Theme 5 Theoretical Foundations PDF

Pass and Prosper 32 THEME 5: THEORETICAL FOUNDATIONS Introduction Overview A basic understanding of the theoretical background of statutory interpretation is essential for a perspective on and understanding of the subject. One of the reasons for the dismal state authority of statutory interpretation...

Pass and Prosper 32 THEME 5: THEORETICAL FOUNDATIONS Introduction Overview A basic understanding of the theoretical background of statutory interpretation is essential for a perspective on and understanding of 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 indepth of what the methods actually come to. Basic Outline Covered (NB) 1. Jurisprudential perspectives on statutory interpretation 1.1. General rule of Hermeneutics 1.2. Context and Interpretation 1.3. The influence of certain modern critical theories 1.3.1. Critical Legal Studies Movement 1.3.2. Deconstruction 1.3.3. The Linguistic Turn 2. South African Theories of Interpretation 2.1. The orthodox text-based approach 2.1.1. Criticism of the textual approach 2.2. The text-in-context approach 2.2.1. A purpose orientated approach 2.2.2. Objective intention determined 2.2.3. The mischief Rule 2.2.4. The position in South Africa Pre-1994 2.2.5. Inherent law-making discretion 3. Influence of the Supreme Constitution 3.1. Constitutional Supremacy 3.2. The Interpretation Clause 3.3. Constitutional Values 3.4. The Impact of constitutionalism 4. Practical, inclusive method of interpretation 4.1. Words and phrases (The language aspect) 4.2. Structure and context: (The systematic aspect) 4.3. Teleological interpretation: (The value-based aspect) 4.4. Historical aspect 4.5. Comparative aspect Jurisprudential The General Principles of Hermeneutics perspectives on v It is defined as: The science of understanding, or more specifically, Statutory as the theory of the interpretation of texts. Interpretation Ø The understanding and explanation of texts to reveal their inherent meaning. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper v v v v v 33 Ø It is the art of understanding the techniques used in interpretation of texts. It is derived from the Greek word hermeneuein, which means interpret. What is the need for hermeneutics? Ø 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. Difference between exegesis and hermeneutics which developed separately: Ø Exegesis à Relates to biblical interpretation Ø Hermeneutics à Statutory interpretation Similarities and Differences between Exegesis and Hermeneutics: Ø Similarities: § Interpret established authoritative texts with regard to current concrete situations § Both have an existential urgency § Interpreter must deal with demands of changing situations § Interpretation is influenced by history Ø Differences: § Legislations has a distinct style § Biblical text is “closed” à Complete/Finished. Gadamers’ hermeneutics: Ø Took into cognizance the socio-historical situation or context of interpreter (contextual approach hermeneutics). Ø 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. Ø Therefore, the science of understanding is not a mechanical process but includes the contribution of the interpreter’s value judgment. Context and Interpretation v Every painting tells a story, the same way that a piece of text might. However, to make sense of the picture you must consider its context. The same goes for text. v Picasso’s painting analogy Ø Guernica painting consists of a disturbing mix of violent images. Ø Based on Spanish Civil war. Ø It is now a universal image of the atrocities of war. Ø Text + Context = Understanding The Influence of Critical Theories in General v Critical legal scholars reject the formalist position that law is rational, objective and neutral. v Instead, the law is theorised as being subjective and ideological. v There are many debates concerning the literal vs contextual interpretation approaches. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 34 v Post-modernism less a school of thought and more an intellectual style that rejects preconceived ideas and macro-arguments and categorization. Ø It accepts that everything is relative, and in the process, it welcomes problems, paradoxes and contradictions. Ø Postmodernism argues that the utopian promises of the modern worldview came to nothing. Ø Postmodernism rejects the idea that classifications and categories can be correct and final, and the notions of both objectivity and subjectivity are questioned. The Influence of certain modern critical theories v The Critical Legal Studies Movement (CLS) Ø It originated in reaction to the inability of liberalism to solve social problems such as poverty, racism, pluralism, and oppression. It does not provide an alternative, but merely seeks to unmask the ills of liberalism. It raises the following 3 main criticisms: § Legal rules are determined by political and ideological considerations. § Liberal legal traditions focus on the individual and ignore the community. § Legal reasoning and legal theories are supported by political considerations, whereby the existing political and social balance of power is consolidated. v Deconstruction Ø It is a reaction against Structuralism. § Structuralism claims that the meaning of language can be ascertained and pinned down from its grammatical structure, thereby supporting literal interpretations and positivism. Ø Deconstruction § Calls for a person to consider and reconsider, and ultimately formulate dominant theories and opinion about society. § The meaning of a text is not determined by the author, allowing the reader to interpret impartially and without bias. § In deconstruction a text can never acquire a fixed final meaning, because the meaning depends on the set of codes, social and cultural and political. § Meaning is not embedded in text, instead it is subjective to any number of interpretations. § During interpretation of statutes, different texts are simultaneously in interaction with each other. Thus, the legislature cannot control the manner in which the interpreter will interpret the legislative text. § Contextual interpretation is also criticised, because context can only give a provision a fixed meaning if the context itself is fixed. § Deconstruction shifts the focus to judicial choices and accountability. Interpretation is no neutral and value free. Personal cultural and ideological value systems play a role. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 35 v The Linguistic turn Ø Meaning is not discovered in a text but is made in dealing with the text. Ø Meaning is never at any given time, fixed and stable. The possibilities for the meaning are boundless. Ø Essentially, only by questioning existing dogmas, beliefs and orthodoxies will the law be able to adapt and change. South African Overview (NB FOR TEST) Theories of There are two main approaches to statutory interpretation in South Interpretation Africa, which include: v The literal (text-based) approach v The purposive (text-in-context) approach The Literal approach (Simplified from Notes Provided) v General: The interpreter should concentrate primarily on the literal meaning of the provision to be interpreted, and the interpretation process should proceed along a set of clear steps. Ø Primary Rule of Interpretation § Principal Immigration Officer v Hawabu If the meaning of the text is clear it should be applied and, indeed, equated with the legislatures intention. Ø The Golden Rule of Interpretation § Venter v R 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 such an absurdity. This is where the court turns to secondary aids (long title, headings, text in the other official language). Ø Tertiary Aids § Where the secondary aids prove insufficient to ascertain the intention, the courts will have recourse to so-called tertiary aids to construction (common law presumptions). v 4 Factors that lead to the adoption of the textual approach in England Ø Misconceptions about the doctrines of the separation of powers 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 recorded in the text of the particular legislature. Ø The doctrine of legal positivism influenced the literal approach in England. Ø The common law tradition allowed courts to be creative with regard to the common law, which made legislation the exception preventing the altering of the common law as much as possible. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 36 Ø English legislation was drafted to be as precise and as detailed as possible to ensure legal certainty and cover any number of possible future cases. v Adoption of the textual approach in South Africa Ø De Villiers v Cape Divisional Council § Held that legislation adopted after the British occupation should be interpreted in accordance with the English rules of statutory interpretation. Ø This was a shift because the Roman-Dutch rules favoured the purpose-orientated or functional approach. Ø Union Government v Mack § It was held that the intention of the legislature should be deduced from the words used in the legislation. § 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. Ø Farrar’s Estate v CIR § Agrees with Mack. Ø Dadoo Ltd v Krugersdorp Municipal Council § Agrees with Mack and Farrar’s Estate Ø R v Kirk § The legislature has a specific intention and the ordinary, grammatical meaning of the text is decisive in determining it. Ø Engels v Allied Chemical Manufacturers (Pty) Ltd § 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 and undoubtedly not been made. v Summary of Textual Approach with 7 Principles Ø If the meaning of the words is clear, then that meaning is deemed to be the legislatures intention. Ø The golden rule is that the court may deviate from the literal meaning only if the words are unclear, ambiguous or result in absurdity. Ø It is derived from legal positivism. Ø Very little room for judicial law-making. Ø Mack, Dadoo Ltd and Farrar’s Estate confirm the adoption of the textual approach in South Africa. Ø According to R v Kirk, the legislature has a specific intention and the ordinary, grammatical meaning of the text is decisive in determining it. Ø The plain meaning approach was adopted into South African Law in De Villiers v Cape Divisional Council. v Criticism of the Textual Approach Ø Presumptions and context is ignored. Ø The approach is too narrow Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 37 Ø The literal approach is inherently subjective and depends on the interpreter’s understanding of the words. Ø Very few legislative texts are so clear that only one interpretation is possible. Ø The textual approach leaves very little room for judicial lawmaking, as courts are only allowed to interpret. § The Maxim: Iudicis est ius dicere sed non dare It is the function of the court to interpret and not to make law. 