Study Theme 5.pdf

Legal interpretation (Rvw210) PART 2: HOW TO INTERPRET LEGISLATION STUDY THEME 5: THEORETICAL FOUNDATIONS 04 / 05 April 2024 Adv N Ncame Study Theme 5 Class Notes The prescribed study material for Study Theme 5 are: Textbook chapter 5, pages 91–121; Class notes on study theme 5; S v Makwanyane 1995...

Legal interpretation (Rvw210) PART 2: HOW TO INTERPRET LEGISLATION STUDY THEME 5: THEORETICAL FOUNDATIONS 04 / 05 April 2024 Adv N Ncame Study Theme 5 Class Notes The prescribed study material for Study Theme 5 are: Textbook chapter 5, pages 91–121; Class notes on study theme 5; S v Makwanyane 1995 (3) SA 391 (CC); Commissioner, SARS v Executor, Frith’s Estate 2001 (2) SA 261 (SCA); Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 (CC); Chisuse and Others v Director-General, Department of Home Affairs and Another ZACC 20. 1. INTRODUCTION A basic understanding of the theoretical background of statutory interpretation is essential for a perspective on and understanding the subject. One of the reasons for the dismal state authority of statutory interpretation in SA is the lack of a sound theoretical basis for the discipline, resulting in a hotchpotch of conflicting rules & principles. Legal interpretation involves scrutinizing legal texts such as the texts of statutes, constitutions and case laws. The following study themes provide a brief overview of several well-known methods of legal interpretation. The goal is to introduce you all to standard formulations, not to offer in-depth of what the methods actually come to. 2. JURISPRUDENCTIAL PERSPECTIVES ON STATUTORY INTERPRETATION 2.1. The general rule of Hermeneutics Defined as the science of understanding or more specifically, as the theory of the interpretation of texts. The understanding and explanation of texts to reveal their inherent meaning. The art of understanding the techniques used in interpretation of texts. Derived from the Greek word hermeneuein which means interpret. Today it is an important tool in Christian theology and jurisprudence. Legislation cannot provide an exhaustive description of all possible legal questions; therefore, it is the courts task to concretise the general precepts of the legislature through interpretation of legislation. Note there is a difference between exegesis- that which the author originally wanted to say and hermeneutics- what the author wants to say to present day readers. Note Gadamers’ hermeneutics which took into cognizance the socio-historical situation or context of interpreter, this is a contextual approach hermeneutics. Hermeneutics scholars said that words and phrases do not have an inherent meaning, but meaning is derived from the total use of language, including the context used. The contribution of the interpreter’s value judgment. 2.2. Context and interpretation Picasso painting analogy: painting (text) plus context (background) equals understanding (or at least the beginning of the process of understanding) 2.3. The Influence of certain modern critical theories Critical legal scholars reject the formalist position that law is rational, objective and neutral. Instead, they say some law is subjective and ideological. Thus, the literal vs contextual interpretation approaches. Post-modernism is a school of thought that rejects preconceived ideas and macro-arguments and categorization; instead that every idea is only as good as the preconceptions and presuppositions that are there. (a) The Critical Legal Studies Movement (CLS) Originated in reaction to the inability of liberalism to solve social problems. It does not have an alternative programme, but rather unmask the ills of liberalism. It states that in IOS legal theories and legal reasoning are supported by political considerations, and the existing political and social balance of power is consolidated. (b) Deconstruction It’s a reaction against structuralism. Structuralism claims that the meaning of language can be ascertained and pinned down from its grammatical structure; it supports literal interpretation and positivism. Deconstruction on the other hand calls for a person to consider and reconsider, and ultimately to reformulate, dominant theories and opinions about society. It states that the meaning of a text is not determined by the author, allowing the reader to interpret impartial and unbiased manner. A text can never acquire a fixed final meaning, the meaning depends on the set of codes, social cultural and political. Meaning is not embedded in the text, instead it is subjective to any number or interpretations. Interpretation has everything to do with the text and the interpreter. (c) The Linguistic turn The linguistic turn in legal interpretation at any rate amount to this: meaning is not discovered in a text, but is made in dealing with the text. Meaning is never at any given time, a fixed and stable presence. The possibilities for the meaning are boundless. Language is the hyper-complex, boundless open system that makes such proliferation meaning possible. 3. SOUTH AFRICAN THEORIES OF INTERPRETATION The two main approaches to statutory interpretation are the literal (text-based) approach and the purposive (text-in-context) approach. 3.1. The orthodox text-based approach Definition: The interpreter should concentrate primarily on the literal meaning of the provision. It is the primary rule of interpretation that. If the meaning of the text is clear (the plain meaning) it should be applied and indeed equated with the legislature’s intention. If the 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 absurdity, this is also known as the golden rule of interpretation. Then the court would turn to so called secondary aids (long titles, headings, chapters, sections, other official language), if still that fails then tertiary aids (common law presumptions). This was influenced by English law. Introduced in SA in the De Villiers case. The text-based methodology is based on the predominance of the word and phrases, and the intention of the legislature is demoted to the status of the literal meaning of the text. As a result, lip-service was paid to the principle