 Statutory Interpretation

The interpretation of statutes, more precisely, the juridical understanding of legal texts.
Legislation, in other words, deals with the body of rules and principles which are used to
construct the correct meaning of legislative provisions to be applied in practical situations. The
use of these principles/rules is necessary for the following reasons:
 the written and spoken words are imperfect renderings of human thoughts
 in the case of legislation, the courts are obliged to use specific rules of interpretation to
construe its meaning.

The Importance of Statutory Law

The question whether statutory law is a prime source of law is a debatable one. Statutory law as
written law is indispensable to the effective administration and regulation of any modern state.
The relationship between statutory law and common law: our legal system can be best described
as a hybrid system. It is historically related to two different families of the legal system. On the
one hand, it is related to the Roman-Germanic system of western Europe, which legislation has
come to enjoy an indispensable supremacy as a source of law. On the other hand, the English
common law family in which case/judgment law prevails.
*The prime source of law in Namibia is the Constitution

Advantages of Statutory law (compared to case/customary law)

1. Since there are case in a formal way and are written, Statutes are readily accessible and
knowable.
2. Statutory law is flexible; it can readily be altered and adapted to ever-changing
circumstances, especially if there is sound cooperation between the legislature and judiciary.
3. Since statutes are written, they remain as such until repealed. They contribute to enhancing
legal certainty.

Types of Legislation
Original Legislation: these are Acts of Parliament; derives from the complete and
comprehensive legislature capacity of an elected legislative body AKA direct or primary
legislative capacity. Since it is derived directly from the Constitution or is assigned by another
Act of Parliament.

Delegated Legislation: Acts of parliament and other forms of original legislation are
sometimes drafted in broad terms (skeleton form), because the respective legislative bodies are
not continuous in session to deal with every possibility in a changing society. Delegated
legislation then ‘adds the flesh’. The legislature might find it necessary to delegate some of its
powers to other persons, bodies or tribunals. These are then vested with delegated legislative
(subordinate legislative) powers under enabling legislation.
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 Traditional Theories of Interpretation
1. Orthodox text-based (literal) approach
2. The purposive (in-text) approach
3. Judicial/free approach

Literal Approach
λ The first theory is a theory of literalism (plain-meaning approach). It is condensed at the
true meaning of the text, it is to be sought in “ipsissima verba” used in the legislature: the
meaning it equated with linguistic/philosophical meaning.
λ The safer course to adopt is to observe the literal and grammatical sense of words employed
and leave it to the legislature, which also is at the hands for the purpose to amend the law in
case such construction should not carry out its real intention.
λ The literal rule in its crude (basic/simple) form has undergone metamorphosis
(change/alteration). This is because in its crude form, the literal rule says that if the words of
an enactment are unambiguous and clear, then you apply it, notwithstanding its absurdity of
its application.
λ According to the textualist, the interpretative process should proceed along the following
lines:
1. It is the primary rule of interpretation that if the meaning of the words is clear, it
should be put into effect and indeed equated with the legislature’s intention.
CASE: Principle Immigration Officer v Hawabu 1936 AD 26

2. 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
CASE: Venter v R 1907 TS 910 914
This is also known as the golden rule of interpretation (secondary aids of
interpretation). This is used to find out the intention of the legislature (such as the
long title of the statute, headings to chapters and sections).
3. Should these secondary aids to interpretation prove insufficient to ascertain the
intention, the courts will have recourse to the so-called ‘tertiary aids’ to
construction.

Criticisms of the Literal Approach

i. In a text that has few wordings are so clear that only one interpretation is possible.
Meaning the existence of the regulation in interpretation of statutes advocates that
legislation is rarely clear and unambiguous.
ii. The normative function of the common law presumptions throughout the legislative the
interpretation process is reduced to a mere ‘last resort’, to be applied only if the
legislative text is ambiguous and unclear.
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iii. Some crucial methods of interpretation (internal and external) are overlooked and
disregarded.
iv. As a consequence, the ‘intention of the legislature’ is reliant on how clear the language
used in the legislation may be to the particular court.
v. In the narrow approach, words are considered as the basic guide to legislative meaning.

The literal approach leaves very little room for judicial law-making, and the courts are seen as
mere mechanical interpreters of the law.

*The Golden rule is part of the Literal rule. The Golden rule modifies the meaning of the words

CASE: Farrar’s Estate v CIR 1926 TPD 501

In particular at page 504 the court said: the governing rule of interpretation over writing the so-
called golden rule is to endeavor to ascertain the intention of the lawmaker from the study of
provisions of the enactment in question.

The literal approach seems to still be popular through the influence of English law. Generally
speaking, 4 factors led to the adoption of the textual approach in England:
λ Misconception about 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 recorded in the text of the
particular legislation. In other words, the will of the legislature is only to be found in the
words of the legislation.
λ The doctrine of legal positivism influenced the literal approach in England. The positivists
idea is based on the absolute validity of the decree/command. The role of the court is
limited to the analysis of the law as it is not as it ought to be.
λ 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 has been viewed as the
exception to the rule, altering the traditional common law as little as possible.

Wider Contextual Theory

The mischief rule is the wider contextual theory, it was formulated in the Heydon’s case (1584) 3
Co Rep 7a and forms the cornerstone of the contextual approach to interpretation. It poses 4
questions that must be answered to establish the meaning of legislation:

1. What was the legal position before the legislation was adopted?
2. What was the mischief (defect) not provided for by existing legislation or common law?
3. What remedy was provided by the legislature to solve this problem?
4. What was the true reason for the remedy?
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True interpretation is always suppressive of the mischief in that it is conclusive to the remedy
aimed at its elimination. The mischief approach examines the purpose of legislation because the
purpose of legislation is sometimes used to shed light on the true intention of the legislation once
the plain meaning has failed.