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. § Section 39 of the Constitution makes this rule redundant. § Smallberger in Public Carriers Association v Toll Road Concessionaries Some courts still refer to the traditional approach, regardless of Section 39 of the Constitution. Held: It must be accepted that the literal interpretation principle is firmly entrenched in our law and I do not seek to challenge it. The Text-in-Context Approach v The legislative function is a purposive activity, and in terms of this approach, the purpose or object of the legislation is the prevailing factor in interpretation. v The approach establishes a balance between the grammatical, literal meaning and the overall contextual meaning as the interpretation of the legislation are also taken into account. v South African Police Service v Public Servants Association Ø The Constitutional Court held, that a purposive approach does not give a court license to distort the ordinary meaning of words beyond that which they are reasonably capable of bearing. v Objective intention Ø “Intention” must be determined objectively. Ø Replace the subjective intention of the legislature with the objective intention (legislative purpose). v The Mischief Rule Ø It is the basis of contextual interpretation. Ø This rule acknowledges the application of external aids. Ø The common law prior to the enactment of the legislation, defects in the law not provided for by the common law, what new remedies di the legislature provide and the true reason for the remedies. Ø Saidi v Minister of Home Affairs § The Constitutional Court emphasised: It is the context within which words are used which sheds light on their meaning. The fact that a particular word is given a specific meaning in one statute does not mean that Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 38 the word must carry the same interpretation in every statute. The meaning to be ascribed to it depends on the sense in which the word was used. Ø Jaga v Dönges § From outset, interpreter can take wider context of the provision into consideration. § Regardless of the clarity of the language, the wider contextual factors must be considered. § Sometimes this wider context may be more important. § Once the meaning of the text and context is determined, it must be applied. Ø S v Zuma § The importance of words in constitutional interpretation was stressed. § There is no primary, secondary or tertiary hierarchical order of importance of aids. Ø University of Cape Town v Cape Bar Council § The court has to examine all the contextual factors in ascertaining the intention of the legislature, irrespective of whether or not the words of the legislation are clear and unambiguous. Ø Thoroughbred Breeders’ Association v Price Waterhouse § The Court warned against the plain-meanign approach to interpretation. Ø 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. v Inherent Law-making discretion (As per provided notes) Ø The contextual interpreters hold the view that the judiciary has inherent law-making 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. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 39 § The role of the courts is therefore far more flexible & is not limited to mere textual analysis & mechanical application of the legislation. Influence of the Constitutional Supremacy Supreme v Prior to 1994 Constitution Ø Textual Approach v Post 1994 Ø Textual Approach removed using: § Section 1 § Section 2 § Section 7 § Section 8 § Section 36 § Section 39 The Interpretation Clause v Forces interpreter to consider the Bill of Rights when interpreting. v Causes the consultation of extra textual factors. v Factors outside the text are immediately involved in the Interpretation process. Constitutional Values v S v Makwanyane Ø Explains the need to use values in the Constitution during interpretation. § Preamble provides for democratic values, social justice and fundamental human rights. § Courts must protect these values. § Interpretation is no longer mechanical as a result. Impact of Constitutionalism v There are two underpinning foundations to a constitutional state Ø Formal Foundation (Separation of Powers, Checks and Balances, Principle of Legality) Ø Material or Substantive Foundation (Fundamental values such as justice and equality). Practical, Overview inclusive v An approach where intention, positivism and literalism are brought method of together to interpret, the problem is these are very different and their interpretation application will only lead to the step by step application of the approaches differently. We call this the hybrid approach. The different components are explained below. Words and Phrases: The Language Aspect v It acknowledges importance of the role of the language of the legislative text. v It focuses on the linguistic and grammatical meaning of words and phrases, punctuation, sentences and other structures. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 40 v This does not necessarily go back to the orthodox literalism approach; it just acknowledges the importance of language. Structure and context: The systematic aspect v This method is concerned with the clarification of the meaning of a particular legislative provision in relation to the legislative text as a whole. v This is known as the holistic approach. v Words cannot be read in isolation, also all the contextual considerations are considered as well. Teleological Interpretation: The value-based aspect v It emphasises the fundamental constitutional values and a valueorientated interpretation. Ø The aim and purpose of the legislation must be ascertained against the fundamental constitutional values [s 39(2)] Ø The fundamental values in the Constitution form the foundation of a normative (regulating), value-laden jurisprudence against which legislation and actions are evaluated. Historical Aspect v This method refers to using the historical context of the legislation. v These include circumstances which gave rise to the legislation, the prior legislation, this is important but it cannot be decisive on its own. Comparative Aspect v This aspect refers to the process (if possible and necessary) during which the court examines the interpretation of similar legislation by foreign courts, as well as international law. v Minister of Land Affairs v Slamdien Ø The purposive approach made clear by the Constitutional Court requires: § Ascertaining 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. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper Case Law 41 v Chisuse and others v Director General, Department of Home Affairs and Another Ø Summary: § South African Citizenship Act 88 of 1995 as amended by South African Citizenship Amendment Act 17 of 2010 § Constitutionality of section 2(1)(a) and (b) § Order of constitutional invalidity not confirmed Citizenship § Citizenship by birth § Purposive interpretation is constitutionally compliant interpretation Ø Judgement: § Concerned the interaction of three different provisions in different Acts which ultimately led to the deprivation of citizenship, which was acquired by descent, because no provision was made for it: Section 2(1) of the amended Citizenship Act Section 3 of the pre-amendment South African Citizenship Act Section 13 of the Births and Deaths Registration Act § Constitutional Challenge divided into two groups Citizenship acquired by birth in terms of 1995 Citizenship Act (Group 1). Those born to South African Parents outside the Republic who failed to register their births in terms of section3 of the 1995 Citizenship Act (Group 2) § Section 3 of the Constitution There is a common South African Citizenship. § Section 20 of the Constitution No citizen may be deprived of citizenship § Proper Approach to Interpretation (NB) Determine meaning of provision and then determine if it is in line with the Constitution. Plain, ordinary, grammatical meaning considered as such ordinary meaning is a vital constraint on the interpretative exercise, unless this interpretation would result in absurdity. Quotes Ncobo J in Bato Star ¨ The Constitution is now the supreme law in our country. It is therefore the starting point in interpreting any legislation. Indeed, every court ‘must promote the spirit, purport and objects of the Bill of Rights’ when interpreting any legislation. That is the command of section 39(2). Implicit in this command are two propositions: first, the interpretation that is placed upon a statute must, where possible, be one that would advance at least an identifiable value enshrined in the Bill of Rights; and, second, the statute must be reasonably capable of such interpretation. This flows from the fact that the Bill of Rights ‘is a cornerstone Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper 42 of [our constitutional] democracy’. It ‘affirms the democratic values of human dignity, equality and freedom’. Concludes that the interpretive process must follow the purposive approach defined as: ¨ Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But it may be useful to stress two points in relation to the application of this principle. The first is that ‘the context’, as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and within limits, its background.” The function of a court is: ¨ To arrive at an interpretation that achieves the most appropriate balance between the parties, that fits most comfortably into the constitutional and statutory framework, and that requires the least intrusive addition to the text. The Jacobsen v Levy rule: ¨ If the language of the statute is not clear and would be nugatory if taken literally, but the object and intention are clear, then the statute must not be reduced to a nullity merely because the language used is somewhat obscure. ¨ In essence, if the test is ambiguous but can be interpreted in a constitutional way, then effect should be given to that interpretation. ¨ However, the duty and power to interpret does not mean that courts need to divine sense out of nonsense. If the provision is incapable of a reasonable interpretation which is constitutional, it should be set aside and render null and void for the reason that it is unconstitutional. v The Commissioner for the South African Revenue Service v The Executor of the Estate of the Late Waldo Earl Frith Ø Summary: § The issue in the appeal is how section 4(q) of the Estate Duty Act 45 of 1955 is to be construed. Ø Judgment § Appears to apply a stricter and more textual approach to interpretation, using the aid of presumptions and secondary sources to resolve the issue of interpretation. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect. Pass and Prosper § 43 Heavy focus on the “intention of the legislature” during interpretation process. v Bato Star Fishing v The Minister of Environmental Affairs and Tourism Ø The Ncobo Judgment § Concurred with the judgement but sought to emphasise the importance of transformation. § Argues that the Constitution is the Supreme Law of the Republic. § The provisions of Section 39(2) impose a two-fold proposition (1) The interpretation that is placed upon a statute must, where possible, be one that would advance at least an identifiable value enshrined in the Bill of Rights; and (2) The statute must be reasonably capable of such interpretation. § He speaks extensively to the need to achieve equality and calls for transformative interpretation in line with this fundamental goal. He emphasises that transformation is process. § See quotes above under the Chisuse judgement. v S v Makwanyane Ø Explains the need to use values in the Constitution during interpretation. § Preamble provides for democratic values, social justice and fundamental human rights. § Courts must protect these values. § Interpretation is no longer mechanical as a result. Disclaimer: These notes are free and I make them for my own preparation. If there are any spelling mistakes or errors please find a way to contact me and I will correct them. But be aware, these notes were not made to be perfect.