of legislative intent, because courts automatically elevated the so-called „clear and unambiguous‟ meaning of the words to the status of the will and intention of the legislature: If the legislature had a specific intention, it would be reflected in the clear and unambiguous words of the text. Interpreter should concentrate primarily on the literal meaning of the provision to be interpreted. The interpretation process should proceed along the following lines: Firstly→ the primary rule of interpretation: → if the meaning of the words is clear, it should be put into effect, &, indeed, equated with the legislature's intention. Secondly→ the 'golden rule' of interpretation: → if the so-called 'plain meaning of the words is ambiguous, vague / 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. → Then the court will turn to the so-called 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). Thirdly→ should these 'secondary aids' to interpretation prove insufficient to ascertain the intention, then the courts will have recourse to the so-called 'tertiary aids' to construction, → IE: the common law presumptions The literal approach was popular in legal systems influenced by English law. There are four factors which led to the adoption of the textual approach in England: 1. Misconceptions about the doctrines of the separation of powers (the trias politica doctrine) and sovereignty of parliament resulted in acceptance of the idea that the court's function should be limited to the interpretation and application of the will of the legislature (as sole enactor of legislation), as recorded in the text of the particular legislation. In other words, the will of the legislature is to be found only in the words of the legislation. 2. The doctrine of legal positivism influenced the literal approach in England. The positivist idea is based on the validity of the decree (command): that, which 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 (the intention of the legislature), not as it ought to be. A strict distinction is made between law and morality, because value judgements by the courts would lead to the justiciability of policy issues 3. 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. 4. English legislation was drafted to be as precise and as detailed as possible, for the sake of legal certainty and to cover any number of possible future cases. The well-known maxim that the legislature has prescribed everything it wishes to prescribe is derived from this approach. The text of the provision always takes precedence in the process of interpretation. 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 of statutory interpretation. → this 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. → the RD approach was replaced by the literal approach of English law. → Traditionally, the RD rules of statutory interpretation are based on a functional / purpose-orientated approach, but after the British occupation of the Cape the English rules of interpretation started to play an ever-increasing role. The essence of textual interpretation is based on the following principles: (1) If the meaning of the words is clear, that meaning is deemed to be what the legislature intended. The intention of the legislature is derived from the plain meaning of the statute's words. (2) The golden rule of textual interpretation is that the court may deviate from the literal meaning of the statute only if the words are unclear, ambiguous or if a literal interpretation will lead to an absurdity. (3) The textual approach is derived from legal positivism. Legal positivism argues that all law is derived from the state. The command of the state (i.e. legislation) is the essence of the rules which make up the law. (4) The textual approach leaves very little room for judicial law-making. The courts are seen as mere mechanical interpreters of the law. (5) In the cases of Union Government v Mack, Dadoo Ltd v Krugersdorp Municipal Council & Farrar’s Estate v CIR: it was held that the intention of the legislature should be deduced from the particular words or phrases used in the text; in other words; the 'plain meaning' of the text in an "intentional disguise. Only lip service was paid to the principle of legislative intent, because the courts automatically elevated the 'clear and unambiguous meaning of the words' to the status of the will and intention of the legislature. (Note: This means that intentional approach is not synonymous with the literal approach but may be used to support it). (6) According to the textual approach, the legislature has a specific intention and the ordinary, grammatical meaning of the text is decisive in determining it (R v Kirk) (words come before context.) (7) The plain meaning approach/the golden rule/predominance of the word approach was adopted into South African law by Lord De Villiers in De Villiers v Cape Divisional Council 1875. → in Engels v Allied Chemical Manufacturers (Pty) Ltd it was held that: The rules of construction of Acts of Parliament…clearly state that they must be construed according to the intention of the legislature expressed in the Acts themselves. One consequence of this rule is that a statute may not be extended to meet a case for which provision has clearly & undoubtedly not been made. Criticism of the textual approach (1) Presumptions and context is ignored: The central role played by the common law presumptions during the interpretation process is reduced to a mere 'last resort', to be applied only if the text is ambiguous. →This leads to the absurd situation that the ignored context and presumptions suddenly regain importance and become 'necessary' as soon as the text seems ambiguous! (2) The approach is to narrow: The words are regarded as the primary index of the legislature's intention (legislative meaning). →This means that other internal and external aids to interpretation which are applied to establish contextual meaning are ignored. →The crucial role of the context of the legislative text is reduced to a mere inanity, only to be looked at if the text proves unclear. →Unless the textual meaning is ambiguous or