether a word is superfluous or not. This principle is also related to the presumption that legislation doesn’t contain futile or nugatory provisions. (iii) The continuing timeframe of legislation Question: Should words be interpreted according to their present-day meaning or retain the meaning they had when the legislation was passed? Cowen deems it unnecessary for words to retain their original meaning. Initially, courts held that legislation must be given the meaning at the time it was passed and that the intention of the legislature must be determined in accordance with the meaning of the provision at the time when it was enacted. However, recently it has been held that the purpose of an Act suggested that the definitions should be interpreted flexibly in order to keep up with new technologies rather than update legislation periodically. (iv) No addition or subtraction This is a basic principle and, in the final analysis, the purpose of the legislation is the qualifier of the meaning of the text. If the purpose of the legislation is clear, the court, as IOS201-6 Page 15 of 30 the last link in the legislative process should ensure that the legislative process reaches a just and meaningful conclusion.
Balance between the text and context Initially, the context of the legislation was only taken into account if the language of the legislation was deemed to be ambiguous. In Jaga v Dönges this narrow view was rejected and it was held that, even if there is a clear meaning, the context must be taken into account. The purposive approach doesn’t separate text from context, but strikes a balance between them. 6.2. Other basic principles
Legislation must be read as a whole Legislation must be read as a consistent whole. In common law, this is known as interpretation ex visceribus actus (all parts of the legislation must be studied), also applying to the Constitu- tion and Du Plessis refers to this principle as the ‘structural wholeness of the enactment’.
The presumption that legislation does not contain futile or nugatory provisions Unless the contrary is clear, it is presumed that the legislature doesn’t intend legislation which is 5 futile or nugatory. This forms the basis of the most important principle of interpretation: Court must determine the purpose of legislation and give effect to it. The foundation of this presump- tion is an acknowledgment that legislation has a functional purpose. If the intention of the legislature is clear, it should not be defeated merely because of vague or obscure language and court must attach a meaning to the words which will promote the aim of the provision. If a provision is capable of two meanings, the meaning which is consistent with the legislative purpose must be accepted. R v Forlee Facts: Forlee was found guilty of contravening an Act by selling opium. It was argued on appeal that he didn’t commit an offence as the Act prescribed no punishment. Legal issue: The presumption that legislation doesn’t contain futile or nugatory provisions Finding: The court relied on the presumption against futility, finding that the absence of a penal clause didn’t render the Act ineffective since the court has the discretion to impose punishment. This gave rise to wide-spread criticism as the nullum crimen sine lege (if there is no penalty, there is no crime) was not adhered to. Although both presumptions applied, the nullum crimen sine lege rule is the basis of the criminal justice system and should have outranked the presumption against futile results. The presumption applies to delegated legislation. The maxim ut res magis valeat quam pereat applies: an interpretation that will leave the delegated legislation intra vires (valid) and not ultra vires (invalid) must be preferred. Courts should strive to interpret legislation in a manner that evasion of its provisions is prevented and that a casus omissus (omission) is avoided. 7. RESEARCH: ASCERTAINING THE LEGISLATIVE SCHEME 7.1. General introduction Fundamental principle: The purpose of legislation must be decided in the light of the Constitution. Both internal and external aids may be used or consulted to ascertain the purpose. The interpreter must do research and Du Plessis refers to such a research process as one of contextualisation. Internal aids comprise the legislation and all its parts, while external aids are mostly other texts. The difference in opinion between the approaches as to when these aids will be used:
The textualists will refer to these aids only where the legislative text is ambiguous and unclear.