CASE: Jaga v Donges 1950 (4) SA 653 (A)

Schreiner JA argued in favor of the purposive approach, hence according to him, that this
approach aims at avoiding the pitfall of literalism throughout the process of interpretation.
Cowen maintains with Schreiner that the interpretation of an enactment involves and requires
recognition of its contextual framework right from the outset. Thus a proper balance is ought
therefore to be struct between the grammatical meaning and the overall context.
Recourse to the contextual element should not occur only to the plain/grammatical meaning of
the enactment proves to be insufficient due to ambiguity. This approach is referred to as a more
modern approach to interpretation of statutes.

CASE: Mjuqu v Johannesburg City Council 1973 (3) SA 421 (A)

This case can be regarded as a model of the contextual approach. This case made use of all the
aids of statutory interpretation surrounding the circumstances used to determine the scope of the
interpretation. The judge took in account the intention of the legislature.

CASE: University of Cape Town v Cape Bar Council 1986 (4) SA 903
The court held that 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 legislature are clear
and unambiguous.

CASE: Public Carriers Association v Toll Road Concessionaries (Pty) Ltd 1990 (1) SA 925
Smalberger JA came to the conclusion that although the intention of the legislature is the primary
rule of interpretation, it must be accepted that the literal interpretation principle is firmly
entrenched in our law and I do not seek to challenge it.

Judicial Theory:
This is a free theory of interpretation, which in its moderate form recognizes and justifies and in
its radical form, which vehemently advocates the creative role to be played by the judiciary in
the interpretation and application of statutes.

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 The Influence of the Constitution
The traditional SA approach to statutory interpretation was characterized by a strict devotion to
the legislative text, and the sovereignty of parliament. Now the supreme Constitution is the
fundamental law, the yardsticks against which everything should be measured. It is a valuated
document; as a result the plain meaning/grammatical interpretation can no longer be the
overriding/decisive factor in interpretation.

CASE: S v Makwanyane 1995 (3) SA 391

CASE: Holomisa v Argus Newspapers Ltd 1996 (2) SA 588

CASE: Kalla v The Master 1995 (1) SA 261 (T)

In this case the court held that the traditional rules of statutory interpretation still formed part of
the law and the land and that they were not affected by the Constitution.

*CASE: Matiso v Commanding Officer, Port Elizabeth prison 1994 (4) SA 592
In this case, the intention of the Legislature does not apply in a system of judicial review based
on the supremacy of the Constitution, for the simple reason that the Con is sovereign and not the
Legislature.

*CASE: Namujebo & Others v WHK Prisons 1999 NR 271 (SC)

In this case, the prisoners tried to escape, they were then chained. It was then said that this was a
violation of dignity. It was a contravention of Art 8 of the Nam Con. They were put in chains for
5~6 months. Sec 80 of the Prison Act, regulation 102 was declared unconstitutional.
Value judgment was used in this case. In determining VJ, the court looked at other international
instruments. Value judgment takes into consideration:
λ Contemporary Norms
λ Expectations
λ Sensitivities

Q: where do we find these considerations?

λ Historical Background
λ The Constitution of Namibia
λ Value laden documents
λ Universal Declaration of Human Rights

This is not a static exercise, it is evolving and dynamic. Whatever might be acceptable in the
past, might appear to be human degrading today.

* in Exam
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CASE: S v Tcoeib 1996 (7) BCLR 996 (NmS)
The court had said that life imprisonment in itself is not unconstitutional. Life imprisonment in
Namibia is 20 years. In this case, the court also looked at the values of the people.
The NB part of the case:
The major and basic consideration when arriving at a decision involves an enquiring:
λ Contemporary Norms
λ Aspirations
λ Sensitivities
λ Expectations
λ Perception of the Namibian society
λ Experiences
λ Moral Standards

“Such a culture of mutually sustaining despair appears to me to be inconsistent with the deeply
humane values articulated in the preamble and the text of the Nam Cons which eloquently
portrays the vision of a caring and compassionate democracy determining to liberate itself from
the cruelty, pain, shame, repression of its racist and colonial past. Those values require the organs
of the society continuously and consistently to care for the conditions of the prisoners, to seek to
manifest concern for, to reform and rehabilitate those prisoners during incarceration, and
concomitantly to induce in them a consciousness of their dignity, a belief in their worthiness and
hope in their future.”

The judge came to the conclusion that life imprisonment does not amount to a sentence of death.
One needs to distinguish between the deprivation of life and the deprivation of liberty. A life
sentence cannot be interpreted as a death sentence. Life imprisonment does not terminate the life
of the imprisoned, it invades his liberty.

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Similarities between Statutory Interpretation and Constitutional
Interpretation

The practical inclusive method of interpretation

λ Grammatical Interpretation: this aspect acknowledges the significance of the function of
the language of the constitutional text. It focuses on the linguistic and grammatical meaning
of the words, phrases, sentences and other structural components of the text.
λ Systematic Interpretation – This approach is concerned with the illumination of the
meaning of a particular constitutional provision in combination with the Constitution as a
whole
λ Teleological Interpretation – This requires a value-coherent construction, the aim and
purpose of the provision must be ascertained against the fundamental constitutional values.
λ Historical Interpretation – this approach refers to the use of the ‘historical’ context of the
Constitution. The historical context includes factors such as the circumstances which gave
rise to the adoption of the Constitution.
λ Comparative Interpretation – This refers to the process during which the court examines
international law and the constitutional decisions of foreign courts.