unclear‟; the interpreter will not have recourse to the wide range of aids to interpretation at his disposal. →The data necessary to reach a just and meaningful conclusion are excluded from the process, increasing the risk of incorrect concretisation. It should be borne in mind that the text serves only as the medium through which meaning is communicated. (3) The literal approach is inherently subjective and depends on the interpreter's understanding of the words: Since The court will deviate from the so-called „plain meaning‟ of the text only if it is unclear or ambiguous, and the eventual application of the intra- and extra-textual aids to interpretation depends on how clear the text may seem to the particular interpreter. → As a result, the 'intention of the legislature' is ultimately dependent on the court's decision on the clarity of the particular legislative text! (4) Very few legislative texts are so clear that only one interpretation is possible: The view that a legislative text can be clear and unambiguous must be questioned. Few texts are so clear that only one interpretation is possible. →The mere fact that a discipline such as interpretation of statutes exists would by implication suggest that legislative texts are seldom clear and unambiguous. (5) The textual approach leaves very little room for judicial law-making or for the exercise of a judicial discretion: The judge is seen as a mechanical interpreter of the law. This view creates the impression that once the legislature has spoken the courts ceases to have any law-making function. → According to the text-based interpreters the legislature has enacted everything it wanted to, and is aware of the existing law. → As a result of a slavish and rigid adherence to the doctrine of the separation of powers, the courts may only interpret the law, not make it. → The legislature creates the legislation, and the courts have no law-making capacity with regard to legislation. → Only in very exceptional cases may the courts deviate from 'the literal meaning' of the legislation to apply so-called 'modification of the text'. → Generally speaking, it is the function of the legislature to correct omissions and bad drafting in legislation. →The principle that nothing should be added to or subtracted from the text of legislation has a very inhibiting influence on the law-making discretion of the courts. 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. The idea that a judge may not add to or subtract from the legislative text is based on an incorrect misinterpretation of two common law principles (which are constitutionally no longer relevant): In terms of the maxim iudicis est ius dicere sed non dare it is the function of the court to interpret and not to make the law. → According to Harris v Law Society of the Cape of Good Hope the court is bound by the clear letter of the law, and the iudicis est rule means that only the legislature may supplement or alter deficiencies in legislation. → This approach is derived mainly from a misunderstanding of the separation of powers doctrine. → As a result, this principle was, in the past, used in a number of cases to justify the literal approach to statutory interpretation. → The general context and the purpose of the legislation were neglected as a result → (This rule no longer applies in SA due to s39 of the Constitution). The well-known casus omissus rule (the courts may not supply an omission in a law, as this is the function of the legislature) is derived from the principle that the function of the courts is to interpret law and not to make it. → (This rule is also redundant in the light of s39 of the Constitution). Unfortunately, some of our courts still refer to the traditional approach. Smallberger in Public Carriers Association v Toll Road Concessionaries states: “It must be accepted that the literal interpretation principle is firmly entrenched in our law and I do not seek to challenge it” 3.2. The text-in-context approach Traditionally, the Roman-Dutch rules of statutory interpretation were based on a functional or purpose-oriented approach, but after the British occupation of the Cape, the English rules of interpretation started to play an ever-increasing role. One of the main reasons for this is that the majority of South African jurists were trained in England, with the result that English law influenced South African law for a number of decades. The objective, purpose-orientated contextual approach provides a balance. A purpose oriented 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 search for the purpose of legislation requires a purposive approach which recognises the contextual framework of the legislation right from the outset. 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 & 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. Objective intention “Intention‟ must be determined objectively; the subjective related to “Intention‟ of the legislature (the composite body) must be replaced by 'intention' (legislative purpose) in the objective sense i.e. the purpose or object of legislation (in other words, what did the legislature 'intend' to achieve with the legislation?). The mischief rule The so-called mischief rule is the basis of contextual interpretation: 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. The position in South Africa before 1994 Before the commencement of the 1993 Constitution, statutory interpretation in South Africa was in a gradual state of transition from the rigid literal approach towards a more flexible contextual approach. The following are guidelines for interpretation of statutes: From the outset, the interpreter may take the wider context of provisions (e.g. its ambit & purpose) into consideration with the legislative text in question. → The plain grammatical meaning of the legislation is the beginning of this process. Irrespective of how clear or unambiguous the grammatical meaning of the legislative text is, the relevant contextual factors must be taken into account. Unlike the textual-literalist approach, there is no primary, secondary or tertiary hierarchical order of importance of aids; In S v Zuma, the importance of words in constitutional interpretation was stressed; Sometimes this wider context may even be more important than the actual grammatical meaning of the legislative texts. 