The contextualist will refer to all internal and external factors from the outset. The Constitution supports a purposive approach, thus courts must be able to use all the internal and external aids to interpretation at their disposal to ascertain the aim and purpose of legislation and should have the discretion to decide on the important and relevance of a particular aid. 7.2. Internal aids
The legislative text in another official language: Prior to the commencement of the 1993 Constitution, legislation was drafted in two official languages and text in any other language was used to clarify obscurities. (i) Original legislation Legislative texts are signed alternately in the different languages in which they were drafted and the signed text enrolled for record at the Appellate Division. With the 1961, 1983 and 1993 Constitutions, should an irreconcilable conflict between various legislative 5 Stated differently: the court must avoid an interpretation that negates part of the legislative text or leaves part of the text without a meaning or purpose. The basic principle that every word must be given a meaning is further supported by the common-law presumption that legislation doesn’t contain invalid or purposeless provisions. IOS201-6 Page 16 of 30 texts exist, the signed text prevailed. Section 240 of the 1996 Constitution provides that, in the event of any inconsistency, the English text will prevail. In terms of the Constitution, all national and provincial legislation which have been signed by the President or premier must be held at the Constitutional Court. The signed text will be conclusive evidence of the provisions of that legislation. The Constitution doesn’t refer to irreconcilable conflicts between texts of other legislation. The signed text doesn’t carry more weight simply because it is signed: - The signed version is conclusive only where there is an irreconcilable conflict between the versions – Handel v R. The signed version is only used as a last resort. - Where one version is wider, the ‘common-denominator’ rule is followed. - If there’s no conflict, the versions complement one another and must be read together. An attempt must be made to reconcile the texts with reference to the context and the purpose of the legislation. - Even the unsigned version may be used to determine the intention of the legislature. - If amendment Acts of an Act are signed alternately in English and Afrikaans, there are conflicting opinions as to which version will prevail. In R v Silinga it was suggested that the amendment Act be regarded as part of the original statute and the version of the statute signed originally will prevail if there are irreconcilable conflicts between the texts of amendment Acts. (ii) Delegated legislation In practice, all the versions of delegated legislation will be signed and the signed text cannot be relied on to solve conflicts between texts. If the texts differ, they must be read together – Du Plessis v Southern Zululand Rural Licensing Board. If there is an irreconcilable conflict, the court will give preference to the one that benefits the person concerned. It’s based on the presumption that the legislature doesn’t intend legislation that is futile or nugatory. If the irreconcilable conflict results in legislation that is vague or unclear, the court may declare it invalid. (iii) Criticism All versions of the text should be read together from the outset as they’re all part of the structure of the same ‘enacted law-text’. Interpreters have the benefit of having two versions of the same legislation available for comparison in different languages. The notion that ‘the signed text prevails’ is confirmation of the textual approach, because the purpose is ignored if there is conflict between the versions. Botha suggests that if an irreconcilable conflict between versions of the same legislative text exists, the text which best reflects the spirit and purport of the Bill of Rights must prevail.
The preamble It usually contains a programme of action or a declaration of intent with regard to the broad principles contained in the particular statute. It may be used during interpretation of legislation as the text as a whole should be read in its context, although on its own it cannot provide the final meaning of the text. In Green v Minister of the Interior, it was held that the preamble should be considered only if the provisions are unclear, which approach is a narrow and textual. In Jaga v Dönges, the preamble was considered to be part of the context of the statute. In National Director of Public Prosecutions v Seevnarayan, the approach held in Green was considered and outdated approach to interpretation.
The long title Provides a short description of the subject matter and forms part of the statute to be considered by the legislature during the legislative process. The courts are entitled to refer to the long title to establish the purpose of the legislation - Bhyat v Commissioner for Immigration.
The definition clause It is an explanatory list of terms in which certain words or phrases used in the legislation are defined. A definition in this section is conclusive, unless the context indicates another meaning when the ordinary meaning will be adopted. In Kanhym Bpk v Oudtshoorn Municipality it was held that a deviation from the meaning in the definition clause will only be justified if the meaning is not the correct interpretation within the context of the particular provision.
Express legislative purpose and interpretation guidelines Provides a more detailed description of the legislative scheme than the long title, but cannot be decisive as this view would create a new and sophisticated version of literal interpretation. The interpreter must analyse the text as a whole with external aids. IOS201-6 Page 17 of 30
Headings to chapters and sections In the past courts held the literal viewpoint that the heading may be used to establish the purpose of the legislation only when the rest of the provision wasn’t clear. Headings should be used to determine the purpose of legislation in the contextual approach. In Turffontein Estates v Mining Commissioner Johannesburg the court pointed out that the value attached to headings will depend on the circumstances of each case.
Paragraphing and punctuation It is a grammatical fact that punctuation can affect the meaning of the text. In R v Njiwa it was held that the punctuation must be taken into consideration during interpretation. In Skipper International v SA Textile and Allied Workers’ Union it was held that, as punctuation was considered by the legislature, it must be considered during interpretation.
Schedules Schedules serve to shorten and simplify the content-matter and the value depends on the nature thereof, its relationship to the rest of the text and the language in which the legislation refers to it. General rule: Schedules which explain sections of an Act should have the same force of law. If there is conflict between the schedule and a section, the section prevails with the exception of the interim Constitution where the schedules form part of the substance. A particular schedule may state that it isn’t part of the Act and that it doesn’t have the force of law, in which case it may be considered as part of the context, e.g. the Schedule 4 of the Labour Relations Act with flow diagrams explaining the procedures for dispute resolution. 7.3. External aids
The Constitution It is the most important aid to interpretation. No argument about plain meanings and clear texts could prevent the Constitution from being used or referred to during interpretation.
Preceding discussions Discussions about a specific Bill before parliament, the debates and report of the various committees which form part of the legislative process and the reports of commissions of inquiry constitute preceding discussions. One should distinguish between debates during the legislative process and commissions of inquiry after the passing of legislation. (i) Debates during the legislative process The use of debates hadn’t been accepted by the courts. In De Reuck v Director of Public Prosecutions, Witwatersrand Local Division the court referred to parliamentary debates, reports of task teams and the view of academics in interpreting an Act and in S v Tilly and S v Tshilo the court referred to a report of the South African Law Commission and a ministerial speech in parliament during the interpretation of a statute. (ii) Commission reports In some earlier cases the court didn’t accept the use of a commission report and some it was accepted only if a clear link exists between the recommendations and the provisions. Steyn points out that the reasons for the courts not accepting reports are not convincing. Certain reports and speeches are useful in understanding the legislation. The reports of parliament and its committees may be used to ascertain the purpose.
Surrounding circumstances Those conditions before and during the adoptions of legislation which led to its creation, thus the context of the legislation. (i) The mischief rule The historical context of legislation is used to place provisions in perspective. The rule was laid down by Lord Coke in the famous Heydon case, which forms the cornerstone of the contextual approach. It poses 4 question that must be answered to establish the meaning of legislation: - What was the legal position before the legislation was adopted? - What was the mischief (defect) not provided for by existing legislation or common law? - What remedy (solution) was provided by the legislature to solve this problem? - What was the true reason for the remedy? Object: To examine the circumstances leading to the measure in question. In Santam Insurance Ltd v Taylor the court was obliged, on account of ambiguous language used in the Act, to examine the historical background of the Act to ascertain its purpose. In Qozeleni v Minister of Law and Order it was the suggested approach to interpret the Constitution is not foreign to the mischief rule. IOS201-6 Page 18 of 30 (ii) Travaux préparatoires Travaux préparatoires refers to the discussions during drafting of an international treaty, but is increasingly used with regard to deliberations of the drafters of a constitution. If the deliberations of constitutional drafters become the deciding factor during the interpreta- tion of such a constitution, there will be no development or adaptability. Thus, travaux préparatoires of a constitution may be consulted as a secondary source but cannot be the deciding factor. (iii) Contemporanea expositio This is an exposition (description) of the legislation at the time of its adoption or shortly thereafter. The marginal notes, punctuation, division into paragraphs and the first appli- cation may all serve as such. The implication is that the exposition was probably given by persons who were involved in the adoption of the legislation or shortly afterwards during its first application. (iv) Subsecuta observatio This refers to the established use or custom which may originate at any time after the adoption, which may be in conflict with the contemporanea expositio. The long-term use of a measure may be the deciding factor where more than one interpretation is possible. (v) Ubuntu An indigenous African concept referring to a practical humanist disposition towards the world and refers to compassion, tolerance and fairness. The concept was applied and explained in S v Makwanyane where it was held that it translate to ‘humaneness’, ‘personhood’ and ‘morality’. It’s not referred to in the Constitution, but it can be argued that ubuntu lives on the references to human dignity in the Constitution. It forms an important bridge between communal African traditions and individual Western traditions.
Dictionaries and linguistic evidence In an ever increasing technical and highly specialised era, dictionaries are use more frequently in a contextual framework. In De Beers Industrial Diamond Division (Pty) Ltd v Ishizuka it was held that the interpretation of a word cannot be finally determined by its meaning in a dictionary as it was only a guideline and the context in which a word was used should be the decisive factor. The courts have held that the testimony of language experts or supplementary linguistic evidence isn’t admissible as an aid. S v Makhubela Facts: The accused was charged with being behind the wheel of a vehicle that was being pushed by a group of people on a public road, without a driver’s licence. He was found guilty of driving a vehicle on a public road without a valid diver’s licence. Legal issue: The use of a dictionary Finding: On review, the court decided that the definition of the word ‘drive’, as found in the Road Traffic act, was inadequate. The court held that the word ‘drive’ shouldn’t be construed only according to its dictionary meaning, but should be understood within the context of the Act was a whole. The legislature had meant that a person driving a vehicle propelled by its own mechanical power should be in possession of a driver’s licence. The conviction and sentence were set aside.