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. This was one of the concrete efforts in SA case law to move beyond the plain grammatical meaning by using the wider context to ascertain the legislative purpose → After that, a few courts were more prepared to interpret the text of the legislation in the light of the wider contextual framework. The contextual approach was supported in Mjuqu v Johannesburg City Council & University of Cape Town v Cape Bar Council. → The decision in Mjuqu v Johannesburg City Council can almost be regarded as a model of the contextual approach, since Jansen JA utilises virtually the entire spectrum of available aids & surrounding circumstances to determine the purpose & scope of the legislation in question. → In University of Cape Town v Cape Bar Council it was held that the court has to examine all the contextual factors in ascertaining the intention of the legislature, irrespective of whether / not the words of the legislation are clear & unambiguous. Inherent lawmaking discretion The contextual interpreters hold the view that the judiciary has inherent lawmaking discretion during statutory interpretation. This discretion is, however, limited (qualified) 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 law-making function of the judiciary is not an infringement of the legislature’s legislative function, but merely a logical extension of the powers of the court during the interpretation & application of the relevant legislation in each practical instance. Consequently, the application & utilisation of the presumptions and the various aids to interpretation are very NB tools for the contextual interpreters in the quest for the scope & purpose of legislation. According to the text-in-context approach, the court may modify / adapt the initial meaning of the text to harmonise it with the purpose of the legislation. → The role of the courts is therefore far more flexible & is not limited to mere textual analysis & mechanical application of the legislation. 4. The influence of the supreme Constitution (a) Constitutional supremacy Prior to 1994, they had the textual approach; the debate has become irrelevant, since the new constitution, which included an express and mandatory interpretation provision. Interpretation now has to be founded within the value-laden framework of the Constitution. It was transformed by six provisions of the constitution. S1 (foundational provision) s 2 (supremacy of the Constitution, s 7 (the obligation clause), s8 (the application clause), s36 (the limitation clause) and s 39 (the interpretation clause) (b) The interpretation clause Forces interpreter to consider the Bill before even interpreting, This eventually means that the interpreter is consulting extra textual factors. Factors outside the text are immediately involved in the Interpretation process. (c) Constitutional values Use the S v Makwanyane judgment; it explains the need to use the values in the constitution as we interpret. The preamble to the constitution refers to a society based on democratic values, social justice and fundamental human rights. The courts have to protect these rights and values. Consequently, the interpretation of statutes can no longer be a mechanical reiteration of what was supposedly intended by parliament but rather what is permitted by the constitution. (d) The impact of constitutionalism A constitutional state has two underpinning foundation, a formal one (which includes aspects such as the separation of powers, checks and balances, principle of legality) and the other the material or substantive one (the fundamental values such as justice and equality). S v Makwanyane-In SA the constitution represents a decisive break from a disgracefully racist past. Although it does expressly refer to SA as a constitutional state, the provisions have the characteristics. Some courts still follow and still believe in the text based approach. Geyser v Msunduzi Municipality still applied the text based approach to find the intention of the legislature. 5. Practical, inclusive method of interpretation An approach where intention, positivism and literalism are brought together to interpret, the problem is these are very different and their application will only lead to the step by step application of the approaches differently. We call this the hybrid approach. The different components are: (a) Words and phrases: the language aspect It acknowledges importance of the role of the language of the legislative text. It focuses on the linguistic and grammatical meaning of words and phrases, punctuation, sentences and other structures. This does not necessarily go back to the orthodox literalism approach; it just acknowledges the importance of language. (b) Structure and context: the systematic aspect This method is concerned with the clarification of the meaning of a particular legislative provision in relation to the legislative text as a whole. This is known as the holistic approach. Words cannot be read in isolation, also all the contextual considerations are considered as well. (c) Teleological interpretation: the value-based aspect 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→ in other words section 39(2) The fundamental values in the Constitution form the foundation of a normative (regulating), value-laden jurisprudence against which legislation and actions are evaluated. (d) Historical aspect This method refers to using the historical context of the legislation. These include circumstances which gave rise to the legislation, the prior legislation, this is important but it cannot be decisive on its own. (e) Comparative aspect This refers to the process (if possible & necessary) during which the court examines international human rights law and the constitutional decisions of foreign courts. IE: such as that prescribed by s 39(1) of the Constitution. 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.