The source of a provision Sometime an English provision that’s been incorporated verbatim into South African legislation has to be interpreted and the interpretation used by the English courts will serve as a guideline, but will always construe legislation in the light of South African common-law. If the legislation is identical to original English legislation and the interpretation of the English courts isn’t in conflict with our common-law, courts may take cognisance the English cases. Not only the rules of common-law determine whether our courts refer to foreign law, but also the Constitution.
Explanatory memoranda, examples and footnotes The publication of a Bill if often accompanied by the publication of an explanatory memorandum from its drafters, which may help to determine the purpose of statutory provisions. In Shoprite Checkers (Pty) Ltd v Ramdaw the court used the explanatory memorandum to interpret the Labour Relations Act. Footnotes and examples are used to facilitate confusing text and should be used as part of the context. 7.4. The Interpretation Act 33 of 1957 Part I General provisions regarding the interpretation of statutes that apply in the Republic Parts II – V Particular provisions applying in the different provinces Part VI Provides that the Act binds the state IOS201-6 Page 19 of 30 The time factor
The meaning of ‘month’ ‘Month’ means a calendar month and not a lunar month of 28 days: (i) a month as it appears on the calendar, e.g. 1 to 31 January (‘calendar month’); or (ii) a month as it is measured in for example prison terms, e.g. 9 June to 9 July (‘month’).
The computation of time It’s very important as a number of statutory and contractual provisions prescribe a time or period in or after which certain actions are to begin or are to be executed, abandoned or completed. Failure to discharge certain obligations within a certain period may affect the rights of parties concerned. Section 4 of the Interpretation Act should be read with the common-law methods. (i) The statutory method (Section 4 of the Interpretation Act) This section refers only to days, not to periods of months or year, and will be applied only where other legislation has no other arrangements. Our courts have accepted that in cases where it is not applicable, the ordinary-civil method applies. In Brown v Regional Director, Department of Manpower it was held that, if this section has to be used, it has to be interpreted as follows: the purpose of the calculation of time envisaged in section 4 is to determine the end and not the beginning of the particular period. The beginning of the period is when the particular right in question arises. Section 4 of the Interpretation Act – Reckoning of number of days When any particular number of days is prescribed for the doing of any act, or for any other purpose, the same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day happens to fall on a Sunday or any public holiday, in which case the time shall be reckoned exclusively on the first day and exclusively of every such Sunday or public holiday. (ii) Common-laws methods - Computatio civilis (ordinary, civil method) This methods is directly opposed to the statutory method. The time is computed de die in diem: the first day of the period is included and the last day excluded. The last day is regarded as ending at the very moment it begins as it were (at midnight the previous day). In Minister van Polisie v De Beer it was held that, where a collision took place on 5 August 1967, the summons was served 1 day too late on 5 February 1968 where this methods was used to determine the 6 month period to institute. - Computatio naturalis (natural method) The period is calculated from the hour or minute of an occurance to the corresponding hour or minute on the last day of the period in question (de momento in momentum). - Computatio extraordinaria (extraordinary civil method) Both the first and the last day of the period are included. 7.5. Other common law presumptions
Government bodies are not bound by their own legislation General rule: The state is not bound by its own legislation, unless the legislation expressly or by necessary implication provides otherwise. It doesn’t create a carte blanche (unrestricted authority), but rather a principle of effectiveness to ensure state is not hampered in its government functions. Wiechers points out that if state is only bound by its own legislation in exceptional circumstances, there would be no question of state liability and the principle of legality would fall away. This was rejected in S v De Bruin and the application of this presumption was again confirmed in Administrator, Cape v Raats Röntgen & Vermeulen (Pty) Ltd. In Evans v Schoeman court held that the presumption against the state being bound isn’t limited to instances where the state’s prerogatives are involved and the following are indications that the state isn’t bound: (i) if state would be rendered subject to the authority of or interference by its own officials; or (ii) if the state would be affected by penal provisions. Whether the state will be bound depends on the particular legislation, circumstances and each case’s merits. Example